Spent Nuclear Fuel Storage: Coming to an Oil Field Near You!
By Jules Mule

In Nuclear Regulatory Commission v. Texas, the Supreme Court held that only parties to the Nuclear Regulatory Commission’s (NRC’s) licensing proceedings are entitled to judicial review of the licensing decision.[1] This case comes to the Court after respondents Texas and Fasken Land and Minerals challenged the NRC’s statutory authority to license a private-off-site-spent-nuclear-fuel-storage-facility in West Texas. However, the Court did not decide the case on the merits. Instead, it simply held that Texas and Fasken were not parties to the NRC’s licensing proceedings and are not entitled to judicial review. The Court should not have awarded the NRC undue control over judicial review of its licensing proceedings. More importantly, the Court should not have left such a significant regulatory question open for future litigation.

The United States began commercial nuclear power production in the 1950s after the enactment of the Atomic Energy Act of 1954 (AEA).[2] Nuclear reactors use enriched uranium to generate electricity and create waste known as spent nuclear fuel (SNF). Originally, SNF was reprocessed to extract weapons-grade plutonium for warheads. Eventually, nuclear proliferation concerns in the 1970s led President Ford to halt commercial reprocessing. However, continual generation without reprocessing meant many reactors were already approaching maximum capacity for on-site SNF storage by the 80s. Congress then enacted the Nuclear Waste Policy Act of 1982 (NWPA) which designated Yucca Mountain, Nevada as the nation’s single, permanent SNF repository. Public backlash, however, has killed nearly all federal support. SNF is still mostly stored on-site, but this is unsustainable, as many nuclear reactors are quickly approaching the end of their lifecycles. Now private, off-site storage is gaining federal support.

In 2018, Interim Storage Partners (ISP) applied for a license with the NRC to develop an  SNF storage facility in West Texas.[3] Fasken Land and Minerals (Fasken) operates oil and gas wells in West Texas and petitioned to intervene in the licensing proceedings.[4] The NRC denied the petition because Fasken failed “to show that a genuine dispute exists.”[5] Fasken challenged the denial in the D.C. Circuit, but the court upheld the NRC’s decision.[6] Fasken did not petition the Supreme Court for certiorari, and the NRC license proceedings continued.[7] In 2020, the NRC issued a draft environmental impact statement (EIS) and awaited public comments.[8] Among the many commenters were Fasken and a government agency representing the state of Texas.[9] Both raised environmental and public safety concerns, which the NRC considered in their final EIS.[10] The NRC then granted ISP the license to develop the storage facility in 2021.[11]

Following this, Texas and Fasken sued the NRC in the Fifth Circuit.[12] They claimed the NRC lacked the statutory authority to license private off-site SNF storage facilities.[13] The Fifth Circuit agreed, and vacated ISP’s license.[14] The NRC petitioned the Supreme Court for certiorari, and the Court granted cert in 2024.[15]

In a 6–3 opinion delivered by Justice Kavanaugh, the Court held that Texas and Fasken were not entitled to judicial review under the Hobbs Act.[16] The Court reasoned that neither met the AEA’s requirement to qualify as “part[ies] aggrieved” to the proceedings.[17] The one and only requirement is that the NRC must grant a prior petition to intervene the proceedings.[18] If the NRC denies the petition, as in this case, the would-be intervenors cannot seek judicial review in court.[19] Texas did not petition to intervene, and Fasken’s petition was denied and subsequently dispatched by the D.C. Circuit.[20] Therefore, neither was entitled to judicial review on the proceedings. The Fifth Circuit’s decision was reversed and remanded without a ruling on the merits.[21] However, the Court did offer five pages of commentary suggesting the NRC does have statutory authority to license private-storage facilities under the AEA.[22]

Regarding the jurisdictional issue, the Court should have held that Texas and Fasken were entitled to judicial review. Under the Hobbs Act, a “party aggrieved” by a licensing order is entitled to judicial review of the proceedings.[23] The Court relied on § 2239 of the AEA to determine who qualifies as a party to NRC licensing proceedings: “In any proceeding . . . for the granting . . . of any license . . . the Commission shall grant a hearing upon request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.”[24] The Court narrowly interpreted this language to mean that party status is only awarded if the NRC grants the hearing.[25] The NRC codified this interpretation, and the strict criteria for admittance, in 10 C.F.R. § 2.309(f).[26] However, the more obvious interpretation is that both granting the hearing and awarding party status are separately at the NRC’s discretion. Nevertheless, the Court upheld the NRC’s stricter interpretation, citing only to a 1990 D.C. Circuit case for support.[27]

