Petition for Writ of Certiorari — Nuclear Regulatory Commission, et al., Petitioners v. Texas, et al.

Supreme Court briefJun 12, 2024

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No. XX-XX

In the Supreme Court of the United States

UNITED STATES NUCLEAR REGULATORY COMMISSION,

ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BROOKE P. CLARK

General Counsel

ANDREW P. AVERBACH

Solicitor

U.S. Nuclear Regulatory

Commission

Washington, D.C. 20555

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

NICOLE FRAZER REAVES

Assistant to the Solicitor

General

JENNIFER S. NEUMANN

MICHAEL T. GRAY

JUSTIN D. HEMINGER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Hobbs Act, 28 U.S.C. 2341 et seq.,

which authorizes a “party aggrieved” by an agency’s “final order” to petition for review in a court of appeals, 28

U.S.C. 2344, allows nonparties to obtain review of

claims asserting that an agency order exceeds the

agency’s statutory authority.

2. Whether the Atomic Energy Act of 1954, 42

U.S.C. 2011 et seq., and the Nuclear Waste Policy Act of

1982, 42 U.S.C. 10101 et seq., permit the Nuclear Regulatory Commission to license private entities to temporarily store spent nuclear fuel away from the nuclearreactor sites where the spent fuel was generated.

(I)

PARTIES TO THE PROCEEDING

Petitioners were the respondents in the court of appeals. They are the United States Nuclear Regulatory

Commission and the United States of America.

Respondents include the petitioners in the court of

appeals. They are the State of Texas; Greg Abbott,

Governor of the State of Texas; the Texas Commission

on Environmental Quality; Fasken Land and Minerals,

Limited; and Permian Basin Land and Royalty Owners.

Respondents also include Interim Storage Partners,

LLC, an intervenor-respondent in the court of appeals.

RELATED PROCEEDINGS

United States Court of Appeals (5th Cir.):

State of Texas v. Nuclear Regulatory Commission,

No. 21-60743 (Mar. 14, 2024)

United States Court of Appeals (10th Cir.):

Balderas v. United States Nuclear Regulatory Commission, No. 21-9593 (Feb. 10, 2023)

United States Court of Appeals (D.C. Cir.):

Don’t Waste Michigan v. U.S. Nuclear Regulatory

Commission, Nos. 21-1048, 21-1055, 21-1056, 211179, 21-1227, 21-1229, 21-1230, 21-1231 (Jan. 25,

2023)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory and regulatory provisions involved ........................... 2

Statement:

A. Legal background ............................................................. 2

B. Factual and procedural background ............................... 6

Reasons for granting the petition ............................................. 10

A. The Fifth Circuit’s decision is wrong ............................ 11

1. The Hobbs Act is not subject to an ultra vires

exception .................................................................... 11

2. The Commission has statutory authority to

license temporary offsite storage of spent

nuclear fuel ................................................................ 19

B. The decision below implicates two acknowledged

circuit conflicts and warrants further review ............... 27

Conclusion ................................................................................... 31

Appendix A — Court of appeals opinion

(Aug. 25, 2023) ............................................. 1a

Appendix B — Court of appeals opinion on petition

for rehearing en banc

(Mar. 14, 2024) ........................................... 31a

Appendix C — Interim Storage Partners license for

independent storage of spent nuclear

fuel and high-level radioactive waste

(Sept. 13, 2021)........................................... 53a

Appendix D — Statutory and regulatory provisions .......... 60a

TABLE OF AUTHORITIES

Cases:

Alabama Power Co. v. FCC,

311 F.3d 1357 (11th Cir. 2002), cert. denied,

540 U.S. 937 (2003).............................................................. 13

(III)

Cases—Continued:

Page

American Trucking Ass’ns v. ICC,

673 F.2d 82 (5th Cir. 1982), cert. denied,

460 U.S. 1022 (1983), and 469 U.S. 930 (1984) ....... 8, 16, 17

Baros v. Texas Mexican Ry. Co.,

400 F.3d 228 (5th Cir. 2005) ............................................... 13

Board of Governors of the Fed. Reserve Sys.

v. MCorp Fin., Inc., 502 U.S. 32 (1991) ............................ 17

Bullcreek v. Nuclear Regulatory Commission,

359 F.3d 536 (D.C. Cir. 2004) ....................................... 25, 30

Chicago, Milwaukee, St. Paul & Pacific R.R.,

In re, 799 F.2d 317 (7th Cir. 1986), cert. denied,

481 U.S. 1068 (1987).......................................... 13, 15, 16, 29

City of Arlington v. FCC, 569 U.S. 290 (2013) .................... 15

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986).............................................................. 25

Dairyland Power Coop. v. United States,

645 F.3d 1363 (Fed. Cir. 2011) ............................................. 4

Don’t Waste Mich. v. U.S. Nuclear Regulatory

Commission, No. 21-1048, 2023 WL 395030

(D.C. Cir. Jan. 25, 2023) ........................................... 7, 14, 18

Energy Nw. v. United States,

641 F.3d 1300 (Fed. Cir. 2011) ............................................. 4

Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) .................... 25

Erie-Niagara Rail Steering Comm’n v. Surface

Transp. Bd., 167 F.3d 111 (2d Cir. 1999) .................... 17, 28

FCC v. ITT World Commc’ns, Inc.,

466 U.S. 463 (1984).............................................................. 14

Federal Maritime Comm’n v. South Carolina

State Ports Auth., 535 U.S. 743 (2002) ............................. 14

Freytag v. Commissioner, 501 U.S. 868 (1991) ............ 22, 23

General Elec. Co., In re, 15 N.R.C. 530 (1982) ..................... 4

Huawei Techs. USA, Inc. v. FCC,

2 F.4th 421 (5th Cir. 2021) ................................................. 17

Cases—Continued:

Page

Interim Storage Partners LLC, In re:

92 N.R.C. 463 (2020) .......................................................... 6

93 N.R.C. 244 (2021) .......................................................... 6

Leedom v. Kyne, 358 U.S. 184 (1958) .................................. 17

National Ass’n of State Util. Consumer Advocates

v. FCC, 457 F.3d 1238 (11th Cir. 2006), modified

in part not relevant, 468 F.3d 1272 (11th Cir.

2006), cert. denied, 552 U.S. 1165 (2008) ..................... 29

Ohio Nuclear-Free Network

v. U.S. Nuclear Regulatory Commission,

53 F.4th 236 (D.C. Cir. 2022) ............................................. 19

Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) .............. 26

Pacific Gas & Elec. Co. v. State Energy

Res. Conservation & Dev. Comm’n,

461 U.S. 190 (1983)...................................................... 2, 3, 20

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) ......................................................... 25

Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983) ................... 12

Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004), cert. denied,

546 U.S. 1060 (2005)............................................................ 30

State ex rel. Balderas v. United States Nuclear

Regulatory Commission, 59 F.4th 1112

(10th Cir. 2023) .......................................................... 7, 19, 28

Train v. Colorado Pub. Interest Research

Grp., Inc., 426 U.S. 1 (1976) ............................................... 20

United States ex rel. Eisenstein

v. City of New York, 556 U.S. 928 (2009) .......................... 18

Wales Transp., Inc. v. ICC,

728 F.2d 774 (5th Cir. 1984) ................................... 16, 17, 29

Water Transp. Ass’n v. ICC,

819 F.2d 1189 (D.C. Cir. 1987) ........................................... 19

West Virginia v. EPA, 597 U.S. 697 (2022) .................. 26, 27

Statutes and regulations:

Page

Act of Jan. 2, 1975, Pub. L. No. 93-584,

§§ 3-5, 88 Stat. 1917 ............................................................ 17

Administrative Procedure Act,

5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. ........................... 12

5 U.S.C. 551(4)-(9) ........................................................... 19

5 U.S.C. 702 ...................................................................... 12

Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq. .............. 2

42 U.S.C. 2011 .................................................................. 20

42 U.S.C. 2013(a) ............................................................... 2

42 U.S.C. 2013(b) ............................................................... 2

42 U.S.C. 2013(d) ......................................................... 2, 20

42 U.S.C. 2014(e) ............................................................... 2

42 U.S.C. 2014(z) ............................................................... 2

42 U.S.C. 2014(aa) ............................................................. 2

42 U.S.C. 2073 .......................................................... 22, 61a

42 U.S.C. 2073(a) ................................................. 2, 21, 61a

42 U.S.C. 2073(a)(1) ................................................. 22, 62a

42 U.S.C. 2073(a)(2) ................................................. 22, 62a

42 U.S.C. 2073(a)(4) ........................................... 21, 22, 62a

42 U.S.C. 2092 ...................................................... 2, 21, 67a

42 U.S.C. 2093 .......................................................... 22, 67a

42 U.S.C. 2093(a) ....................................................... 2, 67a

42 U.S.C. 2093(a)(1) ................................................. 22, 67a

42 U.S.C. 2093(a)(2) ................................................. 22, 67a

42 U.S.C. 2093(a)(4)........................................... 21, 22, 68a

42 U.S.C. 2111 .................................................... 22, 23, 69a

42 U.S.C. 2111(a) ........................................... 2, 21, 23, 69a

42 U.S.C. 2111(b) ..................................................... 23, 70a

42 U.S.C. 2111(c) ..................................................... 23, 71a

42 U.S.C. 2133 .................................................................... 2

42 U.S.C. 2134 .................................................................... 2

VII

Statutes and regulations—Continued:

Page

42 U.S.C. 2201(b) ................................................... 3, 20, 22

42 U.S.C. 2201(h) ............................................................... 3

42 U.S.C. 2231 .................................................................. 19

42 U.S.C. 2239 .......................................................... 13, 71a

42 U.S.C. 2239(a)(1)(A) ............................5, 11, 13, 18, 71a

42 U.S.C. 2239(b)(1) ...................................... 5, 11, 13, 72a

Hobbs Act, 28 U.S.C. 2341 et seq. .......................................... 5

28 U.S.C. 2342 .............................................................. 5, 11

28 U.S.C. 2342(4) ......................................................... 5, 13

28 U.S.C. 2343 ...................................................... 6, 11, 60a

28 U.S.C. 2344 ................................... 5, 6, 8, 11, 12, 14, 60a

28 U.S.C. 2348 .......................................................... 13, 61a

Nuclear Waste Policy Act of 1982,

42 U.S.C. 10101 et seq. .......................................................... 3

42 U.S.C. 10131-10145 ................................................. 4, 24

42 U.S.C. 10151-10157 ................................................. 4, 24

42 U.S.C. 10151(a)(1) ............................................... 24, 73a

42 U.S.C. 10152 ................................................................ 24

42 U.S.C. 10155(h) ............................................... 4, 25, 76a

42 U.S.C. 10161-10169 ..................................................... 24

10 C.F.R.:

Pt. 2:

Section 2.309(a) .................................................... 5, 77a

Section 2.309(d) .................................................... 5, 80a

Section 2.309(f ) .................................................... 5, 82a

Section 2.309(f )(1)(vi) .......................................... 5, 83a

Section 2.309(h) .............................................. 5, 14, 85a

Pt. 72 ............................................................................. 3, 22

Section 72.3................................................................... 3

VIII

Miscellaneous:

Page

Black’s Law Dictionary (4th ed. 1951) ............................... 12

45 Fed. Reg. 74,693 (Nov. 12, 1980) ................................. 3, 22

56 Fed. Reg. 57,539 (Nov. 12, 1991) ....................................... 4

71 Fed. Reg. 10,068 (Feb. 28, 2006) ....................................... 4

83 Fed. Reg. 44,070 (Aug. 29, 2018) ....................................... 6

86 Fed. Reg. 51,926 (Sept. 17, 2021) ...................................... 6

Nuclear Regulatory Commission,

U.S. Independent Spent Fuel Storage

Installations (ISFSI) (Apr. 22, 2021), https://

www.nrc.gov/docs/ML2111/ML21116A041.pdf ................. 4

The Random House Dictionary of the

English Language (1967)................................................... 12

U.S. Energy Info. Admin., U.S. Dep’t of Energy,

Frequently Asked Questions (FAQs): What is

U.S. electricity generation by energy source?,

https://perma.cc/7XEC-DY3N (Feb. 29, 2024) ................ 30

In the Supreme Court of the United States

No. XX-XX

UNITED STATES NUCLEAR REGULATORY COMMISSION,

ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

Nuclear Regulatory Commission and the United States

of America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a30a) is reported at 78 F.4th 827. The order of the court

of appeals denying rehearing en banc (App., infra, 31a52a) is reported at 95 F.4th 935.

JURISDICTION

The judgment of the court of appeals was entered on

August 25, 2023. Petitions for rehearing were denied on

March 14, 2024 (App., infra, 31a-52a). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1) and

2350.

(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant statutory and regulatory provisions are reproduced in the appendix. App., infra, 60a-86a.

STATEMENT

A. Legal Background

1. a. Congress enacted the Atomic Energy Act of

1954, 42 U.S.C. 2011 et seq., to “encourage[] the private

sector” to develop “atomic energy for peaceful purposes

under a program of federal regulation and licensing.”

Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 207 (1983); see 42

U.S.C. 2013(a), (b), and (d). As amended, the Act generally prohibits certain activities absent a license issued

by the Nuclear Regulatory Commission (Commission),

while authorizing the Commission to license such activities as long as they comply with the Commission’s

health, safety, common defense, and security standards.

The Act authorizes the Commission to issue licenses to

possess three types of nuclear material: (1) “source material,” such as natural uranium, 42 U.S.C. 2092; see 42

U.S.C. 2093(a); (2) “special nuclear material,” such as

enriched uranium and plutonium, that can be used to

sustain nuclear fission, 42 U.S.C. 2073(a); and (3) “byproduct material,” which includes other radioactive material produced by nuclear fission, 42 U.S.C. 2111(a). See

42 U.S.C. 2014(e), (z), and (aa) (defining those terms).

Licenses under those three provisions are known as

“materials licenses.”1

Congress has separately authorized the Commission to issue

“facilities licenses,” which are necessary for private entities to own

or operate facilities, including nuclear-power reactors, that produce

or utilize nuclear material. See 42 U.S.C. 2133, 2134.

Once fuel in a nuclear reactor is no longer useful, it

must be removed from the reactor and cooled in a spentfuel pool for as long as five years, after which it can either remain in the pool or be placed into “dry” storage.

