Supreme Court Weighs Rights to Build Private Nuclear Disposal Sites

The U.S. Supreme Courtroom March 5 heard oral arguments in a case contemplating the Nuclear Regulatory Fee’s authority beneath federal legislation to grant licenses to non-public firms for constructing momentary nuclear spent-fuel storage amenities removed from the reactors the place the waste originated.

The case, NRC vs. Texas, was consolidated with one other case involving Interim Storage Companions (ISP), a three way partnership of Waste Management Specialists and Orano USA, in opposition to the state of Texas.

In September 2021, ISP obtained an NRC license to construct and function a storage facility in Andrews County, Texas, comparatively near the New Mexico border. In Could 2023, the NRC additionally granted Holtec Worldwide a license for a storage facility in southeastern New Mexico.

Texas Gov. Greg Abbott (R), Midland, Texas-based oil and gasoline agency Fasken Land and Minerals, and others challenged the NRC’s actions and gained within the Fifth Circuit Courtroom of Appeals. The court docket revoked ISP’s license in 2023, and likewise vacated Holtec’s license in 2024. In each circumstances, the court docket discovered that the NRC was not approved to grant the licenses to the companies. The NRC introduced the case to the Supreme Courtroom to enchantment that call.

On the Supreme Courtroom listening to, justices requested the attorneys on each side for clarification on their interpretation of the that means and intent of sure provisions of the Atomic Power Act (AEA) and the Nuclear Waste Coverage Act.

Justice Division legal professional Malcolm Stewart argued that, beneath AEA, Congress didn’t bar off-site storage of spent gas nor did it enact any licensing provisions.

“Congress clearly contemplated that licensing would proceed to be executed beneath the pre-existing Atomic Power Act provisions, and people provisions do not distinguish between on-site and off-site storage,” Stewart stated.

Justice Ketanji Brown Jackson pushed again saying, “I do not hear you disputing that Congress within the [Nuclear Waste] Coverage Act was expressing its, maybe, choice for on-site storage. … It appears to me that Congress on this statute was doing so by incentivizing on-site storage, which seems to be a distinct factor than prohibiting off-site storage.”

Stewart stated that beneath a federal storage program “that didn’t get off the bottom,” one of many methods on-site storage was incentivized included necessities that firms present when on-site storage was unavailable. Nevertheless, he added, there was no related requirement for off-site storage.

Stewart additionally asserted that, beneath the Hobbs Act—which units a 60-day clock for aggrieved events to problem sure company orders—Texas shouldn’t be an aggrieved get together and so doesn’t have standing to carry a problem. 

Justice Samuel Alito requested ISP counsel Brad Fagg whether or not it’s affordable for the state of Texas and others with pursuits within the Permian Basin to be involved about storage on this location.

Fagg responded that Texas initially supported the ISP challenge however then reversed course, however that it didn’t accomplish that inside the correct time interval “like a lot of states do and just like the rules particularly permit.”

David Frederick, who represents Fasken, argued that the NRC’s “efforts to derive authority from the AEA’s materials license provisions do not work as a result of storage shouldn’t be use. Because the 1982 [Nuclear Waste] Coverage Act defines it, storage is retention ‘for subsequent use, processing or disposal.’”

Justices Sonia Sotomayor and Samuel Alito each questioned what “momentary” storage means within the context of this case.

“Whether it is determined that materials could be saved off-site quickly, and momentary means greater than 40 years, possibly greater than 80 years. Perhaps it means 250 years … the place is the inducement to go ahead, to do what Congress needed to have executed, which is to determine a everlasting facility?” Alito requested.

In a press release to ENR, a Holtec spokesperson stated that the Fifth Circuit’s choice to strike down the 2 NRC licenses was incorrect. 

“The Supreme Courtroom heard oral arguments on the Fifth Circuit’s choice, involving each the procedures used to hunt evaluate of an NRC license and the NRC’s authority to points licenses for spent gas storage,” the spokesperson stated. “Holtec believes that the Fifth Circuit utilized the inaccurate procedures, and that the NRC has clear statutory authority to challenge these licenses.”

He added that Holtec seems ahead to the Supreme Courtroom “correcting the Fifth Circuit’s procedural ruling, and reinstating Holtec’s NRC license.”