NRC v. Texas

(Slip Opinion) OCTOBER TERM, 2024 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NUCLEAR REGULATORY COMMISSION ET AL. v.

TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 23–1300. Argued March 5, 2025—Decided June 18, 2025*

The Atomic Energy Act of 1954 generally prohibits the private possession

of nuclear materials, including spent nuclear fuel, without a license.

The Nuclear Regulatory Commission may license the possession of nu-

clear materials, subject to statutory and procedural requirements. 42

U. S. C. §§2073(a), 2092–2093(a), 2111(a), 2231, 2239. Here, Interim

Storage Partners (ISP) applied for a license to build a facility in West

Texas to store spent nuclear fuel. During ISP’s licensing proceeding,

a Texas government agency submitted comments, including comments

on a draft environmental impact statement (EIS) prepared by the

Commission for the proposed facility. Fasken Land and Minerals, a

private West Texas business, similarly submitted comments, and it

also sought to intervene in the licensing proceeding. The Commission

denied Fasken’s petition to intervene. Fasken then unsuccessfully

challenged that denial of intervention before the full Commission and

the D. C. Circuit.

In September 2021, the Commission granted ISP a license to build

and operate its proposed storage facility. Texas and Fasken sought

review of the Commission’s licensing decision in the Fifth Circuit. The

Fifth Circuit vacated ISP’s license.

Held: Because Texas and Fasken were not parties to the Commission’s

licensing proceeding, they are not entitled to obtain judicial review of

the Commission’s licensing decision. Pp. 7–23.

——————

*Together with No. 23–1312, Interim Storage Partners, LLC v. Texas

et al., also on certiorari to the same court.

2 NRC v. TEXAS

Syllabus

(a) In the Hobbs Act, Congress specified that only a “party ag-

grieved” by a licensing order of the Commission may seek judicial re-

view. Texas and Fasken argue they qualify as parties because they

participated in the licensing proceeding by submitting comments on

the draft EIS and, in Fasken’s case, by attempting to intervene. But

the text of the Atomic Energy Act indicates that one must be the li-

cense applicant or successfully intervene in order to obtain party sta-

tus in a Commission licensing proceeding. The Act provides: “[T]he

Commission shall grant a hearing upon the request of any person

whose interest may be affected by the proceeding, and shall admit any

such person as a party to such proceeding.” 42 U. S. C. §2239(a)(1)(A).

That text means that a “person” becomes a “party” only after that per-

son requests to participate in a hearing before the Commission—that

is, requests to intervene—and is actually “admit[ted] . . . to such pro-

ceeding” by the Commission. Ibid. And if the Commission fails to “ad-

mit” someone “as a party,” that person is not a party. Pp. 7–11.

(b) Fasken contends that it can maintain this suit because it satis-

fied the statutory criteria for intervention under the Atomic Energy

Act and the Commission erroneously denied its intervention petition.

Fasken also argues that the Commission’s intervention regulations set

a higher bar for intervention than the Atomic Energy Act contem-

plates. But Fasken could (and already did) obtain judicial review in

the D. C. Circuit of the denial of its petition to intervene. See

§2239(b)(1). In the D. C. Circuit, Fasken did not question the legality

of the Commission’s intervention regulations. Fasken simply chal-

lenged how the Commission applied its regulations in this case. But

the D. C. Circuit rejected Fasken’s arguments and upheld the Com-

mission’s denial of Fasken’s petition to intervene. And Fasken did not

seek en banc review in the D. C. Circuit or certiorari in this Court. The

decision on intervention is final. Fasken cannot now use a new Hobbs

Act suit to collaterally attack the D. C. Circuit’s prior ruling on inter-

vention. Pp. 11–13.

(c) Texas and Fasken alternatively argue that they need not be par-

ties to challenge ultra vires agency action. Because ultra vires review

could easily circumvent judicial-review statutes, this Court’s cases

have strictly limited nonstatutory ultra vires review. Boire v. Grey-

hound Corp., 376 U. S. 473, 481. The Court’s leading case on ultra

vires review is Leedom v. Kyne, 358 U. S. 184, holding that nonstatu-

tory review was available because the agency order “was an attempted

exercise of power that had been specifically withheld” and violated a

“specific prohibition” in the National Labor Relations Act. Id., at 188–

189. “The Kyne exception is a narrow one” that does not apply simply

because an agency arguably reached “a conclusion which does not com-

port with the law.” Boire, 376 U. S., at 481. Rather, it applies only

Cite as: 605 U. S. ____ (2025) 3

Syllabus

when an agency acts entirely “in excess of its delegated powers and

contrary to a specific prohibition” in a statute. Railway Clerks v. As-

sociation for Benefit of Noncontract Employees, 380 U. S. 650, 660.

For at least two reasons, Texas’s and Fasken’s ultra vires claims fall

short. First, Texas and Fasken basically dress up a typical statutory-

authority argument as an ultra vires claim. Second, ultra vires review

is unavailable where a statutory review scheme provides aggrieved

persons with an adequate opportunity for judicial review. See Board

of Governors, FRS v. MCorp Financial, Inc., 502 U. S. 32, 43–44. Here,

entities like Texas and Fasken seeking intervention are guaranteed

judicial review of either the Commission’s intervention denial or, if in-

tervention is granted, the Commission’s final licensing order. Addi-

tionally, no precedent supports bringing an ultra vires claim in a court

of appeals rather than first in a district court. Pp. 13–16.

(d) Because Texas and Fasken have no right to judicial review of the

licensing proceeding, the Court today does not decide whether the

Commission possessed statutory authority to issue a license to ISP.

Pp. 16–21.

78 F. 4th 827, reversed and remanded.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. GOR-

SUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,

joined.

Cite as: 605 U. S. ____ (2025) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 23–1300 and 23–1312

_________________

NUCLEAR REGULATORY COMMISSION, ET AL.,

PETITIONERS

23–1300 v.

TEXAS, ET AL.

INTERIM STORAGE PARTNERS, LLC, PETITIONER

23–1312 v.

TEXAS, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 18, 2025]

JUSTICE KAVANAUGH delivered the opinion of the Court.

More than 50 nuclear power plants in the United States

produce electricity for American homes and businesses.

But those plants also generate dangerous spent nuclear

fuel, which is usually stored on site. Because some plants

are shutting down or no longer operating, on-site storage is

not a viable long-term solution. To address the storage

problem, federal law has long designated the Yucca

Mountain Nuclear Waste Repository in Nevada as the

future permanent site for disposal of spent nuclear fuel.

But the Nevada project has caused significant political

controversy and has stalled.

To fill the void, some private businesses have sought to

build and operate facilities to store spent nuclear fuel “off

site”—that is, off the site of a nuclear power plant. To do

so, however, they need to obtain licenses from the Nuclear

2 NRC v. TEXAS

Opinion of the Court

Regulatory Commission.

Here, the Commission granted a renewable 40-year

license to a private entity seeking to store spent nuclear fuel

at an off-site facility in West Texas. The State of Texas and

a private West Texas business known as Fasken Land and

Minerals objected to the project and sued in the U. S. Court

of Appeals for the Fifth Circuit. They argued that federal

law does not authorize storage of spent nuclear fuel at

private off-site facilities.

The threshold question here is whether Texas and

Fasken may maintain this suit. The Court of Appeals said

yes. We disagree. Under the Hobbs Act, only an aggrieved

“party” may obtain judicial review of a Commission

licensing decision. To qualify as a party to a licensing

proceeding, the Atomic Energy Act requires that one either

be a license applicant or have successfully intervened in the

licensing 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.

I

A

In 1954, Congress passed and President Eisenhower

signed the Atomic Energy Act. 68 Stat. 919, 42 U. S. C.

§2011 et seq. The Act allowed for private commercial

nuclear power plants. Today, more than 50 nuclear power

plants—along with coal, natural gas, and renewable energy

sources—produce electricity for American homes and

businesses. In all, nuclear power plants generate almost 20

percent of the electricity in America.

Cite as: 605 U. S. ____ (2025) 3

Opinion of the Court

Nuclear power plants also create radioactive waste—as

relevant here, spent nuclear fuel. To lawfully store that

waste, nuclear power plants and storage facilities must

obtain a license from the Nuclear Regulatory Commission.

§§2073(a), 2092–2093(a), 2111(a).

A license application initiates an adjudicatory proceeding

where the Commission determines whether the applicant

has met the statutory and regulatory criteria. §§2231,

2239. Section 2239 governs intervention in those

proceedings. It states: “In any proceeding” for “the

granting, suspending, revoking, or amending of any license

. . . any person whose interest may be affected by the

proceeding” may request to intervene and participate in a

hearing, and the Commission “shall admit any such person

as a party to such proceeding.” §2239(a)(1)(A). The

Commission in turn has promulgated regulations

specifying when a person may intervene under §2239.

Among other things, the Commission directs intervenors to

proffer a “contention” that shows a “genuine dispute . . . on

a material issue of law or fact.” 10 CFR §2.309(f) (2024). In

1990, the D. C. Circuit upheld the Commission’s

intervention regulations as consistent with the Atomic

Energy Act. See Union of Concerned Scientists v. NRC, 920

F. 2d 50, 51–56.

The licensing proceeding culminates with a final order by

the Commission that either grants or denies the license.

The final orders of the Commission are subject to judicial

review under the Administrative Orders Review Act of

1950, commonly known as the Hobbs Act. Ch. 1189, 64

Stat. 1129, as amended; see §2239(b). The Hobbs Act

provides that any “party aggrieved by the final order may,

within 60 days after its entry, file a petition to review the

order” in a court of appeals. 28 U. S. C. §2344 (emphasis

added).

4 NRC v. TEXAS

Opinion of the Court

B

For decades, the question of how best to store and dispose

of spent nuclear fuel has sparked contentious American

policy and political debates, and intermittent legislative

and regulatory efforts. More than 50 commercial nuclear

power plants in the United States now store spent nuclear

fuel on site at the plants themselves. That waste must be

carefully stored in pools or casks. Safe storage requires

substantial space and resources.

In 1980, acting pursuant to the 1954 Atomic Energy Act,

the Nuclear Regulatory Commission promulgated

regulations governing the licensing of private spent fuel

storage facilities. 45 Fed. Reg. 74693 (1980); see 10 CFR pt.

72. In adopting those regulations, the Commission

emphasized that it was not claiming new authority, but

instead was codifying “certain existing regulatory practices

and better defin[ing] licensing requirements covering” off-

site storage under the Atomic Energy Act. 45 Fed. Reg.

74693. Under the Commission’s regulations, private

storage facilities for spent nuclear fuel may be located either

on site or off the site of a commercial nuclear power plant.

Id., at 74696. Eligible storage facilities can obtain

renewable 40-year licenses for interim storage of spent

nuclear fuel “pending its ultimate disposal.” Id., at 74694,

74703; 10 CFR §72.42.

Soon thereafter, Congress passed and President Reagan

signed the Nuclear Waste Policy Act of 1982, 96 Stat. 2201,

42 U. S. C. §10101 et seq. That Act directed the

Department of Energy to build a geologic repository to

permanently dispose of the Nation’s spent nuclear fuel. See

42 U. S. C. §§10131–10145. Importantly, the Act did not

disturb the Commission’s 1980 regulations allowing both

on-site and off-site private storage facilities.

