Summary
The Fifth Circuit held that the Nuclear Regulatory Commission (NRC) lacks statutory authority under the Atomic Energy Act to license private, away-from-reactor storage facilities for spent nuclear fuel, and that the comprehensive scheme of the Nuclear Waste Policy Act forecloses such authority. Applying the major questions doctrine, the court vacated a license for a temporary storage facility in Texas. The court also recognized an ultra vires exception to the Hobbs Act’s party-aggrieved standing requirement, allowing Texas and private landowners to challenge the NRC’s action despite having only participated through comments or denied intervention. Key topics: NRC licensing authority, spent nuclear fuel storage, Atomic Energy Act, Nuclear Waste Policy Act, major questions doctrine, and Hobbs Act standing/ultra vires exception.
Topics
Practice areas
Questions Presented
- Whether the Nuclear Regulatory Commission has statutory authority under the Atomic Energy Act to license a private, away-from-reactor storage facility for spent nuclear fuel.
- Whether the license conflicts with the Nuclear Waste Policy Act.
- Whether Petitioners have constitutional and statutory standing to challenge the license.
Holdings
- The Atomic Energy Act does not confer authority on the Commission to license private away-from-reactor storage of spent nuclear fuel, and the Nuclear Waste Policy Act forecloses such authority.
- Both Texas and Fasken have standing. Texas has standing based on preemption of state law (H.B. 7), and Fasken has standing based on geographic proximity to the facility.
- The ultra vires exception to the Hobbs Act party-aggrieved requirement applies, allowing Petitioners to challenge the Commission's statutory authority.
Key quotations
“The Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor.” (at 2)
“Disposal of nuclear waste is an issue of great 'economic and political significance.'” (at 25)
“We hold that the Commission doesn't have authority to issue the license challenged here.” (at 25)
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” (at 26)
Factual background
The United States has accumulated thousands of metric tons of spent nuclear fuel from commercial nuclear power generation, with no permanent repository. Congress enacted the Nuclear Waste Policy Act to establish a permanent repository at Yucca Mountain, but development stalled. The Nuclear Regulatory Commission asserted authority under the Atomic Energy Act to license private, away-from-reactor storage facilities. It issued a license to Interim Storage Partners for a facility in the Permian Basin in Texas, capable of storing up to 40,000 metric tons. Texas passed H.B. 7 prohibiting storage of high-level radioactive waste. Fasken and Permian Basin Land and Royalty Owners own land near the proposed facility.
Procedural history
The Nuclear Regulatory Commission issued a license to Interim Storage Partners, LLC to operate a temporary spent nuclear fuel storage facility in Andrews County, Texas. The State of Texas, Fasken Land and Minerals, Ltd., and Permian Basin Land and Royalty Owners petitioned for review of the license, challenging the Commission's statutory authority and the adequacy of the environmental review. The Commission moved to dismiss for lack of standing.