Such spent nuclear fuel consists of source material, special nuclear material, and byproduct material. App., infra, 21a; see 10 C.F.R. 72.3. To possess any amount of

spent nuclear fuel, an individual or entity must obtain

from the Commission a materials license to possess

each of its components. The Commission can issue a

single license authorizing the possession of all three

components. See 42 U.S.C. 2201(h).

The Commission is authorized to “establish by rule,

regulation, or order, such standards and instructions to

govern the possession and use of ” those three components “as the Commission may deem necessary or desirable to promote the common defense and security or

to protect health or to minimize danger to life or property.” 42 U.S.C. 2201(b). In the 1970s, the Commission

recognized that the nuclear-power industry would need

more space to temporarily store spent fuel. 45 Fed.

Reg. 74,693, 74,693 (Nov. 12, 1980). In 1980, following

notice-and-comment rulemaking, see ibid., the Commission issued regulations that establish licensing requirements for interim storage of spent fuel, including

“dry” storage as an alternative to pool storage, both at

and away from the site of the nuclear-reactor facility

where the fuel was generated. See 10 C.F.R. Pt. 72; see

also Pacific Gas & Elec. Co., 461 U.S. at 217 (noting

those regulations).

b. Two years later, Congress enacted the Nuclear

Waste Policy Act of 1982 (Policy Act), 42 U.S.C. 10101

et seq. The Policy Act created a program for the federal

government to establish a deep geologic repository to

permanently dispose of spent fuel from commercial nuclear reactors. See 42 U.S.C. 10131-10145. The Policy

Act also directed the Department of Energy to provide

limited interim storage of spent fuel if certain conditions were met. See 42 U.S.C. 10151-10157. The Policy

Act further provided that, “[n]otwithstanding any other

provision of law, nothing in” the Act “shall be construed

to encourage, authorize, or require the private or Federal use, purchase, lease, or other acquisition of any

storage facility located away from the site of any civilian

nuclear power reactor and not owned by the Federal

Government on January 7, 1983.” 42 U.S.C. 10155(h).

The Policy Act did not modify the Atomic Energy Act

provisions that authorized the Commission to license

temporary possession of spent nuclear fuel, nor did it

disturb the Commission’s 1980 regulations.

c. In the four decades since Congress enacted the

Policy Act, the Commission has issued materials licenses for spent-fuel storage installations both at, and

away from, reactor sites. See, e.g., In re General Elec.

Co., 15 N.R.C. 530 (1982) (offsite); 71 Fed. Reg. 10,068

(Feb. 28, 2006) (offsite); 56 Fed. Reg. 57,539 (Nov. 12,

1991) (storage at decommissioning reactor); see also

Nuclear Regulatory Commission, U.S. Independent

Spent Fuel Storage Installations (ISFSI) (Apr. 22, 2021)

(map of spent fuel storage installations), https://www.

nrc.gov/docs/ML2111/ML21116A041.pdf. Temporary

storage of spent fuel remains necessary to facilitate ongoing operation of nuclear reactors and the decommissioning of retired reactors. See, e.g., Energy Nw. v.

United States, 641 F.3d 1300, 1303-1304 (Fed. Cir. 2011)

(storage facility that allowed continued generation of

power); Dairyland Power Coop. v. United States, 645

F.3d 1363, 1367-1368 (Fed. Cir. 2011) (storage facility

necessary to complete decommissioning).

2. When adjudicating a request for a license to store

spent nuclear fuel, “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.” 42

U.S.C. 2239(a)(1)(A). Under the Commission’s regulations, leave to intervene will be granted if a person “provide[s] sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact” and satisfies other requirements. 10

C.F.R. 2.309(f )(1)(vi); see 10 C.F.R. 2.309(a), (d), and (f ).

The regulations contemplate intervention by States. 10

C.F.R. 2.309(h).

3. The Hobbs Act, 28 U.S.C. 2341 et seq., vests the

courts of appeals with exclusive jurisdiction to review

(among other things) any “final order” of the Commission “entered in any proceeding” “granting, suspending, revoking, or amending” a “license.” 42 U.S.C.

2239(a)(1)(A) and (b)(1); see 28 U.S.C. 2342(4). The

Hobbs Act also gives the courts of appeals exclusive jurisdiction to review final orders and rules issued by

many other federal agencies, including the Federal

Communications Commission, the Department of Agriculture, the Department of Transportation, the Federal

Maritime Commission, and the Surface Transportation

Board. 28 U.S.C. 2342.

The Hobbs Act specifies that “[ j]urisdiction is invoked by filing a petition as provided by section 2344 of

this title.” 28 U.S.C. 2342. Section 2344, in turn, provides that “[a]ny party aggrieved by the final order” of

a Hobbs Act agency “may, within 60 days after its entry,

file a petition to review the order” in the court of appeals for “the judicial circuit in which the petitioner resides or has its principal office, or” the D.C. Circuit. 28

U.S.C. 2343, 2344.

B. Factual And Procedural Background

1. a. In 2018, the Commission gave public notice

that Interim Storage Partners (ISP) had applied for a

license to store spent nuclear fuel in Andrews County,

Texas, away from any nuclear reactor. 83 Fed. Reg.

44,070 (Aug. 29, 2018). The notice explained that interested persons could request a hearing and seek leave to

intervene as parties to the proceeding. Id. at 44,071.

Several groups sought to intervene as parties, including respondents Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Owners (collectively, Fasken). See 86 Fed. Reg. 51,926, 51,927

(Sept. 17, 2021). The Commission denied the putative

intervenors’ intervention requests and issued the license in September 2021. Id. at 51,926-51,927; see App.,

infra, 53a-59a; In re Interim Storage Partners LLC, 93

N.R.C. 244 (2021); In re Interim Storage Partners LLC,

92 N.R.C. 463 (2020).

Respondents Texas, Governor Abbott, and the Texas

Commission on Environmental Quality (collectively,

Texas) did not seek to intervene or otherwise formally

participate in the Commission’s adjudication of ISP’s

application. A year and a half after the deadline for

seeking intervention, both Governor Abbott and the

Texas Commission on Environmental Quality commented on the draft Environmental Impact Statement

(EIS) related to ISP’s application. App., infra, 7a-8a;

see 83 Fed. Reg. at 44,071. More than a year after

that—and days before the Commission ultimately issued the license—Governor Abbott sent another letter

to the Commission. App., infra, 8a-9a. None of Texas’s

submissions requested leave to intervene in the agency

proceeding.

b. Three courts of appeals issued decisions related

to ISP’s license. First, some of the putative intervenors,

including Fasken, petitioned in the D.C. Circuit for review of the Commission’s orders denying their requests

to intervene. The D.C. Circuit concluded that the Commission had properly denied the intervention requests.

Don’t Waste Mich. v. U.S. Nuclear Regulatory Commission, No. 21-1048, 2023 WL 395030, at *2-*3 (Jan. 25,

2023) (per curiam). The court also declined to consider a

putative intervenor’s request that the court review the

license itself, concluding that because the Commission

had properly denied leave to intervene, that putative intervenor “d[id] not qualify as a ‘party aggrieved’ ” under

the Hobbs Act. Id. at *3 (citation omitted).

Second, New Mexico petitioned for review in the

Tenth Circuit. Like Texas, New Mexico did not seek to

intervene in the Commission’s adjudication and instead

commented on the draft EIS. State ex rel. Balderas v.

United States Nuclear Regulatory Commission, 59

F.4th 1112, 1116 (10th Cir. 2023). The Tenth Circuit dismissed New Mexico’s petition. Id. at 1116-1124. The

court held that, because New Mexico had “bypassed the

chance to participate as a party in the licensing proceeding,” it “doesn’t qualify as an aggrieved party under the

Hobbs Act.” Id. at 1118. And the court declined to recognize an ultra vires exception to the Hobbs Act’s partyaggrieved limitation on review. Id. at 1123-1124.

Third, respondents petitioned for review of the license in the Fifth Circuit.

2. The Fifth Circuit held that it could review respondents’ challenges to the Commission’s issuance of

the ISP license and that the Commission lacked authority to grant licenses for the temporary offsite storage of

spent nuclear fuel.

a. The Fifth Circuit held that it could consider respondents’ claims. App., infra, 14a-20a. The court discussed whether respondents were “part[ies] aggrieved”

under the Hobbs Act, 28 U.S.C. 2344, but ultimately

“d[id not] * * * resolve” that issue because the Fifth

Circuit had previously recognized an ultra vires exception to that requirement. App., infra, 18a. The court

explained that the Fifth Circuit had identified a “ ‘rare

instance[]’ where a ‘person may appeal an agency action

even if not a party to the original agency proceeding’ ”:

“where ‘the agency action is attacked as exceeding its

power.’ ” Id. at 19a (quoting American Trucking Ass’ns

v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982) (per curiam),

cert. denied, 460 U.S. 1022 (1983), and 469 U.S. 930

(1984)) (brackets omitted). The court held that, under

that exception, it could review respondents’ claim that

the “Commission lacks the statutory authority to license” offsite storage facilities. Id. at 20a. In reaching

that conclusion, the court acknowledged that four other

courts of appeals “have refused to adopt” an ultra vires

exception to the Hobbs Act’s party-aggrieved requirement. Id. at 19a n.3.

b. On the merits, the Fifth Circuit held that the

Commission “has no statutory authority to issue the license.” App., infra, 21a; see id. at 21a-30a. The court

concluded that the three Atomic Energy Act provisions

that the Commission has long invoked in issuing materials licenses, see pp. 2-3, supra, “d[id] not support” licenses like ISP’s. App., infra, 24a; see id. at 21a-25a.

In the court’s view, those provisions “authorize[] the

Commission to issue such licenses only for certain enumerated purposes—none of which encompass storage

or disposal of ” spent nuclear fuel. Id. at 22a. The court

rejected as “unpersuasive” decisions from two other

courts of appeals holding that the Atomic Energy Act

authorized the Commission to issue licenses for offsite

storage of spent fuel. Id. at 24a; see id. at 24a-25a.

The Fifth Circuit further held that the Commission’s

issuance of offsite storage licenses “cannot be reconciled with” the Policy Act. App., infra, 25a; see id. at

25a-29a. The court noted that the Act requires the government to pursue a permanent repository to dispose of

spent nuclear fuel and authorizes limited interim storage of spent fuel under certain conditions. Id. at 26a28a. In the court’s view, given the “Congressional policy expressed in” the Policy Act and the “historical context surrounding ” it, the Act “plainly contemplates that,

until there’s a permanent repository, spent nuclear fuel

is to be stored onsite at-the-reactor or in a federal

facility.” Id. at 21a, 29a. The court found the statutory

scheme “unambiguous,” id. at 29a, and held that the

Commission’s interpretation would not be entitled to

deference in any event because “[w]hat to do with the

nation’s ever-growing accumulation of nuclear waste is

a major question that * * * has been hotly politically

contested for over half a century,” id. at 29a-30a.

3. The Fifth Circuit denied the government’s petition for rehearing en banc by a 9-7 vote. App., infra,

31a-32a.

Judge Jones, joined by five other judges, concurred

in the denial of rehearing en banc. App., infra, 33a-44a.

Opining on the question the panel had declined to reach,

she first concluded that respondents had sufficiently

“ ‘participated’ in the proceeding” to be parties aggrieved under the Hobbs Act. Id. at 37a. She recognized, however, that this conclusion was at odds with decisions from the D.C. and Tenth Circuits. Id. at 38a &

n.2. She also reiterated the panel’s conclusion that the

ultra vires exception would apply if respondents were

not parties to the Commission proceeding. Id. at 40a44a.

Judge Higginson, joined by three other judges, dissented from the denial of rehearing en banc. App., infra,

45a-52a. He criticized the panel for “threatening to create” a circuit split with “new, troubling dicta” that suggested that respondents were “ ‘part[ies] aggrieved’ ”;

“ignor[ing]” the party-aggrieved “limitation” in the

Hobbs Act; and “deepening” the ultra vires “circuit split

that arose from [the Fifth Circuit’s] atextual dicta in a

footnote over forty years ago.” Id. at 45a (citation omitted). He emphasized that the panel’s invocation of the

ultra vires exception “has grave consequences for regulated entities’ settled expectations and careful investments in costly, time-consuming agency proceedings,

inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this uncertainty.” Ibid.

REASONS FOR GRANTING THE PETITION

The Fifth Circuit has long been an outlier in embracing a judge-made ultra vires exception to the Hobbs

Act’s requirement that only a “party aggrieved” may

file a petition for review. That exception contradicts the

Hobbs Act’s plain text and upends procedural norms

that permit only a party to an adjudication to obtain further review.

The Fifth Circuit’s merits holding also conflicts with

decisions of other courts of appeals. As the D.C. and

Tenth Circuits have correctly concluded, the Atomic

Energy Act authorizes the Commission to license temporary offsite storage of spent nuclear fuel, and the Policy Act does not repeal or restrict that authority. In

reaching a contrary conclusion, the Fifth Circuit disturbed the Commission’s authority to safely regulate

nuclear materials by issuing such licenses—an authority that the Commission has exercised for more than 40

years. The Court should grant the petition for a writ of

certiorari and vacate or reverse.

A. The Fifth Circuit’s Decision Is Wrong

The Fifth Circuit erred in holding that a judge-made

ultra vires exception permitted it to review claims

raised by persons who were not parties to the agency

adjudication. And the court erred again when it held

that the Commission lacked statutory authority to license offsite storage of spent nuclear fuel.

The Hobbs Act is not subject to an ultra vires exception

a. In the Hobbs Act, Congress granted the courts of

appeals exclusive jurisdiction to review certain final orders of specified agencies, including the Commission.

28 U.S.C. 2342. Congress directed that this “[ j]urisdiction is invoked by filing a petition as provided by” Section 2344. Ibid. Section 2344 in turn provides that “[a]ny

party aggrieved by the final order may, within 60 days,”

“file a petition to review the order,” 28 U.S.C. 2344, in a

court of appeals in which venue lies, see 28 U.S.C. 2343.

If an agency denies a person’s request to become a

“party,” that denial of party status is itself a final order

that can be reviewed in the courts of appeals. See 42

U.S.C. 2239(a)(1)(A) and (b)(1).