The U. S. Court of Appeals for the D. C. Circuit

subsequently upheld the Commission’s 1980 regulations for

the licensing of private off-site storage facilities. See

Cite as: 605 U. S. ____ (2025) 5

Opinion of the Court

Bullcreek v. NRC, 359 F. 3d 536, 537–538, 541–543 (2004).

The D. C. Circuit reasoned that the 1980 regulations were

authorized by and consistent with the 1954 Atomic Energy

Act, and that the 1982 Act did not deny or repeal the

Commission’s authority to license private off-site storage

facilities or otherwise disturb the 1980 regulations. Ibid.

Under licenses granted by the Commission, spent nuclear

fuel is currently being stored at about 10 privately owned

storage sites in the United States where there are no active

nuclear reactors. Brief for United States 6.

Meanwhile, in 1987, Congress amended the 1982 Act to

specify Yucca Mountain in Nevada as the permanent

repository site for spent nuclear fuel. See 101 Stat. 1330–

227 to 1330–228 (codified at 42 U. S. C. §10172). But

Nevada’s objections and the (not coincidental) lack of

appropriated funds slowed progress on the Yucca Mountain

repository. And the U. S. Government eventually

suspended the Yucca Mountain project. Most of the

Nation’s spent nuclear fuel continues to be stored on site at

nuclear power plants.

C

In 2018, Interim Storage Partners, a business known as

ISP, applied for a license to build a private off-site storage

facility in Andrews County, Texas. Andrews County is in

West Texas, northwest of Midland and north of I–20

adjacent to the Texas–New Mexico border. The Nuclear

Regulatory Commission published a notice in the Federal

Register. 83 Fed. Reg. 44070 (2018). Several entities

sought to intervene in the licensing proceeding, including

Fasken, which grazes cattle and operates oil and gas wells

in West Texas. Fasken objected to the proposed facility and

raised various concerns, including possible environmental

contamination and harm to endangered species.

The Commission denied Fasken’s petition to intervene.

The Commission’s regulations require would-be

6 NRC v. TEXAS

Opinion of the Court

intervenors to, among other things, proffer a sufficient

“contention,” which means “sufficient information to show

that a genuine dispute exists with the applicant/licensee on

a material issue of law or fact.” 10 CFR §2.309(f). After

holding two days of oral argument on various intervention

petitions, the Commission’s Atomic Safety and Licensing

Board Panel ruled that Fasken (and several other would-be

intervenors) had not satisfied the requirements for

intervention. The full Commission affirmed.

Fasken then sought review in the D. C. Circuit,

challenging the Commission’s denial of intervention.

Fasken did not argue that the regulations were inconsistent

with the statute. Rather, it contended that, under the

regulations, it had a right to intervene. The D. C. Circuit

decided that Fasken was not entitled to intervene. Don’t

Waste Mich. v. NRC, 2023 WL 395030 (Jan. 25, 2023).

Fasken did not seek en banc review of the denial of

intervention, nor did it petition for certiorari in this Court.

In May 2020, the Commission issued a draft

environmental impact statement, or EIS, as required by the

National Environmental Policy Act, 83 Stat. 852, as

amended, 42 U. S. C. §4321 et seq. See 10 CFR §51.10

et seq. A Texas government agency and Fasken both

commented on the draft EIS. App. 125, 205. The Texas

agency contended that the proposed facility was creating

“significant unease with the public” and that the

Commission had done too little to prevent the facility from

becoming a de facto permanent storage site. Id., at 205.

Fasken argued that the facility created an unacceptably

high risk of environmental contamination. Id., at 126; see

also id., at 128–146, 198–199. In July 2021, the

Commission published its final EIS.

In September 2021, the Commission granted ISP a

license to build and operate its proposed off-site facility for

storage of spent nuclear fuel. Id., at 284–287. Texas and

Fasken then sued in the Fifth Circuit, arguing that the

Cite as: 605 U. S. ____ (2025) 7

Opinion of the Court

Commission lacked statutory authority to license storage of

spent nuclear fuel at a private off-site facility.

The Fifth Circuit vacated ISP’s license. 78 F. 4th 827,

831 (2023). First, notwithstanding that the Hobbs Act

limits jurisdiction to a “party” aggrieved and that neither

Fasken nor Texas successfully intervened as a “party”

under the Atomic Energy Act, the court ruled that it could

reach the merits. The Fifth Circuit reasoned that Texas

and Fasken could challenge ultra vires agency action—that

is, action entirely outside the Commission’s authority—

regardless of whether they qualified as parties aggrieved

under the Hobbs Act. Id., at 839–840. Second, on the

merits, the Fifth Circuit held that the Commission lacked

statutory authority to license a private off-site facility for

storage of spent nuclear fuel. Id., at 840. In so ruling, the

Fifth Circuit disagreed with the D. C. Circuit’s 2004

Bullcreek decision, which had held to the contrary. 78 F.

4th, at 841–842.

By a 9-to-7 vote, the Fifth Circuit denied rehearing en

banc. 95 F. 4th 935 (2024). The Nuclear Regulatory

Commission and ISP both sought review in this Court, and

we granted certiorari. 603 U. S. ___ (2024).

II

The Hobbs Act generally allows any “party aggrieved” by

a licensing order of the Nuclear Regulatory Commission to

obtain judicial review in a federal court of appeals. 28

U. S. C. §2344. The threshold question here is whether

Texas and Fasken qualified as parties to the Commission

proceeding who could obtain judicial review in the Fifth

Circuit.

The Commission argues that, to become a party to a

Commission licensing proceeding for purposes of the Hobbs

and Atomic Energy Acts, a person or entity must either be

the license applicant or successfully intervene in the

proceeding. Because Texas and Fasken are not the license

8 NRC v. TEXAS

Opinion of the Court

applicants and did not successfully intervene, the

Commission contends that Texas and Fasken are not

parties and cannot maintain this suit.

Texas and Fasken disagree and advance three

alternative arguments for why they can pursue this case.

First, according to Texas and Fasken, they were parties

because both of them submitted comments to the

Commission. Fasken also separately argues that it was a

party because it sought to intervene in the licensing

proceeding, even though it did not successfully intervene.

Second, Fasken contends that the Commission

erroneously denied Fasken’s intervention petition.

Specifically, Fasken contends that the Commission’s

regulations governing intervention are inconsistent with

the text of the Atomic Energy Act and set too high a bar for

intervention. Fasken says that the D. C. Circuit’s decision

affirming the Commission’s denial of Fasken’s intervention

petition does not preclude Fasken from relitigating the

intervention issue in this litigation.

Third, Texas and Fasken claim that their statutory

claims are reviewable even if they were not parties to the

Commission’s licensing proceeding. Agreeing with the

Fifth Circuit, they argue that the Commission acted ultra

vires by issuing a license to ISP, so a court may invalidate

the license even if no statutory avenue for judicial review

like the Administrative Procedure Act or the Hobbs Act is

available.

We disagree with each of Texas’s and Fasken’s

arguments. They were not parties to the Commission’s

licensing proceeding and therefore cannot obtain judicial

review of the Commission’s licensing decision.

A

First, Texas and Fasken contend that simply submitting

comments or attempting to intervene in the Commission’s

licensing proceeding suffices to qualify as a party under the

Cite as: 605 U. S. ____ (2025) 9

Opinion of the Court

Hobbs Act. Not so.

Under the Hobbs Act, only a “party” aggrieved by the

licensing proceeding may seek judicial review.

Importantly, a “party” aggrieved is not synonymous with a

“person” aggrieved. In the Administrative Procedure Act of

1946, Congress created a general cause of action for any

“person . . . aggrieved” by agency action. 5 U. S. C. §702.

But as then-Judge Scalia explained, when Congress

enacted the Hobbs Act in 1950, it “did not adopt the ‘person

aggrieved’ standard used in the general judicial review

provision of the APA, even though the features of that

legislation adopted four years earlier were prominently in

mind.” Simmons v. ICC, 716 F. 2d 40, 43 (CADC 1983).

Therefore, as Judge Scalia stated, “we must read ‘party’ as

referring to a party before the agency.” Ibid. Other Courts

of Appeals agree with the D. C. Circuit on that point. See,

e.g., Blackstone Valley Nat. Bank v. Board of Governors of

FRS, 537 F. 2d 1146, 1147 (CA1 1976); Wales Transp., Inc.

v. ICC, 728 F. 2d 774, 776, n. 1 (CA5 1984); Packard

Elevator v. ICC, 808 F. 2d 654, 655 (CA8 1986); Sierra Club

v. NRC, 825 F. 2d 1356, 1360 (CA9 1987).

The question then is how one becomes a party in a

Commission licensing proceeding. Texas and Fasken

emphasize ordinary dictionary definitions of “party,” such

as “participator.” E.g., 11 Oxford English Dictionary 281–

282 (2d ed. 1989); see Random House Dictionary of the

English Language 1052–1053 (1966) (“participant”).

According to Texas and Fasken, they “participated” and

became parties by filing comments or attempting to

intervene.

But the text of the Atomic Energy Act indicates that one

must be the license applicant or successfully intervene in

order to obtain party status in a Commission licensing

proceeding. That Act provides: “In any proceeding under

this chapter, for the granting . . . of any license . . . the

Commission shall grant a hearing upon the request of any

10 NRC v. TEXAS

Opinion of the Court

person whose interest may be affected by the proceeding,

and shall admit any such person as a party to such

proceeding.” 42 U. S. C. §2239(a)(1)(A) (emphasis added).

That text means that a “person” becomes a “party” only

after that person requests to participate in a hearing before

the Commission—that is, requests to intervene—and is

actually “admit[ted] . . . to such proceeding” by the

Commission. Ibid. It follows that if the Commission fails

to “admit” someone “as a party,” that person or entity is not

a party.1

Texas responds that the text of the Hobbs Act does not

distinguish between rulemaking and adjudicative

proceedings. So as Texas sees it, the same participation

that confers party status in an agency rulemaking—

namely, filing a comment—should suffice to qualify for

party status in an agency adjudication such as a

Commission licensing proceeding. We disagree with that

“lowest common denominator” approach to party status.

Tr. of Oral Arg. 85. The Hobbs Act applies to a variety of

agency actions, and what suffices for party status in one

category of proceeding may be inadequate in another. Here,

the text of the Atomic Energy Act makes clear that a person

or entity must be granted intervention in order to become a

“party” to a Commission licensing proceeding, even if

something less than intervention may suffice in other

proceedings such as rulemakings (or perhaps certain less-

formal agency adjudications) that are also governed by the

Hobbs Act.

Because the Atomic Energy Act confines party status to

——————

1 To be sure, if the Commission errs in denying intervention, the

denied person or entity may obtain judicial review of the denial of

intervention (as Fasken did here in the D. C. Circuit). But until one is

granted intervention either by the Commission directly or following a

reviewing court’s decision, that person or entity is not a “party” and

cannot obtain judicial review of the Commission’s licensing decision

under the Hobbs Act.

