No, no, hell no, and no again! said Texas and its powerful oil industry, in a legal challenge to the federal government’s power to license privately-operated nuclear waste storage sites in the Lone Star State over their objections.
Um, you have no standing to intervene, the U.S. Supreme Court said in an eagerly-awaited decision that was made public on Wednesday, June 18.
This is important to you, California, and the entire United States of America, because it might make it easier to build temporary homes for the radioactive waste that’s piling up at nuclear power plants from coast to coast.
The U.S. Government Accountability Office’s map of sites storing spent nuclear waste in the United States.
At San Onofre — just yards from the shore break, on a bluff over the blue Pacific, in an active earthquake zone and close to 8 million residents — millions of pounds of waste are stranded, entombed in concrete, waiting for the federal government to figure out what the bloody heck to do with it.
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The problem: A long time ago the feds agreed to start taking commercial waste into permanent storage by 1998. We ratepayers pumped billions into a fund to pay for it. But it’s 2025, not an ounce has been accepted for permanent storage, and there’s no solution in sight.
This costs us taxpayers some $2 million every single day. That’s because We The People must pay the utilities to store the stuff, even though we’ve already paid the federal government to dispose of it.
Temporary nuclear waste storage sites run by private companies have emerged as a stopgap solution while the federal government searches for a permanent one.
The Supreme Court opinion — 6-3, with a blistering dissent — was greeted with relief by some, because it seems to acknowledge the authority of a federal regulator to, you know, regulate.
“It confirms the ability of independent agencies to make decisions that are well within their statutory authority,” said David Victor, professor at UC San Diego’s School of Global Policy and Strategy and former chair of the San Onofre Community Engagement Panel.
Dry storage of used fuel rods at the San Onofre Nuclear Generating Station on Thursday, December 16, 2021. (Photo by Jeff Gritchen, Orange County Register/SCNG)
“Normally, this decision would be pretty routine, but these days there are a lot of questions being raised about whether independent agencies can remain independent, and so sensitivities were particularly high. Had the Supreme Court allowed the NRC to be overruled, it would’ve put a question to all kinds of decisions about nuclear fuel, and perhaps to other decisions about the NRC more generally.”
U.S. Rep. Mike Levin, D-San Juan Capistrano, has proposed numerous bills aimed at fixing the unresolved back end of the nuclear fuel cycle. While he appreciates the court’s decision, it’s not enough to address “the broader societal challenges of spent nuclear fuel,” he said in a statement. Instead, he believes, Congress must act.
The Supremes’ decision does not sweep away all obstacles. Texas et al have other legal avenues to explore to block storage sites, and they surely will.
“Texas will not become America’s nuclear waste dumping ground,” Texas Gov. Greg Abbott tweeted after the Nuclear Regulatory Commission granted the license. Abbott, and his attorney general, were conspicuously silent Wednesday.
The fight
On Sept. 13, 2021, the NRC granted a license to Interim Storage Partners, a joint venture of Waste Control Specialists and Orano USA, to build and operate a “consolidated interim storage facility” in Andrews, Texas.
It would rise beside a low-level storage site that already exists there, and its license would expire in 40 years, but with the possibility of being renewed. The site would close whenever the federal government brings a permanent disposal site online.
(You can understand Texas’s skepticism here, no?)
So, the state of Texas and Fasken Land and Minerals, aprivate business that grazes cattle and operates oil and gas wells in West Texas, registered their objections with the NRC. They cited possible environmentalcontamination, harm to endangered species and expressed concern that an accident or an act of terrorism at the storage facility could harm the entire country. As a legal matter, they also tried to gain official party standing to the proceeding, but were denied because intervenors must have “sufficient information to show that a genuine dispute exists … on a material issue of law or fact,” but they did not have the goods.
They sued, arguing that federal law does not authorize storage of spent nuclear fuel at private off-site facilities. They prevailed in the 5th U.S. Circuit Court of Appeals in New Orleans, where the court concluded that the NRC lacked authority to issue the license based on the federal Atomic Energy Act of 1954.
The government appealed to the Supreme Court. And, on Wednesday, it won.
“The threshold question here is whether Texas and Fasken may maintain this suit,” the Supremes said. “The Court of Appeals said yes. We disagree.”
It’s a technical disagreement, though: Under the law, only an aggrieved “party” may obtain judicial review of an NRC licensing decision, the court said. To qualify as a party, the majority wrote that you must be the license applicant — or have successfully intervened in the proceeding.
“In this case, however, Texas and Fasken are not license applicants, and they did not successfully intervene in the licensing proceeding. So neither was a party eligible to obtain judicial review in the Fifth Circuit. For that reason, we reverse the judgment of the Court of Appeals and do not decide the underlying statutory dispute over whether the Nuclear Regulatory Commission possesses authority to license private off-site storage facilities.”
