The Nuclear Regulatory Commission and the state of Texas traded blows this week about whether a recent Supreme Court decision moves the needle in the Lone Star State’s ongoing lawsuit against a proposed, privately owned interim storage facility for spent nuclear fuel, court documents show.
Wednesday’s filings with the Fifth Circuit Court of Appeals are the latest in the debate surrounding Texas Attorney General Ken Paxton’s new argument against the proposed Interim Storage Partners (ISP) site: that the Supreme Court’s June 30 ruling in West Virginia v. EPA shows the NRC had no authority to license the project.
Paxton argued that NRC’s September decision to license the proposed ISP site ran afoul of a legal theory, upheld in the high court’s June ruling, called the major questions doctrine. The doctrine holds that a federal agency cannot regulate major political or economic issues unless Congress passes a law that says the agency can.
The commission’s ability to license private interim storage facilities is one such power, Paxton said Wednesday. “[T]his case presents a major question because the Commission has taken regulatory action that Congress considered, but failed to enact on its own,” the state attorney general argued.
The fact that Congress looks at the nuclear waste disposal issue with “intensity” also helps to characterize it as a major question, Paxton said, noting that Congress “has considered nearly 30 measures that would have addressed storage and disposal of commercial nuclear waste.”
Following the major questions doctrine, the Fifth Circuit should require NRC to justify its authority to license private interim storage with more than just relevant statutes, Paxton argued.
“‘The agency instead must point to clear congressional authorization for the power it claims,’” the state attorney general said, citing the Supreme Court’s ruling.
Meanwhile, NRC fired back at Paxton Wednesday, saying in its own brief that the West Virginia ruling does not apply to the interim storage suit, first and foremost because Texas did not meet legal requirements to sue NRC over its licensing decision in the first place. The state has “failed to demonstrate standing” to sue NRC thus far, the agency argued.
NRC has said previously that the Fifth Circuit should toss Paxton’s suit because Texas did not exhaust all of its agency-level options for opposing the proposed ISP site before suing.
“Texas, which has invoked the major questions doctrine, never argued before the agency that NRC lacked authority to issue away-from-reactor storage facilities,” NRC said. “It could have raised such an argument as a contention before the agency or via petition for rulemaking.”
Even if Paxton had the right to sue, West Virginia’s major questions doctrine still would not apply to the interim storage question, the commission said. The Supreme Court’s ruling explains that such a legal theory should only be applied in “extraordinary cases.”
The decision to license the proposed ISP site, NRC said, is not at all extraordinary.
“The materials license issued here reflects a conventional exercise of NRC’s longstanding and exclusive authority over a matter that lies at the core of its expertise,” the agency argued.
NRC also repeated its argument that the Atomic Energy Act (AEA) gives it the power to license the storage of radioactive waste, and that the agency in 1980 developed regulations allowing it to license away-from-reactor spent fuel storage sites in particular.
“In short, the agency’s longstanding interpretation of the AEA and issuance of licenses … demonstrate that the license issued to ISP lies in the heartland of NRC’s exclusive authority and practice,” the commission said. “It should come as no surprise that, per its name, the Nuclear Regulatory Commission can regulate spent nuclear fuel.”
As of Thursday, the Fifth Circuit had yet to respond to either party.
Oral arguments in Texas’s case — which could provide the first legal test for opponents of interim storage — were scheduled for the week of Aug. 29.
The Andrews, Texas, ISP site, if built, would be able to store around 40,000 tons of spent fuel — 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.
