A 2023 ban on commercial interim storage was a judicial power grab that flouted the law and ignored the authority of other courts, according to a Monday Supreme Court brief.
In its final brief before oral arguments scheduled for March, Interim Storage Partners (ISP) told the Supreme Court that the U.S. Fifth Circuit engaged in “judicial aggrandizement of the highest order” in 2023 when, in a lawsuit filed by the state of Texas, it voided the company’s Nuclear Regulatory Commission license to storage spent fuel from civilian power plants.
ISP, a joint venture of Orano and Waste Control Specialists that wanted to build an interim storage site in Texas, also complained that the Fifth Circuit let the sneak into court by merely alleging that NRC’s interim storage license was illegal: a “dubious” legal tactic called an “‘ultra vires exception’” that let Texas skip participation in the NRC’s congressionally authorized licensing process and have its grievance decided by a different set of judges, ISP wrote.
ISP’s brief, filed on the day it was due, summarized more than three years of legal arguments arising from Texas’ 2021 lawsuit in the Fifth Circuit. Texas’ reply brief is due Jan. 15. Oral arguments before the Supreme Court, an independent branch of the federal government, were scheduled for March 5.
One of the arguments that ISP made again in its final high-court brief concerned the uniqueness of the Fifth Circuit’s take on commercial interim storage licenses.
Two other appeals courts found that the Atomic Energy Act gave NRC the power to license the storage of spent fuel both at and away from the reactors that created it.
In April, the Court of Appeals for the District of Columbia did not contest the NRC’s ability to license the consolidation and storage of spent fuel. In 2023, the Tenth Circuit Court upheld the agency’s authority in a lawsuit filed by New Mexico, where another NRC-licensed company sought to build an interim storage facility.
The Tenth Circuit also declined to give New Mexico a free pass to the appeals circuit, writing that the state tried to illegally sidestep the NRC licensing process, which Congress created to give parties opposed to a license the appealable opportunity to argue their case with the agency.
ISP also said that commercial interim storage of spent fuel is not, as the Fifth Circuit and Texas claimed, an unsettled major question that, as the Supreme Court said in a landmark 2022 decision, must be dealt with by Congress.
“This is not a case where an agency strayed outside its lane—safety based regulation of nuclear materials, which has always been the agency’s core function under the AEA,” ISP wrote in the brief. “The license and applicable regulations here plainly serve just that purpose.”
