Whether Texas and Fasken Land and Minerals Co. waited too late to fight the Nuclear Regulatory Commission’s authority to license interim offsite private facilities for spent fuel, took up much of a hearing before the U.S. Supreme Court.
During the Wednesday NRC versus Texas hearing webcast from Washington, D.C., Deputy Solicitor General Malcolm Stewart argued Texas and Fasken lack legal standing because they waited too long to get involved in challenges to the Nuclear Regulatory Commission’s (NRC) right to issue private fuel storage licenses in Texas and New Mexico.
Texas actually started out being supportive of a proposal by Interim Storage Partners , a team of Orano USA and Waste Control Specialists, to license an interim spent fuel facility in West Texas, but it later switched sides and belatedly intervened against the project, Stewart said.
Texas Solicitor General Aaron Nielson took issue, saying the federal attorney was mischaracterizing an early letter by former Texas Gov. Rick Perry (R). Perry later served as secretary of energy for most of President Donald Trump’s first term.
Perry only said the Interim Storage Partners proposal was less bad than some other options after the Department of Energy’s Yucca Mountain project in Nevada was killed during the Barack Obama administration. “I don’t read that letter as saying, oh, yeah, this is a great idea,” the Texas lawyer said of Perry’s letter. Perry’s letter said a private fuel facility was likely to be built just across the line in New Mexico anyway,
Current Texas governor Greg Abbott (R) has taken an “over-my-dead-body” approach, Nielson said.
The Supreme Court has been asked to decide, among other things, if the Fifth U.S. Circuit Court of Appeals was correct when it went it threw out the NRC license for the Texas project. Also at issue is a bigger facility licensed by NRC for Holtec in neighboring New Mexico.
Justice Clarence Thomas hinted the government was being too restrictive on standing in the case. It is “somewhat strange the NRC gets to choose what parties can challenge it,” Thomas said.
Even if the court finds Texas and Fasken, a regional land and mineral holding company, can challenge the licenses, the parties would still lose on the merits, Stewart said. This is because many points raised by the foes, including site security and debating the “temporary” status of a facility that would be licensed for at least 40 years, could also apply to existing onsite storage at nuclear plants.
Nielson said concentrating spent nuclear fuel generated from power reactors across the nation would “put a permanent terrorist bullseye” on the petroleum-producing Permian Basin of Texas and New Mexico.
Justice Brett Kavanaugh said at one point that it has long been understood that NRC has authority to license private fuel storage, even offsite, and Texas and Fasken seek a departure from that norm. The justice cited written arguments from the Nuclear Energy Institute..
Nielson replied the government has never before approved a private facility like the ones planned for Texas and New Mexico.The facilities in this case are expected to be far larger than the General Electric Morris dry cask storage facility in Illinois.
A decision in the case is expected in June. A transcript of the hearing is available online.