By allowing only a “party aggrieved” to file a petition

for review, Congress required the person seeking review to be a recognized party to the underlying agency

proceeding. 28 U.S.C. 2344 (emphasis added). The

term “party” “has a precise meaning in legal parlance”

and generally means “he or they by or against whom a

suit is brought.” Black’s Law Dictionary 1278 (4th ed.

1951) (capitalization and emphasis omitted). “[A]ll others who may be affected by the suit, indirectly or consequentially, are persons interested, but not parties.”

Ibid.; see ibid. (defining “[p]arty aggrieved” as “one

whose right has been directly and injuriously affected

by action of court”) (emphasis omitted); The Random

House Dictionary of the English Language 1052-1053

(1967) (defining “party” as “one of the litigants in a legal

proceeding; a plaintiff or defendant in a suit”) (emphasis omitted).

Other federal statutory provisions, in contrast, use

broader language to identify the set of individuals or entities who may obtain judicial review. Under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,

5 U.S.C. 701 et seq., for example, “[a] person” who is

“adversely affected or aggrieved” by agency action may

obtain judicial review. 5 U.S.C. 702. “To give meaning

to that apparently intentional variation” between the

Hobbs Act and the APA—which was enacted four years

earlier—the term “party” in the Hobbs Act must be understood “as referring to a party before the agency, not

a party to the judicial proceeding.” Simmons v. ICC,

716 F.2d 40, 43 (D.C. Cir. 1983) (Scalia, J.). The courts

of appeals (including the Fifth Circuit) have accordingly

concluded that, because the Hobbs Act uses “the term

‘party aggrieved’ ” “ ‘in a definitive sense,’ ” it “ ‘limits

the right of appeal to those who actually participated in

the agency proceeding.’ ” Baros v. Texas Mexican Ry.

Co., 400 F.3d 228, 238 (5th Cir. 2005) (citation omitted);

see, e.g., In re Chicago, Milwaukee, St. Paul & Pacific

R.R., 799 F.2d 317, 335 (7th Cir. 1986), cert. denied, 481

U.S. 1068 (1987).

Section 2348 reinforces that understanding. Section

2348 states that “any part[ies] in interest in the proceeding before the agency whose interests will be affected * * * may appear as parties [to the judicialreview proceedings] of their own motion and as of

right.” 28 U.S.C. 2348. By contrast, other entities

“whose interests are affected by the order of the

agency[] may intervene in any proceeding to review the

order.” Ibid. That distinction “would be defeated if [a]

nonparty” to an agency proceeding “could file its own

petition for review as a matter of right.” Alabama

Power Co. v. FCC, 311 F.3d 1357, 1366 (11th Cir. 2002),

cert. denied, 540 U.S. 937 (2003).

Although the Hobbs Act covers many agencies, the

Atomic Energy Act provides additional evidence that

only a “party” to the agency proceeding may seek judicial review of Commission orders. The Hobbs Act authorizes review of “all final orders” of the Commission

that are “made reviewable by section 2239 of title 42,” a

provision of the Atomic Energy Act. 28 U.S.C. 2342(4).

Section 2239 makes reviewable final orders entered in

licensing proceedings, see 42 U.S.C. 2239(b)(1), and

states that 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,” 42 U.S.C.

2239(a)(1)(A). The Atomic Energy Act itself thus distinguishes a “person” from a “party.”

None of the respondents in this case was admitted as

a party to the Commission’s licensing proceeding.

Texas never sought to intervene, even though the Commission’s regulations expressly contemplate intervention by States. See 10 C.F.R. 2.309(h). Fasken sought

to intervene; the Commission denied that request; and

when Fasken and other putative intervenors challenged

that order in the D.C. Circuit, that court upheld the

Commission’s denial. Don’t Waste Mich. v. U.S. Nuclear Regulatory Commission, No. 21-1048, 2023 WL

395030, at *2-*3 (Jan. 25, 2023) (per curiam). Because

respondents were not “part[ies] aggrieved” in the

agency adjudication, the Hobbs Act did not authorize

the Fifth Circuit to review their challenges to ISP’s license. 28 U.S.C. 2344; cf. Federal Maritime Comm’n v.

South Carolina State Ports Auth., 535 U.S. 743, 762

(2002) (“[I]f a party fails to appear before the [agency],

it may not then argue the merits of its position in an

appeal” under the Hobbs Act.).

b. i. Instead of enforcing the statutory limits on

court of appeals review, the Fifth Circuit addressed the

merits of respondents’ claims based on a judge-made ultra vires exception. By allowing review of petitions filed

by persons that were not parties to an agency’s proceeding, the court disregarded the Hobbs Act’s plain text.

See pp. 11-13, supra. Litigants cannot evade the Hobbs

Act’s limits on court of appeals review by asking a district court to enjoin allegedly ultra vires agency action.

FCC v. ITT World Commc’ns, Inc., 466 U.S. 463, 468469 (1984). The ultra vires exception endorsed by the

Fifth Circuit is even more clearly inconsistent with the

Hobbs Act’s review scheme because it allows nonparties

to agency adjudications to invoke a review provision

that is expressly limited to “part[ies].” 28 U.S.C. 2344.

The Fifth Circuit’s ultra vires exception suffers from

additional flaws. First, under an expansive conception of

what constitutes ultra vires agency action, the “party”

requirement would impose no practical limit on the

availability of judicial review. “ ‘[E]xceeding the power’

of the agency may be a synonym for ‘wrong,’ so that the

statute then precludes review only when there is no reason for review anyway.” Chicago, 799 F.2d at 335.

Second, to prevent the ultra vires exception from

swallowing the rule that only “part[ies]” to agency proceedings may seek judicial review under the Hobbs Act,

courts would be required to draw highly malleable distinctions between action in excess of an agency’s authority and an agency’s unlawful exercise of the authority it actually possesses. See App., infra, 51a-52a (Higginson, J., dissenting). Respondents’ claims, for example, could be framed either as an assertion that the

Commission exercised a power it purportedly does not

have (i.e., the power to license offsite storage of spent

fuel) or as an assertion that it has unlawfully exercised

a power that it does have (i.e., the power to license private entities to take possession of spent fuel in some circumstances, including for storage at the site of a reactor). A court of appeals’ ability to review a claim should

not depend on such distinctions. See City of Arlington

v. FCC, 569 U.S. 290, 300 (2013) (explaining that nothing

of substance should turn on whether a particular challenge was “framed as going to the scope of the [agency’s]

delegated authority or [its] application of its delegated

authority”) (emphases omitted).

Third, the Fifth Circuit’s approach is untethered to

the norms that govern litigation in court. A Commission

licensing proceeding is an adjudication involving the

agency and a party seeking a license. By intervening in

the Commission proceeding, other persons may become

parties to the licensing adjudication and thereby obtain

the right to seek review of an adverse agency order.

Nonparties to an agency adjudication, however, can

no more obtain Hobbs Act review than a nonparty to a

district-court case could appeal to a court of appeals.

See Chicago, 799 F.2d at 335 (“If a non-party tried to

appeal from a judgment of a district court, [the court of

appeals] would dismiss the appeal no matter how much

in ‘excess of power’ the decision might be. * * * So it is

with review of administrative action.”) (citation omitted).

ii. The Fifth Circuit has never articulated a principled rationale for its ultra vires exception. The court

did not do so here, but merely cited two prior decisions

in which the Fifth Circuit had “recognize[d] an ultra

vires exception to the party-aggrieved status requirement.” App., infra, 18a; see id. at 18a-20a. Neither of

those decisions provides any justification for overriding

the Hobbs Act’s plain text.

In American Trucking Associations v. ICC, 673 F.2d

82 (1982) (per curiam), cert. denied, 460 U.S. 1022 (1983),

and 469 U.S. 930 (1984), the Fifth Circuit first recognized the exception in dicta in a footnote that offered no

rationale. The court merely stated that “[a]n appeal is

allowed if the agency action is ‘attacked as exceeding

the power of the’ ” Interstate Commerce Commission

(ICC). Id. at 85 n.4 (citation omitted). Two years later,

in Wales Transportation, Inc. v. ICC, 728 F.2d 774 (5th

Cir. 1984), the court summarily noted that the exception

existed before relying on it to review claims brought by

nonparties. Id. at 776 n.1. Both decisions cited ICC

cases decided before Congress brought judicial review

of ICC orders within the Hobbs Act’s ambit. See American Trucking, 673 F.2d at 85 n.4; Wales Transp., 728

F.2d at 776 n.1; App., infra, 49a-50a (Higginson, J., dissenting); see also Act of Jan. 2, 1975, Pub. L. No. 93-584,

§§ 3-5, 88 Stat. 1917. Even if the “other procedures”

that previously governed judicial review of ICC orders

allowed “non-parties” to sue, “there is no compelling

support for the proposition that, despite the plain statutory language to the contrary” in the Hobbs Act, “such

petitions remain valid today.” Erie-Niagara Rail Steering Comm’n v. Surface Transp. Bd., 167 F.3d 111, 112

(2d Cir. 1999) (per curiam).

In her opinion concurring in the denial of rehearing

en banc in this case, Judge Jones suggested that this

Court’s decision in Leedom v. Kyne, 358 U.S. 184 (1958),

supports the Fifth Circuit’s ultra vires exception. App.,

infra, 42a & n.6. But this Court has found Kyne inapplicable when (1) the relevant statute provides a “meaningful and adequate opportunity for judicial review”

for those who have “statutory rights,” and (2) there is

“clarity” regarding “the congressional preclusion of review.” Board of Governors of the Fed. Reserve Sys.

v. MCorp Fin., Inc., 502 U.S. 32, 43-44 (1991). Here,

those with “statutory rights”—parties to Commission

proceedings—have a right to review under the Hobbs

Act, including of claims that agency action exceeds statutory authority. Id. at 43; see Huawei Techs. USA, Inc.

v. FCC, 2 F.4th 421, 435-447 (5th Cir. 2021) (Hobbs Act

decision addressing a claim that the challenged action exceeded the agency’s statutory authority). Texas could

have obtained such statutory rights by intervening in

the agency adjudication, but it never attempted to do so.

When Fasken asserted a statutory right to intervene

and the agency denied its intervention motion, the D.C.

Circuit reviewed that assertion and concluded that

Fasken and the other putative intervenors lacked a

right to intervene. Don’t Waste Mich., 2023 WL 395030,

at *2-*3.

c. The Fifth Circuit panel also speculated that respondents might qualify as “parties” under the Hobbs

Act because they had “participated in the agency proceeding” by “comment[ing]” on the Commission’s draft

EIS, and because Fasken had “attempted to intervene”

in the adjudication. App., infra, 15a; see id. at 15a-18a.

But neither of those steps could confer party status. In

accordance with its usual meaning, the Hobbs Act term

“party” refers to someone who has been admitted to the

agency proceeding. See pp. 11-13, supra. For Commission adjudications like this one, treating all forms of

participation (including the mere submission of comments or letters, or unsuccessful attempts to intervene)

as conferring party status to challenge the licensing decision would conflict with the text of the Hobbs Act and

with legal norms that govern adjudications generally—

which distinguish between parties (including intervenors) and amici. Cf. United States ex rel. Eisenstein v.

City of New York, 556 U.S. 928, 933 (2009) (“[I]ntervention is the requisite method for a nonparty to become a

party to a lawsuit.”).

The Atomic Energy Act delineates the “process by

which the Commission could make a ‘person’ a ‘party’ in

the licensing proceeding context.” App., infra, 48a (Higginson, J., dissenting) (quoting 42 U.S.C. 2239(a)(1)(A));

see p. 5, supra. When the Commission declines to “admit” a “person as a party to such proceeding,” 42 U.S.C.

2239(a)(1)(A), that person may obtain judicial review of

the order denying intervention, and the Commission

may be required to reopen its proceeding and allow the

person full party participation if the reviewing court

holds that intervention was improperly denied. Other

courts of appeals have accordingly rejected arguments

that comments on a draft EIS or similar actions are sufficient to confer party status under the Hobbs Act. See

State ex rel. Balderas v. United States Nuclear Regulatory Commission, 59 F.4th 1112, 1117-1119 (10th Cir.

2023); Ohio Nuclear-Free Network v. U.S. Nuclear

Regulatory Commission, 53 F.4th 236, 238-240 (D.C.

Cir. 2022).2

2. The Commission has statutory authority to license

temporary offsite storage of spent nuclear fuel

The Fifth Circuit held that the Atomic Energy Act

does not authorize the Commission to license temporary

offsite storage of spent nuclear fuel, and that the Policy

Act separately bars such licenses. App., infra, 21a-30a.

In reaching those conclusions, the court misinterpreted

both statutes, misapplied the major-questions doctrine,

and upended more than 40 years of agency practice.

a. i. The Atomic Energy Act’s plain text authorizes

the Commission to issue materials licenses to private

The Hobbs Act also applies to some agency rulemakings. App.,

infra, 37a (Jones, J., concurring). Submitting a comment to an

agency may be enough to make a person a “party” to an informal

rulemaking. See Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1192

(D.C. Cir. 1987) (The “degree of participation necessary to achieve

party status varies according to the formality with which the proceeding was conducted.”). But the prerequisites to party status in

rulemakings are not at issue here. Consistent with the APA, with

which the Commission must comply when taking action, see 42

U.S.C. 2231, the Commission considers nuclear materials licenses

by adjudication, see 5 U.S.C. 551(4)-(9). And the Commission has

established procedures for licensing adjudications that allow persons to request and obtain party status and present their concerns

in evidentiary hearings. See p. 5, supra.

entities to temporarily store spent fuel away from nuclear reactors. The Act gives the Commission “exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials.” Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 207 (1983).

And “a primary purpose of ” the Act “was, and continues

to be, the promotion of nuclear power.” Id. at 221. The

Act’s stated “purpose[s]” include “providing for” “a program to encourage widespread participation in the development and utilization of atomic energy for peaceful

purposes to the maximum extent consistent with the

common defense and security and with the health and

safety of the public.” 42 U.S.C. 2013(d); see 42 U.S.C.

2011. Congress charged the Commission with ensuring

that those activities would be conducted in a safe and

secure manner. See 42 U.S.C. 2201(b).

The Atomic Energy Act authorizes the Commission

to issue materials licenses when the agency determines

that possessing the materials will advance the Act’s purposes. The Act creates a “comprehensive regulatory

scheme” that covers “the production, possession, and

use of ” “source material, special nuclear material, and

byproduct material.” Train v. Colorado Pub. Interest

Research Grp., Inc., 426 U.S. 1, 5-6 (1976). Because

spent nuclear fuel contains each of those substances, a

private party that wishes to possess spent fuel must obtain a materials license covering all three. See pp. 2-3,

supra.

