The Supreme Court convened on Wednesday to deliberate on the contentious issue of proceeding with plans to temporarily store nuclear waste in rural Texas and New Mexico. Justices expressed concerns about safety and the lack of a permanent storage solution during the hearing, a reflection of the nation’s complicated political history surrounding nuclear waste management. The long-delayed proposal to establish a permanent facility at Yucca Mountain, Nevada, could not move forward due to local opposition.
Central to the case is the challenge presented by the Nuclear Regulatory Commission (NRC) and a privately licensed company to a decision by an appellate court. This court had ruled that the NRC lacked the authority to grant the licensing for a temporary facility in Texas. The implications of this case could also influence plans for a comparable facility close by in New Mexico. If approved, these facilities could operate for an initial 40-year term, extendable for an additional 40 years.
Justice Neil Gorsuch raised questions about the characterization of the storage as “interim,” given the extended potential duration. He also pointed out concerns about the feasibility of placing spent nuclear fuel on a concrete platform in a location vital for oil and gas resources. Other justices, including Samuel Alito and Clarence Thomas, posed questions suggesting they may favor upholding the appellate court’s decision.
The country currently holds approximately 100,000 tons of accumulated spent fuel, some tracing back to the 1980s. These wastes are increasing annually by over 2,000 tons and are stored at various nuclear plant sites across the nation. The NRC contends that these temporary storage solutions are needed due to limited space at existing plants, which also affects the decommissioning of certain facilities.
Justice Sonia Sotomayor reflected on the historical context, expressing hope for a more permanent solution to emerge, even if it takes several decades. Justice Department attorney Malcolm Stewart acknowledged the necessity of storing the waste at fewer locations, which Interim Storage Partners LLC—holding the Texas license—argues would be more economically feasible and secure.
Some justices, such as Sotomayor, Ketanji Brown Jackson, Elena Kagan, and Brett Kavanaugh, hinted toward potentially reversing the appellate court ruling, whereas Chief Justice John Roberts and Justice Amy Coney Barrett refrained from revealing their positions. The litigation continues under the Biden administration with background continuity from the previous administration. Notably, state governors from Texas and New Mexico, despite political differences, oppose the storage facilities.
The justices must decide if, as argued by the NRC and support entities like Interim Storage Partners, states and private companies lost their standing to challenge the licensing due to not engaging in commission proceedings. While other federal appeals courts in Denver and Washington ruled in favor of the NRC, the 5th Circuit’s decision diverged, allowing this case to proceed.
Additionally, a key issue involves whether federal law permits the NRC to license temporary storage sites. Opponents rely on a 2022 Supreme Court precedent requiring Congress to specifically authorize agencies to regulate critical national issues. The Justice Department, however, claims the NRC’s authority dates back to the 1954 Atomic Energy Act.
The proposed Texas facility would accommodate up to 5,000 metric tons of spent fuel and significant amounts of other radioactive waste. This site is near an existing low-level waste disposal area in Andrews County. The New Mexico counterpart would be situated in Lea County, authorized under a license with Holtec International.
Justice Alito cautioned that these interim sites may lessen the drive to find a permanent solution, prompting Brad Fagg, representing Interim Storage Partners, to avoid providing a timeline for a permanent repository. The Supreme Court is expected to issue its decision by late June.
