State of South Carolina v. United States et al

Filing 36

ORDER AND OPINION denying 6 Motion to Intervene. Signed by Honorable J Michelle Childs on 5/25/2016.(asni, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
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.
)
___________________________________ )

Civil Action No. 1:16-00391-JMC

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 SC 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.)

1

The PMDA, which was entered into force on July 13, 2011, is an agreement between the U.S.
and Russia that “commits each country to dispose of at least 34 metric tons (MT) of weapongrade plutonium withdrawn from their respective nuclear weapon programs.” NNSA,
https://nnsa.energy.gov/aboutus/ourprograms/dnn/fmd/plutonium (last visited May 23, 2016).
“To implement U.S. plutonium disposition, three facilities are being constructed at the Savannah
River Site: the MOX Fuel Fabrication Facility, the Waste Solidification Building, and a pit
disassembly and conversion capability.” NTI, http://www.nti.org/analysis/articles/plutoniummanagement-and-disposition-agreement-pmda-enters-force/ (last visited May 23, 2016).
2

On March 31, 2016, SC Alliance2 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 SC 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

2

SC Alliance describes itself as follows:
[It] is a non-profit entity which is the Lead Organization for the South Carolina
Promise Zone, an area designated by the federal government on April 28, 2015 as
a high-poverty community where the federal government will partner with and
invest in communities to create jobs, leverage private investment, increase
economic activity, expand educational opportunities, and reduce violent crime.
The South Carolina Promise Zone is home to 90,0000 [sic] residents,
approximately 28.12% of whom live in poverty, and whose Median Income is
approximately 45% less than the United States’ Median Household Income. The
South Carolina Promise Zone includes Barnwell County and Allendale County, in
which the majority of land comprising SRS is located. Southern Carolina
Alliance is also one of six economic development alliances in the State of South
Carolina. Southern Carolina Alliance represents the most rural economic
development region of the state, including Barnwell County and Allendale
County. Southern Carolina Alliance owns and operates several multi-county
industrial parks encompassing over 2,000 acres of industrial property for
development and including areas in proximity to SRS, including ownership of the
600-acre South Carolina Advanced Technology Park directly adjacent to SRS.
Individuals and landowners within the immediate vicinity of SRS are intended to
be protected by the suspension provisions of 50 U.S.C. §§ 2566 [sic] that prevent
the buildup of defense plutonium at the SRS.

(ECF No. 6-1 at 2–3 ¶ 6.)
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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

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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. SC 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.) SC 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) the
Motion to Intervene was “filed shortly after the inception of the underlying lawsuit, prior to any
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In its Reply, SC Alliance offered an example of how its interests diverge from those of the State
by pointing out that South Carolina “has litigated this very dispute with the Defendants quite
recently (in 2014) and the resolution of that lawsuit resulted in neither the removal of one metric
ton of plutonium from SRS, nor the attainment of the MOX production objective, nor the
required economic and impact assistance, by the statutory deadlines.” (ECF No. 19 at 4.) “[T]he
State could file a dismissal with prejudice tomorrow, and SRS’s neighboring community would
have no remedy whatsoever for the indefinite storage of defense plutonium in contravention of
federal statute.” (Id. at 3.)
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scheduling order or significant litigation milestone,” and (2) its Complaint shares the same
background as South Carolina’s Complaint and requires “interpretation of the same federal
plutonium statutes . . . .” (Id. at 6.)
2. South Carolina
South Carolina asserts that SC Alliance’s Motion to Intervene as of right should be
denied because it lacks a legally protectable interest since the statute it seeks to enforce
“references the State and does not create any other right of action or beneficiary status.” (ECF
No. 11 at 4 (quoting, e.g., State of Tex. v. U.S. Dep’t of Energy, 754 F.2d 550, 551 (5th Cir.
1985) (“Because they have no defined role in the statutory scheme at issue . . . because they have
no legally protectable interest that might be affected by the outcome of this proceeding, . . . the
motion to intervene is DENIED)).) In this regard, South Carolina argues that SC Alliance’s
position is “no different than the position of other citizens in the State” and its intervention
would mean that “every citizen in the State could make the same claim for equitable
apportionment of the fines and penalties that Congress directed to be paid to the State of South
Carolina.” (Id. at 6.)
South Carolina next asserts that SC Alliance’s Motion to Intervene should be denied
because its interests are adequately represented by the State which is seeking “to enforce the
same statute and achieve the same ends” under section 2566 as SC Alliance. (Id. at 7.) South
Carolina argues that the only distinguishing factor is that SC Alliance represents a “local”
perspective, but that issue is not determinative. (Id. at 9 (citing James City Cnty., Va. v. U.S.
E.P.A., 131 F.R.D. 472, 474 (E.D. Va. 1990) (“Their only concerns are that EPA had a
“national” perspective, while the applicants maintain a “local” perspective, and . . . . The Court
finds these propositions to be insufficient to support a claim of inadequate representation.”)).)

