While the AEA granted the NRC broad authority over nuclear materials, it did not address nuclear waste management or disposal. This regulatory gap became increasingly problematic as commercial nuclear power expanded, leading Congress to enact the NWPA specifically to address the growing challenge of nuclear waste disposal. However, the NWPA created a significant hurdle by explicitly tying the development of nonfederal interim storage facilities to progress on a permanent geological repository. 42 U.S.C. § 10168(d)(1). This linkage, while perhaps well-intentioned, has effectively prevented the establishment of nonfederal CISFs (federal facilities face separate obstacles). In 1987, Congress amended the NWPA to designate Yucca Mountain in Nevada as the sole site for consideration as a permanent repository. Nuclear Waste Policy Amendments Act of 1987, Pub. L. No. 100-203, § 5011, 101 Stat. 1330-227, 1330-228 (codified at 42 U.S.C. § 10172). However, the project faced substantial opposition from local communities and national stakeholders, impeding its progress. In 2009, President Obama eliminated funding for the Yucca Mountain Project in his budget, effectively halting the initiative and further complicating the path forward for both permanent and interim storage solutions. Blue Ribbon Comm’n on Am.’s Nuclear Future, Report to the Secretary of Energy at vi (Jan. 2012).
As noted above, the Fifth Circuit invalidated two NRC-licensed private CISFs—one in Andrews County, Texas (State v. Nuclear Regul. Comm’n, 95 F.4th 935), and another in Lea County, New Mexico (Fasken Land & Mins., 2024 WL 3175460)—ruling that the NRC lacked statutory authority to license private away-from-reactor storage facilities and creating a circuit split on questions of judicial standing and agency authority. On October 4, 2024, the Supreme Court consolidated and granted certiorari in two appeals challenging the license for the Texas facility: U.S. Nuclear Regulatory Commission v. State of Texas (No. 23-1300) and Interim Storage Partners LLC v. Texas (No. 23-1312) (collectively, NRC v. Texas).
The case before the Supreme Court presents two interrelated issues of administrative law. The first question is whether the NRC’s authority to license private parties to temporarily store spent nuclear fuel away from reactor sites is lawful under the AEA and NWPA. Second is a jurisdictional question under the Hobbs Act—the exclusive statutory basis for courts to review challenges to AEA licenses. While the Hobbs Act limits judicial review to parties “aggrieved” by an agency proceeding, the Court must decide whether entities can challenge an agency’s statutory authority even if they did not participate in the underlying regulatory proceedings.
Both issues reflect significant splits among the federal circuits. Several circuits have rejected challenges from parties who did not participate in agency proceedings, but the Fifth Circuit held that such ultra vires challenges can proceed when parties claim an agency exceeded its statutory authority. This position conflicts with decisions from the D.C., Third, Sixth, and Ninth Circuits. Heflin, supra. Similarly, while the D.C. and Tenth Circuits have upheld the NRC’s authority to license private storage facilities, the Fifth Circuit found no such authority in either the AEA or NWPA. Id. The petitioners contend that Congress implicitly approved this authority by remaining silent when passing the NWPA, as the NRC was already licensing temporary away-from-reactor storage facilities at that time.
The Supreme Court has scheduled oral arguments for March 5, 2025, with a decision expected by summer 2025. This timing is critical for nuclear waste management in the United States. With no permanent repository in development, the nuclear power industry faces growing challenges in managing spent fuel storage. If the Court rules against the NRC’s licensing authority, nuclear facilities would be forced to continue indefinite on-site storage, and existing off-site storage facilities would face uncertain futures. Such a ruling would likely require congressional action to establish a new framework for spent fuel management.
The Court’s decision will have implications far beyond nuclear waste storage. While the ruling on NRC’s authority will determine the viability of CISFs as an interim storage solution, the Court’s interpretation of the Hobbs Act will affect judicial review across multiple regulatory domains. By clarifying when parties can challenge federal agency actions, the decision could impact how the public contests orders from agencies such as the Federal Communications Commission and the Department of Transportation. The Court’s resolution of these issues will thus shape both the future of nuclear waste management and the broader landscape of administrative law in the United States.
