Supreme Court rules against Texas in interim storage case

The court, however, deferred ruling on the case’s second point: whether the NRC has the authority under the Atomic Energy Act and the Nuclear Waste Policy Act to license private companies to store spent nuclear fuel at away-from-reactor sites.

Instead, the court decided to remand the case back to the Court of Appeals with instructions to deny or dismiss Texas’s and Fasken’s petition for review.

The opinion: Writing for the majority, Justice Brett Kavanaugh wrote: “The threshold question here is whether Texas and Fasken may maintain this suit. The Court of Appeals said yes. We disagree. Under the Hobbs Act, only an aggrieved ‘party’ may obtain judicial review of [an NRC] licensing decision. To qualify as a party to a licensing proceeding, the Atomic Energy Act requires that one either be a license applicant or have successfully intervened in the licensing proceeding. In this case, however, Texas and Fasken are not license applicants, and they did not successfully intervene in the licensing proceeding. So neither was a party eligible to obtain judicial review in the Fifth Circuit. For that reason, we reverse the judgment of the Court of Appeals and do not decide the underlying statutory dispute over whether the Nuclear Regulatory Commission possesses authority to license private off-site storage facilities.”

Joining Kavanaugh in the majority opinion were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.

The dissent: In a dissenting opinion, Justice Neil Gorsuch called the NRC’s decision to license Interim Storage Partners’ Texas facility “unlawful” and that Texas and Fasken were “aggrieved” by the act. “Both Texas and Fasken participated actively in other aspects of the NRC’s licensing proceeding. No more is required for them to qualify as ‘parties aggrieved’ by the NRC’s licensing decision. Both are entitled to their day in court—and both are entitled to prevail.”

Joining Gorsuch in dissenting were Justices Clarence Thomas and Samuel Alito.

The license: The NRC granted Interim Storage Partners, a joint venture of Orano USA and Waste Control Specialists, a license in September 2021 to build and operate an interim storage facility at WCS’s site in Andrews County, Texas. In August 2023, the Court of Appeals vacated the license, finding that the NRC did not have the authority to grant the license and that Texas and Fasken had standing in their suit against the agency.