ANALYSIS: Fifth Circuit Nuclear Fuel Case Eyes Major Questions

Courts are increasingly using the major questions doctrine to examine decades-old statutes and to evaluate whether they clearly authorize current agency actions. But Congress can’t predict the future, so agencies can face difficulty showing that today’s actions are authorized by old statutes.

For example, in a recent US Court of Appeals for the Fifth Circuit decision, the court put a halt to a private, temporary storage facility for spent nuclear fuel after finding that Congress hadn’t anticipated the current reality clearly enough to allow the Nuclear Regulatory Commission to act.

While the doctrine wasn’t the main focus of the court’s ...