A recent D.C. appeals court decision shows that the state of Texas had no right to sue the Nuclear Regulatory Commission over a proposed interim storage facility for spent nuclear fuel, the commission said Tuesday.
NRC, which is facing a lawsuit from Texas Attorney General Ken Paxton in the Fifth Circuit Court of Appeals over its decision to license Interim Storage Partners’ (ISP) proposed site, told the court in a Tuesday filing that the D.C. Circuit Court of Appeals’ decision in Ohio Nuclear-Free Network v. Nuclear Regulatory Commission proves that Paxton has no standing to challenge the agency’s authority.
The Ohio decision, which came down Tuesday, found that petitioners seeking to roll back a proposed NRC license amendment for a fuel production facility “had failed to properly participate in adjudicatory proceedings before the agency,” NRC said in its filing.
Because of that, the D.C. court ruled that the petitioners were not a “party aggrieved” and could not sue the commission.
NRC has argued in its Fifth Circuit case that, because Texas did not participate in agency-level licensing proceedings for the proposed ISP site, it also does not have the right to sue.
The commission said in its filing that the Ohio decision “applies to any argument that could have been asserted before the agency,” including Paxton’s attempt to roll back the ISP site’s license. Because of that, the law “requires dismissal of the petitions for review,” NRC said.
As of Thursday morning, the Fifth Circuit had yet to issue any response.
NRC’s jurisdictional claim comes after the Fifth Circuit during an oral argument session in August cast doubt on the agency’s authority to license an interim storage site.
Members of the panel of judges presiding over the case — all appointed by Republican presidents — did not appear entirely convinced with the commission’s claim that its governing law, the Atomic Energy Act, granted it the ability to approve private spent fuel storage projects such as ISP’s.
