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rule of law
'Significant Victory': Court Rules Planned Plutonium Pits for New Nukes Violate US Law
"Public scrutiny is especially important because the activities at issue here, by their very nature, result in the production of dangerous weapons and extensive amounts of toxic and radioactive waste," a plaintiffs' lawyer said.
Oct 03, 2024
In what advocates called a major win for frontline communities and the rule of law, a U.S. district court judge ruled on Monday that the federal government could not move forward with producing plutonium pits—"the heart and trigger of a nuclear bomb"—at two proposed sites in New Mexico and South Carolina.
Instead, Judge Mary Geiger Lewis agreed with a coalition of nonprofit community groups that the Department of Energy (DOE) and the National Nuclear Security Administration (NNSA) violated the National Environmental Policy Act (NEPA) by failing to fully consider alternatives to producing the pits at New Mexico's Los Alamos National Laboratory and South Carolina's Savannah River Site (SRS). Now, the federal government must conduct a full environmental impact statement of how pit production would work at sites across the U.S.
"This is a significant victory that will ensure NEPA's goal of public participation is satisfied," attorney for the plaintiffs Ben Cunningham, of the South Carolina Environmental Law Project, said in a statement. "Public scrutiny is especially important because the activities at issue here, by their very nature, result in the production of dangerous weapons and extensive amounts of toxic and radioactive waste. I hope the public will seize the upcoming opportunity to review and comment on the federal agencies' assessment."
"This is a victory for public transparency, and hopefully will result in alternative proposals that are more protective of the environment and affected communities around these sites."
Making plutonium pits means working with "extremely hazardous and radioactive materials," Nuclear Watch New Mexico, one of the groups behind the suit, pointed out. As of 2018, the government had planned to produce at least 80 pits a year by 2030—30 or more in New Mexico and 50 or more in South Carolina.
Yet these pits are not intended to maintain the United States' existing nuclear weapons stockpile. Instead, they would be for future, experimental weapons that could not even be tested without violating the Nuclear Test-Ban Treaty. What's more, making the pits would cost U.S. taxpayers over $60 billion over the next three decades, and the Government Accountability Office (GAO) found that the NNSA has not made reliable cost estimates for production at the two proposed sites.
"The DOE and NNSA have been on the GAO's 'High Risk List' for project mismanagement and cost overruns for more than 30 years," said Jay Coghlan, the executive director of Nuclear Watch New Mexico. "Nevertheless, these agencies think they can proceed with their most expensive and complex project ever without required public analyses and credible cost estimates."
Coghlan continued: "Public scrutiny and formal comment under the National Environmental Policy Act have proven time and again to improve public safety and save taxpayers' money. A nationwide programmatic environmental impact statement [PEIS] on expanded plutonium pit production will hold DOE and NNSA accountable for just that."
It will also give local communities a chance to have a say in potentially dangerous projects being implemented near their homes. The plaintiffs were composed mostly of frontline groups: Savannah River Site Watch, Nuclear Watch New Mexico, Tri-Valley Communities Against a Radioactive Environment (CAREs), and the Gullah/Geechee Sea Island Coalition.
"Native Gullah/Geechees, including the Gullah/Geechee Fishing Association and Gullah/Geechee Sea Island Coalition members, rely on safe and healthy water in order to sustain ourselves and our community," said Gullah Geechee Nation Chieftess Queen Quet. "Therefore, it is critical that the public is fully aware of any and all potential negative impacts that projects will have on critical resources such as our water supplies and water bodies."
If the DOE and NNSA's plans had gone ahead, it would have been the first time that plutonium pits were manufactured at the Savannah River Site, at a facility which could cost between $11 and $25 billion to complete. However, Judge Lewis concluded that the agencies had not updated their plans to account for production at two sites at once and must therefore conduct a PEIS considering production at potential sites across the U.S. as well as the handling and disposal of waste.
