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 Wednesday, 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.’”
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.
