By Kennedy Maize
The U.S. Supreme Court has given a green light to temporary, away-from-reactor storage of spent nuclear power plant fuel in Texas and New Mexico, overturning the ultra-conservative Fifth Circuit Court of Appeals. The 6-3 decision deals a blow to Texas Republican Gov. Greg Abbott, Texas oil and gas company Fasken Land and Minerals, and New Mexico Democratic Gov. Michelle Lujan Grisham.
The high court upheld the Nuclear Regulatory Commission’s 2021 grant of a license to privately held Interim Storage Partners LLC (ISP) for a waste holding site in West Texas. A three-judge panel for the Fifth Circuit in New Orleans in August 2023 ruled that the NRC did not have authority to issue a license for off-site storage.
Last September, the D.C. Circuit Court of Appeals upheld a similar license for Holtec International for a “temporary” nuke waste storage site in eastern New Mexico, close to the Texas line. The Supreme Court held oral arguments on the Texas case in March.
In upholding the NRC license to ISP last Wednesday (June 18) the court largely avoided the fundamental question that the Fifth Circuit raised, whether the NRC has the legal authority to issue the licenses, although the majority and minority opinions touch on it indirectly.
The majority – justices John Roberts, Brett Kavanaugh, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – focused on the basic issue of whether Texas and Fasken had standing to sue, as did the minority, justices Neil Gorsuch, Clarence Thomas, and Samuel Alito.
Kavanaugh wrote the 51-page majority opinion. He held, “Because Texas and Fasken were not parties to the Commission’s licensing proceeding, they are not entitled to obtain judicial review of the Commission’s licensing decision.”
He noted that in the 1946 Hobbs Act, initially passed to combat crimes in interstate commerce, “Congress specified that only a ‘party aggrieved’ by a licensing order of the Commission may seek judicial review. Texas and Fasken argue they qualify as parties because they participated in the licensing proceeding by submitting comments on the draft EIS and, in Fasken’s case, by attempting to intervene.”
Kavanaugh said, “But the text of the Atomic Energy Act indicates that one must be the license applicant or successfully intervene in order to obtain party status in a Commission licensing proceeding.”
Texas and ISP based their case on an “ultra vires” claim: that the NRC took action that goes beyond its authorized powers. Kavanaugh wasn’t buying. He ruled, “Texas and Fasken basically dress up a typical statutory authority argument as an ultra vires claim.”
Kavanaugh said, “Because Texas and Fasken have no right to judicial review of the licensing proceeding, the Court today does not decide whether the Commission possessed statutory authority to issue a license to ISP.” He added that the Fifth Circuit’s contention that the NRC lacks authority to permit off-reactor storage flies in the face of past decisions. He wrote “that history and precedent offer significant support for the Commission’s longstanding interpretation.”
Further, he wrote, “And this Court in 1983 and several Courts of Appeals have similarly interpreted the Atomic Energy Act of 1954 to authorize licenses for the storage of spent nuclear fuel.”
Gigglegas Gate
In the minority dissent, Gorsuch first supported the Fifth Circuit’s legal view of the dispute. “By law, spent nuclear fuel may be stored on an interim basis in only two places: at a nuclear reactor or a federally owned facility…. The agency’s decision was unlawful.”
He then addressed Kavanaugh’s conclusion that Texas and Fasken are not “aggrieved” parties. Gorsuch wrote, “And, yes, they are ‘aggrieved’ by the NRC’s decision. Radioactive waste poses risks to the State, its citizens, its lands, air, and waters, and it poses dangers as well to a neighbor and its employees.”
Gorsuch argued, “Both Texas and Fasken participated actively in other aspects of the NRC’s licensing proceeding. No more is required for them to qualify as ‘parties aggrieved’ by the NRC’s licensing decision. Both are entitled to their day in court—and both are entitled to prevail.”
The court’s decision is likely to energize ISP and others to go ahead with spent fuel storage projects. That could remove pressure on nuclear plant operators, including by local opposition for continued on-site waste storage.
It does not, however, advance a permanent solution to spent nuclear fuel, which has eluded the U.S. industry and government since nuclear power plants appeared on the scene. It may even reduce the pressure for a permanent waste solution, although there doesn’t appear to have been any movement in that direction in years.
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