"In our comments, it was repeatedly stressed that the agency violated the law by failing to take a hard look at alternatives for this 'two-site' plan," said Scott Yundt, executive director of the Livermore, California-based Tri-Valley CAREs. "Additionally, commenters pointed out the lack of inclusion in the environmental review of the other affected sites involved in the plan, chief among them Lawrence Livermore National Laboratory and the Waste Isolation Pilot Plant, where the scope of work and the corresponding impacts was largely left out of the analysis and, again, no alternatives were offered or analyzed as required by NEPA. The judge saw these violations clearly and ordered agencies do the analysis that should have been done at the outset. This is a victory for public transparency, and hopefully will result in alternative proposals that are more protective of the environment and affected communities around these sites."
Tom Clements, who directs Savannah River Site Watch and was also an individual plaintiff in the case, said the ruling was "a notable victory for the main argument in our lawsuit—that the NNSA's NEPA analysis on plutonium pit production was inadequate."
In addition, it provides a reprieve for the project's concerned neighbors.
"The design and construction work on the proposed SRS pit plant should be put on hold until the PEIS has been finalized," Clements said.
Dylan Spaulding, senior scientist at the Union of Concerned Scientists, also applauded the ruling.
"NNSA skirted the rules and now they are being held accountable—this is a victory for transparency," he said.
Spaulding added that he was unsure whether or not this would delay the planned plutonium pit production blitz.
"There are still a lot of environmental hazards and questions that need to be addressed," he said. "We should be pausing and thinking about that before this hugely expensive project goes forward."
This piece has been updated to included comments from Dylan Spaulding of the Union of Concerned Scientists.
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New Revelations Show Just How Corrupt the Supreme Court Really Is
Call me naïve. At the beginning of this year, I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court.
Sep 18, 2024
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States had not yet been released. Then The New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story by Jodi Kantor and Adam Liptak that appeared in The New York Times last weekend. The lurid news of the day quickly overwhelmed it—the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. JD Vance (R-Ohio) against the Haitian immigrant community in a small city in Ohio, and more.
Throughout American history, overreach by the Supreme Court has provoked a response.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot—a unanimous ruling that Trump could not be thrown off the ballot by one state under the 14th Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the court, though, there was no deal. Roberts wrote a memo in February—before the court had even announced that it would hear Trump’s appeal—declaring that the court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history—a rip in the constitutional fabric. The Times’ tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s—it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78% support term limits.
The court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
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If She Truly Holds the Rule of Law ‘Sacred,’ Harris Must Back an Arms Embargo on Israel
No other policy step would have as much of an impact in generating a permanent cease-fire and advancing Palestinian freedom.
Sep 05, 2024
In her recent speech to the Democratic National Convention accepting the party’s nomination for president, U.S. Vice President Kamala Harris drew one of her most thunderous applause lines when she called for an end to the violence and suffering Israel is inflicting in Gaza and for the long-denied fulfillment of Palestinian rights to dignity, security, freedom, and self-determination.
This enthusiastic reception, evinced by tens of thousands of die-hard Democrats at Chicago’s United Center, was a faithful reflection of where the base of the party stands on Palestinian-Israeli issues.
A May 2024 public opinion poll conducted by Data for Progress and Zeteo found that 83% of Democrats support the U.S. brokering a permanent cease-fire. A March 2024 Gallup poll found more Democrats sympathetic toward Palestinians than toward Israelis by a 10-point margin (43% to 35%) as Israel continues killing Palestinians in Gaza.
The U.S. is profoundly complicit in Israel’s mass killing of Palestinians.
While Harris’s rhetorical commitment to Palestinian freedom and self-determination is noteworthy, these will be yet more empty words unless they are accompanied by a commitment to tangible policy change. Most importantly, this means following U.S. law and ending weapons transfers to Israel. No other policy step would have as much of an impact in generating a permanent cease-fire and advancing Palestinian freedom.
For decades, Israel has denied Palestinians their freedom under a brutal system of apartheid and military rule, backed by the munificent support of U.S. taxpayers, who have provided Israel with more than $100 billion in weapons.
