ISP takes spent fuel storage case to the Supreme Court

The Nuclear Regulatory Commission granted ISP a license in September 2021 to build and operate the storage facility. Following a lawsuit by the state of Texas and oil and gas industry groups, the court ruled on August 25, 2023, that the NRC does not have the authority under the Atomic Energy Act to issue a license for a spent fuel storage site that is away from a nuclear reactor.

In the same ruling, the court also rejected the NRC’s argument that, under the Hobbs Act, Texas and the industry groups did not have standing to challenge the license as “aggrieved parties.”

The 5th Circuit Court’s decision is at odds with two earlier decisions—one by the 10th Circuit Court and one by the D.C. Circuit Court—that both affirmed the NRC’s authority to license away-from-reactor spent fuel storage facilities. Both of those cases stemmed from Private Fuel Storage’s plan to build a spent fuel storage facility in Utah. The NRC granted a license for that facility in 2006.

The arguments: In its petition to the Supreme Court, ISP argues that the 5th Circuit Court erred in splitting with the earlier decisions made by the 10th and D.C. circuit courts.

“The terms of the Atomic Energy Act comfortably allow the NRC to license temporary away-from-reactor possession of spent nuclear fuel. Congress intended for the NRC to have, and to exercise, the authority to grant a license to a private party to temporarily possess spent nuclear fuel at locations other than existing power plants, such as the license granted to ISP in this case,” the petition states.

The petition further states that the 5th Circuit Court was wrong in allowing Texas and the other plaintiffs standing in challenging the NRC license.

“It is not hyperbole to observe that the departures by the Fifth Circuit in this case have the potential to upend the domestic nuclear power industry. Indeed, the decision has already resulted in naked circuit shopping—a similar proposed project, not even located in the Fifth Circuit, was nevertheless challenged by a petitioner in the Fifth Circuit, which summarily vacated that license upon the authority of the decision in this case,” the petition states, referring to Holtec International’s planned consolidated interim storage facility in New Mexico. The NRC granted a license for the Holtec facility in May 2023 and, following its decision in the ISP case, the 5th Circuit Court vacated the license in March of this year.