The three Atomic Energy Act provisions that authorize the storage of source material, special nuclear

material, and byproduct material plainly allow the Commission to grant licenses for offsite storage of spent nu-

clear fuel. The Commission is authorized to issue licenses to possess source material for a number of enumerated uses and “for any other use approved by the

Commission as an aid to science or industry.” 42 U.S.C.

2093(a)(4). The Commission likewise can license possession of special nuclear material “for such other uses

as [it] determines to be appropriate to carry out the purposes” of the Act. 42 U.S.C. 2073(a)(4). And the Commission can issue licenses to those “seeking to use byproduct material for” “industrial uses” “or such other

useful applications as may be developed.” 42 U.S.C.

2111(a). The Act’s plain language therefore clearly empowers the agency to license possession of the three

components of spent nuclear fuel for purposes connected to generating nuclear power—which include interim storage of spent fuel.

Those provisions impose no geographic restrictions.

Rather, they expressly contemplate Commission licenses under which the materials will move between locations or change hands. The Commission “is authorized” “to issue licenses to transfer or receive in interstate commerce” special nuclear material. 42 U.S.C.

2073(a) (emphasis added). Similar language appears in

connection with the other materials-licensing provisions. See 42 U.S.C. 2092 (“Unless authorized by a general or specific license[,]” “no person may transfer or

receive in interstate commerce, transfer, deliver, receive possession of or title to” “any source material.”);

42 U.S.C. 2111(a) (“No person may transfer or receive

in interstate commerce” “any byproduct material, except to the extent authorized by this section.”). Congress

thus affirmatively contemplated broad geographic movement of those materials.

The Commission’s longstanding regulatory practice

reinforces that understanding. In 1980, the Commission invoked the statutory provisions just discussed—

Sections 2073, 2093, 2111, and 2201(b)—in promulgating regulations that established a formal process for licensing temporary storage of spent fuel, both at and

away from nuclear reactors. 45 Fed. Reg. at 74,699; see

10 C.F.R. Pt. 72. The Commission emphasized that it

was establishing regulatory requirements only for

“temporary storage,” which it defined as “ ‘interim storage of spent fuel for a limited time only, pending its ultimate disposal.’ ” 45 Fed. Reg. at 74,694. And in response to comments, the Commission noted that, because it saw no “compelling reasons generally favoring

either at-reactor or away-from-reactor siting of ” spentfuel storage, the regulations “permit[ted] either.” Id.

at 74,696; see id. at 74,698. Since issuing those regulations, the Commission has repeatedly licensed offsite

storage facilities for spent nuclear fuel. See p. 4, supra.

ii. The Fifth Circuit’s contrary reading of the

Atomic Energy Act, App., infra, 21a-25a, is inconsistent

with the Act’s text and context.

The Fifth Circuit found that Sections 2073(a)(4) and

2093(a)(4) were limited by the “more specific purposes

listed” in Sections 2073(a)(1) and (2) and 2093(a)(1) and

(2), which refer to “certain types of research and development.” App., infra, 22a. But limiting the (a)(4) subsections to the specific “types of research and development” listed in preceding subsections, ibid., would deprive the (a)(4) provisions of any independent practical

effect. Courts should have “a deep reluctance to interpret a statutory provision so as to render superfluous

other provisions in the same enactment.” Freytag v.

Commissioner, 501 U.S. 868, 877 (1991) (citation omitted); see ibid. (finding that “[t]he scope of [one] subsection” must be read to be “greater than” that of the remaining subsections).

The Fifth Circuit also misread Section 2111(a). Rather than give meaning to Section 2111(a)’s plain text—

which authorizes the Commission to license possession

of byproduct materials for industrial purposes and

other useful applications—the Fifth Circuit focused on

Sections 2111(b) and (c), which address disposal of lowlevel radioactive waste. App., infra, 23a-24a; see 42

U.S.C. 2111. The court appears to have concluded that

subsection (a) cannot be read to allow storage of spent

nuclear fuel because subsections (b) and (c) address

low-level radioactive waste, which “emit[s] radiation for

significantly less time than spent nuclear fuel.” App.,

infra, 23a. But the limits on disposal in subsections (b)

and (c) are irrelevant to the Commission’s subsection (a)

authority to license the possession and use of byproduct

material more broadly.

The Fifth Circuit therefore identified no sound basis

for its cramped reading of the Atomic Energy Act. The

Act’s plain language ties possession of materials to uses

that advance the Act’s statutory purposes—including

the central purpose of facilitating the generation of nuclear power. That would be impossible without storage

of spent nuclear fuel, and nothing in the Act limits storage (or possession more generally) of nuclear materials

to a specific location.

b. i. The Policy Act neither repealed nor limited the

Commission’s preexisting Atomic Energy Act authority

to license private offsite storage of spent nuclear fuel.

The Policy Act focuses primarily on federal programs

for storage and disposal. It established federal responsibility and a comprehensive framework for the siting,

construction, and operation of a deep geologic repository for the permanent disposal of spent fuel and highlevel radioactive waste. See 42 U.S.C. 10131-10145. It

also authorized the Department of Energy, before January 1990, to provide limited interim storage of spent

fuel if certain conditions were satisfied. See 42 U.S.C.

10151-10157. Because those conditions were not met,

no such capacity was provided. And the Act authorized

the federal government to build monitored retrievable

storage, the construction and capacity of which were

linked to progress on a repository. See 42 U.S.C. 1016110169.

The Act also noted Congress’s policy goal that, because of the limited capacity of the federal interimstorage programs, spent fuel should be stored in existing storage already available at reactor sites whenever

practical. For example, Congress made a “find[ing]

that” nuclear-power reactor owners and operators have

“the primary responsibility for providing interim storage of spent nuclear fuel from such reactors, by maximizing, to the extent practical, the effective use of existing

storage facilities at the site of each civilian nuclear

power reactor, and by adding new onsite storage capacity in a timely manner where practical.” 42 U.S.C.

10151(a)(1) (emphases added); see 42 U.S.C. 10152 (directing the government to encourage onsite storage if

“consistent with” certain factors). That congressional

finding does not prevent the Commission from licensing

offsite storage facilities. To the contrary, while those

provisions encourage the use of onsite facilities, their

language assumes that such facilities will not always be

practical.

“Congress legislates against the backdrop of existing law,” Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881, 1890 (2019) (citation omitted), and is

“ ‘presum[ed]’ ” not to “repeal[]” a statute “by implication,” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018)

(citation omitted). Nothing in the Policy Act’s text cuts

back on the Atomic Energy Act provisions that authorize the Commission to license offsite storage of spent

fuel. Although “Congress was aware” that the Commission had interpreted the Atomic Energy Act to authorize the licensing of offsite and onsite storage of spent

fuel, the Policy Act “left untouched” that preexisting authority. Bullcreek v. Nuclear Regulatory Commission,

359 F.3d 536, 542 (D.C. Cir. 2004). Such “congressional

failure to revise or repeal the agency’s interpretation is

persuasive evidence that the interpretation is the one

intended by Congress.” Commodity Futures Trading

Comm’n v. Schor, 478 U.S. 833, 846 (1986) (citation

omitted).

Section 10155(h) of the Policy Act is consistent with

that understanding. That section provides that, “[n]otwithstanding any other provision of law, nothing in” the

Policy Act “shall be construed to encourage, authorize,

or require the private or Federal use, purchase, lease,

or other acquisition of any storage facility located away

from the site of any civilian nuclear power reactor and

not owned by the Federal Government on January 7,

1983.” 42 U.S.C. 10155(h). In disclaiming any implication that the Policy Act “encourage[d]” or “require[d]”

offsite storage, ibid., Congress did not prohibit or restrict such storage, but simply left in place the Commission’s pre-existing licensing authority under the Atomic

Energy Act.

ii. The Fifth Circuit identified no Policy Act provision that bars the Commission from licensing offsite

storage of spent fuel. App., infra, 25a-29a. Instead, the

court relied on what it perceived to be the “Congressional policy expressed in” and the “historical context

surrounding” the Policy Act. Id. at 21a. Based on its

vague notions of the Act’s purposes, the court concluded

that the Act creates a “comprehensive statutory scheme

for addressing spent nuclear fuel accumulation” and

“contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-thereactor or in a federal facility.” Id. at 29a.

The Fifth Circuit’s approach to statutory interpretation is fundamentally flawed. “As this Court has repeatedly stated, the text of a law controls over purported

legislative intentions unmoored from any statutory text.”

Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022).

To be sure, congressional policy judgments reflected in

the text of an enacted law may help to clarify particular

ambiguous provisions of that law. But absent any specific Policy Act provision that could reasonably be construed to prohibit offsite storage of spent nuclear fuel—

and the court identified none—the court’s sense of general congressional policy provided no sound basis for

reading such a prohibition into the Act.

c. The Fifth Circuit also misapplied the majorquestions doctrine. That doctrine applies only when an

agency claims an “[e]xtraordinary grant[] of regulatory

authority” based on “ ‘modest words,’ ‘vague terms,’ or

‘subtle devices,’ ” and the “ ‘history and the breadth’ ” of

that asserted power provide “ ‘reason to hesitate before

concluding that Congress’ meant to confer such authority.” West Virginia v. EPA, 597 U.S. 697, 721, 723

(2022) (brackets and citations omitted). The storage of

spent nuclear fuel lies at the heart of the Commission’s

expertise and congressionally assigned role, and the

Commission has unquestioned power to issue licenses

for temporary storage of spent fuel at the site of a

nuclear reactor. In issuing licenses for interim offsite

storage as well, the Commission has not claimed an

“[e]xtraordinary grant[] of regulatory authority.” Id. at

723. That is particularly so because the Commission has

issued such licenses for more than 40 years, and two

courts of appeals upheld its exercise of that authority 20

years ago. See p. 30, infra.

The Fifth Circuit stated that “[w]hat to do with the

nation’s ever-growing accumulation of nuclear waste is

a major question that * * * has been hotly politically

contested for over a half century. ” App., infra, 29a30a. But the Commission has not claimed authority to

fashion appropriate arrangements for permanent

“[d]isposal,” id. at 29a, of the Nation’s nuclear waste.

Rather, this case presents only the question whether, in

authorizing temporary storage of spent fuel pending

the creation of a permanent repository, the Commission

may license offsite as well as onsite storage. That issue

has none of the hallmarks of a “major question.” And

even assuming that temporary storage of nuclear fuel

has important economic and political consequences, this

Court has never held that the major-questions doctrine

is implicated whenever a case is of some importance.

B. The Decision Below Implicates Two Acknowledged Circuit Conflicts And Warrants Further Review

The Fifth Circuit’s decision reinforces a circuit split

on the availability of an ultra vires exception to the

Hobbs Act, and it creates a new circuit split on the Commission’s authority to license temporary offsite storage

of spent nuclear fuel. Both questions are recurring, and

the Fifth Circuit’s resolution of those issues is likely to

have wide-ranging effects. Indeed, since the panel’s decision in this case, another Fifth Circuit panel has invoked the ultra vires exception to review and declare

invalid a Commission license for another temporary

offsite spent fuel facility. See Fasken Land & Minerals, Ltd. v. Nuclear Regulatory Commission, No. 2360377 (Mar. 27, 2024). And because the en banc court

denied the government’s request to correct its errors,

the court’s outlier views will remain binding in the Fifth

Circuit unless this Court intervenes.

1. a. Four courts of appeals have squarely rejected—

and no other court of appeals has embraced —the view

that a nonparty to an agency adjudication may seek

Hobbs Act review of an allegedly ultra vires agency order. App., infra, 19a n.3. Indeed, in dismissing a petition for review filed by New Mexico, the Tenth Circuit

recently considered the same Commission action (the

issuance of ISP’s license) and addressed the same reviewability question, but reached a conclusion contrary

to the Fifth Circuit’s. Balderas, 59 F.4th at 1123-1124.

The Tenth Circuit emphasized that “New Mexico could

have obtained judicial review” by “participating in the

[licensing] proceeding[]”; found that submitting comments on the draft EIS was insufficient to make New

Mexico a “party”; and declined to recognize an ultra

vires exception to the Hobbs Act’s rule that only “parties” to the agency proceeding may obtain judicial review. Ibid.; see id. at 1117-1119.

The Second Circuit has likewise rejected the ultra

vires exception, criticizing the Fifth Circuit’s decisions

as “[un]persuasive” and concluding that no exception is

permitted under the “plain meaning” of the Hobbs Act’s

“text.” Erie-Niagara Rail Steering Comm’n, 167 F.3d

at 112. The Seventh Circuit has made clear “that nonparties may not seek judicial review in the courts of appeals under the Hobbs Act,” finding the Fifth Circuit’s

ultra vires exception “dubious for several reasons.”

Chicago, 799 F.2d at 335; see pp. 15-16, supra (discussing some of the Seventh Circuit’s rationales for rejecting the exception). And the Eleventh Circuit has declined to adopt the Fifth Circuit’s exception, concluding

that persons who “were never parties to” the relevant

agency proceeding could not petition for review. National Ass’n of State Util. Consumer Advocates v. FCC,

457 F.3d 1238, 1249-1250 (11th Cir. 2006) (citation omitted), modified in part not relevant, 468 F.3d 1272 (11th

Cir. 2006), cert. denied, 552 U.S. 1165 (2008).

In the face of consistent criticism from other courts

of appeals, the Fifth Circuit breathed new life into its

ultra vires exception by applying it for the first time

since 1984. See Wales Transp., 728 F.2d at 776 n.1. It

then doubled down on that obvious mistake by denying

en banc review in this case. Rules governing a court’s

authority to adjudicate a case should be clear and consistent, but the decision below throws the Hobbs Act’s

review scheme into disarray.

b. The Fifth Circuit’s reinvigoration of the ultra vires

exception also will have significant consequences. The

court’s decision inflicts serious harms on Hobbs Act

agencies and those who appear before them. Among

other problems, the ultra vires exception deprives agencies of the ability to respond to arguments in the first

instance as part of agency adjudications. It thereby encourages litigants to skip the administrative proceeding

and then ambush the agency by calling its authority into

question once that proceeding is over. By allowing such

belated challenges, the exception “has grave consequences for regulated entities’ settled expectations and

careful investments in costly, time-consuming agency

proceedings.” App., infra, 45a (Higginson, J., dissenting). And because the Hobbs Act covers numerous

agencies, the court’s decision threatens “a wide range

of industries—including agriculture, transportation,

development, and communications,” ibid., as well as nuclear energy.

