Nuclear Regulatory Commission v. Texas raises significant questions about the scope of the Nuclear Regulatory Commission’s decision-making and who can contest those decisions. The issues before the Court are whether the Nuclear Regulatory Commission (NRC) may license private companies to store depleted nuclear fuel and whether a nonparty can challenge the agency’s final orders.

The United States has historically struggled with storing nuclear waste due to reprocessing difficulties, leading to the passage of the Atomic Energy Act in 1954 (AEA) and the Nuclear Waste Policy Act in 1982 (NWPA). The NWPA designated Yucca Mountain in Nevada as the nation’s underground repository. Nevertheless, when the Department of Energy submitted a license to create a storage space there, the request received much pushback, and nuclear fuel accumulated. Consequently, Waste Control Specialists as Interim Storage Partners (ISP) applied for a license to build a storage facility in Texas, even though Texas law prohibits the storage of nuclear waste. Fasken Land and Minerals, Ltd. (Fasken), which owns land in the Texas Permian Basin, sought to intervene as a party to the application, but the Commission denied this request. The Court of Appeals for the Fifth Circuit vacated the license. Both the NRC and ISP appealed the decision, and the Supreme Court consolidated the cases.

During oral argument, Justice Thomas questioned when an interested person can intervene to become a party to the NRC’s proceedings. Justice Gorsuch pointed out that the Hobbs Act’s language is narrow by specifying that, to intervene, one must be a “party aggrieved.” This begged the question if Texas constitutes an aggrieved party, if it did not try to intervene, but was granted standing to appeal the license by the Fifth Circuit using an ultra vires exception to the Hobbs Act. Justice Jackson inquired as to Fasken’s ability to utilize issue preclusion as a route to collaterally challenge its party status, considering that Fasken did not appeal its intervention denial. Justice Kagan raised concerns about the NRC’s power to dictate who gets to challenge the action.

As to the authority to issue licenses to private companies, Justice Alito explored the differences in security between federal and private facilities. He also wondered: “Suppose this is allowed and 40 years go by, and then there’s an application to renew the license. Would it be permanent at that time, or what if it’s renewed and it’s another 40 years?” Justice Sotomayor similarly questioned what “temporary” storage means in the context of this action. Justice Jackson expressed that perhaps Congress, through the NWPA, revealed preference for on-site storage by incentivizing it, which is not the same as prohibiting off-site storage. Justice Thomas also pushed for a straightforward argument that the NRC could authorize off-site storage without any locational restriction based on the language in the AEA and NWPA.

Stay tuned for Dykema’s decision alert after the Court issues its opinion, which is expected later this term.

For more information, please contact Chantel Febus, James Azadian, Mark Magyar, or Monika Harris.