what constitutes an m bailable preparation for the economic impact assistance payments the department of energy was required by statute brought to the state the court of federal claims a fact that we concluded that i wind item appropriation specifically for the assistance payments was required for there to be available preparations and because there was not one in maine communities from court's decision recently they've told us that the language subject to the availability  appropriation is limited what do you understand to be the limiting factor that language yes thank your honor is limited to just that a veil will appropriations a cuts off other sources of funds may be basically confirmed the greenlee county analysis so the question is what is an available preparation and the simple and undisputed answer is that an available appropriation for a proposed expenditure is one that can be used for that not recently find all future expenditures of an agency through line on appropriations as the court of claims accepted that and so does the federal government does the general proposition that you do not need yes your honor yes that the material disposition program appropriations which are set forth in explanatory tables of the relevant appropriation act there's a line there that says material disposition and that's where the material disposition program as a whole whether they have a reasonable or logical relationship to the disposition program as a whole and here congress answer that question it enact in section two thousand five hundred and sixty six and all of those obligations in program but now when the say comes to enforce those obligations those obligations have nothing to do with the disposition program and just respectfully we think that's absurd that congress radioactive material out of the state of south carolina am i correct correct yes what funds would be used for that move well to the department in later years used material disposition program funds to move the boat tony i'm outside of south carolina so that relates to another litigation the state was forced to bring and that was related to section subs subsection c section remove that plutonium they shifted out to nevada where the majority of it how to nevada and in their budget requests they said they were using material disposition program appropriations to do that so the government through it on that the department could either remove or pay the obligation that plutonium is all remaining in the state of south carolina and so by making that decision to store the plutonium in south carolina the department of energy knowing that the effect of that decision was to obligate desist in spain and the department made that decision obligated as this is payment and that putting is now stored so we do not ability to prevent them from doing so what when we use the term rented this morning and now is the way we're saying that congress gave them a choice you either can autonomy in south carolina and make the payments or you can remove it and you don't and you do not have to make the payments and that's the that's the choice they depart very edgy decided to stay in the state of south carolina and the cost of that decision assistance payments and they made that decision as i just mentioned because because it furthers their current disposition policy and that is they want to what they call diluting dispose and that senator from south carolina what is the record show was the reason for that  issue here because the language what is in the current statute and what we're attempting to force is clear and is used in many many statute says as the main health decision the supreme court recognized that common understanding of what constitutes an available appropriation is if it can be extended without violating the purpose statute where there are sufficient appropriations that could be expended without buying the purpose statute and here we have and sixty one the appropriations that you answer the question of whether the funds were appropriated for the assistance payments and koreans there and you are the necessary expense growth should be considered you mentioned that pay for those risk order payments even though congress did not give a specific appropriation for those payments the risk or a famous i think for that year at issue were in the number of billions of course congress has now approved of appropriations there was and there was not but what g a o was considering was the question of available appropriations that was the question presented to g a o that's a question commonly presented to g a o and when they look to determine what is an available appropriation they look at the plain language of the statute and they look at the necessary expense doctrine and hear the plain language and application unnecessary expense option confirm that the material disposition of preparations were available vailable for the assistance payments and that's all that needs to be done there is not need to be and has never been a wall there has to but congress has said these payments along with all the other obligations further our disposition program we're going to enact them and so when now south carolina comes to enforce th of the department of energy i think that maybe what i could do though is clarify what the statute actually requires because i think it may be hasn't been fully explained in subsection the one the objective is achieved in such year or the date on which the secretary has removed from the state of south carolina in such year at least one metric ton of defense plutonium so the obligation which again is contingent on the the availability of appropriations would only cut off once the later of those two events are met and since there's no question that the mocks production objective hasn't been that will not met as we as we have explained and as this court has explained subject to availability of appropriations is quote commonly used to restrict the government's liability to the amount appropriated by congress for this purpose this court has said that in prairie county and greenlee and the supreme court's recent decision maine community health only confirms that those obligations are are limited either  let me answer that directly and then i'd like to back up and provide a more a more of an overview of the statute but but essentially that there's no evidence in any of the appropriations legislation that congress and handed any explain in our in our our brief on page twenty five is disposing of weapons grade plutonium and uranium working with russia to dispose of surplus weapons grade plutonium under the us russia plutonium disposition agreement and directing international plutonium management nothing in there is says anything about assistance payment the south carolina and that's relevant in light of the fact that as we've observed and there's really no dispute congress exercises unusually specific control and direction over the nation's nonproliferation activities and so the appropriations that are made to the department of energy are very specific they are not the sort of what they often see with unrestricted payments really demonstrates that congress did not intend did not make any appropriations available for this purpose given the specificity specificity with which congress restricts the always use of funds and in particular with respect entirely by the federal government and the taxpayer i think it's again it's important to go back to and i want to strongly disagree with the characterization of the assistant payments as any kind of storage costs or rental  state that it would not become a what what is considered to fear to be a permanent dumping ground for the nation's plutonium material and so the correction and given not to my understanding i think some of what happened in two thousand and five and subsequently was that the statutory deadlines for meeting the certain milestones or were revised into the future so there was this technical question we don't have any more insight into why that change was made what