The U.S. government and Interim Storage Partners this week asked an entire appeals court to overturn a decision by three of the court’s judges that effectively killed commercial interim storage of spent nuclear fuel.
Two other courts have ruled that the “plain text” of federal law allows the Nuclear Regulatory Commission to approve the temporary storage of spent fuel away from the reactor that generated it, but a panel of Fifth Circuit judges in September “interpreted the same statute to not give the Commission that authority,” the U.S. Department of Justice, representing the NRC, wrote in its 60-page petition for an en banc hearing of the Fifth Circuit.
That conflict, and others, “merit en banc review,” Justice wrote in its petition, filed on Tuesday. The court had not ruled on the petition as of Wednesday.
If the court decides to rehear the case, all 17 judges would sit down to decide the fate of the NRC’s license for Interim Storage Partners (ISP), the joint venture of Orano and Waste Control Specialists that wants to build a long-term interim spent fuel depot in west Texas near Waste Control Specialists’ existing low-level waste facility.
NRC licensed the Interim Storage Partners facility, which has yet to be built, in 2021. Texas sued over the license that same year and made it illegal to transport spent fuel in the state.
The Department of Justice argued in the Fifth Circuit that the Atomic Energy Act gave NRC all the authority the commission needed to license Interim Storage Partners’ planned site, but Judges James Ho, a Fifth Circuit appointee of President Donald Trump (R), disagreed.
Ho wrote that Congress did not specifically give NRC the authority to license storage of spent fuel in west Texas, as the so-called major questions doctrine that the U.S. Supreme Court, an independent branch of the federal government, has interpreted the U.S. constitution to contain.
The Fifth Circuit’s ruling “seriously disrupts industry expectations, creates confusion, and creates a question of exceptional importance by departing from at least two other authoritative decisions in other Circuits holding that the NRC does, in fact, have the authority to issue the type of license granted to ISP,” Interim Storage Partners wrote in its own petition for a rehearing.
