The U.S. Supreme Court ruled 6-to-3 Wednesday that the state of Texas and Fasken Land and Minerals are not eligible to seek legal review of a Nuclear Regulatory Commission license issued to Interim Storage Partners for a private spent fuel facility in West Texas.
“Because Texas and Fasken were not parties to the Commission’s licensing proceeding, they are not entitled to obtain judicial review of the Commission’s licensing decision,” according to the high court decision. Because Texas and Fasken lack the ability to challenge the license, the court did not need to address other issues raised by the parties, according to the decision.
The opinion in the case, argued in March, was authored by Justice Brett Kavanaugh. There was a dissent penned by Justice Neil Gorsuch. Both were nominated and joined the court during the first Donald Trump administration.
The Supreme Court ruling reverses an earlier decision by the Fifth U.S. Circuit Court of Appeals. The Wednesday decision also has implications for an interim storage facility planned by Holtec.
The companies have proposed offsite interim storage projects to help fill the void created by the cancellation of the government’s Yucca Mountain deep underground disposal site in Nevada, according to the opinion.
In addition to Kavanaugh, the majority consisted of Chief Justices John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined. Justice Gorsuch’s dissent was joined by Justices Clarence Thomas and Samuel Alito.
Texas and Fasken attempted to challenge the NRC’s authority to issue a license to a private entity for off-site interim storage of spent fuel. In September 2021 the NRC issued a license to Interim Storage Partners, a team of Orano USA and Waste Control Specialists, to operate an off-site spent fuel storage facility in West Texas.
Both the Texas Commission on Environmental Quality and Fasken submitted comments on the NRC’s draft environmental impact statement for the proposed facility. The Texas agency said the proposed facility created “significant unease with the public”, while Fasken said the facility created a high risk of contamination, according to court opinion.
Fasken also attempted to intervene in the NRC’s license process with a petition but was denied by the Commission.
According to the court opinion, Texas and Fasken failed to prove they were “aggrieved” parties under the Hobbs Act, did not meet the statutory criteria for intervention under the Atomic Energy Act and did not prove their claims were reviewable.
“Texas and Fasken had ample opportunity to present their views on the proposed storage site to the Commission. They did so,” Kavanaugh wrote.
“And they had the opportunity to try to intervene before the Commission and become a party—and after being denied, to raise their arguments for intervention on appeal to the D. C. Circuit, and if unsuccessful there, to this Court,” according to the majority opinion. “They did not prevail (or did not try) in those forums.”
In the dissent, Gorsuch, joined by Alito and Thomas, argued NRC’s decision to issue an interim spent fuel storage license to a private entity was unlawful. The dissenting opinion also took issue with the NRC’s governing rules.
“But, the Court insists, the agency never admitted Texas or Fasken as “parties” in a hearing it held before issuing ISP’s license—and that’s the rub,” Gorsuch wrote in the dissent. “Maybe the agency’s internal rules governing who can participate in its hearing are highly restrictive. Maybe those rules are themselves unlawful.”
