State of South Carolina v. United States , 912 F.3d 720 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1684
STATE OF SOUTH CAROLINA,
Plaintiff – Appellee,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
ENERGY; RICK PERRY, in his official capacity as Secretary of Energy;
NATIONAL NUCLEAR SECURITY ADMINISTRATION; LISA E. GORDON-
HAGERTY, in her official capacity as Administrator of the National Nuclear
Security Administration and Undersecretary for Nuclear Security,
Defendants – Appellants.
Appeal from the United States District Court for the District of South Carolina, at Aiken.
J. Michelle Childs, District Judge. (1:18-cv-01431-JMC)
Argued: September 27, 2018 Decided: January 8, 2019
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Niemeyer and Judge King joined.
ARGUED: Andrew Alperin Rohrbach, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants. Randolph R. Lowell, WILLOUGHBY &
HOEFER, PA, Columbia, South Carolina, for Appellee. ON BRIEF: Chad A. Readler,
Acting Assistant Attorney General, Mark B. Stern, Daniel Tenny, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellants.
2
WYNN, Circuit Judge:
The State of South Carolina brought this action to enjoin the United States of
America and other Defendants 1 (collectively, “the United States”) from terminating the
construction of a mixed-oxide fuel nuclear processing facility located at the Savannah
River Site in South Carolina. South Carolina alleges that the United States Department
of Energy unlawfully failed to (1) prepare a supplemental Environmental Impact
Statement analyzing the long-term storage of plutonium in the state; and (2) follow
statutory waiver provisions for terminating construction of the facility. We conclude that
South Carolina has not established standing to pursue either of these claims.
Accordingly, we vacate the preliminary injunction imposed by the district court.
I.
Following the collapse of the Soviet Union and the end of the Cold War, the
United States of America and the Russian Federation began a worldwide nuclear
nonproliferation effort that included developing plans for the safe disposition of nuclear
weapons material. As part of this nonproliferation pact, the Department of Energy began
studying the effects of various nuclear waste storage and disposal strategies. In its initial
1996 study, the Department of Energy prepared an Environmental Impact Statement in
accordance with Section 4332 of the National Environmental Policy Act (“NEPA”), 42
1
The other Defendants are the United States Department of Energy; Rick Perry, in
his official capacity as Secretary of Energy; the National Nuclear Security
Administration; and Lisa E. Gordon-Hagerty, in her official capacity as Administrator of
the National Nuclear Security Administration.
3
U.S.C. § 4321 et seq., analyzing the potential environmental consequences associated
with the long-term storage of weapons-grade plutonium and highly enriched uranium
prior to disposition. The Environmental Impact Statement addressed storage of these
materials for a period of up to fifty years.
Ultimately, the Department of Energy determined that the best approach to nuclear
waste disposal was a dual strategy involving (1) immobilization of a portion of the
surplus plutonium in glass or ceramic; and (2) irradiation of the remaining plutonium in
mixed oxide fuel (the “MOX process”). Both strategies would convert the surplus
nuclear material into forms that would meet the National Academy of Science’s Spent
Fuel Standard, meaning that the material would be “inaccessible and unattractive for
weapons” use. J.A. 78.
In 1997, the Department of Energy announced its intention to build a new mixed
oxide fuel fabrication facility (the “MOX facility”) to dispose of some of the nuclear
material using the MOX process. Following completion of a supplemental
Environmental Impact Statement and a Record of Decision in January of 2000, the
Department of Energy announced that the MOX facility would be located at the
Savannah River Site along South Carolina’s border with Georgia. The facility’s original
production goals included disposition of up to thirty-three metric tons of nuclear material
using the MOX process and immobilization of up to seventeen metric tons of additional
nuclear material. As part of its supplemental Environmental Impact Statement, the
Department of Energy continued to look at the environmental impacts of long-term
plutonium storage.
4
In 2002, the Department of Energy decided to drop the immobilization portion of
the disposition strategy, leaving the MOX process as the sole plutonium disposal method.
That same year, Congress directed the Secretary of Energy to submit a plan for the
construction and operation of the MOX facility at the Savannah River site. Pub. L. No.
107-314, § 3182 (2002), subsequently codified as 50 U.S.C. § 2566. Congress further
authorized the Secretary to take corrective actions if the construction timetable and
operation schedule for the MOX facility were not being met. Additionally, Congress also
required that in the event the MOX facility failed to achieve its production goals, the
Department of Energy remove plutonium shipped to South Carolina for processing. See
50 U.S.C. § 2566(c), § 2566(e). Finally, as part of its findings, Congress mentioned the
economic benefit that the MOX facility would bring to the State of South Carolina,
noting that the economic benefit would not be fully realized unless the facility was built.
