Searchlight NM: Plutonium just had a bad day in court

Most Americans don’t seem aware of it, but the United States is plunging into a new nuclear arms race. At the same time that China is ramping up its arsenal of nuclear weapons, Russia has become increasingly bellicose. After a long period of relative dormancy, the U.S. has embarked on its own monumental project to modernize everything in its arsenal — from bomb triggers to warheads to missile systems — at a cost, altogether, of at least $1.5 trillion.

Los Alamos National Laboratory plays a vital role as one of two sites set to manufacture plutonium “pits,” the main explosive element in every thermonuclear warhead. But as a recent court ruling makes clear, the rush to revive weapons production has pushed environmental considerations — from nuclear waste and increases in vehicular traffic to contamination of local waterways, air and vegetation — to the wayside.

That just changed dramatically. On Sept. 30, United States District Judge Mary Geiger Lewis of South Carolina ruled that the federal government violated the National Environmental Policy Act — the “Magna Carta” of federal environmental law — when it formulated and began to proceed with plans to produce plutonium pits at LANL and the Savannah River Site, in Aiken, South Carolina. 

“[T]he Court is unconvinced Defendants took a hard look at the combined effects of environmental impacts of their two-site strategy,” Lewis wrote of the Department of Energy (DOE) and the National Nuclear Security Administration (NNSA), which together oversee America’s nuclear weapons stockpile.

The ruling was momentous for the anti-nuclear community. But it was also mystifying, because Judge Lewis didn’t provide a roadmap for how to move forward with this extraordinarily complicated policy dispute. Rather than bringing pit production to a halt — which plaintiffs argued for in their original complaint, filed in 2021 — the judge instead ordered the parties to reach some sort of “middle ground” among themselves and submit a joint proposal by Oct. 25. What that will consist of is anybody’s guess. The judge was clear on one point, though — she’ll be keeping a close eye on the matter by maintaining jurisdiction over the case. Injunctive relief, she added, could still be in the cards. 

NEPA’s rules require that agencies take a “hard look” at potential environmental impacts. NEPA does not, however, dictate what decision should be made once those impacts are identified. 

Previous impact statements have spelled out a vast array of potential hazards for nuclear facilities. These have included an “inadvertent criticality event,” which happens when nuclear material produces a chain reaction and a pulse of potentially fatal radioactivity. Another risk is fire igniting inside a glovebox — the sealed enclosure where radioactive materials like plutonium are handled — and then resisting suppression, leading to widespread contamination. Other possibilities: a natural gas explosion at vulnerable nuclear sites or a wildfire on LANL’s sprawling campus, which is bounded on all sides by the towns of Los Alamos and White Rock, the Pueblo of San Ildefonso, the Santa Fe National Forest and Bandelier National Monument.

“Perhaps more significantly,” Judge Lewis stated, those impact statements “provide a springboard for public comment,” a kind of mechanism for citizens to express criticism and concern and, in some cases, identify a project’s blindspots — risks to people and places that have not been properly taken into account. 

The DOE and NNSA may agree to produce the analysis as part of the joint proposal. Meanwhile, though, the ruling does nothing to halt pit production, which is already underway at LANL. Whether it will slow down production at SRS — a facility that likely won’t come online for at least another decade — is unclear. According to NNSA spokesperson Millicent Mike, the agency plans to consult with the Department of Justice on the ruling, but “at this point in the judicial process work on the program continues.” 

An announcement from the DOE the following day was telling, if not defiant: The first plutonium pit manufactured as part of this modernization program was ready to be deployed into the stockpile. That pit — made at LANL but the product of multiple facilities across the nation’s nuclear weapons complex — is intended for a new warhead, which will be strapped into a new intercontinental ballistic missile called the Sentinel. The Sentinel program, at $140 billion, is one of the costliest in the history of the U.S. Air Force.

