Ah, love, let us be true

To one another! for the world, which seems

To lie before us like a land of dreams,

So various, so beautiful, so new,

Hath really neither joy, nor love, nor light,

Nor certitude, nor peace, nor help for pain;

And we are here as on a darkling plain

Swept with confused alarms of struggle and flight,

Where ignorant armies clash by night.

            Matthew Arnold, "Dover Beach"

On June 29, 2021 a group of environmental plaintiffs -- Savannah River Site Watch (SRSW, and separately its director Tom Clements), the Gullah/Geechee Sea Island Coalition, Nuclear Watch New Mexico (NWNM), and Tri-Valley CAREs of Livermore, CA -- filed a lawsuit in South Carolina against the Department of Energy (DOE) and its subsidiary the National Nuclear Security Administration (NNSA), alleging that DOE and NNSA had violated the National Environmental Policy Act (NEPA) by failing to undertake a proper NEPA alternatives analysis of NNSA's pit production program, along with four other claims. Plaintiffs were represented by attorneys with the South Carolina Environmental Law Project (SCELP).

After three years of struggles over important preliminary questions, the lawsuit's main issues were argued this spring and summer. On September 30, Judge Mary Geiger Lewis ruled for the plaintiffs on their main NEPA claim, dismissing the other four without prejudice ("Memorandum Opinion and Order," Sep 30, 2024).

As you can read in the above opinion, Judge Lewis ruled that NNSA's determination (p. 67 here, followed by this decision) to not undertake a NEPA alternatives analysis for the two-site plutonium pit production plan unveiled on May 10, 2018 was arbitrary and capricious, and unlawful.

Judge Lewis did not however decide what should be done about that unlawfulness. Faced with conflicting precedents and the highly-consequential effects of a firm decision one way or another, Judge Lewis wrote:

As of this writing, the joint proposal for remedies is due this coming Friday, October 25, but a joint motion for extension of time to file the joint proposal until Nov. 4 was filed today. It will almost certainly be granted.

This past Friday, we wrote to the parties in the case about how we thought the apparent contradictions in this case -- the legal issues, as well as the underlying policy issues -- could be resolved. That Memorandum (which we know could be improved in certain respects), is here: ("LASG Memorandum to Judge Lewis and the Parties in the South Carolina Plutonium Pit case," Oct 18, 2024). (We were advised to go ahead and include Judge Lewis as an addressee. That was futile.)

It speaks largely for itself. Our recommended path forward is as follows:

NNSA should eliminate the two-site pit production strategy adopted on May 10, 2018 and revert to the single-site strategy that prevailed for many decades and several prior studies (at least through October, 2017 if not through April 20, 2018, 20 days before NNSA’s dual-site decision was announced). By doing this, NNSA could:

1. Base a new CTSPEIS [Complex Transformation Supplemental Programmatic Environmental Impact Statement] AROD [Amended Record of Decision] and a new SRS pit AROD (if necessary) on the analyses in the 2008 CTSPEIS and 2020 SRS pit EIS, choosing single-site production at SRS. Data from the 2019 CTSPEIS SA [Supplement Analysis] could be used as necessary.
2. It would be neither necessary nor equitable to halt SRPPF activities during the short pendency of these ARODs, as SRS activities would the same no matter what capacity was chosen for production there. There would be no conflict with NEPA’s requirement for pre-decisional analysis because the programmatic and indeed the project-specific analysis has already been done.
3. Obviously, these ARODs would specify the pit production capacity desired, but not the actual pit production rate to be implemented in the post-2035 period. That is, the NNSA decision we propose is neutral as to post-2035 pit production and nuclear weapons policies.
4. Commit to the less-than-20 ppy production rate at LANL supported by prior NEPA RODs, emphasizing technology preservation and development, and training, over quantity production, as was the case until 2013 and in many respects after that until 2018, when the flawed dual-site decision was made.
5. Wind down and bring to a rational conclusion LANL’s LAP4 project in the coming fiscal year (FY2026), expressing the intent to do so immediately and starting as soon as possible.

Such an outcome would [re]solve the contradictory mandates in this case, quickly bring NNSA into NEPA compliance, save tens of billions of dollars, eliminate a tremendous amount of environmental impact in New Mexico, align NNSA’s pit production strategy with its own AoA [Analysis of Alternatives], and eliminate the present competition for specialized skilled labor and specialized production equipment between the two sites. It would retain all presently-sought pit production capacity for the post-2035 period without prejudicing future policy. NNSA would not meet statutory deadlines for pit production, but that is already the case as these requirements were highly unrealistic to begin with and remain so today – especially if compliance with NEPA matters. It does.

NNSA would however have to forego most of the pits currently expected from LANL, and adjust its Life Extension Project schedule accordingly. While this topic is beyond the scope of this memo to say so, loss of these pits would not affect any current or planned nuclear weapon deployments.

We urge journalists who want to understand this lawsuit to read our Memo. Many people do not understand that the Plaintiffs did not ask to halt or even slow preparations for pit production at LANL but they did ask to do so at SRS, as we note. Some experienced journalists do understand that ("NNSA, antis, get more time to negotiate agreement after agency loses pit lawsuit," Exchange Monitor, Oct 8, 2024).