The federal government, Texas and landowners are among those filing briefs in a Supreme Court battle on if the Nuclear Regulatory Commission exceeded its authority when it licensed a private company to store 5,000 metric tons of spent nuclear fuel in the Permian Basin.
On March 5, the U.S. Supreme Court will hear oral arguments on, among other things, where the U.S. Fifth Circuit was out of line when it voided the license to Interim Storage Partners. Interim Storage Partners is a team of Orano USA and Waste Control Specialists (WSC). The venture wants to build a consolidated interim storage facility at the existing WCS nuclear disposal site in Andrews County, Texas.
The proposal has been litigated since 2021. In September 2021, the Nuclear Regulatory Commission (NRC) approved a license giving Interim Storage Partners the right to store spent fuel and Greater-than-Class-C low-level radioactive waste for up to 40 years.
In its Jan. 15 brief, Fasken Land and Minerals, which owns huge swaths of land in the oil-rich Permian Basin, opposed the private nuclear waste facility.
“On its land, Fasken grazes tens of thousands of cattle, operates nearly 2,000 active oil and gas wells, and has residential and commercial real estate developments,” Fasken said. The company claims the spent fuel facility could devalue its land and potentially expose employees to harmful radiation.
Also wrapped up in the Supreme Court case is the NRC licensing of a second, bigger facility for Holtec International in the Permian Basin, Fasken said. The Fifth Circuit also blocked the Holtec license, finding it was largely identical to the Interim Storage Partners license, Fasken said.
“The Fifth Circuit correctly held NRC lacks authority to license private, offsite storage of spent fuel,” Fasken said. The company goes on to say If onsite reactor storage space is insufficient, the Nuclear Waste Policy Act “directs the federal government (not private actors) to provide limited overflow capacity, but only if no more onsite storage is forthcoming.”
Fasken said the Fifth Circuit correctly held that both it and Texas are aggrieved parties because they participated in the agency proceedings on the Interim Storage Partners license.
Others opposing the NRC license include Sen. Ted Cruz (R-Texas) and many members of the Texas Congressional delegation. “I support [Texas] Attorney General Ken Paxton in opposing the NRC’s federal overreach and will keep fighting to ensure West Texas remains the energy powerhouse it is today,” Cruz said in a Jan. 24 press release. Cruz was announcing the filing of a friend of the court or amicus brief. Cruz was joined by Sen. John Cornyn (R), Reps. Jody Arrington (R-Texas), Henry Cuellar (D-Texas), August Pfluger (R-Texas), and Ronny Jackson (R-Texas) in filing the amicus brief.
Cruz and the Texas lawmakers contend the Nuclear Waste Policy Act of 1982, which governs the disposal of spent nuclear fuel, prioritizes permanent geologic repositories over temporary facilities.
“These facilities—one in west Texas and the other [Holtec’s] nearby in southeastern New Mexico—aim to eventually stow 140,000 metric tons of spent fuel in thousands of above-ground canisters,” the Texas lawmakers said. They argue Congress never authorized large-scale private storage of spent nuclear fuel.
In its December filing, the NRC said the Atomic Energy Act of 1954 was meant to encourage the private sector to tap nuclear energy for peaceful purposes. Further, the law grants NRC “extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle.”
The Nuclear Energy Institute (NEI), the nuclear power trade group in the United States, is backing the NRC in this legal dispute.
“The Fifth Circuit’s bull-in-a-china-shop decision here upset the commercial nuclear energy industry’s settled understandings regarding two enormously consequential issues and rejected the contrary views of all five courts of appeals that had examined those issues beforehand,” NEI argued in its brief.
“While it “may be ‘possible’” that everyone save the Fifth Circuit got those issues wrong for several decades, the “more plausible hypothesis” is that the Fifth Circuit fumbled the ball,” NEI said.