Dylan Spaulding, a senior scientist at the Union of Concerned Scientists, calls this current clash the “critical tension in the U.S. nuclear weapons program.” He contends that the federal government is “doubling down on its reliance on nuclear weapons in the 21st century” while failing to “adhere to environmental policy.” U.S. citizens may bear the price of this policy choice, he warned, “as they have repeatedly in the past.” 

The “two-site solution” 

The late 1980s and early 1990s marked a kind of coda in nuclear weapons production, sealed by the closure of the Rocky Flats Plant near Denver, Colorado. For decades, workers there turned out an arsenal of grapefruit-sized pits at a pace so swift that little thought was given to the lasting effects of radioactive contamination. At almost exactly the same time the plant was raided by the FBI and EPA for environmental crimes — including pouring radioactive waste into local waterways — America’s primary adversary, the USSR, was in the process of collapsing. Treaties to reduce stockpiles followed and underground testing came to an end. 

Now, almost 40 years later, the court found that the agencies charged with reviving the nuclear weapons complex have not properly evaluated the perils that could come with turning out plutonium pits at two different sites, thousands of miles apart. For the plaintiffs in this case — which include Nuclear Watch New Mexico, Savannah River Site Watch, Tri-Valley Communities Against a Radioactive Environment and the Gullah/Geechee Sea Island Coalition — Lewis’s decision to intervene is a milestone.

“We’ve had a pretty significant victory here on the environmental front,” said Tom Clements, the director of Savannah River Site Watch. “Nonprofit public interest groups are able to hold the U.S. Department of Energy accountable.” 

In an email comment to Searchlight, Queen Quet, Chieftess of the Gullah/Geechee Nation, which encompasses much of the Atlantic coastline from Jacksonville, North Carolina, to Jacksonville, Florida, said: “We are well aware of the numerous environmental injustices that people in Aiken, SC, and the neighboring communities of the SRS are already dealing with, and we have close collaborative partners that are enduring major health issues there. We do not want to see further harm extend into the rest of the state of South Carolina due to the violation of NEPA and the potential nuclear waste and contamination issues that would have come from this project.”

The so-called “two-site solution” dates back to 2018, when the Nuclear Weapons Council, a body that provides guidance on nuclear matters and coordinates programs between the Department of Defense and the DOE, certified a plan to make 80 plutonium pits per year by 2030 — 30 at LANL and 50 at SRS. In 2020, senators Lindsey Graham (R-S.C.) and Martin Heinrich (D-N.M.) ushered home-state pit production into law. 

According to plaintiffs, setting up pit production at two different sites represents a “sweeping change in U.S. nuclear policy.” The NNSA countered that it had a deadline and quota to meet, and that the only way to do it was to use two facilities. For years, the agency has claimed that this effort had been staged in response to what Jill Hruby, NNSA’s administrator, has called a “changing threat landscape.” 

“We face growing nuclear weapon threats from Russia and an expanding nuclear arsenal in China,” she said last July, at a gathering hosted by the National Institute for Deterrence Studies. North Korea, Iran and Belarus, she went on, were strengthening partnerships with those countries, conditions that collectively “present a fundamentally different nuclear landscape than the past 80 years.”

Industrial-scale pit production, however, has remained dormant for decades, and never before has the U.S. attempted simultaneous production at two sites. Not only that, both LANL and SRS will require major construction to get them ready to meet their respective quotas, at a total cost estimated at around $60 billion. Schedules, despite the push, are already behind by several years and budgets have ballooned. A 2023 Searchlight investigation found that when LANL commenced around-the-clock operations at its plutonium handling facility in 2022, safety lapses increased by 33 percent.

“Benefits both the public and the government”

When NEPA was signed into law by President Richard Nixon, it was infused with a sense of optimism, a sunny belief that “man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” In practice, the law is meant to help agencies foresee — and avoid — the most profound consequences of major capital projects, like building bridges, interstate highways and dams. 

