By Oct. 24, the government could ask a federal court to revisit a ruling that essentially killed commercial consolidated interim storage of spent nuclear fuel in the U.S.
The Nuclear Regulatory Commission and the Department of Justice, plaintiffs in a lawsuit filed by Texas to stop an interim storage site in its territory, need that long to decide whether they want the entire U.S. Fifth Circuit Court of Appeals to rehear a case decided in August by a panel of three judges, according to a court filing this week.
The court in August ruled that the NRC cannot license storage and consolidation of spent fuel away from the reactors that generate it. The decision stripped the Orano-Waste Control Specialists joint venture Interim Storage Partners of a commercial interim storage license the NRC granted in 2021.
It also effectively put on ice a planned interim storage site in New Mexico, where Holtec International’s planned spent fuel depot was licensed by the NRC in May.
If the government asks for a rehearing in the Texas case, and if the Fifth Circuit grants it, the court’s 17 judges would toss out the August ruling by Judges James Ho, Edith Jones and Corey Wilson. President Donald Trump (R) appointed Ho and Wilson. President Ronald Reagan (R) appointed Jones. There are six Trump appointees active on the Fifth Circuit today.
Ho, writing for the panel that found for Texas in August, said that the issue of where to consolidate spent fuel from nuclear power plants was a major question that only Congress could settle. Lawmakers did not explicitly give the NRC the power to make that decision, Ho wrote.
The Department of Justice had argued that the Atomic Energy Act gave NRC all the authority the commission needed to license Interim Storage Partners’ planned site.
The major-question legal doctrine became a spotlight issue for radioactive waste after the U.S. Supreme Court, an independent branch of the federal government with a conservatively minded majority of Republican appointees bolstered by three Trump appointees, ruled in 2022 that federal agencies may not decide matters of “economic and political significance” unless explicitly told by Congress that they can.
Nuclear waste, Ho wrote, is one of these issues.
If the federal government does not seek a rehearing in the Fifth Circuit, its remaining appeal is to the same U.S. Supreme Court whose major question doctrine keyed the circuit court’s decision to block commercial interim storage licenses.