As Israel’s violence against Palestinians over the past 10 months has increased, so too has the amount of weaponry the U.S. is providing to Israel. The Biden administration has circumvented congressional oversight to rush to Israel the delivery of more than $6 billion in weapons, and the Pentagon recently notified Congress of $20 billion in potential new sales, which will undoubtedly be financed by U.S. taxpayers.
From fighter jets to missiles, bombs, tank shells, and mortars, U.S. weapons to Israel make us complicit in the war crimes and potential crimes against humanity Israel is inflicting on Palestinians in Gaza, as the death toll eclipses 40,000 people, including more than 16,500 children.
In her acceptance speech, Harris committed to “hold sacred” the principle of the rule of law. If elected president, her most immediate test of fidelity to this principle will emerge from her decision on whether to send additional weapons to Israel.
U.S. law is clear: No country can receive U.S. weapons to commit human rights abuses. The Foreign Assistance Act prevents the U.S. from furnishing any support to a country with a “consistent pattern of gross violations of internationally recognized human rights.” The Arms Export Control Act mandates that U.S. weapons be used “solely for internal security, for legitimate self-defense,” and for a few other scenarios not relevant to Israel’s attacks on Palestinians in Gaza. No sales or deliveries of any weapons are permitted to a country in “substantial violation” of these limitations.
In addition, current White House guidelines, embodied in its Conventional Arms Transfer policy, prohibit weapons deliveries to a country when it is “more likely than not that the arms to be transferred will be used by the recipient to commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit: genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law, including serious acts of gender‑based violence or serious acts of violence against children.”
As attested to by myriad Palestinian and international human rights organizations, as well as United Nations agencies and judicial bodies, Israel is brazenly violating every single clause of the Conventional Arms Transfer policy, which is supposed to prevent U.S. complicity in atrocities.
Not only should Harris commit to ending weapons transfers to Israel because U.S. law and policy mandate she do so if elected president, stopping weapons to Israel is also a smart electoral strategy to adopt. A March 2024 public opinion poll conducted by the Center for Economic and Policy Research found that 62% of Biden 2020 voters support halting weapons shipments to Israel, whereas only 14% oppose.
In addition, an August 2024 public opinion poll of voters in the critical swing states of Pennsylvania, Arizona, and Georgia, conducted by the IMEU Policy Project, found that Democratic and independent voters would be more likely to cast their ballot for Harris if she were to support an arms embargo on Israel. Thirty-nine percent of Georgians would be more likely to vote for Harris in this scenario, whereas only 5% of voters would be less likely to vote for her, with similar results obtained in Arizona (35% to 5%) and in Pennsylvania (34% to 7%).
Unfortunately, Harris appears wedded to Biden’s failed strategy of providing Israel with weapons. As she put it in an interview with CNN, she would not withhold weapons.
More than 75 years ago, in November 1947, as the U.N. debated partitioning Palestine against the wishes of its majority Indigenous inhabitants, the Truman administration imposed an arms embargo on all sides in Palestine for the commonsense reason, in the subsequent words of Secretary of State George Marshall, that to “permit American arms to go to Palestine and neighboring states would facilitate acts of violence and the further shedding of blood and thus render still more difficult the task of maintaining law and order.”
The Truman administration maintained its arms embargo against Israel after its establishment in May 1948, despite fierce lobbying from members of Congress, Zionist organizations in the U.S., and the Israeli government. Israel engaged in massive ethnic cleansing, driving more than 80% of Palestinians from their homes in what became Israel and turning them into refugees. But at least U.S. weapons did not contribute to this atrocity.
Today, as Israel continues its horrendous violence against Palestinians, which is in some respects even more deadly than the catastrophe of 1948, the obverse is true. The U.S. is profoundly complicit in Israel’s mass killing of Palestinians.
Because of her stated commitment to the rule of law, a permanent cease-fire, and Palestinian freedom, Harris must now end U.S. complicity by backing a renewed arms embargo against Israel.
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