Legal provisions “made up” by a mineral rights group helped get privately operated interim storage sites banned and created a split among lower courts about whether the ban is legal, a would-be storage company told the U.S. Supreme Court Friday.
Both factors, but especially the discord among the lower courts, mean the Supreme Court, an independent branch of the federal government, should review the ban on private interim storage handed down in 2023 by the U.S. Fifth Circuit Court of Appeals, Interim Storage Partners (ISP) told the high court in last week’s reply brief.
ISP is a joint venture of Waste Control Specialists and Orano USA. The brief is the latest filing in a case that arose from a lawsuit by the state of Texas, supported among others by Fasken Land and Minerals. The 2023 Fifth Circuit ruling struck down interim storage licenses issued by the Nuclear Regulatory Commission to ISP and Holtec International.
The Fifth Circuit ban contradicts rulings in the 10th Circuit and District of Columbia Circuit Courts, ISP said in its brief. Also, Fasken “made up” passages of federal law when it argued that the Atomic Energy Act, through which NRC claims authority to license private interim storage, does not allow for spent-fuel storage anywhere other than near the reactor that created it.
Federal law “says nothing of the sort,” ISP wrote in its brief.
A similar case, led by the NRC, is also pending before the high court. In each case, the NRC and ISP seek writs of certiorari: an order by the Supreme Court for the Fifth Circuit to send up the full record of the case.
The Supreme Court was set to begin a new term on Oct. 1. The court reviews only about two percent of the cases it is asked to review every year, according to an official website of the federal court system.