Supreme Court Nuclear Waste Case Risks Slowing Industry Revamp

With no centralized nuclear waste repository on the horizon, the US Supreme Court’s upcoming review of the legality of temporary storage facilities could make or break the nation’s push for nuclear energy.

The high court agreed Oct. 4 to review the Fifth Circuit’s ruling that the Biden administration illegally greenlit an away-from-reactor nuclear spent fuel storage facility in Andrews County, Texas.

If justices uphold the lower court’s decision, federal and state regulators could get cold feet about approving new nuclear generation projects for fear of adding to a backlog of waste, said Brad Thompson, a partner at Duane Morris LLP.

“There’s a lot of waste that is stacking up at our current nuclear facilities, and it’s got to go somewhere,” said Thompson, who is based in Austin. “What degree nuclear energy will grow or diminish will be impacted by how this case gets resolved by the Supreme Court.”

The US Court of Appeals for the Fifth Circuit last year threw out a license issued to Interim Storage Partners, a joint venture planning to develop a nuclear waste site in Andrews County. It ruled that the Nuclear Regulatory Commission exceeded its authority under the Atomic Energy Act, as it is not allowed to issue licenses permitting private parties to store radioactive material away from a reactor.

The Fifth Circuit also threw out a license for a similar project in New Mexico a year later. Both rulings clashed with an earlier opinion from the US Court of Appeals for the District of Columbia Circuit.

The commission appealed the Texas case to the Supreme Court in June, where its petition was granted and consolidated with the New Mexico case.

Waste Problem

Most Americans support expanding nuclear power in the country, a Pew Research Center survey found. The US power grid is also hungry for sustainable energy sources as it creaks under the pressure of data centers, electric vehicles, and more, according to Michael Gerrard, founder and faculty director of Columbia Law School’s Sabin Center for Climate Change Law.

“The nuclear industry may be on the verge of a revival,” Gerrard said.

But the waste disposal problem is a looming threat.

A ruling in support of the Fifth Circuit’s decision could suddenly make existing nuclear waste storage licenses illegal, according to Jay Silberg, a partner at Pillsbury Winthrop Shaw Pittman LLP. “It would mean you have orphan waste in many locations around the country that are no longer licensed, and that means we have unlicensed nuclear material,” Silberg said.

Congress selected Yucca Mountain, Nevada, in the 1980s to host a federally operated nuclear waste facility. But productive talks have withered since the Obama administration tabled the project more than a decade ago, Gerrard said.

Storing spent fuel in privately-operated, temporary facilities around the country is risky due to threats of rising sea levels, terrorist attacks, and natural disasters, Gerrard said. But preventing the facilitation of interim sites without a permanent national repository could stymie the nuclear energy industry’s potential growth.

“Private interim storage facilities are not a permanent solution, but they can start to ease the current burden that spent nuclear fuel management places on existing host communities,” Cleo Schroer, senior policy analyst at Good Energy Collective, said in an emailed statement.

Interim facilities can also reduce fuel management costs, Ellen Ginsberg, senior vice president and general counsel at the Nuclear Energy Institute, said in an emailed statement.

Upholding the Fifth Circuit’s conclusion “would further delay progress in advancing a safe, environmentally sustainable, and well-managed used fuel management system,” she said.

The NRC said it is “confident we have a strong position for the Solicitor General to argue before the Court.”

Morgan Lewis & Bockius LLP, the firm representing Interim Storage Partners, declined requests for comment.

Agency Authority

The Supreme Court’s decision to review NRC v. Texas shows continued skepticism toward federal regulators, said Emily Hammond, faculty director of academic sustainability programs at George Washington University Law School.

The nuclear storage case presents two main questions: whether federal regulators have the statutory authority to permit privately owned, away-from-reactor interim storage facilities, and whether parties who didn’t intervene in regulatory proceedings can still take agencies to court over their decisions.

It’s likely that the high court will side with federal regulators on the authority issue, especially because the commission has been licensing similar types of facilities since the late 1970s, Silberg said.

However, if the Supreme Court rules that any affected entity—not just parties that intervene in regulatory proceedings—can name agencies in litigation, then stakeholders would have more tools to sue agencies and try to undo their actions, Thompson said.

Allowing only intervenors and direct parties to challenge agency proceedings helps prevent an overburdened court system, Hammond said, as complaints get sent directly to agencies instead of judges.

If that system is upended, it would mark an “enormous change in administrative law,” said Hammond, who uses they/them pronouns.

The Fifth Circuit ruled that the Biden administration’s decision to approve the interim storage site in Texas violated the major questions doctrine, which scales back agency power for decisions of great “economic and political significance.”

But Hammond says it’s hard to see how there would be a major question.

Some of the issues related to the doctrine—federalism, economics, politics—don’t show up very strongly in the case, they said. Nuclear power has been regulated solely by the federal government, they added, and the case doesn’t have enough economic significance to “ripple through the whole economy.”

“This context kind of shows how malleable and unclear that language is,” Hammond said.

While the high court’s decision does have a significant role to play, Silberg said, it will be up to Congress to determine America’s future for permanent nuclear waste storage.

“We need congressional action first, at least to appropriate money, if not to change the law itself,” Silberg said.

The case is NRC v. Texas, U.S., No. 23-1300, petition granted 10/4/24.