In a case that could be headed to the U.S. Supreme Court, the Fifth Circuit Court of Appeals in New Orleans late last month (Mar. 27) extended its August, 2023 ban of a Texas above-ground spent nuclear fuel storage facility to nearby New Mexico, where Holtec International also has a Nuclear Regulatory Commission license for high-level nuclear waste storage.
The action comes despite New Mexico’s location outside the Fifth Circuit’s nominal jurisdiction: Texas, Louisiana, and Mississippi. At the same time as it extended its denial of a federal license to the Land of Enchantment, the court rejected a motion from the NRC to transfer the case to the U.S. Court of Appeals for the D.C. Circuit.
In an unpublished decision, a three-judge panel noted that Fasken Land and Minerals, Ltd., and Permian Basin Land and Royalty Owners (PBLRO), which brought the original case against the NRC license along with the Texas government, also filed a petition challenging the license the NRC granted to Holtec last May for nuclear waste storage in Lea County, N.M., also located on the Permian Basin oil and gas field. Lea County is located in New Mexico’s southeast corner, just across from Texas. Fasken is headquartered in Midland, Texas, close to the New Mexico border, with Permian Basin holdings in New Mexico.
Fasken and PBLRO argued that Texas v. NRC “involved a ‘materially identical license in a materially identical procedural posture’ and that ‘absent the court granting rehearing en banc in Texas…the panel’s consideration of this case will be controlled by [Texas v NRC].’”
The Fifth Circuit panel wrote, “Because this court’s holding in Texas v. NRC dictates the outcome here, we GRANT Fasken’s and PBLRO’s petition for review and VACATE the Holtec license. The NRC’s motion to transfer the petition for review to the United States Court of Appeals for the District of Columbia Circuit is DENIED AS MOOT.”
The circuit judges denying the New Mexico NRC license were Edith Jones, a Reagan appointee, Jennifer Walker Elrod, named to the court by George W. Bush, and Cory T. Wilson, a Trump appointee. Of the 17 active judges on the court, six are Trump appointees, and 12 were named to the court by Republican presidents, with five Democratic selections.
The Guardian in 2021 wrote that the Trump appointees succeeded in “skewing one of the most conservative – and influential – courts in America even further to the right. The consequences of Trump’s reshaping of the federal judiciary are being felt acutely at the fifth circuit on issues ranging from abortion to immigration to the coronavirus pandemic. The court’s willingness to entertain Republican extremism has effectively made it their principal legal bulwark against Joe Biden.”
“The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel.”
In overturning the Texas NRC license, the court with a slightly different panel – Jones, Wilson, and James C. Ho. (with Ho writing the opinion) — the court said, “The Commission has no statutory authority to issue the license. The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act. This understanding aligns with the historical context surrounding the development of these statutes.”
Holtec’s New Mexico facility could store 500 canisters holding approximately 8,680 metric tons of commercial spent nuclear fuel for 40 years. The company said it plans to eventually store up to 10,000 canisters in an additional 19 phases. Each expansion phase would require a license amendment with additional NRC safety and environmental reviews.
The Holtec ruling means that the NRC is batting 0-for-3 in licensing offsite, “temporary” spent nuclear fuel storage in the face of the multi-year, multi-billion-dollar abject failure of a permanent, underground nuclear waste storage site on federal land at Nevada’s Yucca Mountain.
The Fifth Circuit has now struck down the licenses for the Texas and New Mexico sites. The NRC in 2006 issued a license to Private Fuel Storage LLC, a nuclear industry consortium based in LaCrosse, Wisc., for spent fuel storage on the Goshute tribe’s Skull Valley Reservation in Utah, originally submitted to the NRC in 1997. The project generated enormous controversy, including among the tribal members, and it crashed to earth in 2012.
–Kennedy Maize