The Nuclear Regulatory Commission asked a federal appeals court Monday to let its lawyers file a full response to the state of Texas’s claim that the agency’s decision to license a proposed interim storage facility for spent nuclear fuel in the state was nullified by a recent Supreme Court decision, court documents show.
If the Fifth Circuit Court of Appeals grants NRC’s request, the agency will have until Aug. 3 to file a ten-page brief refuting Texas Attorney General Ken Paxton’s argument that the Supreme Court’s ruling in West Virginia v. EPA blocks the licensing of Interim Storage Partners’ (ISP) proposed project, according to a motion from the commission dated Monday.
Rather than filing a letter explaining its position on Paxton’s argument, NRC asked for permission to file a full brief “on whether the major questions doctrine articulated in West Virginia applies to this case,” the agency said. As of Monday evening the court had not ruled on the request.
In his July 6 letter, Paxton argued that West Virginia upheld a legal theory known as “major questions doctrine,” which holds that Congress must authorize federal agencies’ decisions on issues of major political or economic significance. NRC’s September decision to license the ISP site, the attorney general said, falls under that definition.
Texas’s new angle of attack is one of the first examples of a state using the June 30 Supreme Court ruling to challenge the authority of a federal agency and may be one of the first legal tests of such an argument. The Fifth Circuit is tentatively scheduled to hear oral arguments on the case in August.
Until last week, Paxton had relied on some of the same arguments as other challengers to interim storage — that the Nuclear Waste Policy Act (NWPA), which holds that the federal government can’t build an interim storage facility until a permanent repository is active, precludes NRC from licensing a privately operated depot.
To that, the commission has said that it is governed by the Atomic Energy Act, not NWPA, and that that law permits it to license privately-owned nuclear waste storage facilities.
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.
