The Supreme Court has announced that it will hear two cases related to the federal government‘s plan to store nuclear waste in western Texas. Texas has passed a law prohibiting the disposal or storage of high-level radioactive waste in the state and Governor Greg Abbott has expressed his opposition to Texas becoming a dumping ground for deadly radioactive waste. Abbott and others have sued the Nuclear Regulatory Commission (NRC) over its approval of a plan by Interim Storage Partners to temporarily store the waste in Andrews County.
The U.S. Court of Appeals for the Fifth Circuit ruled that the NRC violated federal law by attempting to store the waste in Texas and also erred in arguing that Texas could not sue over its decision. The Biden administration and Interim Storage Partners are now asking the Supreme Court to reverse this decision, claiming that it goes against other circuits and longstanding practice.
Texas argues that storing nuclear waste in the Permian Basin Region, which is one of America’s highest producing oil fields, poses a danger to the state. However, the Biden administration disputes this claim and argues that Texas should not have joined the lawsuit.
This legal battle highlights ongoing challenges surrounding nuclear waste disposal as Congress struggles to find safe solutions. Yucca Mountain in Nevada was designated as a repository for nuclear waste but has faced numerous delays since its selection in the 1980s.
The Supreme Court will consider whether Congress authorized temporary storage of nuclear waste at sites other than Yucca Mountain or another permanent location. Judge James Ho from Fifth Circuit held that current laws do not allow private companies like Interim Storage Partners to license away-from-reactor storage facilities for spent nuclear fuel.
U.S Solicitor General Elizabeth Prelogar disagrees with this interpretation, stating that Congress empowered agencies like NRC to license possession of spent fuel components for purposes connected with generating nuclear power, including interim storage.
Another question before the Supreme Court is whether Texas’s involvement in this lawsuit is legitimate under federal law known as Hobbs Act or Hobbs Administrative Orders Review Act. The NRC argues that since Texas was not part of original licensing proceedings before them, they cannot request judicial review from Fifth Circuit court.
Judge Ho argued otherwise based on an exception recognized by Fifth Circuit court allowing parties who were not part of original agency proceedings but still appeal agency actions under certain circumstances.
Prelogar contends that Judge Ho’s exception is flawed and conflicts with how other circuits interpret federal law regarding judicial review of agency decisions.
These cases have significant implications for both NRC’s regulatory framework and nuclear-power industry as they challenge long-standing practices regarding licensing storage facilities for spent fuel.