The US Supreme Court, in a 6-3 decision, ruled that the State of Texas and Fasken Land and Minerals could not seek judicial review of the US Nuclear Regulatory Commission’s (NRC) decision to grant a license for an interim storage facility for used nuclear fuel in Andrews County, Texas. The majority opinion stated that neither Texas nor Fasken were license applicants or successful intervenors in the licensing process, thus lacking eligibility for judicial review.

ISP's vision for the CISF

Interim Storage Partners (ISP), a joint venture formed in 2018 by Waste Control Specialists and Orano CIS, a subsidiary of Orano USA, received the NRC license in September 2021 to build a facility at Waste Control Specialists’ site in Andrews County. The license permits storage of up to 5,000 tonnes of used commercial nuclear fuel and Greater-Than-Class C waste for 40 years. ISP plans to expand the facility over 20 years to store up to 40,000 tonnes, pending further approvals. The NRC issued its final environmental impact statement in July 2021, supporting the license issuance.

Texas and Fasken, along with others, challenged the NRC’s decision. In 2022, Texas passed a law prohibiting high-level radioactive waste storage in the state, except at current or former nuclear power plant sites. In August 2023, a US Court of Appeals for the 5th Circuit panel ruled that the NRC lacked authority under the Atomic Energy Act or the Nuclear Waste Policy Act to license a private off-site storage facility.

Justice Brett M. Kavanaugh, delivering the majority opinion, stated: “Under the Hobbs Act, only an aggrieved ‘party’ may obtain judicial review of a Commission licensing decision. In this case, however, Texas and Fasken are not license applicants, and they did not successfully intervene in the licensing proceeding.” The Court reversed the 5th Circuit’s judgment, emphasizing that it did not address whether the NRC has authority to license private off-site facilities.

The ruling clarified: “Texas and Fasken were not parties to the Commission’s licensing proceeding and are not entitled to obtain judicial review of the Commission’s licensing decision.” The case was remanded with instructions to deny or dismiss the petitions.

The facility proposed by ISP would use proven above-ground dry-cask storage systems, designed by Orano TN and NAC International, with a lifespan exceeding 100 years. In 2023, the NRC also licensed Holtec International to develop a similar facility in New Mexico, which Holtec welcomed, expressing hope to advance its project.

This decision underscores the ongoing federal responsibility for managing used nuclear fuel, as the planned Yucca Mountain repository in Nevada remains unbuilt, leaving fuel stored at over 70 sites nationwide.