An anti-nuclear group spearheading a legal challenge to a proposed interim storage facility for spent nuclear fuel in Texas took a page out of the state attorney general’s playbook this week, citing a recent Supreme Court ruling as evidence that the government cannot license the site.
Beyond Nuclear, which is suing the Nuclear Regulatory Commission in the D.C. Circuit Court of Appeals over its decision to license Interim Storage Partners’ (ISP) proposed site, made a similar argument in its Wednesday letter to the court as Texas Attorney General Ken Paxton had made in the Fifth Circuit Court of Appeals just a week prior.
The Supreme Court’s June 30 ruling in West Virginia v. EPA, Beyond Nuclear argued, demonstrates that NRC “lacks statutory authority” to issue a license to ISP. “West Virginia supports Petitioner’s contention that NRC violated the constitutional separation of powers doctrine by considering and issuing a license in violation of the Nuclear Waste Policy Act [NWPA],” the anti-nuclear group said.
Wednesday’s letter also repeated Paxton’s argument that the June 30 ruling upholds a legal theory known as major questions doctrine, which says that federal agencies cannot make decisions of economic or political significance without approval from Congress.
“West Virginia mandates that for a ‘major question,’ such as licensing a private company to store DOE waste, NRC “must point to clear congressional authorization for the power it claims,” Beyond Nuclear said, quoting the ruling. “But NRC has failed to do so, and thus ‘a decision of such magnitude and consequence rests with Congress itself.’”
The Supreme Court is an independent branch of the federal governmnet.
Beyond Nuclear and Paxton are among the first legal challengers to invoke West Virginia, which some fear could limit the power of the Environmental Protection Agency and federal agencies more broadly.
As of Thursday morning, the D.C. Circuit had yet to respond to Beyond Nuclear’s letter.
The Supreme Court decision provides opponents of interim storage with new ammunition. Until now, both challengers had argued in separate suits that NRC’s September decision to license the proposed ISP site ran afoul of NWPA — an angle of attack that both NRC and some experts have rejected.
Meanwhile, over at the Fifth Circuit, the court Wednesday granted a request from NRC allowing it to file a ten-page response to Paxton’s new argument by Aug. 3. The state attorney general is also required to file a similar brief. Oral arguments in that case are tentatively scheduled for late August.
The ISP site, if it gets built, would be able to store around 40,000 tons of spent fuel — or about half of the country’s total spent fuel inventory of close to 90,000 tons. NRC licensed the site to operate for 40 years.