The D.C. Circuit appeals court has upheld the authority of the U.S. Nuclear Regulatory Commission to license private, away-from-reactor storage of spent nuclear fuel, adding to confusion to the gnarly issue of what to do with high-level nuclear waste. With federal circuit courts in collision, it may take the U.S. Supreme Court to sort it out.
On Aug. 27, a three-judge D.C. Circuit panel rejected a challenge to a 2021 Nuclear Regulatory Commission license to Interim Storage Partners, a subsidiary of Orano USA, for a private, above-ground “temporary” waste storage site in West Texas near the New Mexico state line. Not long after that, the NRC granted a similar license to Holtec International for an above-ground storage site in eastern New Mexico, close to the Texas line.
In granting the Holtec license, the NRC rejected petitions to intervene by Beyond Nuclear, a Maryland anti-nuclear group, the Sierra Club, and Texas-based Fasken Land and Minerals, a Permian Basin oil and gas producer.
Almost exactly a year ago (Aug. 25, 2023), the ultra-conservative Fifth Circuit Court of Appeals, with jurisdiction in Texas, Louisiana, and Texas, rejected the NRC license for the Texas site in a case brought by Texas Gov. Greg Abbott and Fasken. The Fifth Circuit ruled that neither the Atomic Energy Act nor the Nuclear Waste Policy Act authorized private, away-from-reactor storage of spent fuel, at least until a final federal underground repository is available. That prospect is far in the future, if at all.
In March, the Fifth Circuit expanded its ban of the Texas project to Holtec’s New Mexico waste project, despite it being outside the court’s jurisdiction. In an unpublished decision, the circuit court wrote, “Because this court’s holding in Texas v. NRC dictates the outcome here, we GRANT Fasken’s and PBLRO’s petition for review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 court also rejected an NRC petition to move the case to the D.C. appeals court.
That led to the anti-nuclear filing in D.C., challenging to NRC’s decision to deny them intervenor status in the Holtec license case. In the denial of the petition last month, Judge Neomi Rao wrote for the panel that “the Commission reasonably declined to admit petitioners’ factual contentions and otherwise complied with statutory and regulatory requirements when rejecting the requests to intervene.”
Rao also took on some of the Fifth Circuit’s ruling about the authority for away-from-reactor, above-ground storage. Rao wrote, “According to Beyond Nuclear, the [waste policy act] prohibits DOE from taking title to private spent nuclear fuel until a permanent repository for the disposal of spent nuclear fuel is built, so it is unlawful for the Commission to consider the application.” That’s an assertion the Fifth Circuit also made.
Citing a 2004 D.C. Circuit decision, Rao found, “Even if the NWPA prohibits DOE from taking title to private spent nuclear fuel until a permanent repository for the disposal of such fuel is built, a point we assume without deciding, the statute does not affect ‘the NRC’s authority under the AEA to license and regulate private use of private away-from-reactor spent fuel storage facilities.’
” The Commission correctly determined that Beyond Nuclear did not raise a genuine dispute of law or fact, so we deny its petition for review.”
Rao, 51, a Trump appointee, has served on the D.C. Circuit Court since March 2019.
As the online legal site Justia noted, “Additionally, the court determined that Fasken’s late-filed contentions were procedurally defective, untimely, and immaterial.”
An analysis by the D.C. law firm Hogan Lovells commented, “This decision is contrary to recent Fifth Circuit decisions, but in line with prior D.C. Circuit and Tenth Circuit decisions—further deepening the circuit split on such authority and increasing the likelihood the Supreme Court will consider the issue in its upcoming term.”
The analysis noted that “commercial interim storage” (CIS) “was initially challenged in federal courts in the early 2000s, when the NRC was licensing the first commercial CIS, known as the Private Fuel Storage facility. At that time, a number of court challenges were brought contesting the NRC’s authority to license a CIS facility, and in two circuit court decisions—specifically, in the D.C. Circuit and the Tenth Circuit—the court upheld the NRC’s authority to license the CIS under the AEA. For NRC licensing decisions, as a general matter, the federal circuit courts have direct appellate review, and the appeal can be brought in either the D.C. Circuit or the circuit court where the proposed facility is located.”
–Kennedy Maize