Can regulators regulate?
Do not decide the underlying dispute. Hmm.
The majority opinion, however, leans heavily in the NRC’s favor: “(H)istory and precedent offer significant support for the Commission’s longstanding interpretation,” it said. “(T)he Commission for about 50 years has read the Atomic Energy Act of 1954 to authorize storage of spent nuclear fuel at private off-site facilities. And this Court in 1983 and several Courts of Appeals have similarly interpreted the Atomic Energy Act of 1954 to authorize licenses for the storage of spent nuclear fuel.”
In fact, spent fuel storage is currently licensed at “about 10” privately owned storage sites where there are no active nuclear reactors, including the GE Morris facility in Morris, Illinois, the opinion said. San Onofre would be among them.
The NRC is viewing this as a win.
“The Supreme Court decision upholds the NRC license issued to Interim Storage Partners to construct and operate the ISP facility and explains why the NRC has this authority,” it said in a statement.
But Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito in a blistering dissent, couldn’t disagree more.
“Texas and Fasken are right,” Gorsuch wrote. “The law does not permit the NRC to license private companies to store spent nuclear fuel at private, away-from-reactor facilities… (T)here are obvious and grave risks associated with transporting highly radioactive material across the country and entrusting it to a private company operating on private property. And it belongs to Congress, not the agency, to assess those risks in the first instance.”
Expect more litigation along these lines.
This Google Earth image shows how close the expanded dry storage area for spent nuclear waste will be to the shoreline at San Onofre Nuclear Generating Station. (Image courtesy of Google Earth)
“There are lots of opponents to spent nuclear fuel facilities, which is why the strategy for building them needs to look at multiple options simultaneously, and needs to get communities focused on the benefits from hosting spent fuel, not just the costs,” said UC San Diego’s Victor.
“What we see in this case are motivated groups focused on the costs, and trying to raise objections and block permitting,” he added.
“If we follow the approach taken in Canada or Finland or other places, then we will have communities more focused on the benefits and they will get mobilized to defend those benefits. It doesn’t mean that it will be automatically possible to build anything anyone wants to build, but it shifts the odds a lot.”
Nuclear renaissance?
Nuclear power provides about a fifth of America’s electricity, and the Trump Administration hopes to dramatically increase that.
It has issued executive orders aimed at speeding up reactor licensing, expanding the domestic nuclear fuel supply chain, and, on point here, “reforming” the NRC. “Instead of efficiently promoting safe, abundant nuclear energy, the NRC has instead tried to insulate Americans from the most remote risks without appropriate regard for the severe domestic and geopolitical costs of such risk aversion,” a Trump executive order said.
For Levin, that underscores the need for Congress to up its game.
“As the current Administration seeks to unleash a nuclear renaissance, there remains no solution to the back end of the fuel cycle—both existing and future. With or without the Administration’s efforts, our nation already has 90,000 metric tons and growing of spent nuclear fuel with no permanent management plan.
U.S. Secretary of Energy Jennifer Granholm and U.S. Congressman Mike Levin speak to the press about a timeline for nuclear waste disposal at San Onofre Nuclear Generating Station on Friday, June 9, 2023 in Camp Pendleton, CA. This photo shows the location of where the nuclear waste is currently stored at San Onofre. (Eduardo Contreras / The San Diego Union-Tribune)
“Congress must act to pave the way for the successful siting and community acceptance of storage and disposal facilities,” Levin added. “We must end a top-down approach to spent nuclear fuel and pass legislation – like my bipartisan Nuclear Waste Administration Act – to empower negotiations between all levels of government.”
The Nuclear Waste Administration Act would essentially yank responsibility from the Department of Energy (which has spent more than $10 billion on moribund Yucca Mountain, once seen as a potential national repository) and create a new organization, devoted solely to solving the nuclear waste storage and disposal problem.
This was recommended a dozen years ago by the Blue Ribbon Commission on America’s Nuclear Future, and by at least a gazillion experts both before and since. The concept has been hailed by Republicans and Democrats alike.
Meantime, the DOE pursues both temporary and permanent storage on public land through its “consent-based siting” initiative, but it’s at the whim of changing administrations.
Wouldn’t it be wildly irresponsible to site scads of next-generation nuclear reactors with nowhere to put the waste, which remains dangerously radioactive for thousands of years? Reprocess it. Stick it miles below ground in deep bore holes. Do. Something. Please!
Levin said he won’t stop until the job’s done. Good luck with that Congressman. Good luck.
File photo of Yucca Mountain, 2015. (AP Photo/John Locher)