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

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

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

The actions were challenged by Texas Gov. Greg Abbott (R), Midland, Texas-based oil and gas firm Fasken Land and Minerals in the New Orleans federal appeals court. It revoked Interim Storage Partners' license in 2023, and vacated Holtec’s license in 2024. In both cases, the court found that the NRC was not authorized to grant the licenses. The agency appealed that decision to the Supreme Court.

High court justices asked attorneys on both sides for clarification on their interpretation of the meaning and intent of certain provisions of the Atomic Energy Act and the Nuclear Waste Policy Act.

U.S. Justice Dept. attorney Malcolm Stewart argued that, under the first law, 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,” he said.

Justice Ketanji Brown Jackson pushed back stating: “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,” on-site storage was incentivized under the law in certain cases when required. 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 does not have standing to bring a challenge. 

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

Fagg responded that Texas initially supported the Interim Storage Partners project but reversed course. That reversal, however, was not done within the proper time period “like lots of states do and like the regulations specifically allow.”

David Frederick, who represents Fasken, argued that NRC “efforts to derive authority from material license provisions undeer the Atomic Energy Act 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 [and up to] 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 [New Orleans court's] decision to strike down the two NRC licenses was wrong. 

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

Holtec said it anticipates the Supreme Court “correcting the ... procedural ruling, and reinstating Holtec’s NRC license.”