Supreme Court Nuclear Waste Ruling Shows Need to Follow Process

The Supreme Court’s decision in a nuclear waste licensing dispute shows how potential litigants must take active steps to get involved in agency processes or risk being shut out of courtrooms, legal analysts say.

The need to be proactive doesn’t just apply to agencies covered by the Hobbs Act—also known as the Administrative Orders Review Act, which outlines judicial review of certain federal agency actions—but to any agency, said Brad Thompson, a partner at Duane Morris LLP.

“It’s not a surprise that the Supreme Court would say the Hobbs Act says what it says, and there’s nothing special about nuclear or nuclear waste that requires us to carve out special rules for it,” said Robert Haemer, a law professor at George Washington University.

The June 18 decision upheld a 2021 Nuclear Regulatory Commission license issued to Interim Storage Partners to store highly radioactive waste at a temporary site in west Texas. The high court found Texas and Fasken Land and Minerals Ltd. failed to become parties in the NRC administrative proceedings, so they weren’t entitled to obtain judicial review.

The decision comes as the Trump administration has taken multiple steps to promote nuclear energy use. President Donald Trump issued several executive orders on the issue, including instructions for the Energy Department to look into recycling nuclear waste.

Where to store the waste created from nuclear energy is a key question as the US works to ramp up the energy source to manage increasing demand for electricity. The direction of the NRC during the Trump administration will be closely watched, especially with a similar case still being litigated.

“The regulatory landscape is going to become much more important for stakeholders,” Thompson said.

Impact of Ruling

The Supreme Court case centered around the Hobbs Act, which requires that a litigant seeking review of an agency decision must have been a party in the agency proceeding.

“You want to get into federal court, you’ve got to follow the rules,” Haemer said.

Texas submitted comments during the NRC proceeding while Fasken Land attempted to intervene. The Fifth Circuit found those actions served as sufficient participation and vacated the license.

The high court disagreed, reversing and remanding the case back to the Fifth Circuit.

Thompson pointed to the portion of the high court’s dissent that says an agency can make its own procedural rules about who can intervene in proceedings.

“Allowing agencies to decide who can challenge their work in court is like letting the fox guard the henhouse: Given the opportunity, agencies are likely to ensure nothing survives,” Justice Neil Gorsuch wrote for the dissent, joined by Justices Clarence Thomas and Samuel Alito.

If the agency decides that “you do not get to be heard before them, that could end up being a bar for that stakeholder being heard in court as well,” Thompson said.

Holtec International praised the high court’s decision, saying it “affirmed NRC’s authority to license private used nuclear facilities.”

“This ruling is expected to reinstate our license in New Mexico” for a storage facility, the company said.

Beyond Nuclear—a nonprofit that advocates for sustainable energy resources that don’t include nuclear—plans to continue its litigation over the New Mexico facility at the D.C. Circuit, “where we will demonstrate that the law unequivocally prohibits Holtec’s private storage of federally owned spent fuel,” said Diane Curran, the group’s co-counsel.

Administration’s Agenda

The NRC is currently undergoing a reorganization after Commissioner Christopher Hanson (D) was removed by Trump this month. Hanson served as chair of the commission during the Biden administration, and the move was unexpected since his second five-year term ran until 2029.

“Congress established the NRC as an independent agency because it wanted to keep the safety regulator separated from commercial and political influence,” said Paul Dickman, former chief of staff to NRC Chairman Dale E. Klein, when asked about Hanson’s departure.

“While all five Commissioners hold political appointments, Congress created the commission to focus on the mission before them,” he said.

Another development for the NRC is the renomination of David Wright (R), who was appointed chairman by Trump in January.

Wright’s continued presence would split the commission into two Democrats and two Republicans.

The Senate Committee on Environment and Public Works will hold a nomination hearing for Wright Wednesday.