Holtec and the Nuclear Energy Institute appeared in court to have their say in a two year-old lawsuit that could determine the future of commercially operated storage of spent nuclear fuel.
The company and the industry’s Washington-based advocacy group filed friend-of-the-court briefs last week with the U.S. Fifth Circuit Court of Appeals, where Interim Storage Partners (ISP) and the Nuclear Regulatory Commission are fighting a ruling that effectively killed commercial interim storage in the U.S.
In October, the NRC and ISP petitioned the entire fifth court to reconvene and hear arguments that the commission is legally allowed to license long-term storage of spent nuclear fuel away from the reactors that created it. A panel of three Fifth Circuit judges rejected those arguments in July. Texas’ response to the petition is due Dec. 11.
Holtec, an ISP competitor that saw its NRC-issued spent-fuel-storage license rendered null and void by the Fifth Circuit panel, made some of the same arguments that ISP and the commission did recently, including that the Fifth Circuit blew up existing legal precedent by ruling that federal law prohibits NRC from licensing away-from-reactor storage of spent fuel; two other circuit courts had already ruled it was legal, Holtec said in its brief.
The Nuclear Energy Institute took a different tack, taking aim among other things at the Fifth Circuit panel’s application of the so-called major questions doctrine that the U.S. Supreme Court, an independent branch of the federal government, invoked in a landmark environmental ruling in 2022.
The major questions doctrine holds that Congress has to specifically weigh in on significant political and economic questions. Texas argued that spent fuel storage is one such question and the Fifth Circuit panel agreed.
But the Nuclear Energy Institute said the major questions doctrine was meant to prevent a federal agency from exploiting nebulous laws to seize regulatory power that Congress may or may not have intended to delegate. That does not apply in the ISP case because the Atomic Energy Act plainly gives NRC power to license away-from-reactor storage, the institute argued in its brief.
Texas brought its lawsuit against the Nuclear Regulatory Commission in September of 2021, seeking to short circuit ISP’s plans to bring long-term storage of high-level radioactive waste, in the form of burned-up fuel rods from nuclear power plants, to Andrews County, Texas, near the New Mexico border.
Holtec International had plans to build a similar facility in Eddy County, N.M., but those plans were put on hold by the Fifth Circuit decision, even after the NRC prevailed in a similar lawsuit brought by New Mexico in the Tenth Circuit Court of Appeals.
Holtec got its NRC license in 2023, but New Mexico that year passed a ban on storage of high-level waste in its territory. Texas passed a similar law in 2021, when ISP got its NRC license.
As of deadline for RadWaste Monitor, no one had challenged the legality of those state laws in federal court.
