Supreme Court Weighs Rights to Build Private Nuclear Material Disposal Sites

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

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

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

The actions had been challenged by Texas Gov. Greg Abbott (R), Midland, Texas-based oil and fuel agency Fasken Land and Minerals within the New Orleans federal appeals court docket. It revoked Interim Storage Companions’ license in 2023, and vacated Holtec’s license in 2024. In each instances, the court docket discovered that the NRC was not licensed to grant the licenses. The company appealed that call to the Supreme Courtroom.

Excessive court docket justices requested attorneys on each side for clarification on their interpretation of the that means and intent of sure provisions of the Atomic Power Act the Nuclear Waste Coverage Act.

U.S. Justice Dept. lawyer Malcolm Stewart argued that, beneath the primary legislation, 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 accomplished beneath the pre-existing Atomic Power Act provisions, and people provisions do not distinguish between on-site and off-site storage,” he stated.

Justice Ketanji Brown Jackson pushed again stating: “I do not hear you disputing that Congress within the [Nuclear Waste] Coverage Act was expressing its, maybe, desire 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,” on-site storage was incentivized beneath the legislation in sure instances when required. Nevertheless, he added, there was no comparable 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 isn’t an aggrieved get together and doesn’t have standing to convey a problem. 

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

Fagg responded that Texas initially supported the Interim Storage Companions undertaking however reversed course. That reversal, nevertheless, was not accomplished throughout the correct time interval “like numerous states do and just like the rules particularly permit.”

David Frederick, who represents Fasken, argued that NRC “efforts to derive authority from materials license provisions undeer the Atomic Power Act do not work as a result of storage isn’t 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 “short-term” storage means within the context of this case.

“Whether it is determined that materials could be saved off-site briefly, and short-term means greater than 40 years [and up to] 250 years … the place is the inducement to go ahead, to do what Congress needed to have accomplished, which is to ascertain a everlasting facility?” Alito requested.

In a press release to ENR, a Holtec spokesperson stated that the [New Orleans court’s] resolution to strike down the 2 NRC licenses was mistaken. 

“The Supreme Courtroom heard oral arguments on [that court’s] resolution, involving each the procedures used to hunt evaluation of an NRC license and [its] authority to situation licenses for spent gasoline storage,” the spokesperson stated. “Holtec believes that the [appeals court] utilized incorrect procedures, and that the NRC has clear statutory authority to situation these licenses.”

Holtec stated it anticipates the Supreme Courtroom “correcting the … procedural ruling, and reinstating Holtec’s NRC license.”