The case is not very supportive. The issue centers around how § 2.309(f) interacts with an older late-filing rule.[28] Further, the circuit court relies on the now defunct Chevron deference.[29] Ultimately, the Court’s unjustifiably narrow reading of the AEA lends the NRC too much control over judicial review. Left unchecked, the agency can simply deny anyone that requests a hearing and remain unobstructed on the licensing proceedings. As the dissent put it: “Allowing agencies to decide who can challenge their work in court is like letting the fox guard the henhouse.”[30]

Accordingly, the Court should have decided this case on the merits. The dissent offered am alternative method to achieving party status under the Hobbs Act (i.e. commenting on an EIS).[31] Regardless of the method used, the open question is more worthy of discussion: Does the NRC have the statutory authority to license private SNF storage facilities? The Court could not stay silent on the matter after all, delivering five pages of unauthoritative dicta.[32] Oddly enough, the Court again based its argument on a less-than-supportive D.C. Circuit case it claims upheld NRC regulations.[33] In 1980, the NRC promulgated regulations under the AEA that allow it to license private off-site storage facilities.[34] And in 2004, the D.C. Circuit in Bullcreek v. NRC conceded that “the AEA does not specifically refer to the storage or disposal of spent nuclear fuel. . . .”[35] Rather, the authority is implicit, predicated on the decades of historical deference to the NRC.[36]

Unable to point towards any explicit authority in the AEA, the D.C. Circuit and this Court both resort to an even earlier case: Pacific Gas & Electric Company v State Energy Resources Conservation & Development Commission (PG&E).[37] Unfortunately, the most authoritative quote in the entire case is mere recognition: “the NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”[38] The regulations were unchallenged; the case was about licensing reactors, not storage facilities. Even together, these two cases hardly amount to a substantial judgment on the statutory authority of the NRC’s private storage licensing practices. In Bullcreek, the petitioner “conceded at oral argument [that] the NRC had authority under the AEA to regulate private away-from-reactor storage facilities.”[39] And in PG&E, the Court made no mention of private vs. federally-owned storage facilities. It’s likely that the recently enacted NWPA that would soon establish a permanent federally-owned storage site was fresh on the Court’s mind. While recognition of the NRC’s authority over private storage facilities under the AEA is longstanding, the authority is implicit at best and has never been directly challenged. Avoiding judgment on the merits keeps the question open to future litigation and enables unnecessary confusion in the nuclear industry.

Regardless, the Court’s lengthy dicta suggests it would likely uphold the NRC’s statutory authority in any future challenge. Ultimately, the NRC is the obvious choice for regulating private storage. Congress should simply revise the AEA to match the NRC’s existing regulations.

[1] NRC v. Texas, 605 U.S. 665 (2025).

[2] See 42 U.S.C. § 2011 et seq.

[3] NRC, 605 U.S. at 672.

[4] Id.

[5] Id.; 10 C.F.R. § 2.309(f).

[6] NRC, 605 U.S. at 673; Don’t Waste Mich. v. NRC, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023).

[7] NRC v. Texas, 605 U.S. 665 (2025).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] NRC v. Texas, 605 U.S. 665 (2025).

[14] Id. at 673–74.

[15] Id. at 674.

[16] Id. at 676-77; 28 U.S.C. § 2344.

[17] Id.

[18] Id.; 42 U.S.C. § 2239(1)(A).

[19] NRC v. Texas, 605 U.S. 665 (2025).

[20] Id. at 678–79.

[21] Id. at 690.

[22] Id. at 683–88.

[23] 28 U.S.C. § 2341.

[24] 42 U.S.C. § 2239(1)(A).

[25] NRC v. Texas, 605 U.S 665, 676 (2025).

[26] 10 C.F.R. § 2.309(f).

[27] NRC, 605 U.S. at 678; Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-56 (D.C. Cir. 1990).

[28] Union of Concerned Scientists, 920 F.2d at 53 (“UCS does not contend that the heightened pleading requirement, standing alone, would be illegal”).

[29] Id. at 54; Chevron U.S.A., Inc. v. NRDC, 467 US 837 (1984), overruled by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[30] NRC v. Texas, 605 U.S. 665, 711 (2025) (Gorsuch, J., dissenting).

[31] Id. at 707-10.

[32] Id. at 683–88.

[33] Id. at 685; Bullcreek v. NRC, 359 F.3d 536, 537–38, 541–43 (D.C. Cir. 2004).

[34] 10 C.F.R. § 72.

[35] Bullcreek, 359 F.3d at 538.

[36] Id. (“[T]he NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”); NRC v. Texas, 605 U.S. 665, 683 (2025).

[37] Pac. Gas & Elec. V. St. Energy Resources Conserv., 461 U.S. 190 (1983); NRC, 605 U.S. at 683-84; Bullcreek, 359 F.3d at 538.

[38] Pac. Gas & Elec., 461 U.S. at 217.

[39] Bullcreek, 359 F.3d at 542.