Supreme Court appears divided on offsite nuclear waste storage

The Supreme Court appeared split Wednesday on the question of whether the federal Nuclear Regulatory Commission has the authority to license private, temporary offsite storage of nuclear waste.

In the case, Nuclear Regulatory Commission v. Texas, an appeals court vacated an NRC license for a planned waste storage facility in Texas, which had been vocally opposed by Gov. Greg Abbott (R). While the case weighs the agency’s power to issue the license for sites separate from the reactor where the waste was created, it also has broader implications for the procedures for challenging an agency’s rulemaking process.

In its filing, the NRC argued the state and another party, Fasken Land and Minerals, were not authorized to challenge the license in court after failing to formally object to the initial licensing. Arguing on behalf of the NRC, Deputy U.S. Solicitor General Malcolm Stewart argued the litigants “don’t have an absolute right to intervene.”

The court’s liberal wing seemed broadly sympathetic to this argument in their questioning of Fasken attorney David Frederick, with Justices Elena Kagan and Ketanji Brown Jackson grilling Frederick on whether they met the definition of a “party” regardless of how affected they were by the licensing.

“You’re saying ‘if I was excluded wrongly, I’m a party,’” Kagan said at one point.

The court also questioned the litigants on the extent to which offsite, private storage of nuclear waste is authorized by federal law, with NRC’s lawyers arguing it is permitted by virtue of not being explicitly barred.

Justice Brett Kavanaugh repeatedly pressed Stewart on whether offsite storage is explicitly authorized, while Jackson argued that the statutory language incentivized onsite storage but that that was not equivalent to barring offsite storage. Jackson asked Stewart directly whether he believed Congress would have “clearly made a prohibition statement” if that was their intention, with Stewart replying in the affirmative.

The case comes a year after the court significantly pared back federal agencies’ authority to interpret ambiguity in the language of federal laws, ruling against the long-standing Chevron doctrine.

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