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