Cite as: 605 U. S. ____ (2025) 11

Opinion of the Court

license applicants and intervenors, we also reject Texas’s

argument, advanced for the first time at oral argument,

that the Commission in effect offered party status to those

who submitted comments on the draft EIS. Id., at 86–88.

By way of comparison, participation by amici in a court

proceeding does not make the amici parties, even if the

court invited such participation. See United States ex rel.

Eisenstein v. City of New York, 556 U. S. 928, 933 (2009).

So too in Commission licensing proceedings under the

Atomic Energy Act. Where judicial review of an underlying

agency action is not otherwise available, an entity cannot

bootstrap its way into judicial review of that action simply

by commenting on a draft EIS, even if invited to do so.

To be clear, Texas and Fasken could (and did) submit

information and views to the Commission that the

Commission could analyze in its decisionmaking process—

not unlike an amicus brief in a court proceeding. But that

level of participation does not equate to party status in this

statutory scheme.

In light of the statutory text and context, those who were

not license applicants or granted intervention in the

Commission’s licensing proceeding do not qualify as parties

who can obtain judicial review under the Hobbs Act.

B

Second, Fasken asserts (as does the dissent) that, in any

event, Fasken satisfied the statutory criteria for

intervention under the Atomic Energy Act—and thus

should have been granted intervention by the Commission.

And Fasken contends that the D. C. Circuit’s decision

upholding the Commission’s denial of intervention in

earlier litigation does not preclude it from now relitigating

that issue in the Fifth Circuit and this Court. We disagree.

The Atomic Energy Act generally provides that the

Commission “shall admit” any person who requests a

hearing and “whose interest may be affected by the

12 NRC v. TEXAS

Opinion of the Court

proceeding.” 42 U. S. C. §2239(a)(1)(A). The Commission’s

regulations governing intervention in turn require

intervenors to meet several specific criteria. For example,

the Commission directs intervenors to proffer a

“contention” that creates a “genuine dispute . . . on a

material issue of law or fact.” 10 CFR §2.309(f) (2024). In

1990, the D. C. Circuit upheld the Commission’s

intervention regulations as consistent with the Atomic

Energy Act, including §2239. See Union of Concerned

Scientists v. NRC, 920 F. 2d 50, 51–56.

According to Fasken (and the dissent), the Commission’s

regulations set a higher bar for intervention than the

Atomic Energy Act contemplates. In 1990, the D. C. Circuit

rejected that argument. See ibid. In any event, that

question is not before us in this case. Fasken could (and

already did) obtain judicial review in the D. C. Circuit of the

denial of its petition to intervene. See §2239(b)(1). In the

D. C. Circuit, Fasken did not question the legality of the

Commission’s intervention regulations. See Don’t Waste

Mich. v. NRC, 2023 WL 395030 (Jan. 25, 2023). Fasken

simply challenged how the Commission applied its

regulations in this case. But the D. C. Circuit rejected

Fasken’s arguments. And Fasken did not seek en banc

review in the D. C. Circuit or certiorari in this Court. The

decision on intervention is final.

Fasken cannot now use a new Hobbs Act suit to

collaterally attack the D. C. Circuit’s prior ruling on

intervention. An analogy to judicial proceedings is

instructive. In the judicial context, “intervention is the

requisite method for a nonparty to become a party to a

lawsuit.” Eisenstein, 556 U. S., at 933. And “only parties

to a lawsuit, or those that properly become parties, may

appeal an adverse judgment.” Marino v. Ortiz, 484 U. S.

301, 304 (1988) (per curiam).

Therefore, a nonparty who wishes to appeal from a

district court decision ordinarily must seek to intervene in

Cite as: 605 U. S. ____ (2025) 13

Opinion of the Court

the district court proceeding. If the district court denies

that intervention motion, the nonparty may appeal the

denial of intervention. But the nonparty may not obtain

appellate review of any final order of the district court in

the underlying proceeding unless and until the denial of

intervention is reversed. See ibid.

So too in Commission proceedings. If a request to

intervene fails before the Commission, the would-be

intervenor may seek judicial review of that decision—as

Fasken did in the D. C. Circuit. But a person who has not

successfully intervened before the Commission may not, as

a nonparty, bring a Hobbs Act suit contesting the merits of

orders issued in the underlying Commission proceeding.

Texas and Fasken complain that the Commission is

unilaterally denying access to judicial review by limiting

intervention. That charge rings hollow. Texas did not even

seek to intervene in the Commission’s licensing proceeding.

As for Fasken, the Commission’s gatekeeping decision

denying it intervention was subject to judicial review in the

D. C. Circuit. After losing there, Fasken chose not to seek

en banc review or further review in this Court.

In short, the Hobbs Act affords judicial review to those

who were parties before the Commission. Here, obtaining

party status required Texas or Fasken to successfully

intervene in the Commission proceeding. Because neither

Texas nor Fasken successfully intervened, they may not

obtain judicial review of the Commission’s licensing

decision under the Hobbs Act.

C

Third, Texas and Fasken alternatively argue that they

need not be parties in order to bring claims of ultra vires

agency action. That argument was the basis of the Fifth

Circuit’s decision. (Notably, the dissent today does not

adopt that argument.)

Before enactment of the APA, those challenging agency

14 NRC v. TEXAS

Opinion of the Court

action often lacked a statutory cause of action. Yet courts

sometimes entertained “a bill in equity to attack

administrative action when no statutory review was

available.” 3 K. Hickman & R. Pierce, Administrative Law

§20.7, p. 2600 (7th ed. 2024). In particular, courts

recognized a right to equitable relief where an agency’s

action was ultra vires—that is, “unauthorized by any law

and . . . in violation of the rights of the individual.”

American School of Magnetic Healing v. McAnnulty, 187

U. S. 94, 110 (1902).

According to Texas and Fasken, judicial-review statutes

like the Hobbs Act and the APA did not displace pre-

existing nonstatutory ultra vires review. And they say that

they may assert ultra vires claims here. They contend that

the Commission’s issuance of a license to ISP was ultra

vires because the Commission’s licensing authority, in their

view, does not extend to private off-site facilities for the

storage of spent nuclear fuel.

This Court’s leading case on post-APA ultra vires review

is Leedom v. Kyne, 358 U. S. 184 (1958). That case arose

from an improper agency certification of a collective

bargaining unit—an interlocutory order not subject to

review under the judicial-review provisions of the APA or

the National Labor Relations Act. See id., at 185, 187. This

Court held that nonstatutory review was available because

the agency order at issue “was an attempted exercise of

power that had been specifically withheld,” and the

agency’s order violated a “specific prohibition” in the Act.

Id., at 188–189.

Because ultra vires review could become an easy end-run

around the limitations of the Hobbs Act and other judicial-

review statutes, this Court’s subsequent cases have strictly

limited nonstatutory ultra vires review to the

“painstakingly delineated procedural boundaries of Kyne.”

Boire v. Greyhound Corp., 376 U. S. 473, 481 (1964). “The

Kyne exception is a narrow one,” and it does not apply

Cite as: 605 U. S. ____ (2025) 15

Opinion of the Court

simply because an agency has arguably reached “a

conclusion which does not comport with the law.” Ibid.

Rather, it applies only when an agency has taken action

entirely “in excess of its delegated powers and contrary to a

specific prohibition” in a statute. Railway Clerks v.

Association for Benefit of Noncontract Employees, 380 U. S.

650, 660 (1965).

Ultra vires review is also unavailable if, as is usually the

case, a statutory review scheme provides aggrieved persons

“with a meaningful and adequate opportunity for judicial

review,” or if a statutory review scheme forecloses all other

forms of judicial review. Board of Governors, FRS v. MCorp

Financial, Inc., 502 U. S. 32, 43 (1991); see id., at 44.

Given all that, “a Leedom v. Kyne claim is essentially a

Hail Mary pass—and in court as in football, the attempt

rarely succeeds.” Nyunt v. Chairman, Broadcasting Bd. of

Governors, 589 F. 3d 445, 449 (CADC 2009).

For at least two reasons, Texas’s and Fasken’s ultra vires

claims under Leedom v. Kyne fall far short here.

First, Texas and Fasken basically dress up a typical

statutory-authority argument as an ultra vires claim. That

is a fairly common maneuver when a litigant tries to

squeeze its arguments into the Leedom v. Kyne box—and is

in large part why those claims rarely succeed. Here, Texas

and Fasken contend that the Commission’s general

authority to license storage of spent nuclear fuel does not

extend to the licensing of private off-site storage. In 2004,

the D. C. Circuit rejected that statutory argument. See

Bullcreek v. NRC, 359 F. 3d 536, 537–538, 541–543. Even

if one were to disagree with the D. C. Circuit’s conclusion,

the statutory argument falls well shy of a meritorious

Leedom v. Kyne claim. See 358 U. S., at 189.

Second, and alternatively, ultra vires review is not

available because Texas and Fasken had an alternative

path to judicial review. Entities like Texas and Fasken who

seek to intervene are guaranteed judicial review of either

16 NRC v. TEXAS

Opinion of the Court

the Commission’s denial of intervention or, if intervention

has been granted, the Commission’s final order arising from

the licensing proceeding.

Also, Texas and Fasken’s theory of ultra vires review

would lead to major anomalies. For example, the Fifth

Circuit purported to exercise original—rather than

appellate—jurisdiction over these ultra vires claims. But

as counsel for Fasken acknowledged at oral argument, no

precedent supports bringing an ultra vires claim in a court

of appeals in the first instance, rather than in a district

court. Tr. of Oral Arg. 76.

In addition, Fasken argues (and Texas does not dispute)

that the Hobbs Act’s 60-day time limit for seeking judicial

review would apply even under its ultra vires theory. Brief

for Respondent Fasken 45. But Fasken does not explain

how it makes sense for an ultra vires claim to be limited by

the 60-day requirement yet not by the “party aggrieved”

requirement in the very same sentence of the Hobbs Act.

We need not further prolong the discussion. Texas and

Fasken may not maintain a nonstatutory ultra vires claim.

D

1

The dissent primarily focuses not on the threshold Hobbs

Act reviewability issue on which we rest our decision, but

rather on the ultimate merits question raised by Texas and

Fasken: Whether the Commission possessed statutory

authority to issue a license to ISP. According to the dissent,

that merits question is “not hard” because, in its view, the

Nuclear Waste Policy Act of 1982 authorizes the storage of

spent fuel only at private on-site facilities or at federal

facilities—but not at private off-site facilities. Post, at 9

(opinion of GORSUCH, J.).

Because Texas and Fasken have no right to judicial

review of the licensing proceeding, the Court today need not

and does not decide that statutory interpretation question.

Cite as: 605 U. S. ____ (2025) 17

Opinion of the Court

But we do briefly note, in response to the dissent’s

narrative, that history and precedent offer significant

support for the Commission’s longstanding interpretation.

Contrary to the dissent, the 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. See Pacific

Gas & Elec. Co. v. State Energy Resources Conservation and

Development Comm’n, 461 U. S. 190, 207, 217 (1983);

Bullcreek, 359 F. 3d, at 538 (collecting cases and stating

that “it has long been recognized that the AEA confers on

the NRC authority to license and regulate the storage and

disposal of” spent nuclear fuel).2

To spell it out some more: In 1980, the Commission

adopted regulations that interpreted the 1954 Atomic

Energy Act to authorize storage at private off-site facilities.

