Supreme Court Hears Oral Argument in Nuclear Waste Storage Cases
By Andy Kriha | Mark C. Kalpin | Elizabeth C. Perry
March 6, 2025
The U.S. Supreme Court on March 5, 2025, heard oral argument in two cases related to the U.S. Nuclear Regulatory Commission's (NRC) authority to license temporary spent fuel storage facilities that are not co-located with a licensed reactor. The cases, which the Supreme Court has consolidated into a single case, are appeals from a U.S. Court of Appeals for the Fifth Circuit decision holding that the NRC exceeded its statutory authority by licensing a temporary away-from-reactor spent fuel storage facility to be operated by Interim Storage Partners LLC (ISP) in Andrews County, Texas. The decision breaks from rulings by the U.S. Courts of Appeals for the District of Columbia Circuit and Tenth Circuit, each of which previously held that the NRC has authority to license such facilities under the Atomic Energy Act (AEA), notwithstanding the lack of any express authority in the Nuclear Waste Policy Act (NWPA).
Further, prior to reaching the merits of the case, the Fifth Circuit held that the parties challenging the license had authority to do so under an ultra vires exception (or judicially created exception) to the Hobbs Act. Two of the parties – private parties with interests in land near the proposed storage facility – attempted to intervene in the licensing proceeding but were denied by the NRC, and the denial was held up on judicial appeal. The third party, the state of Texas, submitted letters to the NRC registering its objections to the facility but never attempted to intervene in the proceeding. The Fifth Circuit, again breaking from four other circuits, held that failure to become a party to the licensing proceeding is not a barrier to a judicial challenge where the agency action is attacked as exceeding its power. As described further below, in oral argument, the Supreme Court indicated it may also be considering whether the NRC has statutory authority to implement its current regulations determining the circumstances under which parties may intervene in licensing
