Full court refuses to review Texas interim storage case

March 19, 2024, 12:00PMRadwaste Solutions

By a narrow vote of 9–7, the 5th Circuit Court of Appeals denied a petition to rehear the court’s 2023 decision to vacate Interim Storage Partners’ (ISP’s) license to build and operate a consolidated interim storage facility for commercial spent nuclear fuel in Andrews County, Texas.

Ruling that the Nuclear Regulatory Commission does not have the authority to issue a license for a spent fuel storage site that is away from a nuclear reactor, the court vacated ISP’s NRC-granted license on August 25, 2023. Following that ruling, the NRC and the U.S. Department of Justice asked in October for an en banc review by the court, with all justices of the court reviewing the case.

With the en banc review denied, the case is expected to go to the Supreme Court for a final verdict.

Majority opinion: In a ruling issued on March 14, the court majority maintained that the NRC acted beyond its legal authority in issuing ISP, a joint venture of Orano USA and Waste Control Specialists, a license for the storage facility.

Writing the majority opinion, circuit judge Edith Jones, joined by judges Jerry Smith, Jennifer Walker Elrod, James Ho, Kurt Engelhardt, and Cory Wilson, wrote, “We continue to adhere to our position that the judiciary has not only the authority but the duty to review the NRC’s actions, which may threaten significant environmental damage in the Permian Basin, one of the largest fossil fuel deposits in the world.”

Joining the majority in denying the en banc review were circuit judges Priscilla Richman, Catharina Haynes, and Stuart Kyle Duncan.

Dissenting opinion: Dissenting in the ruling were circuit judges Carl Stewart, Leslie Southwick, Stephen Higginson, James Graves Jr., Don Willett, Dana Douglas, and Irma Carrillo Ramirez.

“To hold that the [NRC] lacked authority to license private, away-from-reactor storage of spent nuclear fuel without a clear delegation from Congress, the panel disregarded a clear limitation that Congress imposed on our own authority,” wrote Higginson, joined by Graves, Douglas, and Ramirez, in the dissenting opinion.

The dissenting judges added, “This exercise of jurisdiction has grave consequences for regulated entities’ settled expectations and careful investments in costly, time-consuming agency proceedings, inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this uncertainty.”

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