we can say is that given congress use a very well understood language language that is i don't think anyone is arguing is more is not it is language it is more restrictive than the language that was previously used in the statute and that should and that should mean something well this is probably just to try and think about the events here and how they reflected in the legislation it looks as if nothing has changed in has been abandoned and that nothing really has changed from the initial situation which led to this legislation in the st place and yet  who which has not made the preparations available we are not disputing that had congress made a veiled appropriations available for this purpose that the united states would be liable in the amount of other preparations the problem is that congress through both a lack of a specific appropriation for this purpose and the purpose restrictions is placed on the perforations has demonstrated that it does not intend to have the secretary make these the statute which referred to different timelines and different obligations the allegations in subsection d which reference the impact and assistance payments objective was not that by january one thousand and sixty and still has not been that we never we've never disputed that the question is really looking at the preparations that congress has  both the purpose and the amount that may be used for any specific purpose and the closest that south carolina gets is to the material disposition control and which again so for example in two thousand sixteen congress appropriated only eighty six million dollars for that entire program and that would clearly be insufficient to meet the one hundred million dollars that south ok so right if the court looks at page  line right so you have material management and minimisation is that and then underneath those are the three and then the rd one is material disposition and for that year you can see that the amount that was appropriated for that program was ultimate relief that south carolina is seeking is one that in light of the preparations that have been made if it's a remedy that it needs to seek directly  them are available for the purpose and we believe that on the face that both the state the lack of a specific appropriation and the unique structure of the restrictions placed on the appropriations answered that question i think our concern is to the extent that south carolina is asking the court to look at a particular control line and see how much of that can be given to south i'm curious whether there is any example of an agreement with with the department of energy you or the united states has made with the state in order to get it to accept highly enriched uranium in which the program has been successful underline disposal program the answer to that question your honor i get i think i'm not sure that the united states was was required to to have an agreement with south carolina in order to store these materials at a federal facility and again i think that the the what was reached in the statute was that was a political assurance to the state point from opposing counsel and they had knowledge that the reason these obligations were put in to the statute was to reassure or assure south carolina that the but tony and we moved out it was it was done obtain the state acquiescence to this at the time preferred disposition policy of the record is undisputed on that now they're saying even though the obligations were put in place to further the disposition policy when we come to enforce those obligations they have absolutely no relationship to disposition as that's their counsel this judge wallace i don't think your statement is  actually correct my understanding of what was done is that an agreement was made to build a facility which would would in effect  have a high tech facility located in south carolina is that not correct it wasn't about bringing it in and moving it out i agree partially with that your honor there were two purposes  another purpose and it is to protect south carolina and compensate south carolina for having to store this patel i mean within the state especially if the deadlines of the statute are not met that's why the justices payment is put in there it was the you know the base to get south carolina to agree to all that its economic and impact assistance and now we come to enforce the statu and they say it has no relationship to disposition and and to be clear the government agrees that you have to look to see whether any of the preparations available that those purposes align with the economic assistance payments so we cannot just stop because congress appropriated only at a program level which they've done here and they often do you have to drill down and look at an appropriation and we have done that we have pointed to the material disposition for appropriation mean that it's not informative as to what material management minimisation i agree but what it also is informative is operative statute and congress enacting  and making an authorized function of the assistance payments and that's what gets a little lost a necessary expense doctrine you know there's one where you look to see if the a specific spencer fits within the purposes but the related  part of that analysis is whether there is an authorized function which more general appropriations are available to meet and hear through section two thousand five hundred and sixty six dollars congress made  payments and authorize function of the disposition program congress side that there's it's evident from the title of the statute the purposes and the plain language that congress made it a authorized function of that program now there are appropriations vailable for that program and the law has never been and is not and i think that there has to be a specific  iation here for that expenditure does the reason the necessary expense doctrine exist for this common situation when you have a statutory obligation or some other expenditure for which there is not a specific line item preparation you go and make the determination whether there are other appropriations that this expenditure could be paid with and those available appropriations are ones that can be made by making them you do not violate the purpose that you and the g a o which this court the supreme court you know relies on an expert opinion who is the expert in appropriations all has to wait out the test for when you can tell us something violates the purpose statute and that is a necessary expense on you determine whether that appropriation has a logical or release of reasonable relationship to the expenditure and then you also look to see in the preparation that the congress specifically restricts or perhaps there's a part of energy here for making those payments and i did not there's nothing in appropriation at that specifically says department of energy  you're not of you're not able to make those payments you're not able to meet your two thousand five hundred and sixty six obligations and because of that the material disposition appropriations and there were more than enough each year  sham program if you count carryovers which the government recognizes we can for two thousand and sixteen there is close to one hundred and seventy million dollars available in the material disposition program after you specifically take an account the specific congressional earmarks or other restrictions and then for two thousand and seventeen with the carryovers there is close to one hundred and fifty five million of vailable to the punishment if you have appropriations really available to the department here decided to ignore that they they decided not to tell congress that they needed additional appropriations to make these payments even knowing that obligation become d the undisputed record is they did not tell congress that to put tony m would not be removed from the state in each of the years that issue and that's what triggered the payments so there's a clear reason here based on the undisputed record