Despite assertions made by an anti-nuclear group suing the Nuclear Regulatory Commission, a recent Supreme Court decision doesn’t affect NRC’s authority to license a proposed interim storage facility for spent nuclear fuel in West Texas, the company in charge of the project argued Monday.
The high court’s ruling in West Virginia v. EPA “has nothing to do with” Beyond Nuclear’s joint suit against NRC, Interim Storage Partners (ISP) told the D.C. Circuit Court of Appeals in a letter dated Monday. The anti-nuclear groups, which include environmental advocates such as the Sierra Club and Texas-based minerals company Fasken Land and Minerals, are suing the commission over its September decision to grant the proposed site a license.
Although Beyond Nuclear in a July 13 brief argued that the Supreme Court’s June 30 ruling upheld a legal theory known as major question doctrine — which holds that agency actions with significant political or economic consequences must be congressionally approved — no party in the suit has suggested that “applicable statutory authority” does not authorize NRC to license the proposed site, ISP said.
Even if West Virginia did apply to Beyond Nuclear case, ISP argued, the circumstances surrounding NRC’s licensing decision are not the same as the agency actions challenged in the Supreme Court ruling.
“[T]he cited linchpin of the Supreme Court’s decision was the ‘newness’ of the rule there challenged,” ISP said, citing the decision. “‘Things changed’ upon promulgation of the new agency rule, and there was a lack of precedent for the challenged agency action.”
Not so in NRC’s case, the letter said. The agency rule it used to license the proposed interim storage project “was openly and publicly promulgated” in 1980, when NRC updated its regulations to allow it to approve independent spent fuel storage installations (ISFSIs).
ISP also pushed back on the assertion Congress would need to approve NRC’s licensing decision. “Despite Congress being fully ‘aware’ of the NRC’s regulations, Congress never said a word about curtailing that authority,” the company said.
Diane Curran, counsel for Beyond Nuclear, called ISP’s argument a “fallacy” in a phone interview with Exchange Monitor Tuesday morning. “The question is: did Congress speak on the issue of whether the Nuclear Waste Policy Act should be changed,” she said. “There’ve been a number of attempts to change it and there’ve been a number of attempts to introduce private storage of spent fuel, but they’ve all been turned down.”
The West Virginia ruling “simply confirms what the Supreme Court has already held over and over and over again,” Curran said. “Agencies cannot take action that’s inconsistent with the law, and they can’t get out in front of Congress.”
