Supreme Court wrestles with nation's frustrating search for nuclear waste storage

WASHINGTON (AP) — The Supreme Court on Wednesday wrestled with whether to restart plans to temporarily store nuclear waste at sites in rural Texas and New Mexico even as some justices worried about safety issues and the lack of progress toward a permanent solution.

The justices heard arguments in a case that reflects the complicated politics of the nation’s so far futile quest for a permanent underground storage facility. A plan to build a national storage facility northwest of Las Vegas at Yucca Mountain has been mothballed because of staunch opposition from most Nevada residents and officials.

The court took up a challenge by the Nuclear Regulatory Commission and a private company with a license for the Texas facility to an appellate ruling that found the commission had no authority to grant the license. The outcome of the case will affect plans for a similar facility in New Mexico roughly 40 miles (65 kilometers) away.

The licenses would allow the companies to operate the facilities for 40 years, with the possibility of a 40-year renewal.

“That doesn't sound very interim to me,” Justice Neil Gorsuch said, while also questioning the advisability of storing spent nuclear fuel “on a concrete platform in the Permian Basis, where we get all our oil and gas from.”

Justices Samuel Alito and Clarence Thomas joined Gorsuch in asking questions suggesting they were the most likely to uphold the ruling from the 5th U.S. Circuit Court of Appeals.

Roughly 100,000 tons (90,000 metric tons) of spent fuel, some of it dating from the 1980s, is piling up at current and former nuclear plant sites nationwide and growing by more than 2,000 tons (1,800 metric tons) a year. The waste was meant to be kept there temporarily before being deposited deep underground.

The NRC has said that the temporary storage sites are needed because existing nuclear plants are running out of room. The presence of the spent fuel also complicates plans to decommission some plants, the Justice Department said in court papers.

Justice Sonia Sotomayor, looking ahead to the United States' 250th anniversary next year, said, “I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”

Justice Department lawyer Malcolm Stewart agreed, noting that the spent fuel has to be kept somewhere, whether at operating and decommissioned plants or elsewhere.

Security also is cheaper with the waste in one or two locations, Stewart said, relying on arguments made by Interim Storage Partners LLC, the company with the Texas license.

Sotomayor, along with Justices Ketanji Brown Jackson, Elena Kagan and Brett Kavanaugh, seemed most inclined to reverse the 5th circuit. Chief Justice John Roberts and Justice Amy Coney Barrett said little or nothing to reveal where they stand.

The NRC's appeal was filed by the Biden administration and maintained by the new Trump administration. Texas Gov. Greg Abbott,. a Republican, and New Mexico Gov. Michelle Lujan Grisham, a Democrat, are leading bipartisan opposition to the facilities in their states.

The justices will consider whether, as the NRC and Interim Storage Partners argues, the states and a private energy company forfeited their right to object to the licensing decisions because they declined to join in the commission’s proceedings.

Two other federal appeals courts, in Denver and Washington, that weighed the same issue ruled for the agency. Only the 5th Circuit allowed the cases to proceed.

The second issue is whether federal law allows the commission to license temporary storage sites. Opponents are relying on a 2022 Supreme Court decision that held that Congress must act with specificity when it wants to give an agency the authority to regulate on an issue of major national significance. In ruling for Texas, the 5th Circuit agreed that what to do with the nation’s nuclear waste is the sort of “major question” that Congress must speak to directly.

But the Justice Department has argued that the commission has long-standing authority to deal with nuclear waste reaching back to the 1954 Atomic Energy Act.

The NRC granted the Texas license to Interim Storage for a facility that could take up to 5,000 metric tons of spent nuclear fuel rods from power plants and 231 million tons of other radioactive waste. The facility would be built next to an existing dump site in Andrews County for low-level waste such as protective clothing and other material that has been exposed to radioactivity. The Andrews County site is about 350 miles (560 kilometers) west of Dallas, near the Texas-New Mexico state line.

The New Mexico facility would be in Lea County, in the southeastern part of the state near Carlsbad. The NRC gave a license for the site to Holtec International.

Alito, who said the interim sites could remove the incentive to find a permanent solution, asked Brad Fagg, a lawyer for Interim Storage Partners, for a prediction of when a permanent site would open.

“I've been in this stew for a lot of years,” Fagg said. “I would be kidding myself and this court if I said I had a date.”

A decision is expected by late June.

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