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State v. United States

United States District Court, D. South Carolina, Aiken Division

May 25, 2016

State of South Carolina, Plaintiff,
v.
United States; United States Department of Energy; Dr. Ernest Moniz, in his official capacity as Secretary of Energy; National Nuclear Security Administration; and Lt. General Frank G. Klotz, in his official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security; Defendants.

          ORDER AND OPINION

         Plaintiff State of South Carolina (“South Carolina”) filed this action against Defendants United States (“U.S.”); United States Department of Energy (“DOE”); Dr. Ernest Moniz, in his official capacity as Secretary of Energy (the “Secretary”); National Nuclear Security Administration (“NNSA”); and Lt. General Frank G. Klotz, in his official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security (the “Undersecretary”) (collectively the “Federal Government Defendants”) seeking injunctive, declaratory, and monetary relief for alleged violation of the provisions of 50 U.S.C. § 2566. (ECF No. 1.)

         This matter is before the court pursuant to a Motion to Intervene as Party Plaintiff by Southern Carolina Regional Development Alliance (“SC Alliance”) pursuant to Fed.R.Civ.P. 24. (ECF No. 6.) South Carolina and Federal Government Defendants oppose the Motion to Intervene in its entirety. (ECF Nos. 11 & 21.) For the reasons set forth below, the court DENIES S.C. Alliance’s Motion to Intervene.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS

         Generally, 50 U.S.C. § 2566 governs the construction and operation of a mixed oxide (“MOX”) fuel facility at the Savannah River Site near Aiken, South Carolina designed to help the U.S. meet its obligations under the Plutonium Management and Disposition Agreement (“PMDA”).[1] Id. at § 2566(a)(1) (“[T]he Secretary of Energy shall submit to Congress a plan for the construction and operation of the MOX facility at the Savannah River Site, Aiken, South Carolina.”). Among its provisions relevant to this action, section 2566 provides for “economic and impact assistance” to the State of South Carolina if the construction and operation of the MOX facility does not stay on schedule. Id. at § 2566(d). In this regard, South Carolina asserts that section 2566 is the codification of “the commitments of the United States and DOE to the State of South Carolina that while plutonium may be placed in South Carolina, such placement was not final disposition for long-term storage of plutonium in the State, but rather a temporary storage to implement the disposition method of MOX processing in the MOX Facility.” (ECF No. 1 at 14 ¶ 52.) On February 9, 2016, South Carolina filed a Complaint alleging claims against Federal Government Defendants for failing “to meet their mandatory statutory obligations” under 50 U.S.C. § 2566 and for specifically violating subsections (c) and (d) of the Act. (ECF No. 1 at 26 ¶ 84-31 ¶ 112.)

         On March 31, 2016, SC Alliance[2] filed its Motion to Intervene in this action. (ECF No. 6.) In its Motion, SC Alliance asserts that it should be allowed to intervene as a matter of right pursuant to Fed.R.Civ.P. 24(a) or permissively pursuant to Rule 24(b). (Id. at 4-6.) South Carolina filed a Response in Opposition to the Motion to Intervene (ECF No. 11) on April 18, 2016, and Federal Government Defendants filed their Opposition to the Motion to Intervene on May 2, 2016, both asserting that the court should deny S.C. Alliance’s attempts to intervene by right or permissively. (ECF Nos. 11 & 21.)

         II. JURISDICTION

         The court has jurisdiction over this matter under 28 U.S.C. § 1331 pursuant to Plaintiff’s allegation that the matter “arises under the Constitution of the United States; the Atomic Energy Defense Provisions, 50 U.S.C.A. §§ 2501 et seq.; the Federal Administrative Procedure Act, 5 U.S.C.A. §§ 701 et seq. (APA); the Mandamus and Venue Act, 28 U.S.C.A. § 1361; multiple National Defense Authorization Acts (NDAAs); and multiple appropriations acts.” (ECF No. 1 at 3 ¶ 8.)

         III. LEGAL STANDARD AND ANALYSIS

         A. Intervention under Fed.R.Civ.P. 24

         Fed. R. Civ. P. 24 provides for two types of intervention. “Intervention of Right” requires the court to permit anyone to intervene upon timely motion who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). Thus, to intervene as of right, a movant must show: (1) timely application; (2) an interest in the subject matter of the underlying action; (3) that a denial of the motion to intervene would impair or impede the movant’s ability to protect its interest; and (4) that the movant’s interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). “A party moving for intervention under [Fed. R. Civ. P.] 24(a) bears the burden of establishing a right to intervene, and must do so by satisfying all four requirements.” U.S. ex rel. MPA Constr., Inc. v. XL Specialty Ins. Co., 349 F.Supp.2d 934, 937 (D. Md. 2004) (citing In re Richman, 104 F.3d 654, 658 (4th Cir. 1997)). Failure to satisfy even one of these requirements is sufficient to warrant denial of a motion to intervene as a matter of right. See N.A.A.C.P. v. New York, 413 U.S. 345, 369 (1973).

         “Permissive Intervention, ” on the other hand, allows the court, in its discretion, to permit anyone to intervene upon timely motion who “has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). In exercising discretion under Fed.R.Civ.P. 24(b), “the court shall consider whether the intervention will unduly delay or prejudice the application of the rights of the original parties.” Fed.R.Civ.P. 24(b)(3).

         B. The Parties’ Arguments

         1. S.C. Alliance

         SC Alliance seeks to intervene in this action “to challenge [Federal Government] Defendants’ actions and inactions to indefinitely suspend construction of the mixed oxide fuel fabrication project (MOX Facility) at the Savannah River Site (“SRS”) without complying with the statutory requirements to remove defense plutonium from SRS or make economic and impact assistance payments, ” in contravention of 50 U.S.C. § 2566. (ECF No. 6 at 2-3.) S.C. Alliance argues its entitlement to intervene by right on the basis that (1) its Motion was timely filed only 7 weeks after the filing of South Carolina’s Complaint; (2) it has an interest in the instant matter because its land is “within the zone of interests that the plutonium disposition provisions of 50 U.S.C. § 2566 were intended to protect” and it expects to receive an economic benefit from “the MOX Facility and the economic and impact assistance payments mandated by 50 U.S.C. § 2566 if the MOX Facility is not built”; and (3) it is not adequately represented because its interests are more localized and focused than South Carolina’s especially as it relates to alternative forms of relief.[3] (ECF No. 6 at 4-5.) Alternatively, SC Alliance contends that it may permissively intervene because its intervention will not cause undue delay or prejudice any party since (1) ...


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