See Pub. L. No. 107-314 at § 3181.
Three years later, in 2005, the Department of Energy began transferring plutonium
to the Savannah River Site for conversion, and in 2007, construction began on the MOX
facility. The original cost estimate for construction of the facility was $4.8 billion, with
completion anticipated in 2016. And the original production goal estimate for the facility
was to have thirty-four metric tons of defense plutonium processed no later than January
1, 2019. 50 U.S.C. § 2566(a)(2)(B).
These original estimates proved grossly inaccurate due to delays and cost overruns
in the construction of the MOX facility. The Department of Energy now estimates cost
5
for construction of the facility to be $17.17 billion, with completion now anticipated to be
in 2048, over thirty years beyond the original estimated schedule.
Since 2014, the Department of Energy has sought to terminate the MOX program
and pursue an alternative method of plutonium disposal known as “Dilute and Dispose,”
which it contends is less costly, faster, and safer. Under the Dilute and Dispose method,
nuclear material would be “downblended” with inhibitor materials to reduce the
plutonium content to less than ten percent by weight. Upon completion of the
downblending process, the material would then be shipped from the Savannah River Site
to the Waste Isolation Pilot Plant near Carlsbad, New Mexico, for permanent disposal.
Thus far, Congress has continued to fund construction of the MOX facility and
has, to date, restricted the Department of Energy from utilizing MOX-related
appropriations to begin termination of the program. To that end, in 2017, Congress
enacted a statute providing that the Secretary of Energy “shall carry out construction and
project support activities relating to the MOX facility.” Pub. L. 115-91, § 3121(a), 131
Stat. 1283, 1892.
However, Section 3121(b) of that statute allows the Secretary of Energy to
discontinue construction of the MOX facility if certain conditions have been met.
Specifically, the Secretary of Energy must submit to the Congressional defense
committees:
(A) the commitment of the Secretary [of Energy] to remove plutonium
intended to be disposed of in the MOX facility from South Carolina
and ensure a sustainable future for the Savannah River Site;
(B) a certification that―
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(i) an alternative option for carrying out the plutonium disposition
program for the same amount of plutonium as the amount of plutonium
intended to be disposed of in the MOX facility exists, meeting the
requirements of the Business Operating Procedure of the National
Nuclear Security Administration entitled “Analysis of Alternatives” and
dated March 14, 2016 (BOP-03.07); and
(ii) the remaining lifecycle cost, determined in a manner comparable to
the cost estimating and assessment best practices of the Government
Accountability Office [“GAO”], as found in the document of the
Government Accountability Office entitled “GAO Cost Estimating and
Assessment Guide” (GAO-09-3SP), for the alternative option would be
less than approximately half of the estimated remaining lifecycle costs
of the mixed oxide fuel program; and
(C) the details of any statutory or regulatory changes necessary to complete
the alternative option.
§ 3121(b)(1).
Additionally, in exercising his authority to discontinue construction of the MOX
facility, the Secretary of Energy
(1) shall concurrently submit to the Committees on Appropriations of both
Houses of Congress the lifecycle cost estimate used to make the
certification under section 3121(b) of such Act; and
(2) may not use funds provided for the Project to eliminate such Project
until the date that is 30 days after the submission of the lifecycle cost
estimate required under paragraph (1).
Pub. L. No. 115-141, § 309(c), 132 Stat. 348, 530 (2018).
Pursuant to these provisions, on May 10, 2018, the Secretary of Energy submitted
a letter to the Chairman of the House Armed Services Committee that purported to
execute the authority of the Secretary of Energy under Section 3121(b) to discontinue
construction of the MOX facility. The Secretary of Energy certified, inter alia, that (1)
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the Department of Energy is committed to removing plutonium from South Carolina; (2)
an alternative option for carrying out the plutonium disposition, the Dilute and Dispose
method, exists and has a lifecycle cost of less than approximately half of the remaining
lifecycle cost for the MOX program; (3) the Department of Energy estimated the cost of
the Dilute and Dispose approach in a manner compatible with the best practices of the
GAO; and (4) the Department of Energy is committed to ensuring a sustainable future for
the Savannah River Site. The Secretary of Energy further reported that the Department
of Energy expected the total cost of disposition via the Dilute and Dispose method to be
$19.9 billion, compared to $49.4 billion for the total cost of construction of the MOX
facility and conversion of all the plutonium into MOX fuel.
