Nuclear waste storage problem splits Supreme Court
The justices worried that allowing oil and gas companies and the Lone Star State to upend a private nuclear waste facility would open the door to endless litigation.
March 5, 2025
WASHINGTON (CN) — The Supreme Court didn’t appear closer to resolving decades of gridlock on nuclear waste storage Wednesday as the justices struggled to decide who — if anyone — can challenge regulatory authority on licensing private facilities.
“Yucca Mountain was supposed to be the permanent solution,” Justice Neil Gorsuch, a Donald Trump appointee, said of the plan to create federal waste storage for spent nuclear fuel.
“Congress said it had to be done by 1998. No president complied with that, and in all the years since, we’ve spent something like $15 billion on it — it’s a hole in the ground.”
Private companies tried to fill the void left by the standstill, but the case before the Supreme Court could further delay that effort.
“We would never have any ending to litigation if parties who want to intervene could come in at any point in time, even after judgment, raising new issues, when they weren't parties below,” Justice Sonia Sotomayor, a Barack Obama appointee, said.
Interim Storage Partners wants to build a temporary waste site for civilian nuclear power facilities in Andrews County, Texas, near an existing low-level radiological waste disposal facility. The project would store thousands of tons of spent nuclear fuel above Texas’ Permian Basin — a productive oil field and the only source of safe water for hundreds of miles.
After investing millions in the licensing process, the Nuclear Regulatory Commission — an independent board created by Congress to regulate the civilian possession and use of radioactive materials — permitted ISP to move forward with the first private spent nuclear waste facility.
Licensing the Andrews County facility marked a major move in the dormant federal effort to safely dispose of nuclear waste until Texas and a group of oil and gas companies stepped in.
Fasken Land and Minerals and the Lone Star State claimed the Nuclear Regulatory Commission doesn’t have the authority to license private facilities. The Fifth Circuit allowed both parties to interject themselves into the licensing process even though they hadn’t participated in the administrative review of ISP’s license.
The three democratic appointees critiqued Fasken and Texas for an 11th-hour intervention.
“Your only participation in the agency proceeding was to be excluded from it,” Justice Elena Kagan, an Obama appointee, told Fasken. “But then you're saying: Well, if I was excluded wrongly, I'm a party.”
Because it was aggrieved by the commission’s action, Fasken said it could challenge the commission. According to Fasken, the agency was at fault for trying to dictate which parties could challenge its actions.
“Are you going to allow agencies to manipulate their rules so that they can decide who gets to challenge them?” David Frederick, an attorney with Kellogg Hansen representing Fasken, asked the justices.
The remark seemed to outrage Justice Ketanji Brown Jackson, a Joe Biden appointee, who fired back, “Quite frankly, I'm worried about party manipulation.”
Gorsuch said Fasken’s argument sounded like an Administrative Procedure Act question that would be brought before a lower court instead of the Fifth Circuit.
The commission and ISP reiterated that the Andrews County facility would only be an interim solution while the Yucca Mountain project remains stalled. Several conservative justices appeared dubious that the Texas facility would only be temporary.
Justice Clarence Thomas, a George W. Bush appointee, called the facility “virtually permanent,” and Gorsuch questioned if Yucca Mountain could even be considered the permanent solution anymore.
“You parties seem to think the Yucca Mountain project is dead,” Gorsuch said. “If that's true and there's no different permanent repository, how is this interim storage?”
If the Andrews County facility were approved, its license would be good for 40 years. Multiple justices seemed to think the decadeslong period proved that the facility would act as a permanent solution, but Sotomayor suggested that view was shortsighted.
“I'm finding it curious that in a country that's celebrating its 250th year that some of my colleagues think that 40 years can't be temporary,” Sotomayor said. “I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”
The commission defended its authority to provide these licenses, stating it had been doing so since the 1980s.
The justices seemed to have mixed views on whether the Nuclear Regulatory Commission had the authority to license the Andrews County facility, but Justice Brett Kavanaugh, a Trump appointee, said following the long-standing interpretation benefitted industry investment.
