A federal judge Monday cast some doubt on the Nuclear Regulatory Commission’s authority to license a proposed interim storage facility for spent nuclear fuel in west Texas.
During an oral argument session in the Fifth Circuit Court of Appeals, Judge Edith Jones, part of a three-member panel presiding over the state of Texas’s lawsuit against NRC over the proposed Interim Storage Partners (ISP) facility, said that she could not see how the agency “can claim that you have this overarching de novo authority” to license private interim storage.
“It overwhelmingly seems to me that Congress chose to have its hand on the neck of the NRC … to tell them what to do,” Jones said.
Texas Attorney General Ken Paxton in September sued NRC over the proposed ISP site, arguing, among other things, that the federal Nuclear Waste Policy Act (NWPA) precludes the agency from licensing private interim storage sites unless a permanent nuclear waste repository is active.
NRC countered that the Atomic Energy Act (AEA), not NWPA, gives the commission such authority.
Jones did not appear convinced by the agency’s logic during Monday’s oral arguments.
The commission’s argument “is totally inconsistent with the careful, congressionally-mandated framework of the NWPA, which talks about spent nuclear fuel,” the Fifth Circuit judge said. “The Atomic Energy Act does not.”
Jones also weighed in on Paxton’s recent claim that NRC’s decision to license the proposed ISP site falls under major questions doctrine, a legal theory upheld in the Supreme Court’s June 30 ruling in West Virginia v. EPA which holds that Congress must approve federal agency actions of political or economic significance.
“We can all agree” that nuclear waste disposal is an important issue, the judge said. “Whether that pushes us toward a major question, I don’t know.”
The proposed ISP site, if built, would be able to store around 40,000 tons of spent fuel — about half of the country’s total spent fuel inventory of close to 90,000 tons. NRC licensed the site to operate for 40 years.
Updated Aug. 30, 2022 10:19 a.m. Eastern time to include major questions doctrine.
