Supreme Court justices hear arguments in NRC v. Texas

In taking up the case, the Supreme Court seeks to resolve two questions. First, whether the state of Texas and landowners Fasken Land and Minerals (Fasken) have claim as “parties aggrieved” under the Hobbs Act in seeking to legally challenge the NRC’s licensing decision. And second, whether the NRC has the authority to license private companies to store spent nuclear fuel at away-from-reactor sites under the Atomic Energy Act (AEA) and Nuclear Waste Policy Act (NWPA).

On the issue of the Hobbs Act requirement, Malcolm Stewart, counsel representing the NRC, argued that neither Texas nor Fasken was a party to the NRC licensing proceedings, noting that Texas did not try to intervene in the licensing process and that Fasken moved to intervene, but its request was denied, and that denial was affirmed by the D.C. Circuit Court of Appeals.

On this point, several of the court’s justices seem skeptical of the NRC’s arguments. Judge Neil Gorsuch grilled Stewart on the statutory case for excluding Texas and Fasken from being admitted as parties in the agency’s proceedings. The NRC, he said, appeared to be making an argument of preclusion, which prevents petitioners from making the same claims in multiple lawsuits, which would require the NRC to bear the burden of proving Texas and Fasken cannot challenge the NRC’s actions.

Justice Ketanji Brown Jackson, coming to Stewart’s aid, questioned whether preclusion was at issue, asking Stewart, “What is your understanding of Justice Gorsuch’s question? Because I’m not sure I see it as an issue preclusion, so help me to figure that out.”

Stewart responded, “First, our position would be the question should be, did Fasken, in fact, intervene in the proceedings and become a party? And it didn’t. But even if the question is, should Fasken have been allowed to intervene, was Fasken improperly denied a right to intervene that it had under the statute, the D.C. Circuit resolved that issue against it, and [Fasken] didn’t seek direct review of that determination either before the en banc D.C. Circuit or before this court.”

The court likewise questioned the NRC’s regulatory process that gives it large authority over who can become a party to its proceedings. Justice Elena Kagan asked Stewart if it wasn’t “a little bit odd” that the agency whose action is being legally challenged has “so much control by virtue of its regulations on intervention to dictate who gets to challenge the action?”

Stewart replied that individuals can submit comments to the agency or request a petition to review but must do so in a timely manner. He added that Texas and Fasken could have filed a petition for rulemaking and asked that the licensing be held in abeyance.

On the question of the NRC’s licensing authority, the court’s conservative justices were again skeptical of the NRC’s arguments, finding particular issue with the “temporary” status of ISP’s facility. Questioning the permanence of the facility, Justice Samuel Alito asked, “Suppose this is allowed and 40 years go by, and then there’s an application to renew the license. Would it be permanent at that time, or what if it’s renewed and it’s another 40 years?”

“It would still not be permanent,” Stewart responded, adding, “And, again, you would have the same dilemma if the waste were left at the decommissioned nuclear reactor sites.”

Again, it was one of the court’s liberal justices that came to Stewart’s aid, with Justice Sonya Sotomayor claiming, “I’m finding it curious that in a country that’s celebrating its 250th year that some of my colleagues think that 40 years can’t be temporary. I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”

Some of the justices also questioned whether any language in either the AEA or the NWPA granted the NRC authorization to license an away-from-reactor private storage facility.

In response, Stewart noted that Congress, in drafting the NWPA, chose not to explicitly prohibit off-site private storage. “Not only did Congress not bar off-site storage, it also didn’t enact any new licensing provisions or, for that matter, any new prohibitions on unlicensed possession,” he said. “Congress clearly contemplated that licensing would continue to be done under the preexisting Atomic Energy Act provisions, and those provisions don’t distinguish between on-site and off-site storage.”

Stewart also pointed to the precedent of the 2004 case Bullcreek v. NRC, which found that the NRC has the authority to license and regulate the storage and disposal of spent fuel.

Likewise, when asked by Justice Clarence Thomas for a “straightforward argument for the authorization for off-site storage at a private facility,” Brad Fagg, the attorney representing ISP, pointed to provisions of the AEA. “They authorize the NRC to license the possession and storage of the constituent elements, spent nuclear fuel, without any locational restriction,” he said, adding, “If you say ‘on-site,’ you’re reading a term into the Atomic Energy Act that is not there.”

Pressing, Thomas asked if the NRC was “stitching together” the constituent parts of spent nuclear fuel. In challenging the NRC, Texas and Fasken argue that the NRC falsely claims that since the AEA allows the licensing of special nuclear material, source material, and byproduct material, the agency can issue license spent nuclear fuel on the theory that spent fuel is composed of those three constituents.

“I do rely upon the three constituent elements adding up to spent fuel, in the same way you have to rely upon the three constituent elements adding up to spent fuel to prohibit the possession of it,” Fagg replied. “Because if you don’t buy that proposition, you can’t have one without the other. You can’t say the Atomic Energy Act prohibits the possession of these three items, but it doesn’t allow the licensing of these three items.”

Arguing for the state of Texas, attorney Aaron Nielson argued that allowing the NRC to license away-from-reactor storage sites will disincentivize Congress to act on a permanent solution to the spent fuel issue.

“If New Mexico and Texas are left holding the bag, every other state will be happy. They will be pleased because this waste will stay in Texas forever,” he said. “They tried to do that with Yucca Mountain, and it didn’t work. But the answer isn’t, ‘Well, I guess we’re just going to put it on Texas now.’ No, Congress needs to go back and fix the law. If the law is broken, it’s on Congress to fix it. It’s not this court’s job, and it’s not the agency’s job.”