High Court to Weigh Future of Nuclear Waste, Licensing Policy

The US Supreme Court will soon address a decades-long feud about what the nuclear industry should do with its spent fuel while it waits for Congress to establish a permanent repository.

Justices will hear arguments Wednesday surrounding the Nuclear Regulatory Commission’s right to license commercialized mass nuclear waste storage and opponents’ standing to challenge those licenses in court.

Interim Storage Partners LLC and Holtec International Corp. attempted to provide a solution by building temporary storage sites in west Texas and southeast New Mexico, but the NRC faced pushback in the Fifth Circuit and Tenth Circuit after it approved 40-year licenses for those facilities.

“It can become difficult in an uncertain regulatory environment to get financing for projects,” said Brad Thompson, an energy partner for Duane Morris LLP based in Austin, Texas. “I do think that there’s going to be a chilling effect on development of new projects if there’s not clarity about what is going to be required.”

The ISP site in Andrews County, Texas, could hold up to 40,000 tons of highly radioactive waste from plants across the country, but Texas says that waste will be stored on top of an oil field with active oil and gas wells. That spent fuel “is too ‘dangerous’ to be placed anywhere other than in ‘a deep geologic repository,’” the state said in its brief, citing statements from Republican Gov. Greg Abbott.

The commission argues the Atomic Energy Act gives them the authority to license temporary private storage away from nuclear reactors and that Texas should not have the ability to sue in the Fifth Circuit since it never participated in administrative proceedings.

But the Texas Attorney General’s Office argues administrative law doesn’t explicitly forbid them from filing a petition for review. The department also claims it has a major questions case, because Congress clearly designated spent nuclear fuel to be stored in Yucca Mountain, Nev., or at an interim federal facility, not a private facility.

Questions of Authority

A ruling in favor of Texas would flip the administrative process on its head by encouraging aggrieved parties to skip licensing proceedings and “ambush the agency by calling its authority into question once that proceeding is over,” the commission said in a December brief.

Texas argues it has a right to protect the Permian Basin—the “world’s most productive oil field and the only source of safe water for hundreds of miles"—and that the agency’s definition of an aggrieved party is too narrow.

Attorneys general for Idaho, Utah, New Mexico, and Michigan filed amicus briefs backing Texas’ concerns about the NRC’s authority and storage sites’ public health impacts.

“These so-called ‘interim’ sites are unlikely to be temporary, as no permanent disposal plan exists,” the Department of Justice for New Mexico said in a statement Feb. 27. “We urge the Supreme Court to uphold the intent of the Nuclear Waste Policy Act—requiring state consent for nuclear waste storage—and recognize that neither New Mexico nor Texas has agreed to these facilities.”

Diane Curran, an attorney at Harmon Curran LLP representing environmental advocacy group Beyond Nuclear, said a high court approval of the storage sites would allow private companies to have an operating license for radioactive waste without liability. This, in turn, could benefit Congress by taking them off the hook for creating a permanent spent fuel disposal site, she said.

Trade association Nuclear Energy Institute predicts the contrary, as the temporary storage sites could “enhance efficiency and flexibility in the nuclear waste management system while demonstrating the ability to safely transport and manage spent fuel.” Plus, the NRC already determined the storage sites were safe based on CFR Part 72 regulations, the Institute added.

The Department of Energy’s Office of Nuclear Energy did not respond to requests for comment.

The case is Nuclear Regulatory Commission v. Texas, U.S., No. 23-1300, arguments scheduled for 3/5/25