2. a. The Fifth Circuit’s holding that the Commission lacks statutory authority to license temporary

offsite storage of spent nuclear fuel conflicts with decisions of the D.C. and Tenth Circuits. See App., infra,

24a-25a (noting those decisions but declining to follow

them). In Bullcreek, the D.C. Circuit concluded that the

Atomic Energy Act “authorized” the Commission to license offsite storage of spent fuel, and that the Policy

Act did not “repeal or supersede” that authority. 359

F.3d at 542. The Tenth Circuit likewise agreed that the

Atomic Energy Act “authorizes the [Commission] to license privately-owned, away-from-reactor storage facilities,” and that the Policy Act did not restrict the

agency’s exercise of that power. Skull Valley Band of

Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (2004),

cert. denied, 546 U.S. 1060 (2005).

b. In 2023, 18.6% of electricity generated in the

United States came from nuclear power, a low cost, reliable, clean source of energy. U.S. Energy Info. Admin., U.S. Dep’t of Energy, Frequently Asked Questions

(FAQs): What is U.S. electricity generation by energy

source?, https://perma.cc/7XEC-DY3N (Feb. 29, 2024).

The court below eliminated a private, market-based solution for safely and temporarily storing spent nuclear

fuel until a permanent repository is available for disposal. Prohibiting offsite storage also limits the options

for nuclear-reactor owners and operators that wish to

decommission existing plants.

The Fifth Circuit’s novel limits on the Commission’s

licensing authority will have serious repercussions for

the Commission and the nuclear-power industry. The

court’s decision upends the Commission’s 44-year-old

regulatory framework for licensing storage of spent

fuel. And it disrupts the nuclear-power industry by categorically prohibiting the Commission from approving

offsite storage of spent fuel, despite the agency’s

longstanding issuance of such licenses. This Court’s review is warranted to prevent those serious and legally

unjustified consequences.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

BROOKE P. CLARK

General Counsel

ANDREW P. AVERBACH

Solicitor

U.S. Nuclear Regulatory

Commission

JUNE 2024

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

NICOLE FRAZER REAVES

Assistant to the Solicitor

General

JENNIFER S. NEUMANN

MICHAEL T. GRAY

JUSTIN D. HEMINGER

Attorneys

APPENDIX

TABLE OF CONTENTS

Page

Appendix A

—

Appendix B

—

Appendix C

—

Appendix D —

Court of appeals opinion

(Aug. 25, 2023) ......................................... 1a

Court of appeals opinion on petition

for rehearing en banc

(Mar. 14, 2024) ....................................... 31a

Interim Storage Partners license for

independent storage of spent nuclear

fuel and high-level radioactive waste

(Sept. 13, 2021) ...................................... 53a

Statutory and regulatory provisions:

28 U.S.C. 2343 ....................................... 60a

28 U.S.C. 2344........................................ 60a

28 U.S.C. 2348 ........................................ 61a

42 U.S.C. 2073 ........................................ 61a

42 U.S.C. 2092 ........................................ 67a

42 U.S.C. 2093 ........................................ 67a

42 U.S.C. 2111 ........................................ 69a

42 U.S.C. 2239(a)(1)(A) and (b) ............ 71a

42 U.S.C. 10151 ...................................... 73a

42 U.S.C. 10155(a) and (h) .................... 74a

10 C.F.R. 2.309 (a)-(f ), (h)..................... 77a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-60743

STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE

STATE OF TEXAS; TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY; FASKEN LAND AND

MINERALS, LIMITED; PERMIAN BASIN LAND AND

ROYALTY OWNERS, PETITIONERS

NUCLEAR REGULATORY COMMISSION;

UNITED STATES OF AMERICA, RESPONDENTS

Filed:

Aug. 25, 2023

Appeal from the Nuclear Regulatory Commission

Agency No. 72-1050

Before JONES, HO, and WILSON, Circuit Judges.

JAMES C. HO, Circuit Judge:

Nuclear power generation produces thousands of

metric tons of nuclear waste each year. And such

waste has been accumulating at nuclear power plants

throughout the United States for decades. Congress

has mandated that such waste be permanently stored in

a geologic repository. But the development, licensing,

and construction of that repository has stalled.

To address this problem, the Nuclear Regulatory

Commission has asserted that it has authority under the

(1a)

Atomic Energy Act to license temporary, away-fromreactor storage facilities for spent nuclear fuel. Based

on that claim of authority, the Commission has issued a

license for Interim Storage Partners, LLC, a private

company, to operate a temporary storage facility on the

Permian Basin, in Andrews County, Texas. Fasken

Land and Minerals, Ltd., a for-profit organization working in oil and gas extraction, and Permian Basin Land

and Royalty Owners (‘‘PBLRO’’), an association seeking

to protect the interests of the Permian Basin, have petitioned for review of the license. 1 So has the State of

Texas, which argues, inter alia, that the Atomic Energy

Act doesn’t confer authority on the Commission to license such a facility.

Texas is correct. The Atomic Energy Act does not

confer on the Commission the broad authority it claims

to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the Nuclear

Waste Policy Act establishes a comprehensive statutory

scheme for dealing with nuclear waste generated from

commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority. Accordingly,

we grant the petition for review and vacate the license.

This case is the latest development in a decades-long

debate over nuclear power and waste regulation. Accordingly, we provide a brief overview of relevant historical and technical background before delving into the

specifics of the licensing proceedings challenged here.

For the remainder of this opinion, we use the term ‘‘Fasken’’ to

refer to Fasken Land and Minerals, Ltd. and PBLRO collectively,

unless addressing an issue where it’s necessary to distinguish them.

The United States began producing nuclear waste in

the 1940s, first as a byproduct of nuclear weapons development and then as a byproduct of the commercial nuclear power industry. BLUE RIBBON COMMISSION ON

AMERICA’S NUCLEAR FUTURE, REPORT TO THE SECRETARY OF ENERGY 19 (Jan. 2012) https://www.energy.gov/

sites/prod/files/2013/04/f0/brc_finalreport_jan2012.pdf

[hereinafter BRC R EPORT]. The first nuclear reactor

was demonstrated in 1942, and Congress authorized civilian application of atomic power through the Atomic

Energy Act of 1946. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,

206, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983).

The Act granted regulatory authority over nuclear

energy to the Atomic Energy Commission. See Union

of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 n.1

(D.C. Cir. 1984). But the Energy Reorganization Act

of 1974 disbanded that agency and redistributed its authority, as relevant here, to the Nuclear Regulatory

Commission. Id. After Congress passed the Atomic

Energy Act, commercial production of nuclear energy

boomed.

Commercial nuclear energy is produced through a

series of industrial processes, which include the mining

and processing of nuclear fuel, the use of the fuel in a

reactor, and the storage and ultimate disposal or reprocessing of that fuel. BRC REPORT at 9. Once nuclear

fuel has been used in a reactor for about four to six

years, it can no longer produce energy and is considered

used or spent. Id. at 10. That spent fuel is removed

from the reactor. Id.

Spent nuclear fuel is ‘‘fuel that has been withdrawn

from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.’’ 42 U.S.C. § 10101(23). It’s ‘‘intensely

radioactive’’ and ‘‘must be carefully stored.’’ Pac. Gas

& Elec. Co., 461 U.S. at 195, 103 S. Ct. 1713. The spent

fuel is first placed in wet pool storage for cooling, where

it remains for at least five years, but may remain for

decades. BRC REPORT at 11. Once the spent nuclear

fuel has cooled sufficiently in wet storage, it’s generally

transferred to dry cask storage. Id.

At first, there was little concern regarding storage

for spent fuel. See BRC REPORT at 19-20; Idaho v.

DOE, 945 F.2d 295, 298-99 (9th Cir. 1991). There was

a widespread belief within the commercial nuclear energy industry that spent fuel would be reprocessed.

Idaho, 945 F.2d 295, 298-99 (9th Cir. 1991). But the

private reprocessing industry collapsed in the 1970s, id.,

and growing concerns led President Ford to issue a directive deferring commercial reprocessing and recycling, which President Carter later extended. BRC

REPORT at 20. Although President Reagan reversed

that policy, ‘‘for a variety of reasons, including costs,

commercial reprocessing has never resumed.’’ Id.

After years of accumulating spent nuclear fuel in nuclear power plants throughout the country, see 42 U.S.C.

§ 10131(a)(3), Congress enacted the Nuclear Waste Policy Act in 1982. That Act sought to ‘‘devise a permanent solution to the problems of civilian radioactive

waste disposal.’’ Id. It tasked the Department of Energy with establishing ‘‘a repository deep underground

within a rock formation where the waste would be

placed, permanently stored, and isolated from human

contact.’’ Nat’l Ass’ of Regul. Util. Comm’rs v. DOE,

680 F.3d 819, 821 (D.C. Cir. 2012). Yucca Mountain in

Nevada was chosen as the only suitable site for the repository. See 42 U.S.C. § 10172. The decision drew

widespread opposition in Nevada. BRC REPORT at 22.

Decades of delay ensued. Despite a Congressional

mandate that the Department of Energy start accepting

waste from the States by January 31, 1998, see 42 U.S.C.

§ 10222(a)(5)(B), ‘‘by the mid-1990s, the Department of

Energy made clear that it could not meet the 1998 deadline, and it came and went without the federal government accepting any waste.’’ Texas v. U.S., 891 F.3d

553, 555-56 (5th Cir. 2018).

In 2008, the Department of Energy finally submitted

its license application for the Yucca Mountain repository

to the Commission. In re Aiken Cnty., 725 F.3d 742,

258 (D.C. Cir. 2013). But the Commission ‘‘shut down

its review and consideration’’ of the application. Id.

By its own admission, the Commission had no intention

of reviewing the application, id., even though the Nuclear Waste Policy Act mandates a decision be made

within three years of submission.

See 42 U.S.C.

§ 10134(d).

In light of the delays and controversy, the Obama Administration decided to halt the work on the Yucca

Mountain repository.

BRC REPORT at vi.

The

Obama Administration instead formed the Blue Ribbon

Commission on America’s Nuclear Future, which concluded that a consent-based approach to siting nuclear

waste storage facilities would be preferred to the Yucca

Mountain policy. See id. at vii-x.

Spent nuclear fuel continues to accumulate at reactor

sites across the country. Some estimates suggest the

U.S. inventory of spent nuclear fuel may exceed 200,000

metric tons by 2050. BRC REPORT at 14. The commercial nuclear power industry as a whole is estimated

to generate between 2,000 and 2,400 metric tons of spent

nuclear fuel each year. Id. And there are thousands

of metric tons of spent fuel in various sites where commercial reactors no longer operate. Id.

After the Blue Ribbon Commission embraced a

consent-based approach for siting nuclear waste storage

facilities, the governments of Texas and New Mexico expressed support for establishing facilities within the

states. Then-Governors Rick Perry of Texas and Susana Martinez of New Mexico wrote letters supporting

the establishment of facilities within their respective

states. And Andrews County—a rural community located near the Texas-New Mexico border—passed a

resolution in support of siting a spent nuclear fuel facility there.

Based in part on these expressions of support, Waste

Control Specialists, LLC applied to the Commission for

a license to operate a consolidated interim storage facility for high-level spent nuclear fuel in Andrews County.

Andrews County is located within the Permian Basin,

one of the country’s largest oil basins and a top global

oil producer.

The Commission began its environmental review of

the proposed facility in accordance with the National

Environmental Policy Act. See 42 U.S.C. § 4321 et seq.

But the application anticipated that the Department of

Energy would take title to the spent nuclear fuel.

Some stakeholders challenged the legality of that provision as prohibited by the Nuclear Waste Policy Act.

Waste Control Specialists then asked the Commission to

suspend its review.

Approximately a year later, Interim Storage Partners, LLC—a partnership between the original applicant, Waste Control Specialists, and another company—

asked the Commission to resume its review of the nowrevised license application. In its summary report on

the scoping period, the Commission noted that it had received comments expressing concerns that the facility

would become a de facto permanent disposal facility and

that the license would be illegal under existing regulations. The Commission responded that such comments

were outside the scope of the environmental impact

statement.

In December 2019, the Atomic Safety and Licensing

Board—the independent adjudicatory division of the

Commission—terminated an adjudicatory proceeding

regarding the license application. Before the proceeding was terminated, Fasken timely filed five contentions

alleging that the Commission violated the National Environmental Policy Act and its own regulations. The

Board denied each one. The following month, Fasken

filed a motion to reopen the record along with a motion

to amend a previously filed contention. The Board denied the motions.

The Commission published a draft environmental impact statement in May 2020. The Commission received

approximately 2,527 unique comments on the draft environmental impact statement, and many opposed the

facility. One comment was a letter from Texas Gover-

nor Greg Abbott urging the Commission to deny the license application because of the lack of a permanent repository and the importance of the Permian Basin to the

nation’s energy security and economy. The Texas

Commission on Environmental Quality submitted a

comment that the licensing lacks public consent and

doesn’t properly account for the possibility that Texas

would become the permanent solution of spent nuclear

fuel disposal if the permanent repository isn’t developed

by the expiration of the facility’s 40-year license term.

Fasken also submitted various comments. Its comments noted the uniqueness of the Permian Basin, the

danger of transporting spent nuclear fuel to the facility,

the lack of community consent, and the possibility that

the facility could become a de facto permanent facility.

Based on the draft environmental impact statement,

Fasken also filed a second motion to reopen the adjudicatory proceeding. The Board once again denied the

request.

The Commission issued the final environmental impact statement in July 2021. It recommended the license be issued, and noted that concerns regarding

Yucca Mountain and the need for a permanent repository fell outside its scope. In an appendix, the Commission responded to timely comments, including those

from Petitioners. The Commission responded to concerns that the facility would become a de facto permanent repository by noting the application was only for a

temporary facility.

