Washington — The Supreme Court will convene Wednesday to weigh in on a decades-long dispute over what to do with thousands of metric tons of nuclear waste, specifically a plan to store it above one of the world’s most productive oil fields, the Permian Basin in Texas.
The U.S. Nuclear Regulatory Commission and the company Interim Storage Partners are facing off against the state of Texas and Fasken Land and Minerals Ltd., which owns land in the Permian Basin, in the fight over what to do with the spent fuel generated at nuclear reactor sites. The waste can remain radioactive and pose health risks for thousands of years, according to the U.S. Energy Information Administration.
How to address the problem of nuclear waste has been complicated by politics since the advent of nuclear power last century. In 1982, Congress enacted a federal law that required the government to establish a permanent facility to house spent fuel, later determined to be Yucca Mountain in Nevada. But the site has yet to be established amid pushback from the state, and funding from Congress dried up years ago. The project was halted during the Obama administration.
The issue of where to store the growing amount of spent fuel remains. Roughly 91,000 metric tons of nuclear waste from commercial power plants are currently in private storage, both at or away from nuclear reactor sites, according to the U.S. government. And with nearly 20% of the nation’s electricity supplied by nuclear energy, plants are generating an additional 2,000 metric tons of spent fuel each year, the Energy Department estimates.
The Supreme Court case
The legal battle before the justices Wednesday involves a license the Nuclear Regulatory Commission issued in September 2021 to a company called Interim Storage Partners allowing it to house 5,000 metric tons — and up to 40,000 metric tons — of spent fuel in dry-cask, above-ground storage for up to 40 years.
The facility would be constructed in Andrews County, Texas, which is west of Dallas and less than a mile from the state’s border with New Mexico. There is already a disposal site in the county for low-level radioactive waste.
Before the commission granted the license, the state submitted comments opposing the site and warning it was dangerous to store nuclear waste anywhere besides a deep geological repository like Yucca Mountain. Texas officials cautioned against housing the spent fuel on a “concrete pad” above the state’s Permian Basin, where 250,000 active oil and gas wells capture 40% of the country’s oil reserves.
Gov. Greg Abbott and the Texas Commission on Environmental Quality did not seek to intervene in the Nuclear Regulatory Commission’s proceedings. But several groups did try to object, including Fasken Land and Minerals. Their request, however, was denied by the commission.
Still, the state and land owners asked the U.S. Court of Appeals for the 5th Circuit to review the license to Interim Storage Partners. Two other federal appeals courts considered cases relating to the company’s license, but only the 5th Circuit allowed the dispute to move forward.
The 5th Circuit first found that Texas and the landowners could seek review of a final order from the Nuclear Regulatory Commission regarding the license because it acted beyond its authority. The court also ruled that provisions of the 1954 Atomic Energy Act do not support licenses like the one issued to Interim Storage Partners, which allows for the offsite storage of spent fuel. Instead, the 5th Circuit also said a 1982 law intends for nuclear waste to be stored at the site of nuclear reactors or in a federal facility until there is a permanent place for it.
The Supreme Court agreed to take up the case in October and will consider two issues. The first is whether Texas and the landowners could challenge the commission’s decision to issue the license to Interim Storage Partners. The second is whether federal law allows the Nuclear Regulatory Commission to license private companies to temporarily house spent fuel away from nuclear-reactor sites.
In filings with the high court, lawyers for the government argued that Texas didn’t become a party to the commission’s licensing adjudication simply by submitting comments during proceedings. They also said that Fasken Land and Minerals’ unsuccessful attempt to intervene didn’t make it a party for the purposes of challenging the commission’s decision to grant the license.
If the Supreme Court were to accept the 5th Circuit’s finding that Texas and Fasken could seek review of the licensing decision, it would encourage “litigants to skip the administrative proceeding and then ambush the agency by calling its authority into question once that proceeding is over,” the Justice Department wrote.
As to the second question, on whether the commission could grant licenses for temporary, offsite storage, the Justice Department argued that the Nuclear Regulatory Commission has exercised that authority for decades.
In 1971, for example, the commission’s predecessor issued a license to General Electric Company to store nuclear waste at a standalone facility. In 1989, its Atomic Safety and Licensing Appeal Board recognized when licensing a nuclear power plant that spent fuel could be stored in offsite facilities owned by private entities, government lawyers argued.
“Storage of spent nuclear fuel lies at the heart of the commission’s expertise and congressionally assigned role, and the commission has clear power to issue licenses for temporary storage of spent fuel at the site of a nuclear reactor,” they wrote.
According to the Congressional Research Service, the Nuclear Regulatory Commission has issued three licenses for the temporary storage of spent fuel at privately owned facilities away from reactors: The first, issued in 2006 for a project in Utah, was terminated by the license-holder, Private Fuel Storage; the second is to Interim Storage Partners; and the third, granted to Holtec International for the facility in Lea County, New Mexico, is tied up in court proceedings.
But officials for the state of Texas said that Yucca Mountain is the government’s plan for dealing with the thousands of metric tons of nuclear waste that continue to pile up, and they accused the federal government of engaging in a “policy workaround” by licensing private entities to store nuclear waste at facilities away from reactors.
“Nothing about this license is lawful,” they wrote in Supreme Court filings. “Congress has already legislated a solution to the nation’s nuclear-waste problem: permanent storage in Yucca Mountain. No statute mentions, let alone authorizes, private interim offsite storage.”
The state invoked what is called the major questions doctrine, which says that Congress must give clear authorization for a federal agency to decide an issue of major political or economic significance.
Congress, Texas officials wrote, has determined that where to store spent nuclear fuel is a major problem of public concern, and the solution is Yucca Mountain. Additionally, Congress mandated that the waste should be stored temporarily at either the reactor site or a facility that is operated by the federal government, the state argued.
“Congress answered that ‘major’ question, both as to interim offsite storage and permanent disposal,” lawyers for Texas wrote. “Congress’s clear answer was Yucca Mountain or interim federal facilities — not a private facility in Texas.”
A decision from the Supreme Court is expected by the end of June.
