US Supreme Court to Hear Nuclear Waste Storage Dispute, Reports Reuters

By Nate Raymond

The U.S. Supreme Court has agreed to consider whether the Nuclear Regulatory Commission (NRC) holds the authority to license nuclear waste storage facilities. This decision comes in response to a recent judicial ruling that challenged decades of regulatory practice by asserting that the NRC does not possess such power.

The appeals were brought forth by President Joe Biden’s administration alongside a company that received a license from the NRC to construct a waste storage facility in western Texas. The license faced opposition from Texas and New Mexico, as well as from stakeholders in the oil industry.

The Supreme Court is set to hear arguments in this case during its new term, which starts on Monday, with a ruling anticipated by the end of June.

With a conservative majority of 6-3, the Supreme Court has previously expressed skepticism regarding the authority of federal regulatory agencies, particularly in significant rulings in recent years.

In 2021, the NRC issued a license to Interim Storage Partners, a collaboration between France-based Orano and Dallas-based Waste Control Specialists, for the facility in Texas. Although two other federal appeals courts upheld the license, the 5th U.S. Circuit Court of Appeals, based in New Orleans, ruled against it, stating that the NRC lacked the authority to issue the license under the Atomic Energy Act of 1954.

The Biden administration has contended that this ruling could disrupt the nuclear energy sector. In its appeal, the administration criticized the 5th Circuit for imposing “novel” restrictions on the NRC’s authority, warning that this could have severe consequences for both the commission and the nuclear power industry.

Support for the appeal comes from the Nuclear Energy Institute, a trade association representing the nuclear energy sector, which claims that the 5th Circuit’s decision could lead to “far-reaching and destabilizing” effects on the industry.

Since 1980, the NRC has been issuing licenses for the temporary storage of spent fuel from nuclear reactors to accommodate the growing need for off-site storage of radioactive waste. This practice has continued despite the stalled proposal for permanent storage of the nation’s radioactive waste at Yucca Mountain in Nevada, which has faced years of opposition.

In the judgment against the NRC, Judge James Ho, appointed by former President Donald Trump, referenced the Nuclear Waste Policy Act, modified in 1987 to designate Yucca Mountain as the exclusive permanent storage site for radioactive waste.

Additionally, Ho invoked the “major questions” doctrine, a legal principle favoring conservative judges, which allows federal courts significant discretion to overturn executive actions that are seen as lacking explicit congressional authorization.

Interim Storage Partners aims to operate its facility in Andrews County, Texas, a plan that has garnered resistance from oil and gas organizations due to its location within the Permian Basin, the most productive oil field in the United States.

Texas and New Mexico are not alone in this litigation; they are joined by Fasken Land and Minerals, an oil and gas extraction entity, and the nonprofit Permian Basin Coalition of Land and Royalty Owners and Operators.

The plaintiffs argue that constructing the proposed facility poses environmental risks to watersheds affecting much of Texas and New Mexico, and that any potential radiation leak could severely impact the oil and gas sectors economically.