As Congress revived pit production, plaintiffs asserted that the DOE and NNSA failed to conduct a full NEPA review that took its latest sprawling plans into account, the kind of analysis that’s required when a major federal action is coming down the pipeline. In theory, such environmental impact statements can take years to complete and can either involve looking at one site or multiple connected sites, the goal being to assure the public that every risk has been accounted for in the decision-making process. That includes whether potential environmental impacts will be higher for minority or low-income communities and whether, for instance, water, locally grown produce, wild game, fish and native vegetation are at risk of contamination. 

Over the past twenty-plus years, there have been four attempts by NNSA to expand pit production through the NEPA process. All failed. According to Jay Coghlan, executive director of Nuclear Watch New Mexico, this string of defeats could have led to the NNSA’s circumvention of the NEPA process during this round of planning for pit production. Adhering to the rules of the NEPA process, he added, “benefits both the public and the government.”

For LANL, which sits on the kind of forested land typical of the Pajarito Plateau, wildfire is a major risk. Concerns that a fire would burn through at least parts of its campus were not only incorporated into an environmental impact statement in 1999, but also triggered forest thinning programs near nuclear facilities, making public comment especially important, according to both activists and LANL itself. In May of 2000, the fears became real with the Cerro Grande Fire, a prescribed burn that got out of control, eventually scorching 47,000 acres, including 7,500 acres inside LANL’s own boundaries, and destroying the homes of 400 families in nearby Los Alamos. (Since then, LANL has been threatened by fire two more times.) 

“When the Cerro Grande Fire swept down from the mountains this spring,” a 2000 LANL memo stated, “these extra defensive steps, taken in response to the public comments, paid for themselves many times over. The savings were in the form of the harm to facilities that was reduced or avoided, and reduced risk to the public that might have resulted.” 

A “parade of horribles”

The array of sites that play some role in this latest phase of pit production goes well beyond LANL and SRS, and includes existing facilities in Amarillo, Texas; Kansas City, Missouri; and Livermore, California. Hypothetically, if the feds ever produce the kind of environmental impact statement plaintiffs demand, it could potentially cover this entire constellation, requiring public hearings at each location and in Washington, D.C.

The last time that NNSA and DOE produced a tome encompassing multiple, connected facilities was in 2008, when the agencies looked at seven sites across the nation’s weapons complex. They held a total of 20 public hearings and received some 100,000 public comments, all of which were considered in the final record of decision. Ultimately, that decision kept plutonium pit production to a minimum: Between 2007 and 2012, LANL produced a total of 30 pits, the same number that it’s planning to produce on an annual basis once it has the capacity and labor force for current plans. 

“If there’s any take-home point that I really want to beat upon, it’s this,” Coghlan said. “None of this pit production is to maintain the safety and reliability of the existing stockpile. Instead, it’s for new designs that cannot be full-scale tested or could cause the U.S. to resume full-scale testing.” 

This next generation of weapons “may ultimately force the question of whether the United States intends to conduct new explosive nuclear testing in the coming decade,” according to Geoff Wilson, a defense expert at the Stimson Center, a think tank promoting international security. Such a resumption was supported by the Trump administration.

When it came to this particular piece of the puzzle — fabricating plutonium pits — NNSA argued that the 2008 analysis and a smaller analysis focused on SRS from 2020 were enough. The agency also feared, unsurprisingly, bringing operations to a halt to produce a more comprehensive examination of all the sites involved. The worries were chiefly about SRS — where the building is far from ready to churn out even a single pit, and where stopping construction would be especially costly. 

“Defendants have presented a parade of horribles they say will occur” in the event of an injunction, Judge Lewis wrote, including “massive job losses and negative economic impacts.” But as plaintiffs point out, she said, “NEPA analyses are conducted in good faith and not to justify a decision already made.” 

Clements believes that DOE and NNSA had plenty of time to make a study of what local communities should prepare for, including worst-case scenarios, and that they could have done it in 2018, when the two-site option was first announced. “They could have done it right when our lawsuit was filed” in 2021, he added. By resisting, he believes, “they’re choosing a route that’s harder.”

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This article first appeared on Searchlight New Mexico and is republished here under a Creative Commons license.