Those regulations established licensing procedures for

private on-site and off-site facilities. See 10 CFR pt. 72. In

adopting those regulations, the Commission made clear

that it was not claiming new authority, but instead was

codifying “certain existing regulatory practices and better

defin[ing] licensing requirements covering the storage of

spent fuel in” on-site and off-site facilities under the Atomic

——————

2 The dissent says that Pacific Gas “never decided that question” and

Bullcreek “had no occasion to resolve” it. Post, at 15. In Pacific Gas,

however, this Court noted that the Commission extensively regulates

spent fuel storage under the Atomic Energy Act, and the Court relied on

that fact in reasoning that “nuclear waste disposal” is a regulatory “field

. . . occupied by the Federal Government.” 461 U. S., at 219; see also id.,

at 217. And Bullcreek reaffirmed—without relying on Chevron

deference—that the Commission has “authority under the AEA to license

and regulate private use of private away-from-reactor spent fuel storage

facilities.” 359 F. 3d, at 542; see also id., at 541 (disclaiming any reliance

on Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467

U. S. 837 (1984)).

18 NRC v. TEXAS

Opinion of the Court

Energy Act. 45 Fed. Reg. 74693 (1980).

In the ensuing 45 years, the Commission’s regulations

have continued to authorize storage of spent nuclear fuel,

including at private off-site facilities. And both before and

after the Commission’s 1980 regulations, the Commission

has in fact licensed those facilities. For example, one such

facility, the GE Morris facility in Morris, Illinois, received a

license in 1971 and obtained a renewed license following

the 1980 regulations. See In re General Elec. Co., 22

N. R. C. 851, 853–854 (1985). Today, there are about 10

privately owned storage sites where there are no active

nuclear reactors.

Importantly, in 1982 when enacting the heavily

negotiated Nuclear Waste Policy Act, Congress was of

course fully aware of the 1954 Atomic Energy Act and the

Commission’s 1980 regulations authorizing private off-site

storage of spent nuclear fuel—as well as the existence of

private off-site storage facilities like the GE Morris facility.

See S. Rep. No. 97–282, pp. 44, 65 (1981); In re Private Fuel

Storage, LLC, 56 N. R. C. 390, 400 (2002) (“Members of

Congress clearly were well aware that ‘other provisions of

law’ authorized private AFR [away-from-reactor] storage

facilities, as the existence, and fate, of such facilities was

discussed in congressional committee debates”).

In that 1982 Act, Congress did not disturb the

Commission’s 1980 regulations or its practice of licensing

temporary private off-site facilities under the Atomic

Energy Act. In §135(h) of that Act (which the dissent cites,

see post, at 3, 9), Congress set forth guidelines for

construing “this chapter” of the 1982 Act but did not speak

one way or another about the Commission’s existing

licensing authority under the 1954 Act. 42 U. S. C.

§10155(h). Instead, in the 1982 Act, Congress primarily

focused on authorizing a permanent nuclear waste

repository that would exist for thousands of years.

When a license for a private off-site storage facility was

Cite as: 605 U. S. ____ (2025) 19

Opinion of the Court

later challenged in the D. C. Circuit, that court upheld the

license and the Commission’s 1980 regulations, finding

them to be consistent with the 1954 Atomic Energy Act and

the 1982 Act. Bullcreek, 359 F. 3d, at 537–538, 541–543.

The D. C. Circuit reasoned that courts, including the

Supreme Court, had “long . . . recognized” that the Atomic

Energy Act “confers on the NRC authority to license and

regulate the storage and disposal of such fuel,” including at

private off-site facilities. Id., at 538. Then, after

considering the text and structure of the 1982 Act, the D. C.

Circuit further concluded that the 1982 Act’s “text . . .

demonstrates that Congress did not intend to repeal or

supersede the NRC’s authority under the AEA to license

and regulate private use of private away-from-reactor spent

fuel storage facilities.” Id., at 542.

The dissent today first argues, however, that the

Commission never had authority under the 1954 Atomic

Energy Act to license on-site or off-site storage facilities.

See post, at 10–13. But this Court has already rejected that

interpretation of the Act. See PG&E, 461 U. S., at 207, 217;

see also Bullcreek, 359 F. 3d, at 538.

And the dissent’s theory that the Atomic Energy Act does

not authorize storage of spent nuclear fuel anywhere would

have extraordinary consequences. As was pointed out at

oral argument, if that interpretation were correct, then it

also would necessarily mean that private off-site facilities

actually do not need a license to store spent nuclear fuel in

the first place. (That is because, if spent nuclear fuel is not

covered by the 1954 Act, then it follows that the Act does

not prohibit its possession or use.) If that were the case,

petitioner ISP could build the West Texas facility without

even bothering to seek a license from the Commission.

Although ISP might benefit somewhat from such a novel

reading, it forthrightly stated at oral argument that “that’s

not a credible interpretation of the Atomic Energy Act.” Tr.

20 NRC v. TEXAS

Opinion of the Court

of Oral Arg. 43.3

Regardless of the scope of the 1954 Atomic Energy Act,

the dissent next says that the 1982 Act restricted storage of

spent nuclear fuel to on-site and federal facilities. But as

the D. C. Circuit explained in Bullcreek, the 1982 Act

carefully avoided denying or repealing the Commission’s

authority to license private off-site facilities. See 359 F. 3d,

at 542. On that issue, the 1982 Act left the law where it

was—namely with the 1954 Atomic Energy Act and the

1980 Commission regulations authorizing licensing of

private off-site storage facilities. See ibid.

In short, the 1982 Act did not withdraw or displace the

Commission’s authority under the Atomic Energy Act (and

the 1980 regulations) to authorize private off-site storage.

On the contrary, the 1982 Act preserved pre-existing law on

that issue. Simply put, the dissent seems to underread the

1954 Atomic Energy Act and to overread the 1982 Act.

Given all of that, it is perhaps no surprise that neither

Fasken’s intervention petition to the Commission nor

Texas’s comments to the Commission questioned the

Commission’s statutory authority to license private off-site

storage of spent nuclear fuel. They raised other issues, but

they did not question the Commission’s statutory authority

to issue a license for private off-site storage.

To be clear, because Texas and Fasken’s claims are not

judicially reviewable, we need not and do not decide the

ultimate question of statutory authority that the dissent

focuses on. So that there is no confusion, however, we

underscore that in resting on the threshold reviewability

issue, we are not somehow assuming or buying into a

premise that the Commission is wrong on the underlying

——————

3 The dissent responds that the 1982 Act “addressed spent nuclear fuel

directly, and that statute authorizes its storage in only two locations.”

Post, at 16. But the 1982 Act in relevant part simply grants the

Commission authority additional to the 1954 Act to authorize storage of

spent nuclear fuel. See §10155(a).

Cite as: 605 U. S. ____ (2025) 21

Opinion of the Court

merits. The dissent’s description of an agency that is

flagrantly violating its governing statutes seems to be in

substantial tension with about 50 years of consistent

congressional action, agency practice, and judicial

interpretation.

2

When it turns to the Hobbs Act reviewability question on

which our decision rests, the dissent’s analysis is

unpersuasive, in our respectful view.

Under the Hobbs Act, as we have explained and the

dissent acknowledges, Texas and Fasken may obtain

judicial review of the licensing decision only if they were

parties to the Commission’s licensing proceeding. See post,

at 18. The Atomic Energy Act—in particular, 42 U. S. C.

§2239—prescribes how one becomes a party to a

Commission licensing proceeding. Under §2239, to be a

party, one must either be the license applicant or be

admitted by the Commission as a party (that is, be granted

intervention).

The dissent claims that §2239 is not the exclusive way to

become a “party” to a Commission licensing proceeding.

See post, at 20. We disagree. Section 2239 provides that

“[i]n any proceeding” for granting a license, “the

Commission shall grant a hearing upon the request of any

person whose interest may be affected by the proceeding,

and shall admit any such person as a party to such

proceeding.” §2239(a)(1)(A) (emphasis added). As the

dissent seems to acknowledge, when §2239 uses the word

“proceeding” rather than “hearing,” it refers to the

Commission’s “overall licensing proceeding”—not merely

one subpart of that proceeding. Post, at 20. And §2239

specifies intervention as the mechanism for a person other

than the license applicant to become “a party to such

proceeding”—that is, to the Commission’s overall licensing

proceeding. For that person or entity to qualify as a party,

22 NRC v. TEXAS

Opinion of the Court

the Commission must admit that person or entity as a

party.4

Section 2239 is thus the exclusive path to party status in

Commission licensing proceedings. To be a party, one must

be admitted by the Commission as a party. As we noted

above, the Commission applied its regulations

implementing §2239 and denied Fasken intervention.

Importantly, if a person or entity believes that the

Commission wrongly denied it intervention, then it may

obtain judicial review of the intervention decision. Here,

Fasken obtained such judicial review in the D. C. Circuit,

but lost. It cannot get a second bite at the apple on

intervention in this litigation.

The dissent responds that the Commission’s intervention

regulations misinterpret §2239 and set too high a bar for

intervention. See post, at 22. The D. C. Circuit rejected

that argument 35 years ago in Union of Concerned

Scientists. See 920 F. 2d, at 51–56. And in any event, we

——————

4 Even if §2239 were not the exclusive path to party status in

Commission licensing proceedings, Texas and Fasken would still not be

parties under the Hobbs Act. The dissent suggests that Texas and

Fasken could achieve party status for purposes of the Hobbs Act merely

by commenting on the Commission’s draft EIS. See post, at 18–19. That

contention—that every interested commenter in an agency adjudication

is a party for purposes of the Hobbs Act—is, as best as we can tell,

unprecedented. See supra, at 10–11. The dissent points to no authority

suggesting that a person who is not involved in an agency adjudication

can bootstrap his way under the Hobbs Act into plenary judicial review

of the legality of that adjudication merely by commenting on a related

EIS. Rather, Courts of Appeals have long held that litigants cannot use

collateral environmental claims to evade the limits on judicial review

imposed by an exclusive judicial-review provision like the Hobbs Act.

See, e.g., Center for Biological Diversity v. EPA, 861 F. 3d 174, 186

(CADC 2017); American Bird Conservancy v. FCC, 545 F. 3d 1190, 1194–

1195 (CA9 2008). In these Commission proceedings, a person or entity

who comments on the EIS can petition to intervene, and if denied

intervention, may appeal that denial—as Fasken did to the D. C. Circuit,

where it did not prevail. But commenting on an EIS in an adjudication

does not automatically make one a party under the Hobbs Act.

Cite as: 605 U. S. ____ (2025) 23

Opinion of the Court

need not delve into that question here because, to reiterate,

Fasken had an opportunity to raise that argument to the

D. C. Circuit when it challenged the Commission’s denial of

intervention. But Fasken, though it appealed to the D. C.

Circuit, did not even raise that argument in that court.

Rather, it argued that it should have been admitted under

the Commission’s existing intervention regulations.