The following September, the Texas Legislature

passed H.B. 7. The statute makes it illegal to ‘‘dispose

of or store high level radioactive waste’’ in Texas. Governor Abbott sent a letter to the Commission with a copy

of H.B. 7. He reiterated that ‘‘the State of Texas has

serious concerns with the design of the proposed ISP facility and with locating it in an area that is essential to

the country’s energy security.’’ The next day, Fasken

submitted an environmental analysis critiquing various

aspects of the final environmental impact statement.

A few days later, the Commission issued the license.

Texas and Fasken have now petitioned this court for

review of the license. Texas asks that the license be set

aside. And Fasken asks that we suspend all further activities on the facility and remand to the Commission for

a hard look analysis. While this case was pending before this court, Fasken and others who sought but were

denied intervention in the agency adjudication had a petition for review pending before the D.C. Circuit appealing the denials of their intervention. See Don’t Waste

Michigan v. NRC, 2023 WL 395030 (Jan. 25, 2023).

The petition was denied in January 2023. Id. at *1.

Interim Storage Partners, LLC intervened in this case

to represent its interests.

II.

We begin with jurisdiction. The Commission challenges this court’s jurisdiction to hear the petitions for

review for lack of both constitutional standing and statutory standing. We consider each argument in turn

and find neither succeeds.

As a preliminary matter, the Commission suggests

that Petitioners forfeited constitutional standing by failing to argue it in their opening briefs. We disagree.

10a

Neither Petitioner argued constitutional standing

beyond their general jurisdictional statements. Generally, a petitioner is required ‘‘to present specific facts

supporting standing through citations to the administrative record or affidavits or other evidence attached to its

opening brief, unless standing is self-evident.’’ Sierra

Club v. EPA, 793 F.3d 656, 662 (6th Cir. 2015) (emphasis

added, quotation omitted). A petitioner may reasonably believe standing to be self-evident when ‘‘nothing in

the record alerted [the] petitioners to the possibility

that their standing would be challenged.’’ Am. Libr.

Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005).

That’s the case here.

From the earliest stages of this proceeding, the Commission has challenged jurisdiction on statutory standing grounds only. It twice moved to dismiss, but neither motion challenged constitutional standing. Accordingly, Petitioners could reasonably assume it was

self-evident. Cf. Ctr. for Biological Diversity v. EPA,

937 F.3d 533, 542 n.4 (5th Cir. 2019) (‘‘overlook[ing] Petitioners’ decision to include only a cursory discussion of

standing because . . . they had a good-faith (though

mistaken) belief that standing would be both undisputed

and easy to resolve’’). And—once constitutional standing was challenged—both Petitioners provided welldeveloped legal arguments with citations to the record

and evidence to show their standing. Petitioners haven’t forfeited constitutional standing.

The ‘‘irreducible constitutional minimum’’ of standing requires that Petitioners ‘‘must have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to

be redressed by a favorable judicial decision.’’ Spokeo,

11a

Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 194

L. Ed. 2d 635 (2016). The causation elements of the

constitutional standing analysis are easily met: Petitioners’ alleged injuries directly result from the issuance of the license (traceability), and an order from this

court could vacate the license (redressability). So only

injury in fact is at issue.

The Commission argues that the licensing and eventual operation of the storage facility doesn’t injure either Texas or Fasken. We disagree. Because ‘‘the

presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement,’’ we

may proceed even if only one of the Petitioners has

standing. Rumsfeld v. FAIR, 547 U.S. 47, 52 n.2, 126

S. Ct. 1297, 164 L. Ed. 2d 156 (2006). But here both

Petitioners successfully assert an injury resulting from

the license.

Texas meets the injury-in-fact requirement because

the license preempts state law. Texas has ‘‘a sovereign

interest in the power to create and enforce a legal code.’’

Tex. Off. of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449

(5th Cir. 1999) (quotation omitted) (holding that Texas

has standing to challenge the FCC’s assertion of authority over an aspect of telecommunications regulation that

the State believed it controlled). And we have held

that the preemption of an existing state law can constitute an injury. Texas v. United States, 787 F.3d 733,

749 (5th Cir. 2015). ‘‘A state has standing based on a

conflict between federal and state law if the state statute

at issue regulates behavior or provides for the administration of a state program, but not if it simply purports

to immunize state citizens from federal law.’’

Id.

(cleaned up). Here the issuance of the license and re-

12a

sulting operation of the facility directly conflicts with

H.B. 7.

The Texas Legislature has enacted legislation that

prevents the storage of high-level radioactive waste, including spent nuclear fuel, within the State except at

currently or formerly operating nuclear power reactors.

The legislation also amends Texas statutes to add that

‘‘a person, including the compact waste disposal facility

license holder, may not dispose of or store high level radioactive waste in this state.’’ TEX. HEALTH & SAFETY

CODE § 401.072. Although a non-binding, declaratory

state statute would not be enough to confer standing,

here there’s an enforceability conflict between the license and operation of the facility, which authorizes

storage of high-level radioactive waste in Texas, and

H.B. 7, which proscribes such storage. Cf. Virginia v.

Sebelius, 656 F.3d 253, 270 (4th Cir. 2011) (a state statute that is merely a ‘‘non-binding declaration [and] does

not create any genuine conflict . . . creates no sovereign interest capable of producing injury-in-fact’’).

That’s enough for Texas to assert an injury.

Fasken also has standing based on its proximity to

radioactive materials. To establish injury in an environmental case, there’s a ‘‘geographic-nexus requirement.’’ Biological Diversity, 937 F.3d at 538. ‘‘The

Supreme Court has ruled that geographic remoteness

forecloses a finding of injury when no further facts have

been brought forward showing that the impact in those

distant places will in some fashion be reflected where

the plaintiffs are.’’ Id. (cleaned up). See also id. at

540 (‘‘when a person visits an area for aesthetic purposes, pollution interfering with his aesthetic enjoyment

may cause an injury in fact,’’ if ‘‘the aesthetic experience

13a

was actually offensive to the plaintiff ’’). Fasken has

provided evidence of its members’ geographic proximity

to the facility. Some of Fasken’s members own land

within four miles of the facility, draw water from wells

beneath the facility, drive within a mile of the facility,

use rail lines the facility would use, and travel on highways within a few hundred feet of the rail lines that

transport spent nuclear fuel to the facility. In the context of radioactive materials, such proximity is sufficient

to establish injury. See Duke Power Co. v. Caroline

Env’t Study Grp., Inc., 438 U.S. 59, 74, 98 S. Ct. 2620, 57

L. Ed. 2d 595 (1978) (‘‘[T]he emission of non-natural radiation into appellees’ environment would also seem a

direct and present injury.’’). See also Nuclear Energy

Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004)

(finding a petitioner living 18 miles from Yucca Mountain had standing); Kelley v. Selin, 42 F.3d 1501, 1509

(6th Cir. 1995) (finding petitioners who ‘‘own[ ] land in

close proximity to . . . the proposed site for spent

fuel storage’’ had ‘‘alleged sufficient injury to establish

standing’’).

PBLRO also has associational standing. ‘‘Associational standing is a three-part test: (1) the association’s members would independently meet the Article

III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the

organization; and (3) neither the claim asserted, nor the

relief requested requires participation of individual

members.’’

Biological Diversity, 937 F.3d at 536

(quoting Texas Democratic Party v. Benkiser, 459 F.3d

582, 587 (5th Cir. 2006)). Each of those elements is

met. First, some of its members have an injury because they live, work, or regularly drive close the facility. And as we’ve already noted, see supra, the causa-

14a

tion elements are met. Next, ‘‘the germaneness requirement is undemanding and requires mere pertinence between the litigation at issue and the organization’s purpose.’’ Ass’n of Am. Physicians & Surgeons,

Inc. v. Texas Med. Bd., 627 F.3d 547, 550 n.2 (5th Cir.

2010) (quotations omitted). This factor is easily met

because PBLRO was created specifically to oppose the

facility. Last, there’s no reason to believe that PBLRO

is unable to represent its members’ interests without

their individual participation. See id. at 551-53 (noting

this prong usually isn’t met when the relief sought is

damages for individual members or the claim requires

fact-intensive-individual inquiry).

Petitioners seeking to challenge a final order from

the Commission also need standing under the Administrative Orders Review Act, generally known as the

Hobbs Act. See Reytblatt v. NRC, 105 F.3d 715, 720

(D.C. Cir. 1997) (‘‘[T]he Hobbs Act requires (1) ‘party’

status (i.e., that petitioners participated in the proceeding before the agency), and (2) aggrievement (i.e., that

they meet the requirements of constitutional and prudential standing).’’) (citation omitted).

The Hobbs Act vests ‘‘exclusive jurisdiction to enjoin,

set aside, suspend (in whole or in part), or determine the

validity of . . . final orders of the’’ Commission on

the federal courts of appeals. 28 U.S.C. § 2342. (The

Act actually refers to the Atomic Energy Commission.

But the Energy Reorganization Act of 1974 abolished

that agency and transferred its licensing and related

regulatory functions to the Nuclear Regulatory Commission. See 42 U.S.C. § 5841(a), (f ).)

15a

Under the Act, ‘‘[a]ny party aggrieved by the final

order may . . . file a petition to review the order in

the court of appeals wherein venue lies.’’ 28 U.S.C.

§ 2344. Courts ‘‘have consistently held that the phrase

‘party aggrieved’ requires that petitioners have been

parties to the underlying agency proceedings, not

simply parties to the present suit.’’ ACA Int’l v. FCC,

885 F.3d 687, 711 (D.C. Cir. 2018). See also Am. Trucking Ass’ns v. ICC, 673 F.2d 82, 84 (5th Cir. 1982) (per

curiam) (‘‘The word ‘party’ is used in a definite sense in

the [Hobbs Act], and limits the right to appeal to those

who actually participated in the agency proceeding.’’).

The Commission argues that neither Texas nor Fasken

has standing under the Hobbs Act because neither is a

‘‘party aggrieved.’’

‘‘To be an aggrieved party, one must have participated in the agency proceeding under review.’’ Wales

Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984).

Here, both Petitioners participated in the agency

proceeding—Texas commented on its opposition of the

issuance of the license and Fasken attempted to intervene and filed contentions. But according to the Commission, neither form of participation is sufficient to

confer party status under the Hobbs Act.

The Commission argues that Texas doesn’t have

party status because ‘‘participating in the appropriate

and available administrative procedures is the statutorily prescribed prerequisite to invocation of the Court’s

jurisdiction,’’ and submitting comments doesn’t accord

16a

with the degree of formality of the proceedings in this

license adjudication.2

In the alternative, the Commission argues that ‘‘even if this

Court were to determine that dismissal of [Texas’s] Petition for Review is not required as a matter of jurisdiction, the same result is

nonetheless required as a matter of non-jurisdictional, mandatory

exhaustion.’’ Not so. The Commission relies on Fleming v.

USDA, which held that ‘‘even non-jurisdictional exhaustion requirements . . . forbid judges from excusing non-exhaustion’’ and

that ‘‘if the government raises [such an] exhaustion requirement, the

court must enforce it.’’ 987 F.3d 1093, 1099 (D.C. Cir. 2021). But

neither the Hobbs Act nor the Atomic Energy Act impose a mandatory exhaustion requirement. The Commission’s argument implicitly equates the exhaustion requirements in the Horse Protection

Act and the Prison Litigation Reform Act—both of which are discussed in Fleming—to the Hobbs Act and Atomic Energy Act.

These statutes aren’t comparable. Both the Horse Protection Act

and the Prison Litigation Reform Act have explicit exhaustion requirements. See 7 U.S.C. § 6912(e) (‘‘[A] person shall exhaust all

administrative appeal procedures established by the Secretary [of

Agriculture] or required by law before the person may bring an action in a court of competent jurisdiction.’’); 42 U.S.C. § 1997e(a) (‘‘No

action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such an

administrative remedies as are available are exhausted.’’). But neither the Hobbs Act nor the Atomic Energy Act do. See 28 U.S.C.

§ 2344 (no exhaustion requirement); 42 U.S.C. § 2239(b) (same).

It’s also worth noting that caselaw suggests that so long as the

petitioner is a ‘‘party aggrieved’’ and the basis for the challenge was

brought before the agency by some party—even if not the by the

petitioner—that’s enough for the case to move forward. See Reytblatt, 105 F.3d at 720-21; Cellnet Commc’n, Inc. v. FCC, 965 F.2d

1106, 1109 (D.C. Cir. 1992). It’d make little sense to interpret the

Hobbs Act as imposing an exhaustion requirement while allowing a

petitioner to bring a claim it did not itself bring before the agency.

17a

The Commission takes a different approach with

Fasken. It argues that, as a party denied intervention,

Fasken may only challenge the order denying it intervention. From the Commission’s perspective, if a putative intervenor has failed to obtain party status, it

can’t later seek review of the final judgment on the merits.

The plain text of the Hobbs Act merely requires that

a petitioner seeking review of an agency action be a

‘‘party aggrieved.’’ 28 U.S.C. § 2344. The text makes

no distinction between different kinds of agency proceedings. See Gage v. AEC, 479 F.2d 1214, 1218 (D.C.

Cir. 1973). Nor does it suggest that a petitioner who

went through the procedures to intervene in an adjudication can’t be a party aggrieved. In fact, it’s clear that

the function of the ‘‘party aggrieved’’ status requirement is to ensure that the agency had the opportunity to

consider the issue that petitioners are concerned with.

See, e.g., id. at 1219 (‘‘The ‘party’ status requirement operates to preclude direct appellate court review without

a record which at least resulted from the factfinder’s focus on the alternative regulatory provisions which petitioners propose.’’) (emphases omitted).

In sum, the plain text of the Hobbs Act requires only

that a petitioner have participated—in some way—in

the agency proceedings, which Texas did through comments and Fasken did by seeking intervention and filing

contentions. But caselaw suggests that’s not enough.

Precedent from other circuits suggests that neither

Texas nor Fasken are parties aggrieved for Hobbs Act

purposes. The D.C. Circuit has read the Hobbs Act to

contemplate participation in ‘‘the appropriate and available administrative procedures.’’ Id. at 1217. And it

18a

has interpreted this to mean that the ‘‘degree of participation necessary to achieve party status varies according to the formality with which the proceeding was conducted.’’ Water Transp. Ass’n v. ICC, 819 F.2d 1189,

1192 (D.C. Cir. 1987). But see ACA Int’l, 885 F.3d at 711712 (noting that in at least some limited circumstances

commenting may be enough in certain non-rulemaking

proceedings). The D.C. Circuit and at least one other

circuit apply this heightened participation requirement.

