Part 2 of 2 Parts (Please read Part 1 first)
     Cleo Schroer is a senior policy analyst at Good Energy Collective. She said in an emailed statement that “Private interim storage facilities are not a permanent solution, but they can start to ease the current burden that spent nuclear fuel management places on existing host communities.”
     Ellen Ginsberg is a senior vice president and general counsel at the Nuclear Energy Institute. She said in an emailed statement that interim spent nuclear fuel storage facilities can also reduce fuel management costs. She added that upholding the U.S. Fifth Circuit’s conclusion “would further delay progress in advancing a safe, environmentally sustainable, and well-managed used fuel management system.”
     The NRC stated it is “confident we have a strong position for the Solicitor General to argue before the Court.” Morgan Lewis & Bockius LLP, the firm representing Interim Storage Partners, refused to comment.
     Emily Hammond is the faculty director of academic sustainability programs at George Washington University Law School. She said that the U.S. Supreme Court’s decision to review NRC v. Texas indicates continued skepticism toward federal regulators.
     The nuclear storage case before the U.S. Supreme Court presents two main questions. First, whether federal regulators have the statutory authority to permit privately owned, away-from-reactor interim storage facilities. Second, whether parties who didn’t intervene in regulatory proceedings can still take agencies to court over their decisions.
     It’s likely that the U.S. Supreme Court will side with federal regulators on the authority issue, especially since the commission has been licensing similar types of facilities since the late 1970s, Silberg said.
     However, if the U.S. Supreme Court rules that any affected entity, not just parties that intervene in regulatory proceedings, can name agencies in litigation, then stakeholders would have more ways to sue agencies and try to undo their actions, Thompson said.
     Hammond said that allowing only intervenors and direct parties to challenge agency proceedings helps prevent an overburdened court system, as complaints get sent directly to agencies instead of judges. He added that if that system is altered, it would mark an “enormous change in administrative law.”
     The U.S. Fifth Circuit ruled that the Biden administration’s decision to approve the interim storage site in Texas violated the major questions doctrine, which reduces agency power for decisions of great “economic and political significance.” However, Hammond says it’s hard to see how there would be a major question.
     Some of the issues related to the doctrine such as federalism, economics, and politics don’t show up very strongly in the case, they said. Nuclear power has been regulated solely by the federal government and the case doesn’t have enough economic significance to “ripple through the whole economy.” Hammond said that “This context kind of shows how malleable and unclear that language is.”
     Silberg said that while the U.S. Supreme Court decision does have a significant role to play it will be up to Congress to determine America’s future for permanent nuclear waste storage. He added that “We need congressional action first, at least to appropriate money, if not to change the law itself.”

Interim Storage Partners

Part 1 of 2 Parts   
     There is no centralized nuclear waste repository in the U.S. on the horizon. The U.S. Supreme Court’s upcoming review of the legality of temporary storage facilities could make or break the nation’s new push for nuclear power.
     The high court agreed on October 4th to review the U.S. Fifth Circuit’s ruling that the Biden administration illegally greenlit an away-from-reactor spent nuclear fuel storage facility in Andrews County, Texas.
     Brad Thompson is a partner at Duane Morris LLP. He said that if justices uphold the lower court’s decision, federal and state regulators could be reluctant to approve new nuclear generation projects for concern over adding to a backlog of nuclear waste.
     Thompson continued, “There’s a lot of waste that is stacking up at our current nuclear facilities, and it’s got to go somewhere. What degree nuclear power will grow or diminish will be impacted by how this case gets resolved by the U.S. Supreme Court.”
     The U.S. Court of Appeals for the Fifth Circuit last year rejected a license issued to Interim Storage Partners, a joint venture that was planning to develop a nuclear waste site in Andrews County. It ruled that the Nuclear Regulatory Commission (NRC) exceeded its authority under the Atomic Energy Act because it is not allowed to issue licenses that permit private parties to store radioactive material off site from a reactor.
     The U.S. Fifth Circuit also rejected a license for a similar project in New Mexico a year later. Both rulings conflicted with an earlier opinion from the U.S. Court of Appeals for the District of Columbia Circuit. The NRC appealed the Texas case to the U.S. Supreme Court in June, where its petition was granted and consolidated with the New Mexico case.
     A majority of U.S. citizens support expanding nuclear power in the U.S., a recent Pew Research Center survey found. Michael Gerrard is a founder and faculty director of Columbia Law School’s Sabin Center for Climate Change Law. He noted that the U.S. power grid is also hungry for sustainable energy sources as it sags under the pressure of data centers, electric vehicles, and more. Gerrard added that “The nuclear industry may be on the verge of a revival.” However, the waste disposal problem is a looming threat.
     Jay Silberg is a partner at Pillsbury Winthrop Shaw Pittman LLP.  He said that a ruling in support of the U.S. Fifth Circuit’s decision could suddenly make existing nuclear waste storage licenses illegal. He added that “it would mean you have orphan nuclear waste in many locations around the country that are no longer licensed, and that means we have unlicensed nuclear material.”
     Congress selected Yucca Mountain, Nevada, in 1989 to host a federally operated spent nuclear fuel storage facility. However, productive talks have collapsed since the Obama administration tabled the project more than a decade ago, Gerrard said.
     Storing spent nuclear fuel in privately-operated, temporary facilities around the country is hazardous due to threats of rising sea levels, terrorist attacks, and natural disasters, Gerrard said. However, preventing the facilitation of interim sites without a permanent national repository could impede the nuclear energy industry’s potential growth.
Please read Part 2 next

Nuclear Regulatory Commission