(Investing) – WASHINGTON – The U.S. Supreme Court grappled on Wednesday over whether the Nuclear Regulatory Commission has the authority to license nuclear waste storage facilities amid objections brought by the state of Texas as well as oil industry interests.
The justices heard arguments in an appeal by the U.S. government and a company that was awarded a license by the NRC, the federal agency that regulates nuclear energy in the United States, to operate a facility in western Texas of a lower court’s ruling declaring this storage arrangement unlawful.
The Supreme Court, which has a 6-3 conservative majority, showed skepticism toward the authority of federal regulatory agencies in several major rulings during former President Joe Biden’s administration. The NRC case is being argued at a time when President Donald Trump’s administration has taken aim at various federal agencies in his campaign to downsize and overhaul the U.S. government and fire thousands of workers.
The NRC issued a license in 2021 to Interim Storage Partners to build a nuclear waste storage facility in Andrews County in Texas, near the New Mexico border. The NRC has issued such licenses to private companies since 1980.
A proposal to permanently store the nation’s spent nuclear fuel at a federal facility at Yucca Mountain in Nevada has been stalled following decades of opposition in that state.
“Since 1980, the NRC’s regulations have provided for both onsite and offsite storage. That system allows a substantial role for private market responses to the country’s nuclear waste storage issues subject to commission oversight to ensure that storage is safe and consistent with statutory requirements,” Malcolm Stewart, an attorney for the U.S. government, told the justices.
The Interim Storage Partners license was challenged by Fasken Land and Minerals, a Texas-based oil and gas extraction organization, and the nonprofit Permian Basin Coalition of Land and Royalty Owners and Operators.
Texas and New Mexico later joined the challenge, arguing the facility posed environmental risks to the states. The Denver-based 10th U.S. Circuit Court of Appeals dismissed New Mexico’s legal challenge. New Mexico filed a brief in support of Texas in the case argued before the justices on Wednesday.
Some of the conservative justices indicated skepticism toward the NRC’s licensing authority for temporary off-site nuclear waste storage, and seemed wary of the NRC’s claim that such arrangements would be temporary. Some of the liberal justices, for their part, appeared to question that the states and Fasken should be allowed to challenge the license.
Stewart said that the plaintiffs lacked authority to bring the lawsuit because they did not participate in the agency’s adjudication process.
“In an adjudication you would need to intervene and the commission’s rules set out the process for intervention,” Stewart told conservative Justice Clarence Thomas.
“It makes no sense to me,” liberal Justice Sonia Sotomayor told Fasken attorney David Frederick. “What you’re saying is that instead of bringing that argument to the agency first, you get at any point in time” to say “that you want the right to intervene and argue that they don’t have the power.”
’SOMEWHAT STRANGE’
Some of the justices commented on the NRC setting the parameters on who can challenge its actions.
“Isn’t it a little bit odd to say that the agency whose action is being challenged in court has so much control” over “who gets to challenge the action?” Justice Elena Kagan asked Stewart.
Thomas added, “I do think it’s somewhat strange that the NRC gets to choose which parties are able to challenge it later on.”
The New Orleans-based 5th U.S. Circuit Court of Appeals found that the NRC lacked authority to issue the license based on a law called the Atomic Energy Act of 1954. Biden’s administration appealed the ruling at the Supreme Court and Trump’s administration continued the appeal.
The states said the NRC had no authority to issue the license, and that Congress “has already legislated a solution to the nation’s nuclear-waste problem: permanent storage in Yucca Mountain.”
“Licenses cover on-site storage of spent fuel because that material is so hot it takes years to cool, and it can only be done safely on site by removing the reactor core and moving it immediately into water. And that’s why more than about 50% of all spent nuclear fuel is in cooling pools around the country,” Frederick told the justices.
“Yucca Mountain was supposed to be the permanent solution,” conservative Justice Neil Gorsuch said. “We spent something like $15 billion on it, and it’s a hole in the ground. The parties seem to think the Yucca Mountain’s project is dead.”
“How is this ’interim storage’ that the government is authorizing here, in any meaningful sense?” Gorsuch asked. “On a concrete platform in the Permian Basin where we get our oil and gas from – so hopefully we won’t get radiated oil and gas.”
A ruling in the case is expected by the end of June.