See Ohio Nuclear-Free Network v. NRC, 53 F.4th 236,

239 (D.C. Cir. 2022); Alabama Power Co. v. ICC, 852

F.2d 1361, 1368 (D.C. Cir. 1988). See also State ex rel.

Balderas v. NRC, 59 F.4th 1112, 1117 (10th Cir. 2023).

The D.C. Circuit has also said that, when an agency requires intervention, those who sought but were denied

intervention lack standing to seek judicial review. Water Transp. Ass’n, 819 F.2d at 1192. See also NRDC v.

NRC, 823 F.3d 641, 643 (D.C. Cir. 2016) (‘‘To challenge

the Commission’s grant of a license renewal . . . a

party must have successfully intervened in the proceeding by submitting adequate contentions under [the Commission’s regulations].’’).

The D.C. Circuit embraces readings of the Hobbs Act

that impose an extra-textual gloss by requiring a degree

of participation not contemplated in the plain text of the

statute. We think the fairest reading of the Hobbs Act

doesn’t impose such additional requirements. But we

ultimately don’t need to resolve that tension, because

the Fifth Circuit recognizes an exception to the Hobbs

Act party-aggrieved status requirement that’s dispositive of this issue here.

This circuit recognizes an ultra vires exception to the

party-aggrieved status requirement.

In American

19a

Trucking Associations, Inc. v. ICC, this court noted

‘‘two rare instances’’ where a ‘‘person may appeal an

agency action even if not a party to the original agency

proceeding’’—(1) where ‘‘the agency action is attacked

as exceeding [its] power’’ and (2) where the person

‘‘challenges the constitutionality of the statute conferring authority on the agency.’’ 673 F.2d at 85 n.4 (quotation omitted).3

This exception only allows us to reach those portions

of the Petitioners’ challenges that argue the Commission acted beyond its statutory authority. See Wales

Transp., 728 F.2d at 776 n.1 (allowing petitioner to proThe Commission’s various arguments that this exception isn’t

applicable are unavailing. It’s true that we’ve recognized the exception is ‘‘exceedingly narrow.’’ Merchants Fast Motor Lines,

Inc. v. ICC, 5 F.3d 911, 922 (5th Cir. 1993). And it’s also true that

other circuits have refused to adopt it. See Balderas, 59 F.4th at

1123-24; Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457

F.3d 1238, 1250 (11th Cir. 2006); Erie-Niagara Rail Steering Comm.

v. STB, 167 F.3d 111, 112-13 (2d Cir. 1999); In re Chicago, Milwaukee, St. Paul & Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986). But

the exception remains good law in this circuit. Neither the Commission nor the court have identified any case overturning the exception. And to the extent that the Commission claims the exception was mere dicta in American Trucking, that argument fails because we’ve since applied the exception in Wales Transportation,

Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984). Under our circuit’s rule of orderliness, we are bound to follow American Trucking

and Wales Transportation because they haven’t been overturned by

the en banc court. The Commission is also wrong in suggesting the

exception is limited to challenges of ICC orders. While it’s true

that both American Trucking and Wales Transportation involved

challenges to ICC orders, neither case limits the exception’s application to the ICC. See Am. Trucking, 673 F.2d at 85 n.4 (referring

to agency proceedings, not ICC proceedings); Wales Transp., 728

F.2d at 776 n.1 (same).

20a

ceed despite not having participated in the agency proceeding on only those claims that challenged the agency’s

authority under the statute). Accordingly, we must

consider which, if any, of the Petitioners’ challenges fall

within that category.

Texas makes three merits arguments: (1) the Commission lacks the statutory authority to license the facility; (2) the license issuance violated the Administrative

Procedure Act; and (3) the Commission violated the National Environmental Policy Act by failing to assess the

risks of a potential terrorist attack. The first argument falls within the exception. It attacks the Commission for licensing a facility without the authority to

do so under the Atomic Energy Act, and in conflict with

the Nuclear Waste Policy Act.

Fasken makes four merits arguments: (1) the Commission violated the National Environmental Policy Act

and Administrative Procedure Act by allowing a licensing condition that violates the Nuclear Waste Policy Act;

(2) the Commission’s assumptions about when the permanent repository will be operational are arbitrary and

capricious; (3) the Commission adopted an unreasonably

narrow purpose statement; and (4) the Commission violated the National Environmental Policy Act and Administrative Procedure Act by accepting the applicant’s

unreasonable site selection. The first of these challenges falls within the exception. Fasken’s argument

centers on the contention that the Commission acted beyond its statutory authority by issuing a license with a

condition expressly prohibited by the Nuclear Waste

Policy Act.

21a

III.

The Commission has no statutory authority to issue

the license. The Atomic Energy Act doesn’t authorize

the Commission to license a private, away-from-reactor

storage facility for spent nuclear fuel. And issuing

such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act. This understanding aligns with the historical context surrounding

the development of these statutes.

Under the Atomic Energy Act, the Commission retains jurisdiction over nuclear plant licensing and regulation. See 42 U.S.C. § 5842. It has authority to regulate the construction and operation of nuclear power

plants. See 42 U.S.C. §§ 2011-2297h-13. See also Union of Concerned Scientists, 735 F.2d at 1438-39 (summarizing the two-step licensing procedure for nuclear

power plant operation).

The Act also confers on the Commission the authority

to issue licenses for the possession of ‘‘special nuclear

material,’’ see 42 U.S.C. § 2073, ‘‘source material,’’ see

id. § 2093, and ‘‘byproduct material,’’ see id. § 2111.

See also 42 U.S.C. §§ 2014(aa), (z), (e) (defining each

term, respectively). Special nuclear material, source

material, and byproduct material are constituent materials of spent nuclear fuel. See Bullcreek v. NRC, 359

F.3d 536, 538 (D.C. Cir. 2004). The Commission argues

that, because it has authority to issue licenses for the

possession of these constituent materials, that means it

has broad authority to license storage facilities for spent

nuclear fuel.

22a

But this ignores the fact that the Act authorizes the

Commission to issue such licenses only for certain enumerated purposes—none of which encompass storage or

disposal of material as radioactive as spent nuclear fuel.

Sections 2073 and 2093 specify that licenses may be

issued for various types of research and development,

see 42 U.S.C. §§ 2073(a)(1)-(a)(2), 2093(a)(1)-(a)(2). It

also permits such other uses that the Commission either

‘‘determines to be appropriate to carry out the purposes

of th[e] chapter,’’ id. § 2073(a)(4), or ‘‘approves . . .

as an aid to science and industry,’’ id. § 2093(a)(4).

Principles of statutory interpretation require these

grants be read in light of the other, more specific purposes listed—namely for certain types of research and

development. Cf. U.S. v. Jicarilla Apache Nation, 564

U.S. 162, 185, 131 S. Ct. 2313, 180 L. Ed. 2d 187 (2011)

(‘‘When Congress provides specific statutory obligations, we will not read a ‘catchall’ provision to impose

general obligations that would include those specifically

enumerated.’’).

Both these sections also allow the agency to issue licenses ‘‘for use under a license issued pursuant to section 2133 of th[e] title.’’ Id. 42 U.S.C. §§ 2073(a)(3),

2093(a)(3) (same). Section 2133 details the Commission’s authority to issue licenses for ‘‘utilization or production facilities for industrial or commercial purposes.’’

Id. § 2133(a). Utilization and production have specific

definitions under the statute. See id. §§ 2014 (cc) (defining utilization facilities); 2014(v) (defining production

facilities). And the definitions of utilization and production facilities are about nuclear reactors and fuel fabrication or enrichment facilities—not storage or disposal, as the Commission admits in its briefing. See id.

23a

Neither § 2073 nor § 2093 confers a broad grant of authority to issue licenses for any type of possession of

special nuclear material or source material.

The same is true for § 2111. That section authorizes

the Commission ‘‘to issue general or specific licenses to

applicants seeking to use byproduct material for research or development purposes, for medical therapy,

industrial uses, agricultural uses, or such other useful

applications as may be developed.’’ Id. § 2111(a). It

also specifies conditions under which certain types of

byproduct material may be disposed. Id. § 2111(b).

And the types of byproduct material covered by

§ 2111(b) emit radiation for significantly less time than

spent nuclear fuel.

That section cross-references the definition of byproduct materials in § 2014(e)(3)-(4), which refers to

radium-226 and other material that ‘‘would pose a threat

similar to the threat posed by . . . radium-226 to the

public health and safety.’’ That’s important because

some of the isotopes in spent nuclear fuel have much

longer half-lives than radium-226. The ‘‘intensity of

radiation from radioactive materials decreases over

time’’ and the ‘‘time required for the intensity to decrease by one-half is referred to as the ‘half-life.’ ’’

NRC, FREQUENTLY ASKED QUESTIONS (FAQS)

REGARDING RADIUM-226 § A.1, https://scp.nrc.gov/

narmtoolbox/radium faq102008.pdf. Radium-226 has a

half-life of 1600 years. Id. Spent nuclear fuel, on the

other hand, is composed of a variety of radioactive isotopes of elements produced in the nuclear fission

process. NRC, RADIOACTIVE WASTE BACKGROUNDER

1, https://www.nrc.gov/docs/ML0501/ML050110277.pdf.

Some of these isotopes—strontium-90 and cesium-137—

24a

have half-lives of about 30 years. But others ‘‘take

much longer to decay.’’ Id. One of these isotopes is

plutonium-239, which ‘‘has a half-life of 24,000 years’’—

fifteen times that of radium-226. Id. There’s no plausible argument that spent nuclear fuel, which contains

radioactive isotopes with half-lives much longer than

radium-226, is the type radioactive material contemplated in the disposal provision in § 2111(b).

So these provisions do not support the Commission’s

claim of authority. In response, the Commission and

Interim Storage Partners, LLC point to two cases from

sister circuits. Both are unpersuasive.

In Bullcreek v. NRC, the D.C. Circuit denied petitions for review of the Commission’s Rulemaking Order

and held that the Nuclear Waste Policy Act did ‘‘not repeal or supersede the [Commission]’s authority under

the Atomic Energy Act to license private away-fromreactor storage facilities.’’ 359 F.3d at 537-38. The

D.C. Circuit essentially assumed that the Atomic Energy Act had granted the Commission authority to license away-from-reactor storage facilities, despite explicitly recognizing that the Act ‘‘does not specifically

refer to the storage or disposal of spent nuclear fuel.’’

Id. at 538. Rather than focus on the text of the statute,

it merely noted that ‘‘it has long been recognized that

the [Atomic Energy Act] confers on the [Commission]

authority to license and regulate the storage and disposal of such fuel.’’ Id. But none of the cases the D.C.

Circuit cited provide a textual analysis of the Atomic

Energy Act and whether it allows away-from-reactor

spent nuclear fuel storage. Each of those cases dealt

with separate questions of preemption and the role of

states in this scheme. See generally Pac. Gas. & Elec.

25a

v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983); Jersey

Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103

(3d Cir. 1985); Illinois v. Gen. Elec. Co., 683 F.2d 206

(7th Cir. 1982). They are irrelevant to the question before us.

So the D.C. Circuit provided no textual basis for its

assumption that the statute authorized the Commission

to issue such licenses. See id. (discussing the Atomic

Energy Act). Bullcreek may be correct that the Nuclear Waste Policy Act didn’t repeal portions of the

Atomic Energy Act since ‘‘repeals by implication are not

favored,’’ but it doesn’t actually address what authority

the Commission had under the Atomic Energy Act.

Morton v. Mancari, 417 U.S. 535, 549, 94 S. Ct. 2474, 41

L. Ed. 2d 290 (1974).

The other case the Commission cites—Skull Valley

Band of Goshute Indians v. Nielson, 376 F.3d 1223

(10th Cir. 2004)—is just as unhelpful. It merely relies

on Bullcreek to ‘‘not revisit the issues surrounding the

[Commission]’s authority to license away-from-reactor

[spent nuclear fuel] storage facilities.’’ Skull Valley,

376 F.3d at 1232. It too assumes the Commission’s authority without analyzing the statute.

Moreover, the Commission’s argument cannot be

reconciled with the Nuclear Waste Policy Act.

Spent nuclear fuel wasn’t a concern in the 1940s and

1950s when the Atomic Energy Act was passed and

amended. ‘‘Prior to the late 1970’s, private utilities operating nuclear reactors were largely unconcerned with

the storage of spent nuclear fuel.’’ Idaho, 945 F.2d at

26a

298. ‘‘It was accepted that spent fuel would be reprocessed.’’ Id. ‘‘In the mid-70’s, however, the private

reprocessing industry collapsed for both economic and

regulatory reasons.’’ Id. ‘‘As a consequence, the nuclear industry was confronted with an unanticipated accumulation of spent nuclear fuel, inadequate private facilities for the storage of the spent fuel, and no long term

plans for managing nuclear waste.’’ Id. See also BRC

REPORT at 20 (noting these problems and describing

passage of the Act as ‘‘mark[ing] the beginning of a new

chapter in U.S. efforts to deal with the nuclear waste issue’’). This led Congress to pass the Nuclear Waste

Policy Act in 1982.

The Nuclear Waste Policy Act provides a comprehensive scheme to address the accumulation of nuclear

waste. Congress recognized that ‘‘Federal efforts during the [prior] 30 years to devise a permanent solution

to the problems of civilian radioactive waste disposal

ha[d] not been adequate’’ and that ‘‘State and public participation in the planning and development of repositories is essential in order to promote public confidence in

the safety of disposal of such waste and spent fuel.’’ 42

U.S.C. § 10131(a)(3), (6). ‘‘The Act made the federal

government responsible for permanently disposing of

spent nuclear fuel and high-level radioactive waste produced by civilian nuclear power generation and defense

activities.’’ Nat’l Ass’n of Regul. Util. Comm’rs v.

DOE, 680 F.3d 819, 821 (D.C. Cir. 2012). See also 42

U.S.C. § 10131(a)(4) (‘‘[T]he Federal Government has

the responsibility to provide for the permanent disposal

of high-level radioactive waste and such spent nuclear

fuel as may be disposed of in order to protect the public

health and safety and the environment.’’).

27a

The Act also tasked the Department of Energy with

establishing ‘‘a repository deep underground within a

rock formation where the waste would be placed, permanently stored, and isolated from human contact.’’

Nat’l Ass’n of Regul. Util Comm’rs, 680 F.3d at 821.