Fasken did not prevail in the D. C. Circuit on that

intervention argument. See Don’t Waste Mich. v. NRC,

2023 WL 395030. And it did not seek either en banc review

or certiorari. Having lost in the D. C. Circuit, Fasken

cannot collaterally attack that decision here, as we have

explained. See supra, at 12–13. (For its part, Texas did not

even try to intervene in the Commission’s licensing

proceeding.)

The dissent exudes a sense that Texas and Fasken have

been treated unfairly. But the dissent wants to give Texas

and Fasken a second or third bite at the apple on the

intervention issue. To review: Texas and Fasken had

ample opportunity to present their views on the proposed

storage site to the Commission. They did so. And they had

the opportunity to try to intervene before the Commission

and become a party—and after being denied, to raise their

arguments for intervention on appeal to the D. C. Circuit,

and if unsuccessful there, to this Court. They did not

prevail (or did not try) in those forums. And having not

secured intervention, they were not parties to the licensing

proceeding under §2239—and therefore under the Hobbs

Act cannot obtain judicial review of the licensing decision

in this litigation.

* * *

Texas and Fasken were not parties to the Commission’s

licensing proceeding and are not entitled to obtain judicial

review of the Commission’s licensing decision. We reverse

the judgment of the Court of Appeals and remand the cases

24 NRC v. TEXAS

Opinion of the Court

with instructions to deny or dismiss the petitions for

review.

It is so ordered.

Cite as: 605 U. S. ____ (2025) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 23–1300 and 23–1312

_________________

NUCLEAR REGULATORY COMMISSION, ET AL.,

PETITIONERS

23–1300 v.

TEXAS, ET AL.

INTERIM STORAGE PARTNERS, LLC, PETITIONER

23–1312 v.

TEXAS, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 18, 2025]

JUSTICE GORSUCH, with whom JUSTICE THOMAS and

JUSTICE ALITO join, dissenting.

By law, spent nuclear fuel may be stored on an interim

basis in only two places: at a nuclear reactor or a federally

owned facility. Disregarding those instructions, the Nu-

clear Regulatory Commission (NRC) issued an interim stor-

age license to a private company, Interim Storage Partners,

LLC (ISP), allowing it to store thousands of tons of spent

nuclear fuel on its private property in Texas, hundreds of

miles from the nearest reactor. The agency’s decision was

unlawful.

Still, the Court says, there is nothing we can do about it.

Why? Because neither of the respondents before us is a

“party aggrieved” by the agency’s decision. Yes, the re-

spondents are the State of Texas and Fasken Land and

Minerals, Ltd., a landowner with property near the pro-

posed facility. And, yes, they are “aggrieved” by the NRC’s

2 NRC v. TEXAS

GORSUCH, J., dissenting

decision. Radioactive waste poses risks to the State, its cit-

izens, its lands, air, and waters, and it poses dangers as well

to a neighbor and its employees. But, the Court insists, the

agency never admitted Texas or Fasken as “parties” in a

hearing it held before issuing ISP’s license—and that’s the

rub. Maybe the agency’s internal rules governing who can

participate in its hearing are highly restrictive. Maybe

those rules are themselves unlawful. But, the Court rea-

sons, its hands are tied: The agency did not admit Texas or

Fasken as parties in its hearing, and that is that.

I cannot agree. Both Texas and Fasken participated ac-

tively in other aspects of the NRC’s licensing proceeding.

No more is required for them to qualify as “parties ag-

grieved” by the NRC’s licensing decision. Both are entitled

to their day in court—and both are entitled to prevail.

I

A

At the dawn of the atomic age, few worried about where

to store spent nuclear fuel. The “prevailing expectation”

was that it would be reprocessed and reused. Brief for Fed-

eral Petitioners 3 (citing Idaho v. Department of Energy,

945 F. 2d 295, 298 (CA9 1991)). Perhaps for that rea-

son, Congress’s first piece of major legislation regulating

the nuclear power industry, the Atomic Energy Act of 1954

(AEA), 68 Stat. 919, did not address the storage of spent

nuclear fuel. In fact, the AEA didn’t mention spent nuclear

fuel at all. The statute spoke about nearly everything

else—from the construction of commercial nuclear reactors

to their ownership and operation—but not spent nuclear

fuel or its storage. Pacific Gas & Elec. Co. v. State Energy

Resources Conservation and Development Comm’n, 461

U. S. 190, 206–207 (1983).

By the 1970s, things looked very different. Spent nuclear

fuel was piling up, and there was nowhere to put it. The

reprocessing industry had “collapsed.” Idaho, 945 F. 2d, at

Cite as: 605 U. S. ____ (2025) 3

GORSUCH, J., dissenting

298. Those developments presented the Nation with an

acute problem. Spent nuclear fuel is “radioactive, explo-

sive, and highly volatile,” and it can remain so for thou-

sands of years. Brief for State of Idaho as Amicus Curiae 7.

It can poison people and animals, render land and water

unusable, and, should it fall into the wrong hands, it can be

weaponized. See id., at 8.

In 1982, Congress reentered the picture to address the

problem, passing a new law appropriately named the Nu-

clear Waste Policy Act (NWPA), 96 Stat. 2201, 42 U. S. C.

§10101 et seq. In it, Congress tasked the Department of En-

ergy with selecting a permanent federally owned repository

for spent nuclear fuel. See §§10132, 10134. In the mean-

time, the NWPA authorized the “interim” storage of spent

nuclear fuel in two—and only two—places. Spent fuel, Con-

gress said, could be stored either “at the site of each civilian

nuclear reactor” or at “facilities owned by the Federal Gov-

ernment.” §10151(b). In case those instructions left any

room for doubt, Congress added that “nothing” in its new

law “shall be construed to encourage [or] authorize” storage

at offsite, private facilities. §10155(h).

Eventually, the Department of Energy selected Yucca

Mountain in Nevada to serve as the permanent repository

for spent nuclear fuel. And, in 1987, Congress amended the

NWPA to endorse that choice, directing that Yucca Moun-

tain should begin operations no later than January 31,

1998. See 101 Stat. 1330–227 to 1330–228, 42 U. S. C.

§10172. Despite that mandate, and “more than $15 billion”

spent on the project, the Yucca Mountain repository re-

mains today more a dream than a reality. App. 2; see Na-

tional Assn. of Regulatory Util. Comm’rs v. United States

Dept. of Energy, 680 F. 3d 819, 821 (CADC 2012).

That leaves the question what to do. Spent fuel must be

stored somewhere. And, until recently, that somewhere has

usually been where Congress directed—at reactors or fed-

erally owned facilities. Now, however, the NRC and ISP

4 NRC v. TEXAS

GORSUCH, J., dissenting

seek to experiment with a different solution.

In 2016, ISP’s predecessor applied for a license to build

and maintain an aboveground storage facility for at least

5,000 metric tons of spent nuclear fuel in Andrews County,

Texas. App. 12. By way of reference, that is more than the

amount of spent fuel currently stored at any other site in

the country. Brief for Respondent Fasken 9. And ISP’s

plans include the possibility of storing much more on its

land—up to 40,000 metric tons of spent fuel in all. 78 F.

4th 827, 843 (CA5 2023).

ISP’s proposed site lies in the Permian Basin, an area

about 250 miles wide and 300 miles long in western Texas

and eastern New Mexico. App. 64–65. That area is “the

largest producing oilfield in the world.” Id., at 118. It also

includes aquifers that provide water to “dozens of counties

in Texas and New Mexico.” Brief for Respondent Fasken 8.

While storing so much spent fuel on private land controlled

by a private company poses serious risks, transporting the

waste there will be tricky, too. The company’s property lies

more than 300 miles from the nearest nuclear power plant,

and more than 1,000 miles from most other reactors. Id.,

at 9.

Despite those risks, and despite the NWPA’s mandate

that spent nuclear fuel must be stored at reactors or feder-

ally owned sites, the NRC launched an administrative pro-

ceeding to consider ISP’s request. And, at the end of it all,

the agency issued a license to ISP authorizing it to store

spent fuel at its site for 40 years. In doing so, the agency

left open the possibility it might choose to extend that term

even further. App. to Pet. for Cert. 53a–59a; App. 175.

B

Slogging through the steps the agency took between re-

ceiving ISP’s application in 2016 and rendering a final de-

cision approving the license in 2021 makes for less than

easy reading. But those steps matter because of the way

Cite as: 605 U. S. ____ (2025) 5

GORSUCH, J., dissenting

the Court chooses to dispose of this case, so bear with me.

After receiving ISP’s application and before it could issue

any sort of license, the NRC acknowledges, it had to under-

take a number of tasks. So, for example, it had to complete

a “safety review to determine [the applicant’s] compliance

with NRC’s regulations.” 81 Fed. Reg. 79532 (2016). In

that review, NRC staff examined the conditions of the pro-

posed site, ISP’s proposed operating systems, and the de-

sign of its proposed structures (among many other things).

See NRC, Final Safety Evaluation Report for Specific Ma-

terials License No. SNM–2515 (Sept. 2021), pp. ii–xiii. The

agency’s final safety evaluation report was 366 pages long.

See ibid.

But that “safety review” was just one piece of the puzzle.

As the agency saw it, it also had to complete other tasks

before issuing a license. Two are especially relevant here.

One is what the agency called an “environmental review.”

See, e.g., 81 Fed. Reg. 79532. The other is a hearing pro-

vided for by 42 U. S. C. §2239.

Start with the environmental review. The NRC said it

could not issue a license without certifying that it had com-

pleted an environmental impact statement (EIS) that as-

sessed “the potential environmental impacts of the pro-

posed” license and weighed alternatives, including the

possibility of “no-action.” 81 Fed. Reg. 79532, 79533. To

discharge that responsibility, the agency had to prepare a

draft EIS, publish it, accept public comments, and provide

a reasoned decision for any conclusions it reached. Brief for

Federal Petitioners 27 (citing §4321 et seq.); see also 81 Fed.

Reg. 79532; 10 CFR pt. 51 (2024).

After the agency published its draft EIS for public com-

ment, Texas answered the call. Writing on behalf of the

State, Governor Greg Abbott warned that storing spent fuel

on “a concrete pad” in an oilfield containing more than 40%

of America’s proven oil reserves would be “dangerous.” App.

6 NRC v. TEXAS

GORSUCH, J., dissenting

118. He expressed concern that an accident or an act of ter-

rorism could harm “the entire country.” Id., at 122. For all

these reasons and more, he asked the NRC to “deny ISP’s

license application.” Id., at 121–122. The Texas Commis-

sion on Environmental Quality also provided comments ex-

pressing concern that, by authorizing private “interim”

storage for 40 years (and perhaps longer) without address-

ing what should happen next, the NRC was effectively ig-

noring Congress’s directive that Yucca Mountain should be-

come the Nation’s permanent repository for spent nuclear

fuel. Id., at 206.

Fasken offered comments, too. Fasken owns hundreds of

thousands of acres in the Permian Basin, where it grazes

cattle and operates oil and gas wells. Brief for Respondent

Fasken 9. In its comments, the company highlighted what,

in its view, constituted “systemic regulatory failures in mul-

tiple areas of the” draft EIS. App. 126; see id., at 123–168.

Fasken also warned of threats “to the environment of West

Texas and the Permian Basin” presented by ISP’s plans.

Id., at 186.