In accordance with the Secretary of Energy’s letter, the Department of Energy and
the National Nuclear Security Administration issued a Partial Stop Work Order on May
14, 2018, ending all new contracts and hiring related to the MOX program. The
Department of Energy further indicated its intent to issue a Full Stop Work Order and
begin winding down the MOX program, including terminating employees currently
working on the project, on or about June 11, 2018.
On May 25, 2018, before the Department of Energy issued a full stop work order,
South Carolina brought this action in the United States District Court for the District of
South Carolina and moved for a preliminary injunction barring the federal government
from terminating the MOX program. In its complaint, South Carolina asserted that the
United States (1) violated NEPA by failing to prepare a supplemental Environmental
Impact Statement covering a period of more than fifty years and (2) failed to satisfy
8
Section 3121(b) because of the alleged insufficiency of the Secretary of Energy’s
certifications. 2
On June 7, 2018, the district court granted South Carolina’s motion for
preliminary injunction. The district court first found that South Carolina had standing
due to environmental risks associated with long-term storage at the Savannah River Site,
which abuts property owned by South Carolina. As to the merits, the district court held,
in pertinent part, that South Carolina was likely to succeed on the merits of its NEPA
claim and its claim that the Secretary of Energy’s certifications were insufficient. The
district court further found that South Carolina would be irreparably harmed absent a
preliminary injunction and that the balance of equities tilted in South Carolina’s favor.
Thus, the district court enjoined the federal government from ceasing construction of the
MOX facility and issuing the full stop work order. The United States timely appealed.
After careful review, we dispositively hold that South Carolina failed to establish
standing and therefore we do not reach the district court’s determination on the merits of
this matter.
2
South Carolina further claimed that the United States violated 50 U.S.C. § 2567by failing to consult with the governor before deciding to terminate the MOX facility.
The district court held that South Carolina failed to establish that that claim was likely to
succeed on the merits, and therefore that claim is not before this Court.
9
II.
A.
On appeal, the United States contends that the district court erred in concluding
that South Carolina established standing to pursue the two claims that serve as the basis
of the district court’s preliminary injunction order—the NEPA claim and the claim
premised on the alleged insufficiency of the Secretary’s certifications. The standing
doctrine derives from “the Constitution’s limitation on Article III courts’ power to
adjudicate ‘cases and controversies.’” Frank Krasner Enters. v. Montgomery Cty., 401
F.3d 230, 234 (4th Cir. 2005) (quoting Allen v. Wright, 468 U.S. 737, 750–51 (1984),
abrogated on other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014)). Standing implicates the court’s subject matter jurisdiction. Long
Term Care Partners, LLC v. United States, 516 F.3d 225, 230 (4th Cir. 2008).
Here, South Carolina, as plaintiff, bears the burden of establishing standing to
assert each of its claims. See id.; see also Lewis v. Casey, 518 U.S. 343, 359 n.6 (1996)
(“[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess
by virtue of that injury the necessary stake in litigating conduct of another kind, although
similar, to which he has not been subject.” (internal quotation marks omitted)). We
review the question of whether South Carolina possesses standing de novo. Frank
Krasner Enters., 401 F.3d at 234.
To establish Article III standing, “a plaintiff must show (1) it has suffered an
‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of
10
the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000). The United States contends South Carolina
failed to show it has suffered an injury-in-fact sufficient to give rise to Article III
standing.
To satisfy the injury-in-fact requirement, a plaintiff must establish a “realistic
danger of sustaining a direct injury.” Peterson v. Nat’l Telcoms. & Info. Admin., 478
F.3d 626, 632 (4th Cir. 2007) (quoting Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979)). “[W]hile it is true ‘that threatened rather than actual injury can
satisfy Article III standing requirements,’ . . . not all threatened injuries constitute an
injury-in-fact.” Beck v. McDonald, 848 F.3d 262, 271 (4th Cir. 2017) (quoting Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en
banc)). “Rather, as the Supreme Court has ‘emphasized repeatedly,’ an injury-in-fact
‘must be concrete in both a qualitative and temporal sense.’” Id. (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)). The requirement that an alleged injury be palpable
and imminent ensures that the injury “is not too speculative for Article III purposes.” Id.(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564–65 n.2 (1992)).
