Supreme Court grants Biden administration request to hear nuclear fuel storage case

The Supreme Court on Friday agreed to settle a dispute over the temporary storage of nuclear waste in West Texas that could upend decades of federal nuclear policy.

Last year, the U.S. Court of Appeals for the Fifth Circuit, considered among the most conservative in the nation, ruled against the federal Nuclear Regulatory Commission’s (NRC) licensure of an Andrews County, Texas, facility to store spent fuel.

The temporary site, which would be the first of its kind in the nation, got the NRC’s sign-off in 2021.

The Biden administration and the joint venture behind the planned temporary site, Interim Storage Partners LLC, appealed to the Supreme Court, arguing that the Fifth Circuit’s ruling contradicted precedent under the Atomic Energy Act as well as rulings by two other appeals courts.

U.S. Solicitor General Elizabeth Prelogar, in the Biden administration’s writ to the court, wrote that the lower court’s decision could have major implications for the nuclear industry and for the NRC’s powers to license storage.

“The court’s decision upends the Commission’s 44-year-old regulatory framework for licensing storage of spent fuel. And it disrupts the nuclear-power industry by categorically prohibiting the Commission from approving offsite storage of spent fuel, despite the agency’s longstanding issuance of such licenses,” she wrote. “This Court’s review is warranted to prevent those serious and legally unjustified consequences.”

Texas Attorney General Ken Paxton (R), who urged the court not to take up the case, had argued that the law only authorizes the storage of waste at the now-closed facility in Yucca Mountain, Nev., itself a contentious issue in the Silver State and its pivotal Senate race.

“By no means can the commission solve its Yucca Mountain problem by disregarding clear statutory language,” Paxton wrote.

The announcement means the court will hear the matter in its 2025 term, which follows a term that delivered a number of blows to the federal government’s capacity to regulate the environment. In addition to ruling against a Biden administration rule regulating interstate pollution, the court overturned the Chevron deference, the precedent that gives federal agencies broad discretion in interpreting federal statutes.

“The merits of our case are strong on two key fronts. First, the Nuclear Regulatory Commission lacks the authority to issue licenses for consolidated interim storage of spent nuclear fuel in a region hundreds and even thousands of miles away from the reactors that generated the waste,” Monica Perales, secretary of the Permian Basin Coalition and attorney at Fasken Oil & Ranch, the latter of which is a party in the case, said in a statement.

“Second, judicial review is fundamental to our democracy, yet the Nuclear Regulatory Commission blocked the courthouse door by denying interested parties the right to intervene in the licensing process which is unconstitutional,” she added. “For these reasons, we expect to prevail.”

Updated at 2:40 p.m. EDT.