When it published its final EIS, the agency explained

that it was doing so “as part of the NRC’s process to decide

whether to issue a license to ISP.” 86 Fed. Reg. 43278

(2021). Like the safety report, the final EIS was volumi-

nous—684 pages in total, with 173 of those dedicated to

summarizing and responding to comments from the public.1

The EIS specifically addressed Texas’s and Fasken’s com-

ments.2 And, after responding to those and other comments

and weighing various alternatives, the agency concluded

with a “recommendation to issue” a license to ISP. Id., at

——————

1 See NRC, Environmental Impact Statement for Interim Storage Part-

ners LLC’s License Application for a Consolidated Interim Storage Fa-

cility for Spent Nuclear Fuel in Andrews County, Texas, Final Report,

App. D (NUREG–2239, July 2021).

2 See id., at D–21, D–24, D–25, D–29, D–34, D–37, D–49, D–91, D–93,

D–95, D–97, D–100, D–150, D–153, D–159, D–162.

Cite as: 605 U. S. ____ (2025) 7

GORSUCH, J., dissenting

51927.

Turn now to the other task the agency said it had to com-

plete: the §2239 hearing. “[U]pon the request of any person

whose interest may be affected by the [licensing] proceed-

ing,” that statute provides, the agency “shall grant a hear-

ing” and “shall admit any such person as a party to such

proceeding.” §2239(a)(1)(A). To comply with that mandate,

the NRC published a notice in the Federal Register inviting

“any persons . . . whose interest may be affected” by ISP’s

license to “file a request for a hearing and petition for leave

to intervene.” 83 Fed. Reg. 44071 (2018).

Fasken sought to take advantage of this opportunity as

well. In response to the Federal Register notice, it submit-

ted two filings: A motion to dismiss and a petition for hear-

ing. See In re Interim Storage Partners, LLC, 90 N. R. C.

31, 43–44 (2019). But instead of granting Fasken a hearing,

the agency invoked its own internal rules to keep the com-

pany out of that process. As the agency saw it, Fasken had

failed to meet its standards for “intervention” and had

failed to advance any “admissible contention” under its

rules. Id., at 38, 52–54, 109–118; see also 10 CFR §2.309(f ).

Nor was Fasken singled out for this treatment. While the

agency allowed its own staff and ISP to be heard, it effec-

tively “denied all third-party participation.” Brief for Pa-

cific Legal Foundation as Amicus Curiae 6 (emphasis

added). Fasken went back and forth with the agency sev-

eral times, appealing unfavorable rulings and filing new

motions, but the agency rebuffed all of its many efforts to

participate. See In re Interim Storage Partners, LLC, 92

N. R. C. 463, 489 (2020); In re Interim Storage Partners,

LLC, 93 N. R. C. 244 (2021).

Eventually, Fasken went to court to challenge the

agency’s various decisions preventing it from obtaining a

hearing under §2239. So did others in Fasken’s shoes. The

D. C. Circuit consolidated those challenges into one pro-

8 NRC v. TEXAS

GORSUCH, J., dissenting

ceeding and dispatched them all in a short, unpublished or-

der. Don’t Waste Michigan v. NRC, No. 21–1048 (Jan. 25,

2023) (per curiam). In the only paragraph dedicated to

Fasken’s petition, the court concluded that the NRC had

properly denied Fasken’s “motion to admit a new contention

and its motion to reopen the record.” Id., at 4.

More than five years after the NRC began the work re-

quired to pass on ISP’s application—including its safety re-

view, environmental review, and the §2239 hearing—the

agency published a final decision approving ISP’s license.

See 86 Fed. Reg. 51927. The license itself consisted of a

self-described “package” of materials. See id., at 51928 (ref-

erencing “Materials License for ISP, dated September 13,

2021 . . . (Package)”).

That package included a preamble in which the agency

recited the various findings necessary to issue the license.

App. 284; cf. id., at 277. Among those findings was a con-

clusion that “issuance of this license is in accord with 10

CFR Part 51 . . . and all applicable requirements [of that

Part] have been satisfied.” Id., at 286. Translation: The

NRC had completed a final EIS. See 10 CFR §51.91. Con-

sistent with its regulations, the agency’s final license pack-

age also contained a “concise public record of decision” sup-

porting its environmental findings. §51.102(a); see App.

288–298. That document described the agency’s findings in

its final EIS, including its recommendation that “the pro-

posed license [should] be issued to ISP.” Id., at 288. The

record of decision also “incorporate[d] by reference the ma-

terials contained in” the final EIS itself. Id., at 289; see 10

CFR §51.103(c).

After the agency issued its decision, Texas and Fasken

petitioned the Fifth Circuit for review, arguing that the

NRC lacked legal authority to license ISP’s facility. That

court agreed with Texas and Fasken and vacated the NRC’s

decision. 78 F. 4th, at 844. The agency and ISP then sought

review of the Fifth Circuit’s decision, and we agreed to take

Cite as: 605 U. S. ____ (2025) 9

GORSUCH, J., dissenting

the cases. 603 U. S. ___ (2024).

II

With that background in mind, turn first to the question

whether the NRC may license a private company to store

spent nuclear fuel, not at a reactor or on federal land, but

on its own private property. This “interim” license runs for

40 years—subject to renewal. Can the agency lawfully is-

sue such a license?

A

The answer is not hard to come by. The NWPA author-

izes only two places where spent nuclear fuel may be stored

on an “interim” basis—at reactor sites or on federal prop-

erty. See 42 U. S. C. §§10151–10157. When it comes to that

direction, Congress was clear as it could be, adding that

“nothing in [the NWPA] shall be construed to encourage [or]

authorize” storage at any “facility located away from the

site of any civilian nuclear power reactor and not owned by

the Federal Government.” §10155(h).

Given Congress’s emphatic instructions, how did the

NRC come to the view that it possesses authority to do what

the NWPA forbids? It’s a convoluted story. Before the

NWPA’s adoption in 1982, the agency observes, the AEA

represented Congress’s primary legislation in the field of ci-

vilian nuclear power. And, the agency says, it issued regu-

lations pursuant to that statute in 1980 contemplating li-

censes like ISP’s. See 45 Fed. Reg. 74693; Brief for Federal

Petitioners 4. Congress, the agency continues, must have

been aware of those regulations when it adopted the NWPA

in 1982. So, the agency reasons, Congress cannot have

meant for its new legislation to disturb them. See id., at

30–48; Brief for Petitioner ISP 29–42. As a result, the NRC

says, it was entitled to rely on those regulations to issue

ISP’s license.

That argument is unpersuasive. Agencies are creatures

10 NRC v. TEXAS

GORSUCH, J., dissenting

of statute, and they have no authority to dispense licenses

except as Congress provides. See West Virginia v. EPA, 597

U. S. 697, 723 (2022). And nothing in the AEA authorizes

the NRC to license the storage of spent nuclear fuel at pri-

vate, offsite facilities like ISP’s. Just recall: At the time of

the AEA’s enactment in 1954, most assumed that spent nu-

clear fuel would be reprocessed and reused, not stored for

millennia. See Part I–A, supra. Reflecting that assump-

tion, the AEA did not even mention spent nuclear fuel, let

alone address its storage. Ibid. Congress first provided for

the storage of spent nuclear fuel only in 1982, with the

adoption of the NWPA. And that statute forbids, not au-

thorizes, licenses like ISP’s.

In the past, the NRC itself has acknowledged as much.

In 1978, the agency’s chairman recognized that the AEA did

“not explicitly authorize the regulation of radioactive waste

facilities.” NRC, Regulation of Federal Radioactive Waste

Activities, p. G–9 (NUREG–0527, Sept. 1979); see also Brief

for Respondent Fasken 3. And in the same 1980 regula-

tions the NRC now seeks to rely upon to issue a license to

ISP, the agency conceded that the need for a place to store

“spent fuel . . . for a number of years” became apparent only

“[f]ollowing the President’s deferral of reprocessing of spent

fuel in April 1977.” 45 Fed. Reg. 74693.

B

To be sure, the NRC (now) has a theory why the AEA au-

thorizes it to issue regulations regarding the storage of

spent nuclear fuel and grant licenses like ISP’s. The agency

points to three provisions of the AEA that allow it to issue

licenses to entities seeking to “possess . . . special nuclear

material,” §2073(a), “distribute source material,” §2093(a),

or “use byproduct material,” §2111(a). And, the agency sub-

mits, if you cobble together “special,” “source,” and “by-

product” material, you wind up with spent nuclear fuel. See

Brief for Federal Petitioners 31–32. So while the AEA may

Cite as: 605 U. S. ____ (2025) 11

GORSUCH, J., dissenting

not contain a single provision addressing the storage of

spent nuclear fuel, the agency insists, taken collectively

these three provisions effectively authorize it to issue regu-

lations and licenses regarding the storage of spent nuclear

fuel. Ibid.

The agency’s theory may get marks for creativity, but it

fails for at least three independent reasons.

First, it’s hard to see how the power to license the use of

“special,” “source,” and “byproduct” material amounts to a

power to license the storage of spent nuclear fuel. In brief-

ing before us, even the agency admits that spent fuel “is a

substance different from any one of its constituent parts,”

Reply Brief for Federal Petitioners 13, n. 2. And Congress

itself has defined those terms very differently. Under the

NWPA, spent nuclear fuel must “ha[ve] been withdrawn

from a nuclear reactor following irradiation” and must not

have undergone “reprocessing.” §10101(23). Meanwhile,

the AEA’s detailed definitions of special, source, and by-

product materials include neither of these requirements.

See §§2014(e), (z), (aa).

Elsewhere, too, Congress has distinguished spent nuclear

fuel from special, source, and byproduct materials. While

the AEA as enacted in 1954 said nothing about “spent nu-

clear fuel,” in 1988 Congress amended that law to incorpo-

rate the NWPA’s definition of the term. See 102 Stat. 1069.

So, today, the AEA authorizes the NRC to ensure that cer-

tain “byproduct materials, source materials, special nuclear

materials, [and] spent nuclear fuel” transferred in the

United States are done so in a specific manner. §2210i(b)

(emphasis added). If the agency were right, and spent nu-

clear fuel really is just the sum of special, source, and by-

product materials, Congress’s inclusion of the phrase “spent

nuclear fuel” would have been meaningless. And we do not

usually presume that Congress takes the trouble to amend

its laws to add words and phrases that perform no work.

See Duncan v. Walker, 533 U. S. 167, 174 (2001); A. Scalia

12 NRC v. TEXAS

GORSUCH, J., dissenting

& B. Garner, Reading Law 174–179 (2012).

If more evidence were needed, the 1980 regulations on

which the NRC now seeks to rely would provide it. There,

the agency explained its view that “[s]pent fuel includes the

special nuclear material, byproduct material, source mate-

rial, and other radioactive materials associated with fuel as-

semblies.” 45 Fed. Reg. 74700–74701 (emphasis added).

Even in the 1980 regulations the agency invokes to justify

ISP’s license, then, the agency itself admitted that spent

nuclear fuel includes materials besides special, source, and

byproduct materials. The agency cannot have it both ways.