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Moreover, South Carolina argues that the section 2566 claim will be decided with or without SC
Alliance’s intervention and, as a result, “there is nothing to be impaired by the denial of
intervention.” (Id. at 10.) As its final objection to SC Alliance’s intervention by right, South
Carolina asserts that the intervention “would elongate and extend the case and prejudice the
parties” based on the additional time after intervention it would take to litigate SC Alliance’s
party status as a result of the parties’ likely-to-be-filed motions to dismiss. (Id. at 11.)
Additionally, South Carolina asserts that permissive intervention should be denied
because SC Alliance does not add anything to the prosecution of this matter under section 2566.
(Id. at 13.) In support of this assertion, South Carolina posits that SC Alliance’s true purpose is
to get an order from this court “requiring the State to give money to a private citizen” and this
cannot occur in this forum without a waiver of sovereign immunity by South Carolina. (Id. at
14.)
3. Federal Government Defendants
Federal Government Defendants oppose the Motion to Intervene as a matter of right
under Fed. R. Civ. P. 24(a) arguing that SC Alliance lacks a protectable interest because section
2566 only allows for South Carolina to receive assistance payments and “the statute makes no
mention of any other party or of equitable apportionment.”

(ECF No. 21 at 4.)

Federal

Government Defendants further argue that SC Alliance fails to demonstrate that its interests are
not adequately represented by South Carolina since the remedy SC Alliance is seeking is the
same relief being sought by South Carolina. (Id.) Additionally, Federal Government Defendants
assert that SC Alliance’s permissible intervention under Fed. R. Civ. P. 24(b) should not be
permitted because (1) it does not have a legally protectable interest and/or a role in section
2566’s statutory scheme, and (2) it will increase the complexity of the litigation because other

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landowners near SRS who might be economically affected by the MOX Facility would attempt
to intervene to claim a portion of any economic assistance payment awarded to South Carolina.
(ECF No. 21 at 5.)
C.

The Court’s Review
1. Intervention by Right
Upon review, the court finds that SC Alliance does not have a right to intervene in this

action because they fail to establish that their interests are not adequately protected by South
Carolina. In considering the arguments of the movant and the parties, the court observes that
the only difference in the remedies sought by South Carolina and those requested in SC
Alliance’s proposed pleading is that SC Alliance requests an equitable determination that it is an
intended beneficiary of the economic and impact assistance provided for in section 2566.
(Compare ECF No. 1 at 31 ¶ A–32 ¶ G with ECF No. 6-1 at 8–9 ¶ 35.) Even with this additional
request, the court is persuaded that SC Alliance shares the same ultimate concerns as South
Carolina, namely that Federal Government Defendants comply with 50 U.S.C. § 2566 by
removing 1 metric ton of defense plutonium from SRS and pay economic and impact assistance.
(Id.)
Accordingly, because SC Alliance and South Carolina share the same ultimate goals, SC
Alliance is required to overcome the presumption that its interests are adequately represented,
which requires a showing of “adversity of interest, collusion, or nonfeasance.”

See

Commonwealth of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (While
the “burden of showing an inadequacy of representation is minimal . . . . [w]hen the party
seeking intervention has the same ultimate objective as a party to the suit, a presumption arises
that its interests are adequately represented, against which the petitioner must demonstrate

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adversity of interest, collusion, or nonfeasance.”). SC Alliance has failed to make the requisite
showing. Therefore, because SC Alliance is adequately represented in this action by South
Carolina, the court need not consider the remaining factors for intervention by right. See, e.g.,
Roussell v. Brinker Int’l, Inc., No. 05-3733, 2009 WL 6496504, at *10 (S.D. Tex. Jan. 26, 2009)
(“As the Court finds that intervention of right is not afforded under elements two and three of
Fed. R. Civ. P. 24(a)(2), it will not consider element four.”). Accordingly, SC Alliance is not
entitled by right to intervene in this action.
2. Permissive Intervention
SC Alliance also seeks permissive intervention under Fed. R. Civ. P. 24(b). The court
denies SC Alliance’s request to permissively intervene because the court is persuaded that SC
Alliance’s intervention will unduly delay or prejudice the application of the rights of South
Carolina and Federal Government Defendants. In this regard, the court agrees with South
Carolina and Federal Government Defendants that SC Alliance’s intervention in this matter
would complicate the litigation, potentially unduly delay the adjudication of the case on the
merits, and generate little, if any, corresponding benefit to the existing parties. See Brock v.
McGee Bros. Co., 111 F.R.D. 484, 487 (W.D.N.C. 1986) (denying permissive intervention
where intervention would needlessly increase the cost and delay disposition of the case).
Therefore, in its sound discretion, the court denies the request by SC Alliance to intervene in this
action under Fed. R. Civ. P. 24(b).
IV. CONCLUSION
Upon careful consideration of the entire record and the arguments of the parties, the court
hereby DENIES the Motion to Intervene as Party Plaintiff of Southern Carolina Regional
Development Alliance. (ECF No. 6.)

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IT IS SO ORDERED.

United States District Judge
May 25, 2016
Columbia, South Carolina

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