Justices Back Temporary Texas Nuclear Waste Storage Site (1)

The US Supreme Court left intact a federal plan to store as much as 40,000 tons of highly radioactive waste at a temporary site in west Texas over the objections of local landowners and oil and gas operators.

Voting 6-3, the justices on Wednesday threw out a challenge to a crucial license the Nuclear Regulatory Commission issued for the site. The court said Texas and a private company that opposed the project lacked the legal right to challenge the license.

Justice Brett Kavanaugh, writing for the majority, said that the challengers had “ample opportunity” to raise their concerns about the project before the commission and to try to formally intervene in the licensing process.

Texas and Fasken Land and Minerals “were not parties to the commission’s licensing proceeding and are not entitled to obtain judicial review of the commission’s licensing decision,” Kavanaugh wrote. He was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson.

Justices Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented, writing that the challengers should qualify as “parties aggrieved.” The government’s position “asks us to believe that the very state in which the agency intends to store spent nuclear fuel indefinitely cannot be heard in court to complain about the agency’s plans,” Gorsuch wrote.

The above-ground site outside the town of Andrews, Texas, in the Permian Basin oil field would be the first of its kind. It’s designed to take waste from commercial reactors around the country until a long-running fight over a permanent storage location is resolved.

The Andrews plan has the backing of the nuclear power industry. But Texas Governor Greg Abbott and a coalition of landowners and oil and gas operators called the planned facility a public-health hazard.

The Trump administration defended the NRC license after inheriting the litigation from the Biden administration and then taking the same position. Both argued that the 5th US Circuit Court of Appeals upended more than 40 years of NRC practice by concluding the Atomic Energy Act didn’t authorize the license.

The opponents said Congress didn’t authorize the NRC to license private, off-site storage facilities. They also said federal law expressly requires the nation’s nuclear waste to be stored at Yucca Mountain, Nevada, where efforts to build a facility have been scuttled by local opposition.

The company that would run the site, Interim Storage Partners LLC, also defended the plan. Interim is a joint venture owned by a unit of Orano SA and J.F. Lehman & Co.’s Waste Control Specialists LLC. The joint venture envisions having nuclear waste shipped by rail from around the country and sealed in concrete casks.

The decision also appeared to bolster Holtec International Corp.’s separate planned facility in New Mexico. One of the same businesses that contested the Texas site had unsuccessfully tried to intervene before the commission in the licensing process for the New Mexico project, and then followed the same alternative judicial path that the Supreme Court majority declared invalid in Wednesday’s decision. That legal fight remains pending.

The cases are Nuclear Regulatory Commission v. Texas, 23-1300, and Interim Storage Partners v. Texas, 23-1312.

(Updated with additional information from the opinion and background starting in the third paragraph.)

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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