Second, the AEA authorizes the NRC to license the use of

special, source, and byproduct materials only for very spe-

cific purposes—and storage is not among them. So, for ex-

ample, the AEA says that the agency may grant licenses for

the possession of “special nuclear material” for activities

like “research and development,” “medical therapy,” and in-

dustrial or commercial purposes. §§2073(a)(1)–(3); see

§2133. The provisions speaking to “source material” and

“byproduct material” contain similar lists of approved uses.

See §§2093(a), 2111(a). None of those lists discusses stor-

age as an approved use.

The agency admits that the AEA does not expressly au-

thorize it to issue licenses for storage. See Brief for Federal

Petitioners 32–34. But, it replies, the statute does so im-

plicitly. For support, the agency points to the fact that the

provisions discussing “special,” “source,” and “byproduct”

material each contain a “catchall.” Ibid. So, for example,

§2073(a) authorizes the agency to license the possession of

“special nuclear material” not just for medical research and

the like, but also for “such other uses as the Commission

determines to be appropriate to carry out the purposes of

this chapter.” And, the agency says, it has determined it

“appropriate” to issue licenses for the “interim” storage of

spent fuel to private companies like ISP. See id., at 32.

Cite as: 605 U. S. ____ (2025) 13

GORSUCH, J., dissenting

That hardly works. As this Court has repeatedly recog-

nized, a catchall “at the end of a list of specific items is typ-

ically controlled and defined by reference to the specific

classes that precede it.” Fischer v. United States, 603 U. S.

480, 487 (2024) (internal quotation marks and ellipses

omitted); accord, Yates v. United States, 574 U. S. 528, 545

(2015) (plurality opinion). So, the catchalls before us cannot

be read as permission to the NRC to go forth and do good.

Instead, they must be read in light of, and consistently

with, the lists that precede them. And here, all of the activ-

ities listed in §2073, §2093, and §2111 involve the affirma-

tive, productive use of the materials in question—not their

passive storage.

Third, even assuming (against all the evidence) that the

AEA once might have implicitly authorized the NRC to

grant licenses like the one at issue here, it cannot be fairly

read to do so after Congress adopted the NWPA in 1982. If

the AEA spoke at all to the storage of spent nuclear fuel, it

did so elliptically and without offering any specifics about

what sort of storage might be appropriate. The NWPA, by

contrast, speaks directly to spent nuclear fuel and the ques-

tion of its storage. In doing so, that law makes plain that

only two kinds of “interim” storage sites are permissible.

And knowing that much is enough to know that the NWPA

must govern, for it is a “familiar” rule of statutory construc-

tion “that a specific statute controls over a general one.”

Bulova Watch Co. v. United States, 365 U. S. 753, 758

(1961) (internal quotation marks omitted); accord, Morton

v. Mancari, 417 U. S. 535, 550–551 (1974); contra, ante, at

20, n. 3 (mistakenly suggesting in dicta that the NWPA

“simply grant[ed]” the NRC “additional” authority).

Really, any other conclusion would make a mockery of

Congress’s work in the NWPA and risk rendering it a dead

letter. What was the point of legislation specifying two and

only two appropriate sites for the interim storage of spent

fuel if the NRC possesses the power to authorize interim

14 NRC v. TEXAS

GORSUCH, J., dissenting

storage wherever it thinks best? And what was the point of

Congress later amending the NWPA to authorize one and

only one permanent storage site if nothing prevents the

NRC from issuing 40-year “interim” licenses and renewing

them indefinitely? If there are answers to those questions,

the agency has not supplied them.

In short, Texas and Fasken are right. The law does not

permit the NRC to license private companies to store spent

nuclear fuel at private, away-from-reactor facilities. The

NWPA expressly prohibits that course. And cobbled-to-

gether terms addressing other matters in the AEA cannot

be repurposed to authorize what the NWPA forbids. Should

Congress choose, it could grant the agency the power it

seeks. But there 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.

C

Despite insisting that we lack jurisdiction to reach the

merits of Texas’s and Fasken’s claim, the Court proceeds to

devote a healthy section of its opinion to the merits anyway.

See Part II–D–1, ante. That is surely a curious choice, for

anything the Court might say about the merits of a case

over which it lacks jurisdiction is pure dicta. Cf. Steel Co.

v. Citizens for Better Environment, 523 U. S. 83, 94–95

(1998). Maybe worse, the Court’s dicta is simply wrong.

The Court argues that the NRC’s decision to issue a license

to ISP is justified by “history and precedent.” Ante, at 17.

Yet neither the Court’s (revisionist) history nor its (irrele-

vant) precedent can imbue the NRC with novel authority

that appears nowhere in any statute.

Take precedent first. According to the Court, we and oth-

ers have “interpreted the Atomic Energy Act of 1954 to au-

thorize licenses for the storage of spent nuclear fuel.” Ibid.

Cite as: 605 U. S. ____ (2025) 15

GORSUCH, J., dissenting

In truth, this Court has never decided that question. Our

decision in Pacific Gas simply acknowledged that the NRC

in 1980 “promulgated detailed regulations governing stor-

age and disposal away from the reactor”—an undisputed

fact about regulations no one had challenged—along the

way to holding that neither the AEA nor those regulations

pre-empted a California statute pausing in-state construc-

tion of new nuclear plants until more spent-fuel storage be-

came available. 416 U. S., at 217, 219. As for the lower

courts, the best the Court can muster is a D. C. Circuit case

that had no occasion to resolve whether the AEA authorizes

the NRC to license private, offsite storage, for the parties

there “conceded [that] the NRC ” had just such “authority”

under the 1954 statute. See Bullcreek v. NRC, 359 F. 3d

536, 542 (2004).

History doesn’t get the Court any further. As the Court

sees it, the NRC must have the power to issue licenses to

facilities like ISP’s because it has done so in the past. But

no agency can exercise power without lawful authority, and

repeating a wrong does not make it right. Notice, too, what

the Court has to say about the agency’s past practices:

“[T]here are about 10 privately owned storage sites where

there are no active nuclear reactors.” Ante, at 18. That

careful phrasing obscures that none of those facilities is an-

ything like ISP’s. Eight facilities seemingly included in the

Court’s count are not “offsite” storage sites at all, but “pri-

vately owned nuclear reactor sites that have ceased . . . re-

actor operations.” Brief for Federal Petitioners 6. Mean-

while, the GE Morris facility was initially built to serve as

a reprocessing facility and only became a storage facility by

default after reprocessing collapsed. See Brief for Don’t

Waste Michigan et al. as Amici Curiae 12. That leaves just

one example where it appears the NRC has invoked its 1980

regulations to license a private, offsite storage facility—and

that facility “was never built.” See Tr. of Oral Arg. 81. I

struggle to see in any of this the “significant support” the

16 NRC v. TEXAS

GORSUCH, J., dissenting

Court claims for what the agency did here. Ante, at 17.

One other aspect of the Court’s merits analysis warrants

mention. In the Court’s view, if the AEA did not authorize

the NRC to issue a license to ISP, that would mean private

individuals and companies could store spent nuclear fuel

anywhere and do so without a license. See ante, at 19. That

conclusion does not follow for at least two reasons. First, as

we have seen, in 1982 the NWPA addressed spent nuclear

fuel directly, and that statute authorizes its storage in only

two locations. Second, even before the NWPA, when most

thought spent nuclear fuel would be reprocessed, the AEA

was not blind to the fact that nuclear reactors would gener-

ate spent fuel, nor did the AEA tolerate its storage by any-

one “anywhere.”

To the contrary, the AEA authorized the NRC to license

reactor facilities only so long as they could be operated

safely. See, e.g., 68 Stat. 936–937. Before issuing a license

consistent with that mandate, the NRC understood, it had

to determine that a reactor facility could safely store spent

fuel on an interim basis. See, e.g., 42 Fed. Reg. 34391 (1977)

(“As part of the licensing process for an individual power

reactor facility, the Commission does review the facility in

question in order to assure that the design provides for safe

methods for interim storage of spent nuclear fuel”). Indeed,

we are told that, for safety reasons, spent fuel usually must

be stored onsite for “at least five years.” Tr. of Oral Arg.

105. It follows, then, that under the AEA, the operator of a

licensed reactor would have been authorized (and in fact re-

quired) to keep spent fuel onsite after removing it from a

reactor. See id., at 97. It does not follow that the AEA per-

mitted other parties, without a license, to take spent nu-

clear fuel offsite and do with it what they pleased.

III

Without any persuasive argument on the merits, the

NRC urges the Court to dismiss Texas’s and Fasken’s

Cite as: 605 U. S. ____ (2025) 17

GORSUCH, J., dissenting

claims on jurisdictional grounds. Ultimately, the Court

does just that and thus paves the way for the agency to is-

sue its misbegotten license. As the Court sees it, Texas and

Fasken cannot challenge the NRC’s decision in court be-

cause they failed to jump through the right hoops before the

agency.

The Court’s reasoning follows this path: Texas and

Fasken seek judicial review under the Hobbs Act. That

statute permits “[a]ny party aggrieved by [an agency’s] final

order [to] file a petition to review the order in the court of

appeals wherein venue lies.” 28 U. S. C. §2344. And, in the

Court’s estimation, neither Texas nor Fasken qualifies as a

“party aggrieved” by the NRC’s decision. Ante, at 7.

In reaching that conclusion, the Court does not (and can-

not) question that Texas and Fasken have much at stake.

ISP’s plan to store radioactive waste in the Permian Basin

threatens harm to their citizens and employees, poses risks

to their lands, air, and waters, and will diminish the value

of Fasken’s property. See Part I–B, supra. Even the NRC

has acknowledged that Fasken’s interests might be affected

by ISP’s license, 90 N. R. C., at 51–52, and the agency does

not dispute that the same holds true for Texas. Doubtless,

Texas and Fasken are “aggrieved.”

Still, the Court reasons, neither Texas nor Fasken are

“parties” aggrieved by the NRC’s decision to issue ISP’s li-

cense. Ante, at 8. The agency may have solicited public

comments in its environmental review. Texas and Fasken

may have supplied comments. The agency may have ac-

cepted those comments and considered them before issuing

its environmental review findings and final EIS that them-

selves form part of ISP’s license. And, without question,

Fasken struggled mightily to participate in the hearing the

agency conducted under §2239. But the NRC managed to

keep the company out of that particular portion of its licens-

ing proceeding. And that, the Court concludes, is enough to

prevent both Texas and Fasken from lodging any complaint

18 NRC v. TEXAS

GORSUCH, J., dissenting

in court about the agency’s work.

A

I see things differently. Lower courts have often assumed

the phrase “party aggrieved” in the Hobbs Act requires

those seeking relief from an agency’s “final order” in court

to have been “parties to any proceedings before the agency

preliminary to issuance of ” the challenged order. Simmons

v. ICC, 716 F. 2d 40, 42 (CADC 1983) (citing §2344). The

Court proceeds on that same assumption today. Ante, at 9.

For present purposes, let us take it as given.

