In oral arguments this week, two federal appeals judges appeared skeptical of the Nuclear Regulatory Commission’s power to license commercial storage of spent nuclear fuel. 

Those two judges, by themselves, have the power to undo the commission’s September 2021 license of Interim Storage Partners’ (ISP) proposed spent-fuel storage site in Andrews County, Texas, which by itself could fit about half of the spent fuel now stored at multitudes of U.S. power plants — plants with fuel storage facilities that could be caught in the crossfire if the Fifth Circuit strikes down ISP’s license.

Seeking to keep ISP out of its backyard, the state has invoked June’s blockbuster Supreme Court decision, West Virginia v. EPA, in which the high court said that Congress must give federal agencies such as NRC specific permission to regulate “major questions” of economics and politics. 

In the Fifth Circuit on Monday, Judge Edith Jones, senior member of the presiding, all-Republican, three-judge panel, said she could not see how NRC “can claim that you have this overarching de novo authority” to license private interim storage. 

Though “[w]hether that pushes us toward a major question, I don’t know,” Jones said during the long-awaited oral arguments in the year-old lawsuit, State of Texas vs. NRC.

Jones’ colleague and fellow panelist Judge James Ho said Monday that his understanding of the law was that it allows NRC to license the storage of radioactive materials, “but only for specified purposes,” that do not include a site such as ISP’s.

Texas’ suit was 10 months old before the state in July invoked the major questions doctrine in its case against the NRC. After it did, attorneys unaffiliated with the case speculated that a Fifth Circuit order to pull ISP’s license, on the grounds that nuclear waste is a major question, might also take down many existing spent-fuel storage pads.

Dozens of power plants, active and decommissioned, store their spent nuclear fuel on site under existing NRC licenses, making them de facto commercial interim storage sites, the commission argued Monday, and in briefs filed as part of the Texas suit. 

Did John Roberts mean that the ‘major questions doctrine’ he has discovered in the constitution requires Congress itself to approve each nuclear power-related site license by enacting legislation that names it individually? Tune in 2-6 years from now to find out. https://t.co/BC5A2oNGah

— southpaw (@nycsouthpaw) July 7, 2022

Those concerns have made it onto the Fifth Circuit’s radar. 

During Monday’s oral argument, Judge Wilson asked Ryan Baasch, the lawyer representing Texas, whether invalidating the proposed ISP site could have a domino effect on NRC’s authority to approve spent fuel storage sites at decommissioned plants.

Baasch did not completely dispel the possibility, saying that former plants’ operating licenses allowing them to store spent fuel onsite may have expired. 

“[T]he licenses that were in effect always allowed those reactors to have waste at the site,” he said. “I’m candidly not sure how the Nuclear Regulatory Commission is supposed to deal with that problem, but the waste is going to be there one way or another until the federal government solves this problem.”

Texas sued NRC in September 2021, shortly after the commission licensed ISP, the joint venture of Orano USA and Waste Control Specialists, to store spent nuclear fuel at a new depot planned at Waste Control Specialists’ existing radioactive disposal site in Andrews County, Texas. 

Texas Attorney General Ken Paxton (R) has argued that the federal Nuclear Waste Policy Act bars the agency from licensing private interim storage sites until the federal government opens a permanent nuclear waste repository. 

NRC has argued that the Atomic Energy Act gives the commission such authority, and that the Nuclear Waste Policy Act, the younger of the two laws, did not wipe out the commission’s existing authority.

Jay Silberg, a partner at the New York-based law firm Pillsbury Winthrop Shaw Pittman who has helped nuclear services company Holtec International in its efforts to license a private interim storage facility in New Mexico, told RadWaste Monitor during a phone interview this week that Jones is “not correct” about the NRC’s authorities. 

NRC has been allowed to license interim storage of spent fuel “since day one, and there are cases that weren’t discussed in the oral argument that are even older than the ones that were discussed, where NRC has licensed private interim storage,” Silberg said in a phone interview.

Silberg also rejected an argument made by Texas that when Congress in 1987 ratified the Nuclear Waste Policy Act, it nullified NRC’s authority to approve projects established in the 1954 Atomic Energy Act. If Congress had “wanted to repeal, or say that the NRC was wrong, you would think that they would do it explicitly,” Silberg said.

“If the NRC didn’t have that authority, then the whole world of nuclear licensing would be turned upside down,” Silberg said, since the commission’s power to approve nuclear waste storage includes away-from-reactor spent fuel pads at nuclear power plants.

If built, the ISP site licensed in 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.