On appeal, South Carolina contends that it has suffered an injury-in-fact sufficient
to support standing because “[South Carolina] is harmed by being rendered the
permanent repository of weapons-grade plutonium as a result of [the Department of
Energy’s] decision to terminate the MOX Facility without first complying with NEPA or
following the congressional mandates of § 3121.” Appellee’s Br. at 15–16. According to
11
South Carolina, this “results in increased radiation exposure to the public, increased risks
of nuclear-related accidents, and an increased threat of action by rogue states or terrorists
seeking to acquire weapons-grade plutonium.” Id. at 14. But this alleged injury is too
speculative and thus, does not give rise to a concrete injury-in-fact sufficient to support
either of South Carolina’s claims.
The Supreme Court has repeatedly held that an alleged harm is too “speculative”
to support Article III standing when the harm lies at the end of a “highly attenuated chain
of possibilities.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013); see also, e.g.,
Beck, 848 F.3d at 275 (holding that plaintiffs, who received treatment at a medical center
that suffered a data breach and alleged that they were at risk of experiencing identity
theft, failed to establish standing because their theory of injury rested on an “attenuated
chain of possibilities”).
Illustratively in Clapper, the Supreme Court considered a challenge to Section 702
of the Foreign Intelligence Surveillance Act, which “authoriz[es] the surveillance of
individuals who are not ‘United States persons’ and are reasonably believed to be located
outside the United States.” 568 U.S. at 401. The plaintiffs—a group of “attorneys and
human rights, labor, legal, and media organizations”—alleged that their work demanded
that they “engage in sensitive international communication with individuals who they
believe are likely targets of surveillance under” Section 702, rendering it reasonably
likely that the government would target and intercept the plaintiffs’ communications. Id.
at 401, 406.
12
The Supreme Court held that the plaintiffs failed to establish a concrete injury-in-
fact based on the possibility that their communications would be intercepted, explaining
that a series of hypothetical events would have to occur before the government would
intercept any particular plaintiff’s communications. Id. at 1148–50. The Court held that
among other steps, the government would have to decide to invoke its Section 702
authority to target a non-U.S. person with whom a plaintiff communicated, a panel of
federal judges would have to “conclude that the Government’s proposed surveillance
procedures satisfy [the statute’s] many safeguards and are consistent with the Fourth
Amendment,” and the government would have to succeed in intercepting one of the
target’s communications with the plaintiff. Id. Thus, the Court held that that the “highly
attenuated chain of possibilities, d[id] not satisfy the requirement that threatened injury
must be certainly impending.” Id. at 1148 (citation omitted).
Applying Clapper, this Court reached a similar conclusion in Beck, in which a
putative class of veterans who received medical treatment at a veterans’ medical center
alleged that they had been injured when two sets of records were stolen from the center.
848 F.3d at 262, 267. Although none of the named plaintiffs alleged any actual or
attempted misuse of the personal information contained in their stolen records, they
alleged that they suffered cognizable injuries-in-fact because they faced “(1) [an]
increased risk of future identity theft, and (2) the costs of protecting against the same.”
Id. at 273. We concluded that both alleged injuries were too speculative to confer
standing. Id. at 275–77. As to the alleged increased risk of identity theft, in particular,
we explained that plaintiffs’ theory of injury required us to “assume that the thie[ves]
13
targeted the stolen items for the personal information they contained” and that the thieves
would “then select, from thousands of others, the personal information of the named
plaintiffs, and attempt successfully to use that information to steal their identities.” Id. at
275. “This ‘attenuated chain’ cannot confer standing,” we held. Id. We likewise
rejected the plaintiffs’ costs of mitigation theory of standing as a “repackaged” version of
their first theory of standing, amounting to an effort to recoup “costs they incurred in
response to a speculative threat.” Id. at 276 (emphasis added) (quoting Clapper, 568
U.S. at 416).
Here, South Carolina’s theory of standing—that it will become “the permanent
repository of weapons-grade plutonium” and all the environmental, health, and safety
risks that entails, Appellee’s Br. at 15–16—rests on a similarly “highly attenuated chain
of possibilities,” Clapper, 568 U.S. at 410. Between now and 2046—when the analysis
in the current Environmental Impact Statement governing the risks associated with long-
term storage of weapons-grade nuclear material at the Savannah River Site expires—the
Department of Energy has twenty-eight years to identify an alternative method for
disposing of the nuclear material or otherwise removing it from South Carolina. The
Secretary of Energy already has certified that one potential alternative to the MOX
program exists, the Dilute and Dispose method. And the Department of Energy may
identify and develop other methods during that twenty-eight-year period. Or the
Department of Energy may decide to transfer the plutonium out of South Carolina to
another location.
