Texas is fighting to keep its lawsuit against commercial interim storage of spent nuclear fuel in the state from getting tossed on a technicality, as a similar suit was last week, a court filing shows.
The state on Friday argued that a site proposed in Andrews County by the Interim Storage Partners (ISP) joint venture of Orano and Waste Control Specialists constitutes a “major question” of public interest that the court can legally address now, without worrying about the Nuclear Regulatory Commission’s argument that Texas forfeited its right to sue because the state was not an official participant in NRC’s review of ISP’s license application from 2018 to 2021.
Michael Abrams, Texas’ assistant solicitor general, made his argument not in a motion in the lawsuit the state filed in September, when NRC licensed the proposed, privately operated site, but in a letter to the court clerk for the U.S. Court of Appeals for the Fifth Circuit.
“Texas has already explained in multiple filings why no internal NRC procedural rules prevent this Court from reaching the merits,” Abrams wrote in the letter. “If the NRC’s procedural arguments prevail there would remain no evident way to challenge the NRC’s unauthorized answer to this major question. No authority binds this Court to that inequitable resolution, and this Court should decline the NRC’s invitation to adopt it.”
The Nuclear Regulatory Commission argues that because Texas did not bother to participate in the agency’s internal debate about the license the commission gave ISP in September, the state has no legal standing to oppose the license in court.
To bolster its argument, the commission, in a Jan. 25 fifth-circuit filing, pointed to a lawsuit across the country that the U.S. Court of Appeals for the District of Columbia threw out Wednesday because a coalition of antinuclear and mining groups that also opposed the ISP license were never officially acknowledged by the agency as participants in the license debate.
A lawyer for ISP, in a Monday letter to the Fifth Circuit, backed up NRC’s claims, arguing that Texas could have challenged the proposed site’s license “by simply doing what parties have consistently been doing under settled law for decades — that is, taking the required steps to invoke judicial review under the Hobbs Act” via an agency-level challenge.
Texas does not deny that it never participated in the ISP license debate, something it could have done, but also says that it does not need to be party to the license proceedings to seek court intervention under the so-called major-questions legal doctrine, which the U.S. Supreme Court vaulted to national prominence in July.
Under the major questions doctrine, Congress has to specifically authorize anything with ramifications for large swaths of the public, including financial and political ramifications.
The ISP site, Texas argues, is one of those things. Attacking the Texas suit on procedural grounds after the D.C. Circuit ruling “is even more untenable now than it was before,” Abrams said.
