Congress need not authorize every interim storage site for nuclear waste and an appeals court’s decision that it must destroyed long-held expectations, a nuclear-industry trade group said last week in a filing with the U.S. Supreme Court.
A 2023 ruling by the U.S. Fifth Circuit Court of Appeals that outlawed commercial interim storage licensed by the Nuclear Regulatory Commission was “wrong across the board” and changed much of what the industry thought it knew about storing spent nuclear fuel somewhere other than at the power plants that created it, the Nuclear Energy Institute (NEI) wrote in a 31-page friends-of-the-court brief.
Invoking a doctrine affirmed by the Supreme Court in the 2022 case West Virginia v. EPA, the Fifth Circuit said storage of nuclear waste was a “major question” that could only be settled by Congress and that the NRC had therefore broken the law when it licensed a joint venture of Orano USA and Waste Control Specialists to store spent fuel in Andrews County, Texas.
Yet the Fifth Circuit also acknowledged that federal law gives the NRC “unambiguous authority to issue licenses” for storage of three components present in all spent nuclear fuel,” NEI wrote in its amicus curiae brief.
That is one of the reasons, but not the only reason, that “the major questions doctrine is plainly inapplicable here,” NEI wrote in the filing. The group also argued that an NRC interim storage license is not a major question on economic grounds because, according to NEI, consolidating spent fuel decreases the cost of managing such waste.
Those watching the case have at least a month to wait to see whether the Supreme Court will hear the case, strike down the Fifth Circuit’s ruling based on the high-court briefs, or let the lower court’s ruling stand. As of Sunday, the latest filing deadline approved by the Supreme Court, an independent branch of the federal government, was Aug. 21.
The Fifth Circuit ruling arose from a Texas state lawsuit against the proposed storage site in Andrews County. As a result of the ruling, both Interim Storage Partners, the joint venture of Orano and Waste Control Specialists, and Holtec International had their NRC interim storage licenses voided.
Those were the only two licenses for long-term interim storage sites the NRC had ever issued.