14
Furthermore, Congress has put in place contingency plans for the removal of
plutonium shipped to the Savannah River Site to forestall the indefinite storage of
plutonium in South Carolina. A federal statute requires that, by 2022, all additional
plutonium transferred into South Carolina to the MOX facility, but not processed, must
be removed. 50 U.S.C. § 2566(c)(2). Notably, because the Department of Energy
already has failed to meet certain statutory time limits for disposing of nuclear material at
the site, South Carolina has successfully brought suit pursuant to the Administrative
Procedure Act to enforce these congressionally mandated deadlines via a mandatory
injunction. See id. § 2566(c)(1) (requiring removal of one metric ton of plutonium no
later than January 1, 2016); South Carolina v. United States, 243 F. Supp. 3d 673 (D.S.C.
2017), aff’d, 907 F.3d 742 (4th Cir. 2018) (ordering the Department of Energy to remove
one metric ton of plutonium within two years).
In sum, for South Carolina’s alleged injury—becoming “the permanent repository
of weapons-grade plutonium,” Appellee’s Br. at 15–16—to occur: (1) the proposed
Dilute and Dispose method must fail; (2) the Department of Energy must fail to identify
an alternative method for disposing of the nuclear material; and (3) the Department of
Energy must breach its statutory obligation to remove the nuclear material from South
Carolina, Congress must repeal that obligation, or the courts must refuse to enforce that
obligation. At this juncture, before the Department of Energy has even had an
opportunity to finish analyzing the Dilute and Dispose method, this “chain of
possibilities” is too speculative to give rise to a sufficiently concrete injury-in-fact.
15
That several of the links in this “chain of possibilities” the State’s standing theory
contemplates require our coordinate branches to either breach or abandon their existing
commitments to ensure timely removal of the nuclear material at the Savannah River Site
further weighs against treating the South Carolina’s alleged injury as conferring standing.
As Clapper recognized, the standing doctrine is “built on separation-of-powers
principles” and “serves to prevent the judicial process from being used to usurp the
powers of the political branches.” 568 U.S. at 408 (citations omitted); see also Allen v.
Wright, 468 U.S. at 752 (1984) (“[Article] III standing is built on a single basic idea—the
idea of separation of powers.”). To confer standing on South Carolina at this juncture
based on an alleged injury—becoming the permanent repository of nuclear material—that
the political branches already have made written and legally binding commitments to
forestall would improperly “usurp the powers of the political branches.” Clapper, 568
U.S. at 408.
The “highly attenuated chain of possibilities” that must occur for South Carolina
to become the permanent repository of nuclear material also sets this case apart from this
Court’s decision in Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002), upon which South
Carolina principally relies.
Like the instant case, Hodges dealt with the storage of plutonium at the Savannah
River Site. Id. at 436. In 2002, the Department of Energy issued a Record of Decision
authorizing the immediate shipment of six metric tons of plutonium from a nuclear
facility in Colorado to the Savannah River Site. Id. The Governor of South Carolina
sought to enjoin shipment of the plutonium into South Carolina, alleging that the
16
Department of Energy’s existing Environmental Impact Statement, and its supplemental
analyses to the Environmental Impact Statement, related to storage of plutonium at the
Savannah River Site violated NEPA in several ways. Id. at 445. This Court held that the
Governor adequately alleged an injury-in-fact to support his NEPA claims because the
South Carolina owned property adjacent to the Savannah River Site. Id. “[T]he
Governor, in his official capacity, is essentially a neighboring landowner, whose property
is at risk of environmental damage” as a result of the Department of Energy’s shipment
of plutonium to the Savannah River Site and storage of that plutonium there, we
explained. Id.Here, unlike in Hodges, South Carolina does not argue that its injury, as a
neighboring landowner, is attributable to the current storage of nuclear material at the
Savannah River Site or the inadequacy of the Environmental Impact Statement pursuant
to which the nuclear material is currently stored—a question that Hodges already
resolved in the federal government’s favor. Id. at 446–49. Rather, South Carolina
contends it is injured because the termination of the MOX program renders it the
permanent repository of the nuclear material when the Department of Energy has not
issued an Environmental Impact Statement analyzing the environmental impact of the
storage of the material at the Savannah River Site beyond the year 2046, the year when
the existing Environmental Impact Statement’s analysis terminates, or, allegedly, satisfies
its statutory obligations in terminating the MOX program. There is a meaningful
distinction between the alleged immediate environmental injuries associated with storing
plutonium at the Savannah River Site, which were at issue in Hodges, and the alleged
17
future adverse environmental impacts on South Carolina as a neighboring landowner if
the Department of Energy continues to store the plutonium at the Savannah River Site
decades in the future. That distinction is particularly meaningful because, as explained
above, numerous contingencies must occur in order for the plutonium to remain in South
Carolina after 2046, the year when South Carolina’s alleged injury will mature.
