Texas on Monday told a federal court not to convene all of its judges to rehear a case that this summer effectively killed commercial interim storage of spent nuclear fuel in the U.S.
In a 24 page brief filed with the Fifth Circuit Court of Appeals, Ken Paxton, the Texas attorney general, opposed a rehearing request by the Nuclear Regulatory Commission and repeated many of the same arguments that persuaded the Louisiana-based court in August to strip an Orano-Waste Control Specialists joint venture of the license the NRC granted it in 2021 to store spent fuel in West Texas.
As of Monday afternoon, the Fifth Circuit had not ruled on whether it would convene all 17 of its judges in what is known as an en banc hearing. Texas sued the NRC in September 2021, shortly after the commission licensed the Interim Storage Partners (ISP) joint venture to take on up to 5,000 metric tons of spent fuel for indefinite, near-surface storage.
In its Monday filing, Texas again told the circuit court that federal law gave the NRC no authority to license this kind of away-from-reactor interim storage at a privately owned facility and that, even if it did, licensing any site that Congress had not specifically authorized is unconstitutional under the so-called major questions doctrine that the U.S. Supreme Court, an independent branch of the federal government, says is implied by the country’s founding charter.
Texas also said that it was entitled to sue the NRC even though the state had not challenged ISP’s license application within the commission’s quasi-judicial license-contention process, which aims to resolve disputes before they reach the courts.
NRC argued that Texas was not technically a participant in the license application and therefore had no legal standing to sue. Texas said, and a three-judge fifth-circuit panel agreed, that the state’s written complaint to the NRC was enough under federal law to make the state a participant.
