An antinuclear group got a free pass to press its case against interim storage in a court it should have been locked out of, Holtec International wrote Monday in a Supreme Court brief.
The company’s friend-of-the-court brief is part of a landmark case about commercial storage of spent nuclear fuel, set for arguments March 5 before the Supreme Court, an independent branch of the federal government and the court of final appeal in the U.S.
Holtec is not directly involved with the Supreme Court case, which is an appeal of a lawsuit in the U.S. Fifth Circuit Court of Appeals. That case, decided in 2023 effectively, shredded Holtec’s license from the Nuclear Regulatory Commission to store spent fuel in a proposed facility near Eddy County, N.M.
Holtec was not involved with the Fifth Circuit case either, but one of the petitioners in that case, Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners, got the circuit to to vacate Holtec’s license after the Louisiana-based appellate court ruled that the NRC was not legally allowed to license commercial interim storage.
In its Monday brief, Holtec made the same essential argument that Interim Storage Partners, a company that is part of the Supreme Court appeal, made last week in its final brief in the case: that the Fifth Circuit essentially let parties opposed to interim storage make “an end run” around the NRC, which is supposed to be the venue of first resort for such grievances, and put its claim directly before an circuit court on the mere allegation that the agency was breaking the law.
That violates the federal law called the Hobbs Act which, Holtec said, Congress passed in part to impose its will through federal agencies and prevent scattershot appeals to different courts that, if decided in different ways, would create a run on the Supreme Court.
“The Hobbs Act does not turn off when a litigant challenges an agency’s interpretation of its statutory authority,” Holtec wrote in Monday’s brief.
In Fasken’s case, the Fifth Circuit’s accommodations also conflicted with and defanged another court, the Court of Appeals for the District of Columbia Circuit, where Fasken was also pressing its case after it failed to convince the NRC that the group would be hurt if Holtec was licensed to store spent fuel.
The D.C. circuit said almost the opposite of what the Fifth Circuit did: that Fasken had no business showing in a courtroom if the NRC had already decided, in a congressionally authorized process, that the group had no standing to protest Holtec license.