In sum, the single theory of injury3 that South Carolina relies on to support both of
its claims is too speculative at this juncture to support Article III standing. The district
court, therefore, was without jurisdiction to enter its preliminary injunction premised on
those two claims.
B.
For reasons similar to those that lead us to find that South Carolina lacks standing,
we also find that the two claims at issue fail on ripeness grounds. Like standing, the
ripeness doctrine “originates in the ‘case or controversy’ constraint of Article III.”
Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269 (4th Cir. 2013)
(citations omitted). “Analyzing ripeness is similar to determining whether a party has
standing.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). “Although the phrasing
makes the questions of who may sue and when they sue seem distinct, in practice there is
an obvious overlap between the doctrines of standing and ripeness.” Id. (quoting Erwin
3
Because South Carolina has advanced only one theory of injury to support the
two claims before this Court—that South Carolina is harmed by becoming the permanent
repository of weapons-grade nuclear material—we cannot and do not take any position
on whether other theories of injury would presently confer standing on South Carolina to
support either of the two claims before us on appeal.
18
Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003). As with standing, ripeness is a
question of subject matter jurisdiction. See Sansotta v. Town of Nags Head, 724 F.3d
533, 548 (4th Cir. 2013) (citation omitted).
The question of whether a claim is ripe “turns on the ‘fitness of the issues for
judicial decision’ and the ‘hardship to the parties of withholding court consideration.’”
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,
201 (1983) (citation omitted). In the context of claims challenging agency actions, like
the two at issue, the purpose of the ripeness doctrine is “to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–
49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
To be fit for judicial review, a controversy should be presented in a “clean-cut and
concrete form.” Miller, 462 F.3d at 319 (citation omitted). This occurs when the action
is “final and not dependent on future uncertainties or intervening agency rulings.”
Franks v. Ross, 313 F.3d 184, 195 (4th Cir. 2002) (citation omitted). On the other hand,
just as a plaintiff cannot assert standing based on an alleged injury that lies at the end of a
“highly attenuated chain of possibilities,” Clapper, 568 U.S. at 410, a plaintiff’s claim is
not ripe for judicial review “if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Scoggins, 718 F.3d at 270 (quoting Texas v.
United States, 523 U.S. 296, 300 (1998)).
19
The two claims that South Carolina advances before this Court rest on the premise
that South Carolina will be the permanent repository of the weapons-grade nuclear
material currently stored at the Savannah River Site. But, numerous “contingent future
events,” id., must occur before South Carolina becomes the permanent repository of the
nuclear material, see supra Part II.A. In particular, the Dilute and Dispose method must
prove unworkable. The Department of Energy must fail to identify an alternative method
of disposal and breach its commitment to dispose of the waste. And Congress or the
courts must set aside or refuse to enforce the statutory mechanisms currently in place to
ensure timely removal of the nuclear material. All of these “future uncertainties,”
Franks, 313 F.3d at 195, lead us to conclude that the two claims at issue are not ripe for
review at this time—at least as presented by South Carolina. Accordingly, the ripeness
doctrine provides an additional basis for our holding that the district court was without
jurisdiction to enter the preliminary injunction.
III.
In sum, the only theory of injury advanced by South Carolina—that South
Carolina will be the permanent repository of the nuclear material currently stored at the
Savannah River Site—rests upon a “highly attenuated chain of possibilities,” Clapper,
568 U.S. at 410, and “contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Scoggins, 718 F.3d at 270. In such circumstances, we must
conclude that South Carolina lacks Article III standing to advance the two claims that
serve as the basis of the district court’s injunction and that those two claims are not ripe
for review.
20
That the two claims are not currently justiciable does not mean that they never will
be so. If uncertainty as to several links in the chain of possibilities is resolved, then
South Carolina’s alleged injury may move from the speculative to the concrete, and
therefore the two claims also may become ripe for review. But until that uncertainty is
lifted, the Constitution demands that we withhold judicial review.
Accordingly, we vacate the preliminary injunction imposed by the district court
and remand the case for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED
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