Supreme Court Examines Conflict Regarding Nuclear Waste Storage in Texas Oil Field

The U.S. Supreme Court reviewed on March 5 whether the Nuclear Regulatory Commission (NRC) has the authority to permit a private company to store spent nuclear fuel at a location in Texas.

In this case, the court decided to combine two related lawsuits—NRC v. Texas and Interim Storage Partners LLC v. Texas—for consideration.

The law designated Yucca Mountain in Nevada for an underground nuclear waste storage facility and instructed the U.S. Department of Energy to initiate waste storage operations from states at this site starting in 1998.

However, the department failed to meet the 1998 target. Moreover, the proposed Yucca Mountain Nuclear Waste Repository encountered significant opposition in Nevada, as noted in the petition.

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In 2008, the department submitted its license application for the Yucca Mountain facility to the NRC.

The commission subsequently “halted its review and assessment” of this application and acknowledged it “had no intention of examining the application, despite the Nuclear Waste Policy Act requiring a decision to be reached within three years of submission,” as noted in the petition.

The Obama administration established the Blue Ribbon Commission on America’s Nuclear Future, which concluded that rather than mandating nuclear waste storage exclusively at Yucca Mountain, “a consent-based approach to siting nuclear waste storage facilities” would be more effective, as mentioned in the petition, indicating that facilities should be located in areas that agree to host them.

Years after the advisory commission’s findings, in September 2021, the NRC granted Interim Storage Partners LLC (ISP) a license to operate an interim storage facility in Andrews County, Texas, adjacent to New Mexico.

The facility is situated within the Permian Basin, which is the most productive oil field in the United States.

Texas challenged this license in court.

In August 2023, the U.S. Court of Appeals for the Fifth Circuit nullified the license, asserting that federal law does not empower the NRC to issue licenses to private entities for interim storage facilities.

The court sided with Texas, which contended that the Atomic Energy Act does not confer the “broad authority” the NRC claims to issue licenses for private storage of spent nuclear fuel outside of the reactor.

Furthermore, the court stated, “The Nuclear Waste Policy Act establishes a comprehensive legal framework to manage nuclear waste generated by commercial power generation, thus invalidating the commission’s assertion of authority.”

In the petition, Prelogar implored the Supreme Court to take up this case, arguing that the Fifth Circuit imposed “unprecedented restrictions” on the NRC’s licensing capabilities that could lead to “serious consequences.”

The ruling “upends” a “44-year regulatory framework for the licensing of spent fuel storage” and “disrupts the nuclear-power sector,” she wrote.

Justice Neil Gorsuch remarked that although Yucca Mountain “was intended to be the permanent solution” and roughly “$15 billion” has been spent on its proposed facility, it remains “just a hole in the ground.”

“It seems you parties believe the Yucca Mountain project is dead,” the justice noted.

The interim storage facility possesses a renewable 40-year license, he added.

“That doesn’t seem very interim to me,” Gorsuch observed.

Gorsuch also raised concerns about siting the facility “on a concrete platform in the Permian Basin, where we extract our oil and gas.”

Justice Samuel Alito expressed that granting enduring licenses for interim storage facilities conflicts with Congressional intent.

If the waste “can be temporarily stored offsite, and ‘temporary’ extends beyond 40 years, possibly even more than 80 years or 250 years … perhaps even 500 years … where is the motivation to proceed with what Congress aimed to achieve, which is to establish a permanent facility?”

In reference to the upcoming 250th anniversary of the nation, Justice Sonia Sotomayor remarked to Stewart that it was “puzzling that in a country celebrating its 250th year, some of my colleagues believe that 40 years can’t be temporary.”

“I wish for us to celebrate another 250; if it takes 40 or 80 years for a resolution, it would still qualify as temporary, correct?” she inquired.

Stewart agreed, stating, “Whether you classify it as temporary or permanent, or quasi-permanent, the duration will remain the same whether the waste is housed at an ISP facility or a disused reactor site.”

Texas Solicitor General Aaron Nielson argued that placing a storage facility in Andrews County could jeopardize the oil field in the Permian Basin.

“There’s no feasible way to relocate 140,000 tons of nuclear waste in 60 years. What the commission has effectively done is place a permanent target on the most productive oil field in America,” he stated.

Nielson concluded, “If anyone believes this is temporary, I’m ready to sell them a bridge.”

The Supreme Court is anticipated to issue a ruling in this matter by the end of June.