Supreme Court Questions Private Nuclear Waste Storage Site

The US Supreme Court appeared divided over whether Texas and companies that own land in the oil rich Permian Basin had the right to challenge a federal plan to let as much as 40,000 tons of highly radioactive waste be temporarily stored at a privately owned off-site facility.

The court’s liberal wing at arguments on Wednesday seemed to agree the state and property owners didn’t have the ability to sue over the Nuclear Regulatory Commission’s permit because they weren’t an aggrieved party.

“When I look at this, your only participation in the agency proceeding was to be excluded from it,” Justice Elena Kagan told the property owners’ attorney. “But then you’re saying, ‘well, if I was excluded wrongly, I’m a party.’ I mean, how could that be?”

Arguments follow decades of wrangling over spent fuel from the nation’s commercial reactors.

A ruling rejecting the challenge would likely turn on the question of whether parties denied an opportunity to intervene in the NRC’s initial licensing decision should be allowed to challenge the license now.

Justice Elena Kagan said those parties might have good argument as to why they should’ve been allowed to be a party.

“But it’s not to say that you were a party,” she said. “In fact, you were not a party.”

Some conservative justices though thought the NRC, in denying intervention to the parties in the first place, shouldn’t get to decide who gets to challenge its decision now.

“I do think it’s somewhat strange that the NRC gets to choose which parties are able to challenge it later on,” Justice Clarence Thomas said.

If the court says the challenge can continue, it will have to decide whether the NRC can even issue such a license. The justices appeared divided on that question, too.

Justice Samuel Alito seemed to be concerned about the storage site being temporary.

He asked if it would be considered a permanent site if decades went and the permit was then renewed. He also wanted to know what incentive there is to do what Congress wanted, which was to establish a permanent facility.

First-of-Kind

A federal appeals court ruled against the NRC. The above-ground site in Andrews County, Texas, would be the first of its kind, designed to take waste from commercial reactors around the country until a long-running fight over a permanent storage location is resolved. The high court fight is likely to also determine the fate of Holtec International Corp.’s separate planned facility in New Mexico.

The Trump administration is defending the NRC license after inheriting the litigation from the Biden administration and then taking the same position.

The Andrews plan has the backing of the nuclear power industry. It’s opposed by Texas Gov. Greg Abbott and a coalition of landowners and oil and gas operators who call the planned facility a public-health hazard.

The opponents say 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. Despite billions of dollars spent on the Yucca Mountain site, it is currently just a “hole in the ground,” Justice Neil Gorsuch said.

Fasken Land and Minerals Ltd., which owns hundreds of thousands of acres in the oil-rich Permian Basin, told the justices that the NRC has never authorized a comparable facility, saying that existing temporary storage sites are either owned by the government, located on the sites of decommissioned reactors or in one case set up a half-mile from a working reactor.

The company that would run the site, Interim Storage Partners LLC, is also defending 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 cases are Nuclear Regulatory Commission v. Texas, U.S., No. 23-1300, argued 3/5/25 and Interim Storage Partners, LLC v. Texas, U.S., No. 23-1312, argued 3/5/25.