The state of Texas was scheduled Monday to present its ongoing case against the Nuclear Regulatory Commission’s ability to license interim waste storage to a federal court, court documents show.
The oral argument session, planned for Monday at the Fifth Circuit Court of Appeals’ New Orleans courthouse, could be the first legal test of Texas Attorney General Ken Paxton’s claims that a June 30 Supreme Court decision voids NRC’s power to license commercial interim storage facilities.
The agency in September licensed a Waste Control Specialists-Orano USA joint venture called Interim Storage Partners (ISP) to build an interim spent-fuel storage site in Andrews, Texas.
But after the Supreme Court’s ruling this summer in West Virginia v. EPA, Paxton argued that a legal theory known as major questions doctrine, central to the high court’s ruling, applied to NRC’s authority to license ISP’s proposed interim storage site.
The major questions doctrine holds that federal agencies cannot make decisions of major political or economic significance without explicit approval from Congress.
NRC “must point to clear congressional authorization for the power it claims,’” Paxton said in an Aug. 3 filing, citing the Supreme Court’s ruling.
Although NRC has pushed back on Paxton’s West Virginia argument, the agency has insisted that Texas has no right to sue in the first place.
The commission has said that because the state did not participate in agency-level actions to oppose the proposed ISP site, such as requesting a public hearing on the licensing process, it has no standing to mount a legal challenge.
“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 in an Aug. 3 brief. “It could have raised such an argument as a contention before the agency or via petition for rulemaking.”
Even if Paxton’s suit had standing, though, NRC argued that the Supreme Court’s interpretation of the major questions doctrine only applies in extreme circumstances. The ISP license, which the agency said reflects “longstanding and exclusive authority” over nuclear waste regulation, is no such thing.
The proposed 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.