Doing so raises a few questions. First, what was the “fi-

nal order” in this action? Plainly, the NRC’s licensing deci-

sion. Second, what were the “proceedings before the agency

preliminary to issuance of [that] order?” Simmons, 716

F. 2d, at 42. As we have seen, the NRC’s licensing proceed-

ing comprised several parts—including the safety review,

environmental review, and a §2239 hearing. Third, who

qualified as a party in that proceeding? To answer that

question, the Court relies on a line of D. C. Circuit cases

that recognize “[t]he degree of participation necessary to

achieve party status varies according to the formality with

which the proceeding was conducted. ” Water Transp. Assn.

v. ICC, 819 F. 2d 1189, 1192 (CADC 1987) (citing Simmons

for this proposition); see also ante, at 9 (relying on Sim-

mons).

To my mind, that answer resolves this case. Focus on the

agency’s environmental review. Remember, that review

was an essential component of its licensing proceeding. See

Part I–B, supra. The NRC itself admits that it could not

sign off on ISP’s license without completing an environmen-

tal impact statement weighing alternatives to ISP’s pro-

posal, including the possibility of denying it. Ibid. Reflect-

ing as much, the agency’s final license “package” included a

preamble in which the agency recorded various findings, in-

cluding a finding that it had completed a final EIS. Ibid.

Cite as: 605 U. S. ____ (2025) 19

GORSUCH, J., dissenting

The package also included a “concise public record of deci-

sion” outlining the findings of the agency’s final EIS, incor-

porating that document by reference, and reporting its con-

clusion that ISP’s license application should be granted.

Supra, at 8 (citing 10 CFR §51.102(a); App. 288–298).

Texas and Fasken were parties to that component of the

agency’s licensing proceeding. After preparing a draft EIS,

the agency solicited comments from the public. Part I–B,

supra. Both Texas and Fasken offered extensive comments,

raising warnings about the impact of ISP’s intended project

on land, water, oil and gas reserves—and people. Ibid. The

agency accepted those comments and undertook to address

them in its final EIS. Ibid.

That is enough to make Texas and Fasken “parties” to

“any proceedings before the agency preliminary to issuance

of ” the challenged order. Simmons, 716 F. 2d, at 42. In

“administrative proceedings” contemplating “notice-and-

comment,” lower courts have long said that “commenting”

qualifies an individual as a “party” for purposes of the

Hobbs Act. ACA Int’l v. FCC, 885 F. 3d 687, 711 (CADC

2018). That much is surely right. And it means that Texas

and Fasken are “parties” who may be heard in court under

the Hobbs Act.

B

For its part, the Court seems to consider Texas’s and

Fasken’s participation in the agency’s environmental re-

view irrelevant. As I understand it, the Court thinks that,

to “qualify as a party,” Texas and Fasken also had to “suc-

cessfully intervene” in the agency’s §2239 hearing. Ante, at

2.

I fail to see why. By the terms of one statute and set of

regulations, the agency may have had to offer a public hear-

ing. But by the terms of other statutes and regulations, the

agency also had to conduct, among other things, an envi-

ronmental review and a safety review. Each of these steps,

20 NRC v. TEXAS

GORSUCH, J., dissenting

the agency insists, was necessary before it could reach a de-

cision on ISP’s license application. See Part I–B, supra; see

also, e.g., 81 Fed. Reg. 79532. And all of the agency’s vari-

ous tracks of review culminated in a single decision. In-

deed, the agency incorporated the conclusions of each into

its final license “package.” Part I–B, supra. And without

doubt, Texas and Fasken participated as parties in the en-

vironmental-review portion of the agency’s licensing pro-

ceeding. Ibid. The Hobbs Act requires no more. See Sim-

mons, 716 F. 2d, at 42 (participation as a “party” in “any

proceedings before the agency preliminary to issuance of ”

the challenged order is sufficient (emphasis added)).

That conclusion is confirmed by the terms of §2239 itself.

The statute provides that, “[i]n any proceeding . . . for the

granting . . . of any license,” the NRC “shall grant a hearing

upon the request of any person whose interest may be af-

fected by the proceeding, and shall admit any such person

as a party to such proceeding.” §2239(a)(1)(A). With this

language, Congress clearly sought to ensure that anyone af-

fected by the agency’s decision would have at least one fo-

rum in which to express their views to the NRC. But no-

where did Congress say §2239 is the only way someone can

participate in the agency’s licensing proceeding. Nowhere,

for example, did it say that someone must request a hearing

under §2239 to become a party to the NRC’s licensing pro-

ceeding.

More than that, the statute’s terms preclude any inter-

pretation conflating a hearing before the agency with the

licensing proceeding itself. The statute provides that the

“hearing” occurs “[i]n any proceeding . . . for the granting

. . . of any license”—that is to say, in an overall licensing

proceeding. The statute does not say that the hearing is the

licensing proceeding. Surely, too, that is as it must be. Un-

der §2239, after all, a hearing may or may not be required,

depending on whether someone “request[s]” one. And, with

Cite as: 605 U. S. ____ (2025) 21

GORSUCH, J., dissenting

or without a hearing, the NRC must, by statute and regu-

lation, undertake an extensive “proceeding . . . for the

granting . . . of [the] license” that includes an environmen-

tal review and a safety review. §2239(a)(1)(A); see also Part

I–B, supra.3

Any possible lingering doubt on this score is resolved by

recalling that the Hobbs Act is a jurisdictional statute. Ju-

risdictional statutes, this Court has said, must be read in

light of a “strong presumption that Congress intends judi-

cial review of administrative action.” Bowen v. Michigan

Academy of Family Physicians, 476 U. S. 667, 670 (1986).

It is a presumption that can be overcome “only upon a show-

ing of clear and convincing evidence of a contrary legislative

intent.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141

(1967) (internal quotation marks omitted). And here that

presumption counsels strongly against assuming that those

who participate in one aspect of an NRC licensing proceed-

ing must participate in another just to be heard in court.

Certainly, nothing in the Hobbs Act or §2239 clearly and

——————

3 The Court insists that litigants cannot “use collateral environmental

claims to evade the limits on judicial review imposed by an exclusive ju-

dicial-review provision like the Hobbs Act.” Ante, at 22, n. 4. But that

truism is no answer. Texas and Fasken are not seeking to evade the

Hobbs Act by bringing, say, an Administrative Procedure Act claim based

on their environmental objections (much as the litigants in the two cir-

cuit cases the Court cites sought to do in order to evade other exclusive

judicial-review provisions). See ibid. Instead, Texas and Fasken claim

they are entitled to proceed under the Hobbs Act itself. And while com-

menting on an EIS may not always be enough to guarantee “party” status

under the Hobbs Act, it suffices here given the way the NRC’s licensing

proceeding is structured. Nor is it any answer to insist, as the Court

does, that the §2239 hearing is a formal “agency adjudication” where “in-

tervention” is required. Ante, at 10, 22, and n. 4. For one thing, nothing

in §2239(a)(1)(A) suggests that the label “formal agency adjudication” is

appropriate. For another, if the agency’s licensing proceeding involves

an adjudication at all, it “is a very strange type of adjudication,” because

it only sometimes includes a hearing, yet always requires the agency to

open “a notice-and-comment process.” Tr. of Oral Arg. 87.

22 NRC v. TEXAS

GORSUCH, J., dissenting

convincingly requires that result.

A corollary to the presumption favoring judicial review

only serves to bolster that conclusion. “[A]bsent clear state-

ment,” this Court does not read legislation “to place in ex-

ecutive hands authority to remove cases from the Judici-

ary’s domain.” Kucana v. Holder, 558 U. S. 233, 237 (2010).

The reason for that rule is obvious. Allowing agencies to

decide who can challenge their work in court is like letting

the fox guard the henhouse: Given the opportunity, agen-

cies are likely to ensure nothing survives.

This case illustrates the risk. Section 2239 promises that

the NRC “shall grant a hearing upon the request” of anyone

who “may be affected” by a proposed license and “shall ad-

mit any such person as a party to such proceeding.” By any

measure, Fasken satisfied the law’s terms. It sought to par-

ticipate, and the agency concluded that it qualified as a

“person whose interest may be affected.” See 90 N. R. C.,

at 47, 52. From that, it followed that the NRC had to “ad-

mit” Fasken as “a party.”

Despite that mandate, the agency (again) charted its own

course. It developed restrictive internal rules regulating

who may “intervene” in its hearing and what “contentions”

it considers “admissible.” See supra, at 7 (citing 10 CFR

§2.309(f )). Then, it deployed those rules to exclude Fasken

and others who sought to participate, turning what was

supposed to be a public hearing more nearly into an echo

chamber involving agency staff and ISP. 90 N. R. C., at 57–

64. To top it all off, the agency now asks us to believe that

§2239 (supplemented, of course, by its own regulations)

supplies the only way someone can become a “party” to its

licensing proceeding. Brief for the Federal Petitioners 19–

20.

By that series of steps, the agency effectively seeks to con-

trol who may challenge its decisions in court—and ensure

that the answer is no one. Perhaps, as the Court observes,

Cite as: 605 U. S. ____ (2025) 23

GORSUCH, J., dissenting

Fasken could have challenged the agency’s internal regula-

tions restricting who may participate in a §2239 hearing,

arguing that they defy the statute’s plain terms. See ante,

at 13. And perhaps someone should consider doing just

that.4 But the hard fact remains that, by accepting the

NRC’s strained view that §2239 represents the only way for

someone to become a party to its licensing proceedings, we

effectively allow the agency to keep even a neighboring

landowner and the very State in which massive amounts of

spent nuclear fuel will be stored from being heard in court.

Fox meet henhouse.

*

The NWPA prohibits the NRC from licensing the storage

of spent nuclear fuel at privately owned sites like ISP’s. De-

spite that command, the NRC forged ahead anyway. As the

Fifth Circuit recognized, the agency’s decision was unlaw-

ful. Nor does anything in the Hobbs Act prevent us from

admitting what we know to be true. Both Texas and Fasken

are “parties aggrieved” by the agency’s decision. The NRC’s

theory otherwise requires us to ignore the full scope of the

agency’s own licensing proceeding. It forces us to reimagine

a statute expanding public access to the agency’s adminis-

trative proceedings into one restricting access. And it asks

——————

4 After first touting the availability of this course, the Court later, in

dicta, seems to disparage its prospects, citing a 35-year-old D. C. Circuit

decision for the proposition that the NRC’s regulations do not “set too

high a bar” for intervention. See ante, at 22 (citing Union of Concerned

Scientists v. NRC, 920 F. 2d 50 (1990)). But, of course, that decision

hardly binds this Court. Notably, too, the D. C. Circuit did not pass on

the agency’s intervention regulations alone, but only those regulations

“in conjunction with the [NRC’s] longstanding late-filing rule.” Id., at 53

(“UCS does not . . . contend that the heightened pleading requirement,

standing alone, would be illegal”). In doing so, as well, the court invoked

Chevron deference, an approach this Court has since rejected. See 920

F. 2d, at 54 (citing Chevron U. S. A. Inc. v. Natural Resources Defense

Council, Inc., 467 U. S. 837 (1984), overruled by Loper Bright Enterprises

v. Raimondo, 603 U. S. 369 (2024)).

24 NRC v. TEXAS

GORSUCH, J., dissenting

us to believe that the very State in which the agency in-

tends to store spent nuclear fuel indefinitely cannot be

heard in court to complain about the agency’s plans. Be-

cause nothing in the law requires us to indulge any of those

fantasies, I respectfully dissent.