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DOE, NNSA renew bid to lift pro-MOX injunction

October 2, 2018

The U.S. Department of Energy and its semiautonomous National Nuclear Security Administration have again asked a federal court to lift a preliminary injunction that protects and encourages construction of the Mixed Oxide Fuel Fabrication Facility.

On Sept. 28, the DOE renewed its motion to stay the injunction granted by U.S. District Court Judge J. Michelle Childs on June 7. The renewal was filed in the 4th U.S. Circuit Court of Appeals just one day after the corresponding MOX case was argued in that very court.

The DOE had, at first, requested the preliminary injunction be stayed shortly after it was issued. That request – denied by Childs at the end of June – came the same day as an appeals notice, which ultimately brought the case to the 4th Circuit.

In the Sept. 28 filing, the DOE, a defendant and appellant in this case, argued the injunction is unfairly costing the taxpayers money – about $1.2 million a day, a point often revisited by the defense – and effectively nullifies U.S. Secretary of Energy Rick Perry’s Congress-given right to terminate MOX.

The state of South Carolina is the plaintiff and the appellee in this case.

Both the 2018 and 2019 National Defense Authorization Acts afford Perry the ability to waive continued MOX support services and construction.

Perry exercised that power on May 10. On Sept. 14, NNSA chief Lisa Gordon-Hagerty reaffirmed Perry’s waiver in writing to U.S Rep. Mac Thornberry, a Texas Republican who leads the House Armed Services Committee.

MOX is currently being built at the Savannah River Site. Once complete, the facility is designed to transform 34 metric tons of weapons-grade plutonium into fuel for commercial reactors.

The project, overseen by the NNSA and more than a decade in the making, has repeatedly proven controversial.

During Sept. 27 oral argument, the DOE’s legal representative, Andrew Rohrbach, described MOX as “so delayed and so over-budget.”

“We think ... there’s no imminent injury here,” Rohrbach said, alluding to the schedule, “and that the district court’s order isn’t redressing any injury of South Carolina’s.”

“It depends on who you ask,” South Carolina’s legal representative, Randolph Lowell, later said of the project’s timeline. “But it’s over budget.”

The district court MOX case has been paused until appeals-level matters are handled. Childs ordered the halt mid-July.

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