The Nuclear Regulatory Commission had no authority to license an Orano-Waste Control Specialists joint venture in Texas to build and operate an interim storage site for spent fuel, a federal court ruled Friday.

In 2021, after the NRC granted the Interim Storage Partners joint venture a license to store spent fuel at Waste Control Specialists’ existing site Andrews County, Texas, the state sued NRC in the Fifth Circuit Court of Appeals.

Texas argued that NRC had no authority to grant the license and that the decision of where to store spent nuclear fuel qualified as a major question that only Congress could constitutionally resolve. But the NRC said it was allowed to license storage of radioactive materials under the Atomic Energy Act.

The Fifth Circuit sided with Texas.

“The Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor,” Circuit Judge James Ho, an appointee of President Donald Trump (R), wrote in an opinion published Aug. 25. “And the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority.”

A spokesperson for Orano declined to comment on Monday. A representative of Waste Control Specialists did not reply to an email seeking comment this week.

The Nuclear Regulatory Commission’s remaining options, if it wants to defend its authority to license a commercial interim storage site, are an en banc hearing at the appeals court in which every judge in the Fifth Circuit would re-hear the case and issue a new decision to void last week’s decision or an appeal to the U.S. Supreme Court, an independent branch of the federal government and the venue of last resort for all cases.

As of deadline Friday for RadWaste Monitor, the NRC had not asked for an en banc hearing or given notice that it would appeal to the U.S. Supreme Court.