The Nuclear Regulatory Commission on Wednesday joined the licensee of a proposed interim storage facility for spent nuclear fuel in rejecting arguments that a recent Supreme Court decision invalidated the project’s license, court filings show.
The new argument from local stakeholders and environmental groups center on the so-called major questions doctrine the Supreme Court invoked in its June decision in West Virginia v. EPA. Essentially, the doctrine holds that an agency cannot regulate major economic or political issues if Congress did not pass a law explicitly allowing the agency to do so.
But until now, the plaintiff coalition of stakeholders and the anti-nuclear group Beyond Nuclear had not raised the major questions doctrine in their suit against Interim Storage Partners’ (ISP) proposed spent site in Andrews County, Texas, which NRC licensed in September.
For that reason, the D.C. Circuit Court of Appeals should not address the issue in the lawsuit “because the issue is not presented by these cases and has been waived,” NRC said Wednesday.
In its Wednesday filing, the commission rejected both the relevance and substance of the argument raised by Beyond Nuclear July 13, when the group argued that the government’s decision to license the proposed site was a major question, as described in West Virginia v. EPA.
“Beyond Nuclear’s letter fails to show that this is an “extraordinary” case that would require application of the major questions doctrine,” NRC said Wednesday. Also, NRC said, in the D.C. Circuit suit, “neither Beyond Nuclear nor any of the other Petitioners has even challenged the agency’s authority to issue licenses to store spent fuel”
NRC has argued that the suit, initially filed as a challenge to the commission’s decision to reject requests for a public hearing on the ISP site’s license, cannot also be used to roll back its September decision to license the project, despite the plaintiffs’ claim that it can.
The agency’s authority to license spent fuel storage facilities “lies at the core of the agency’s mission and expertise and falls clearly within the plain language of Congress’s delegation of authority to the agency to issue licenses for the possession of source, byproduct, and special nuclear material,” the letter said.
