The U.S. Supreme Court March 5 heard oral arguments in a case considering the Nuclear Regulatory Commission’s authority under federal law to grant licenses to private companies for building temporary nuclear spent-fuel storage facilities far from the reactors where the waste originated.

The case, NRC vs. Texas, was consolidated with another case involving Interim Storage Partners (ISP), a joint venture of Waste Control Specialists and Orano USA, in opposition to the state of Texas.

In September 2021, ISP received an NRC license to build and operate a storage facility in Andrews County, Texas, relatively close to the New Mexico border. In May 2023, the NRC also granted Holtec International a license for a storage facility in southeastern New Mexico.

Texas Gov. Greg Abbott (R), Midland, Texas-based oil and gas firm Fasken Land and Minerals, and others challenged the NRC’s actions and won in the Fifth Circuit Court of Appeals. The court revoked ISP’s license in 2023, and also vacated Holtec’s license in 2024. In both cases, the court found that the NRC was not authorized to grant the licenses to the firms. The NRC brought the case to the Supreme Court to appeal that decision.

At the Supreme Court hearing, justices asked the attorneys on both sides for clarification on their interpretation of the meaning and intent of certain provisions of the Atomic Energy Act (AEA) and the Nuclear Waste Policy Act.

Justice Department attorney Malcolm Stewart argued that, under AEA, Congress did not bar off-site storage of spent fuel nor did it enact any licensing provisions.

“Congress clearly contemplated that licensing would continue to be done under the pre-existing Atomic Energy Act provisions, and those provisions don’t distinguish between on-site and off-site storage,” Stewart said.

Justice Ketanji Brown Jackson pushed back saying, “I don’t hear you disputing that Congress in the [Nuclear Waste] Policy Act was expressing its, perhaps, preference for on-site storage. … It seems to me that Congress in this statute was doing so by incentivizing on-site storage, which appears to be a different thing than prohibiting off-site storage.”

Stewart said that under a federal storage program “that did not get off the ground,” one of the ways on-site storage was incentivized included requirements that companies show when on-site storage was unavailable. However, he added, there was no similar requirement for off-site storage.

Stewart also asserted that, under the Hobbs Act—which sets a 60-day clock for aggrieved parties to challenge certain agency orders—Texas is not an aggrieved party and so does not have standing to bring a challenge. 

Justice Samuel Alito asked ISP counsel Brad Fagg whether it is reasonable for the state of Texas and others with interests in the Permian Basin to be concerned about storage in this location.

Fagg responded that Texas initially supported the ISP project but then reversed course, but that it did not do so within the proper time period “like lots of states do and like the regulations specifically allow.”

David Frederick, who represents Fasken, argued that the NRC’s “efforts to derive authority from the AEA’s material license provisions don’t work because storage is not use. As the 1982 [Nuclear Waste] Policy Act defines it, storage is retention ‘for subsequent use, processing or disposal.’”

Justices Sonia Sotomayor and Samuel Alito both questioned what “temporary” storage means in the context of this case.

“If it is decided that material can be stored off-site temporarily, and temporary means more than 40 years, maybe more than 80 years. Maybe it means 250 years … where is the incentive to go forward, to do what Congress wanted to have done, which is to establish a permanent facility?” Alito asked.

In a statement to ENR, a Holtec spokesperson said that the Fifth Circuit’s decision to strike down the two NRC licenses was wrong. 

“The Supreme Court heard oral arguments on the Fifth Circuit’s decision, involving both the procedures used to seek review of an NRC license and the NRC’s authority to issues licenses for spent fuel storage,” the spokesperson said. “Holtec believes that the Fifth Circuit applied the incorrect procedures, and that the NRC has clear statutory authority to issue these licenses.”

He added that Holtec looks forward to the Supreme Court “correcting the Fifth Circuit’s procedural ruling, and reinstating Holtec’s NRC license.”