Supreme Court Weighs Rights to Build Private Nuclear Disposal Sites

The U.S. Supreme Court docket March 5 heard oral arguments in a case contemplating the Nuclear Regulatory Fee’s authority below federal regulation to grant licenses to personal corporations for constructing momentary nuclear spent-fuel storage services 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 acquired an NRC license to construct and function a storage facility in Andrews County, Texas, comparatively near the New Mexico border. In Might 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 Court docket 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 Court docket to enchantment that call.

On the Supreme Court docket listening to, justices requested the attorneys on either side for clarification on their interpretation of the which means and intent of sure provisions of the Atomic Vitality Act (AEA) and the Nuclear Waste Coverage Act.

Justice Division lawyer Malcolm Stewart argued that, below AEA, Congress didn’t bar off-site storage of spent gasoline nor did it enact any licensing provisions.

“Congress clearly contemplated that licensing would proceed to be executed below the pre-existing Atomic Vitality 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 unique factor than prohibiting off-site storage.”

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

Stewart additionally asserted that, below the Hobbs Act—which units a 60-day clock for aggrieved events to problem sure company orders—Texas is just not an aggrieved social gathering and so doesn’t have standing to convey a problem. 

Justice Samuel Alito requested ISP counsel Brad Fagg whether or not it’s cheap 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 venture however then reversed course, however that it didn’t accomplish that throughout the correct time interval “like a lot of states do and just like the rules particularly enable.”

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 is just not 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 will 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 motivation to go ahead, to do what Congress needed to have executed, which is to ascertain 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 unsuitable. 

“The Supreme Court docket heard oral arguments on the Fifth Circuit’s choice, involving each the procedures used to hunt evaluation of an NRC license and the NRC’s authority to points licenses for spent gasoline storage,” the spokesperson stated. “Holtec believes that the Fifth Circuit utilized the wrong procedures, and that the NRC has clear statutory authority to situation these licenses.”

He added that Holtec appears to be like ahead to the Supreme Court docket “correcting the Fifth Circuit’s procedural ruling, and reinstating Holtec’s NRC license.”