The logo of the U.S. Nuclear Regulatory Commission is shown on the podium during a public meeting in Carlsbad, California September 26, 2013.
The justices heard arguments in an appeal by the U.S. government and a company that was awarded a license by the NRC to operate a facility in western Texas of a lower court's ruling declaring the storage arrangement unlawful. The NRC is the federal agency regulating nuclear energy in the United States.
Some of the conservative justices indicated skepticism toward the NRC's claim that Congress gave it the authority to license temporary off-site nuclear waste storage facilities. Some of the liberal justices, for their part, questioned whether the plaintiffs should be allowed to challenge the license after it was awarded.
The Supreme Court, which has a 6-3 conservative majority, has showed skepticism toward the authority of federal regulatory agencies in several major rulings in recent years. The NRC case is being argued at a time when President Donald Trump's administration has taken aim at various agencies in his campaign to downsize and overhaul the U.S. government and fire thousands of federal workers.
The NRC issued a license in 2021 to Interim Storage Partners to build a nuclear waste storage facility in Andrews County in Texas, near the New Mexico border.
"Since 1980, the NRC's regulations have provided for both onsite and offsite storage. That system allows a substantial role for private market responses to the country's nuclear waste storage issues, subject to commission oversight to ensure that storage is safe and consistent with statutory requirements," Malcolm Stewart, an attorney for the U.S. government, told the justices.
The Interim Storage Partners license was challenged by Fasken Land and Minerals, a Texas-based oil and gas extraction organization, and the nonprofit Permian Basin Coalition of Land and Royalty Owners and Operators.
Texas and New Mexico later joined the challenge, arguing the facility posed environmental risks to the states. New Mexico, whose own case was dismissed, filed a brief in support of Texas.
Some conservative justices seemed wary of the NRC's claim that the licensing arrangements at issue would be temporary. The license issued to Interim Storage Partners was set to last for 40 years, with the possibility of being renewed.
"If it is decided that material can be stored off site temporarily - and temporary means more than 40 years, maybe more than 80 years, maybe it means 250 years, maybe it means 500 years - where is the incentive to go forward to do what Congress wanted to have done, which is to establish a permanent facility?" conservative Justice Samuel Alito asked the lawyer for the storage company.
A proposal to permanently store the nation's spent nuclear fuel at a federal facility at Yucca Mountain in Nevada has been stalled following decades of opposition in that state.
"Yucca Mountain was supposed to be the permanent solution," conservative Justice Neil Gorsuch said. "We've spent something like $15 billion on it. It's a hole in the ground. And you parties seem to think the Yucca Mountain project is dead."
"How is this interim storage that the government is authorizing here in any meaningful sense?" Gorsuch asked. "On a concrete platform in the Permian Basin, where we get our oil and gas from. So, hopefully, we won't have radiated oil and gas."
'TERRORIST BULLSEYE'
Aaron Nielson, the lawyer arguing for Texas, underscored these safety concerns.
"What the commission has just done is put a permanent terrorist bullseye on the most productive oilfield in America," Nielson said.
Some of the liberal justices appeared sympathetic to the NRC's argument that the plaintiffs lacked authority to bring the lawsuit because they did not participate in the agency's adjudication process.
"It makes no sense to me," liberal Justice Sonia Sotomayor told Fasken attorney David Frederick. "What you're saying is, instead of bringing that argument to the agency first, you get at any point in time" to say "that you want the right to intervene and argue that they don't have the power."
Some of the justices commented on the NRC setting the parameters on who can challenge its actions.
"Isn't it a little bit odd to say that the agency whose action is being challenged in court has so much control" over "who gets to challenge the action?" liberal Justice Elena Kagan asked Stewart.
The New Orleans-based 5th U.S. Circuit Court of Appeals found that the NRC lacked authority to issue the license based on a law called the Atomic Energy Act of 1954. Biden's administration appealed the ruling at the Supreme Court and Trump's administration continued the appeal.
A ruling in the case is expected by the end of June.
