A recent D.C. appeals court decision shows that the state of Texas had no right to sue the Nuclear Regulatory Commission over a proposed interim storage facility for spent nuclear fuel, the commission said this week.
NRC, which is facing a lawsuit from Texas Attorney General Ken Paxton in the Fifth Circuit Court of Appeals over its decision to license Interim Storage Partners’ (ISP) proposed site, told the court in a Tuesday filing that the D.C. Circuit Court of Appeals’ decision in Ohio Nuclear-Free Network v. Nuclear Regulatory Commission proves that Paxton has no standing to challenge the agency’s authority.
The Ohio decision, which came down Tuesday, found that petitioners seeking to roll back a proposed NRC license amendment for a fuel production facility “had failed to properly participate in adjudicatory proceedings before the agency,” NRC said in its filing.
Because of that, the D.C. court ruled that the petitioners were not a “party aggrieved” and could not sue the commission.
NRC has argued in its Fifth Circuit case that, because Texas did not participate in agency-level licensing proceedings for the proposed ISP site, it also does not have the right to sue.
The commission said in its filing that the Ohio decision “applies to any argument that could have been asserted before the agency,” including Paxton’s attempt to roll back the ISP site’s license. Because of that, the law “requires dismissal of the petitions for review,” NRC said.
As of Friday, the Fifth Circuit had yet to issue any response. NRC also filed a similar brief in a separate interim storage case filed in the Tenth Circuit Court of Appeals by New Mexico Attorney General Hector Balderas.
NRC’s jurisdictional claim comes after the Fifth Circuit during an oral argument session in August cast doubt on the agency’s authority to license an interim storage site.
Members of the panel of judges presiding over the case — all appointed by Republican presidents — did not appear entirely convinced with the commission’s claim that its governing law, the Atomic Energy Act, granted it the ability to approve private spent fuel storage projects such as ISP’s.
Paxton, meanwhile, has argued that a different federal law, the Nuclear Waste Policy Act, bars NRC from licensing private interim storage sites until the federal government opens a permanent nuclear waste repository.
The state attorney general has also pointed to the Supreme Court’s ruling in West Virginia v. EPA as another counter to the proposed NRC site. The high court’s June decision said that Congress must give federal agencies such as NRC specific permission to regulate “major questions” of economics and politics.
If built, the ISP site, proposed for Andrews, Texas, would be able to store around 40,000 tons of spent fuel, or roughly half of the country’s total spent fuel inventory of close to 90,000 tons. NRC licensed the site to operate for 40 years.
