Supreme Court hears dispute over nuclear waste storage in Texas

WASHINGTON — The Supreme Court on Wednesday wades into the decadeslong debate about where to put nuclear waste by hearing a dispute over the federal government’s decision to approve a storage facility in Texas.

The nine justices will weigh whether the Nuclear Regulatory Commission correctly allowed a company called Interim Storage Partners to store spent nuclear fuel in Andrews County, Texas, for up to 40 years.

The New Orleans-based 5th U.S. Circuit Court of Appeals had faulted the NRC for its 2021 decision, prompting the Biden administration to appeal. The Trump administration has now taken over the case and is defending the commission’s authority to approve private nuclear waste storage sites.

State officials, including Republican Gov. Greg Abbott, are among those who have objected to the approval.

Acting Solicitor General Sarah Harris, representing the Trump administration, said in court papers that Texas’ legal argument, if adopted by the court, “threatens to deprive the commission of authority to license the private storage of spent nuclear fuel in any location.”

“That would grind the operations of nuclear reactors to a halt. Reactor operations automatically generate spent fuel; those operations cannot proceed if there is nowhere to store that spent fuel,” she added.

Abbott and others, including major landowner Fasken Land and Minerals, challenged the NRC decision in court, with the appeals court ruling both that they had a right to file suit and that the agency did not have the authority to issue the license.

Texas officials say the NRC would allow up to 40,000 metric tons of waste to be stored above ground in the Permian Basin, which in addition to being a prominent oil field is also a source of water for surrounding communities.

“Nothing about this license is lawful,” Texas Solicitor General Aaron Nielson said in court papers.

The NRC maintains that under the Atomic Energy Act, it can order spent nuclear fuel to be transported across the country and held “temporarily” at a different, privately owned site from where the fuel was used.

The agency also argues that Texas had no grounds to challenge the NRC decision directly at the appeals court. The state had not participated in the NRC proceedings, which began during the first Trump administration.

The Texas litigation is the latest chapter in the long fight over where to store nuclear waste. A similar battle was waged for decades over plans to build a storage facility at Yucca Mountain, Nevada. The project was effectively killed during the Obama administration in part because of the vocal opposition of the late Sen. Harry Reid, D-Nev., who at the time was the Senate majority leader.

Nielson noted in a court filing that under federal law, Yucca Mountain is the only authorized place where spent nuclear waste can be stored permanently.

It is for now unclear whether the Trump administration will consider reviving the Yucca Mountain project.