WASHINGTON — The shadow of the long-stalled proposed nuclear waste facility at Yucca Mountain, Nevada, loomed over Supreme Court proceedings Wednesday as the justices weighed a dispute over the federal government’s decision to approve a temporary storage site in Texas.
The nine justices heard oral arguments on whether the Nuclear Regulatory Commission correctly allowed a company called Interim Storage Partners to store spent nuclear fuel in Andrews County, Texas, for up to 40 years.
The demand for the facility is largely because the Yucca Mountain project, which the federal government spent years and billions of dollars developing as a permanent storage site, has never been completed amid local opposition.
Despite being effectively killed during the Obama administration, Yucca Mountain is by law still considered to be the only long-term solution for permanent storage.
The question of whether the Nuclear Regulatory Commission has the power to authorize a temporary, privately owned storage site that could effectively end up being permanent lingered in the background of the argument.
“It’s a hole in the ground,” Justice Neil Gorsuch said of Yucca Mountain. As a result, any interim storage site is not temporary “in any meaningful sense,” he added.
Justice Samuel Alito noted that the 40-year license for the Texas site could potentially be renewed, maybe indefinitely.
“Where is the incentive to go forward, to do what Congress wanted to have done, which is to establish a permanent facility?” he asked.
But the fraught political question of where to store nuclear waste is not the key question before the court. It is possible the court will dispose of the case by finding that Texas and others who challenged the proposal could not bring their claims because they had failed to intervene at an earlier stage, which several justices indicated was their view.
If the court concludes the challengers can intervene, it is unclear how it would rule on the scope of the Nuclear Regulatory Commission’s authority.
The agency maintains that under the Atomic Energy Act, it can order spent nuclear fuel to be transported across the country and held “temporarily” at a different, privately owned site from where the fuel was used.
Justice Brett Kavanaugh pointed out that it has long been understood that the agency theoretically could authorize private temporary storage facilities that are not at the site of decommissioned reactors.
Kavanaugh added that Congress, in a later 1982 law called the Nuclear Waste Policy Act, did not bar the agency from allowing such projects.
“Congress in 1982 had a chance to, was well aware of this issue, and did not expressly preclude this, and then that’s been the way it’s been for 50 years,” he added.
Justice Ketanji Brown Jackson said Congress seemed to favor “incentivizing onsite storage, which appears to be a different thing than prohibiting off-site storage.”
The New Orleans-based 5th U.S. Circuit Court of Appeals had faulted the NRC for its 2021 decision, prompting the Biden administration to appeal. The Trump administration has now taken over the case and is defending the commission’s authority to approve private nuclear waste storage sites.
Acting Solicitor General Sarah Harris, representing the Trump administration, said in court papers that Texas’ legal argument, if adopted by the court, “threatens to deprive the commission of authority to license the private storage of spent nuclear fuel in any location.”
“That would grind the operations of nuclear reactors to a halt. Reactor operations automatically generate spent fuel; those operations cannot proceed if there is nowhere to store that spent fuel,” she added.
Texas Governor Greg Abbott and others, including major landowner Fasken Land and Minerals, challenged the NRC decision in court, with the appeals court ruling both that they had a right to file suit and that the agency did not have the authority to issue the license.
Texas officials say the NRC would allow up to 40,000 metric tons of waste to be stored above ground in the Permian Basin, which in addition to being a prominent oil field is also a source of water for surrounding communities.
It is for now unclear whether the Trump administration will consider reviving the Yucca Mountain project.