See also 42 U.S.C. §§ 100133-34 (tasking the Energy

Secretary with site characterization and public hearing

duties related to the Yucca Mountain site selection).

Yucca Mountain was chosen as the only suitable site for

the repository when the Act was amended in 1987. See

42 U.S.C. § 10172 (selection of Yucca Mountain site).

But the project stalled, even though the Nuclear Waste

Policy Act ‘‘is obviously designed to prevent the Department [of Energy] from delaying the construction of

Yucca Mountain as the permanent facility while using

temporary facilities.’’

Nat’l Ass’n of Regul. Util.

Comm’rs v. DOE, 736 F.3d 517, 519 (D.C. Cir. 2013) (citing 42 U.S.C. § 10168(d)(1)).

In addition to the establishment of the permanent repository, see 42 U.S.C. §§ 10131-10145, the Nuclear

Waste Policy Act also established other measures to

deal with spent nuclear fuel. 4

One is temporary storage. See id. §§ 10151-10157.

The Act places ‘‘primary responsibility for providing interim storage of spent nuclear fuel’’ on ‘‘the persons

owning and operating civilian nuclear power reactors.’’

Id. § 10151(a)(1). It tasks the Commission and the SecAll these measures are subject to the proviso in 42 U.S.C.

§ 10155(h), which states that ‘‘nothing in this chapter shall be construed to encourage, authorize, or require the private or Federal

use, purchase, lease, or other acquisition of any storage facility located away from the site of any civilian nuclear power reactor and

not owned by the Federal Government on’’ the date of enactment.

28a

retary of Energy to ‘‘take such actions as . . . necessary to encourage and expedite the effective use of available storage, and the necessary additional storage,

at the site of each civilian nuclear power reactor.’’ Id.

§ 10152 (emphasis added). See also id. § 10153 (‘‘The

establishment of such procedures shall not preclude the

licensing . . . of any technology for the storage of civilian spent nuclear fuel at the site of any civilian nuclear

power reactor.’’) (emphasis added). It further tasks

the Secretary of Energy with ‘‘provid[ing] . . . capacity for the storage of spent nuclear fuel from civilian

nuclear power reactors.’’ Id. § 10155(a)(1). Moreover, the Act provides that ‘‘the Federal Government has

the responsibility to provide . . . not more than

1,900 metric tons of capacity for interim storage of spent

nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity’’

where it is necessary for the ‘‘continued, orderly operation of such reactors.’’ Id. § 10151(a)(3). Here, the license permits storage of at least 5,000 and as much as

40,000 metric tons of nuclear waste.

The other measure is monitored retrievable storage.

See id. § 10161-10169. See also id. § 10101(34) (defining ‘‘monitored retrievable storage facility’’). Under

the statute, ‘‘[t]he Secretary [of Energy] is authorized

to site, construct, and operate one monitored retrievable

storage facility subject to the conditions described [in

the relevant sections of statute].’’ Id. § 10162(b). And

one of those conditions is that ‘‘[a]ny license issued by

the Commission for a monitored retrievable storage facility under [the statute] shall provide that . . . construction of such facility may not begin until the Commission has issued a license for the construction of a repository [i.e., Yucca Mountain].’’ Id. § 10168(d)(1).

29a

Reading these provisions together makes clear that

the Nuclear Waste Policy Act creates a comprehensive

statutory scheme for addressing spent nuclear fuel accumulation. The scheme prioritizes construction of the

permanent repository and limits temporary storage to

private at-the-reactor storage or at federal sites. It

plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-thereactor or in a federal facility.

In sum, the Atomic Energy Act doesn’t authorize the

Commission to license a private, away-from-reactor

storage facility for spent nuclear fuel. And the Nuclear

Waste Policy Act doesn’t permit it. Accordingly, we

hold that the Commission doesn’t have authority to issue

the license challenged here.

When read alongside each other, we find these statutes unambiguous. And even if the statutes were ambiguous, the Commission’s interpretation wouldn’t be

entitled to deference.

Last year, the Supreme Court directed that, ‘‘[w]here

the statute at issue is one that confers authority upon an

administrative agency, that inquiry must be shaped,

at least in some measure, by the nature of the question

presented—whether Congress in fact meant to confer

the power the agency has asserted’’ and whether there

are ‘‘reason[s] to hesitate before concluding that Congress meant to confer such authority.’’ West Virginia

v. EPA, --- U.S. ----, 142 S. Ct. 2587, 2607-08, 213 L. Ed.

2d 896 (2022) (quotations omitted) (adopting the major

questions doctrine).

Disposal of nuclear waste is an issue of great ‘‘economic and political significance.’’ Id. at 2608. What

30a

to do with the nation’s ever-growing accumulation of nuclear waste is a major question that—as the history of

the Yucca Mountain repository shows—has been hotly

politically contested for over a half century. Congress

itself has acknowledged that ‘‘high-level radioactive

waste and spent nuclear fuel have become major subjects of public concern.’’ 42 U.S.C. § 10131(a)(7) (findings section of the Nuclear Waste Policy Act). ‘‘A decision of such magnitude and consequence rests with

Congress itself, or an agency acting pursuant to clear

delegation from that representative body.’’ West Virginia, 142 S. Ct. at 2616 (emphasis added). Here,

there’s no such clear delegation under the Atomic Energy Act. And the Nuclear Waste Policy Act belies the

Commission’s arguments to the contrary.

* * *

We grant the petitions for review, vacate the license,

and deny the Commission’s motions to dismiss.

31a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-60743

STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE

STATE OF TEXAS; TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY; FASKEN LAND AND

MINERALS, LIMITED; PERMIAN BASIN LAND AND

ROYALTY OWNERS, PETITIONERS

NUCLEAR REGULATORY COMMISSION;

UNITED STATES OF AMERICA, RESPONDENTS

[Filed:

Mar. 14, 2024]

Appeal from the Nuclear Regulatory Commission

Agency No. 72-1050

ON PETITION FOR REHEARING EN BANC

Before JONES, HO, and WILSON, Circuit Judges.

PER CURIAM:

The court having been polled at the request of one of

its members, and a majority of the judges who are in

regular active service and not disqualified not having

voted in favor (FED. R. APP. P . 35, 36 and 5th CIR. R. 35),

the petition for rehearing en banc is DENIED.

32a

In the en banc poll, seven judges voted in favor of rehearing en banc (Stewart, Southwick, Graves, Higginson, Willett, Douglas, and Ramirez), and nine voted

against rehearing en banc (Richman, Jones, Smith, Elrod, Haynes, Ho, Duncan, Engelhardt, and Wilson).

Judge Oldham is recused and did not participate in

the poll.

33a

NO. 21-60743, STATE OF TEXAS V. NUCLEAR REGULATORY COMM’N

EDITH H. JONES, Circuit Judge, joined by SMITH, ELROD, H O, ENGELHARDT , and WILSON , Circuit Judges,

concurring in the denial of rehearing en banc:

The panel previously identified two bases of authority to review the NRC’s proposed action to redirect the

storage of nuclear energy waste away from Yucca Mountain, in conflict with federal law: these petitioners are

parties aggrieved, and the NRC has acted ultra vires.

The dissent challenges both grounds of jurisdiction.

We continue to adhere to our position that the judiciary

has not only the authority but the duty to review the

NRC’s actions, which may threaten significant environmental damage in the Permian Basin, one of the largest

fossil fuel deposits in the world.

“Party Aggrieved”

Who has the ability to secure judicial review of this

particular licensing decision? There’s no question of

Article III standing for the petitioners. Also, there’s

no question that Fasken (shorthand for petitioning mineral operators and landowners neighboring the proposed storage site) is “aggrieved.” Nor that the state

of Texas, which submitted comments and later passed a

law prohibiting such storage, is “aggrieved.” The argument is made that under Section 2344 of the Hobbs

Act, “parties aggrieved” who may seek judicial review

means only those whom the agency permitted to intervene in the licensing proceeding. But here, Fasken’s

multiple attempts formally to intervene were repeatedly

rebuffed by the agency. See Texas v. NRC 78 F.4th

827, 834. If this argument is accepted, in other words,

34a

the NRC controls the courthouse door through its authority to determine who may be “parties” to licensing

proceedings. And the state of Texas, which didn’t formally attempt to intervene but made its position plainly

known to NRC, has no access to judicial review at all.

The question of our jurisdiction is therefore bound up

with fundamental principles governing review of agency

decisions. Specifically, the courts default in our duty

to “say what the law is” (i.e., Marbury v Madison, 1

Cranch 137 (1803)) if we enable the agency to be the unilateral “decider” of the statutory term “party aggrieved.”

Massachusetts v. NRC, 878 F.2d 1516, 1520 (1st Cir.

1989). Our duty is reinforced by the oft-stated “strong

presumption” that a statute should be read in a way that

accords with the “basic[] principle” that agency actions

are “subject to judicial review.” Guerrero-Lasparilla

v. Barr, 140 S. Ct. 1062, 1069 (2020); Bowen v. Mich.

Acad. Of Family Physicians, 476 U.S. 667, 670, 106

S. Ct. 2133, 2135 (1986) (noting “the strong presumption

that Congress intends judicial review of administrative

action”); Kirby Corp. v. Pena, 109 F.3d 258, 261 (5th Cir.

1997) (“There is a ‘strong presumption’ that Congress

intends there to be judicial review of administrative

agency action, . . . and the government bears a

‘heavy burden’ when arguing that Congress meant to

prohibit all judicial review”) (citations omitted)); Dart v.

United States, 848 F.2d 217, 221 (D.C. Cir. 1988) (“If the

wording of a preclusion clause is less than absolute,

. . . [ j]udicial review is favored when an agency is

charged with acting beyond its authority.”). A holding

that courts cannot decide who are aggrieved parties according to the statutory language is not only contrary to

these principles but also seems particularly unlikely in

a legal world where deference to agency interpretations

35a

of law, e.g., in Auer and Chevron, is under increasing

scrutiny.

The contrary position of judicial abdication rests on

a provision of the Atomic Energy Act that allegedly constitutes “the only process” by which the [NRC] could

make a “party”: “[T]he Commission shall grant a hearing upon the request of any person who 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). Given the breadth of NRC’s statutory charge to allow “affected persons” to be made “parties,” it seems paradoxical to resort to the Hobbs Act to

disable Fasken and Texas from judicial review by

agency fiat. More specifically, with respect to the NRC’s

proffered interpretation, there are two responses. First,

the D.C. Circuit has interpreted the term “parties aggrieved” more broadly than simply those who were

joined as formal parties by the agency to administrative

proceedings. Second, to the extent a couple of courts

have rigidly used the term “parties” to mean only those

formally admitted in agency proceedings, those decisions are either distinguishable or wrong.

With a couple of exceptions noted below, the term

“party aggrieved” for judicial review purposes has been

interpreted flexibly by the D.C. Circuit itself. Beginning with Simmons v. ICC, 716 F.2d 40, 42 (D.C. Cir.

1983), then-judge Scalia laid the groundwork for interpreting that phrase as he held that “party aggrieved”

means more than “person aggrieved” for purposes

of Administrative Procedure Act judicial review. 1 5

Judge Scalia cites this court’s decision in American Trucking

Associations, Inc. v. ICC, 673 F.2d 82, 84 (5th Cir. 1982), cert. de1

36a

U.S.C. § 702 (“A person suffering legal wrong because

of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute,

is entitled to judicial review thereof.” (emphasis added)).

We don’t dispute that terminological distinction. But

shortly afterward, the D.C. Circuit held that “party aggrieved” under the Hobbs Act must be interpreted flexibly in light of the nature of the administrative proceeding. Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1192

(D.C. Cir. 1987); see also ACA Int’l v. Fed. Communications Comm’n, 885 F.3d 687, 711 (D.C. Cir. 2018); Reyblatt v NRC, 105 F.3d 715, 720 (D.C. Cir. 1997) (submitting comments in a rulemaking proceeding confers

“party” status for Hobbs Act purposes). The court

held in Water Transp. that the “degree of participation

necessary to achieve party status varies according to the

formality with which the proceeding was conducted.”

819 F.2d at 1192.

Decisions from other courts concur. See Nat’l Ass’n

Of State Util. Consumer Advocates v. FCC, 457 F.3d

1238, 1250 (11th Cir. 2006) (holding that entities “participated in the proceedings” and “independently established their status as ‘party aggrieved’ by “submitting

comments and notice of ex parte communications”),

opinion modified on denial of reh’g, 468 F.3d 1272 (11th

Cir. 2006); Clark & Reid Co., Inc. v. United States, 804

F.2d 3, 6 (1st Cir. 1986) (“[W]e do not equate the regulatory definition of a ‘party’ in an ICC proceeding with

the participatory party status required for judicial review under the Hobbs Act”); Am. Civil Liberties Union

v. FCC, 774 F.2d 24, 26 (1st Cir. 1985) (observing that

nied, 103 S. Ct. 1272 (1983), as being in accord with the “party”

requirement. We don’t dispute this either.

37a

entities could have “participate[d] in the proceedings or

review process as individual parties” if they had “filed

comments with the agency or petitioned for reconsideration of the FCC’s final order”). Another indicium of

the necessity for a practical judicial interpretation of

this term arises from the fact that the Hobbs Act covers

several quite different agencies and several types of

proceedings: rulemaking, adjudication, and licensing.

What makes for “party aggrieved” should be consistently interpreted and not left to the varying rules of

practice of each agency for each type of proceeding.

Simmons itself supports finding that Fasken and

Texas are each a “party aggrieved.” Simmons was a

challenge to an ICC ratemaking proceeding, and the

court held that Simmons, who had participated “by submitting comments” in another aspect of the proceeding

(the “railroad docket”) could not be a “party aggrieved”

as to the “motor carrier docket” aspect in which it had

filed nothing. Simmons, 716 F.2d at 42, 45. The

court’s analysis centered on whether to allow Simmons

to challenge the outcome of that part of the proceeding

where it hadn’t submitted any comments at all. That

Simmons had standing under the Hobbs Act to challenge the deregulatory rule on the railroad docket—by

virtue of filing comments—was uncontested. By analogy here, Fasken “participated” in the proceeding with

comments, submissions, attendance at hearings, and

factual submissions. And the state of Texas “participated” by filing comments that made its position plain.

Indeed, NRC acknowledged the state’s position in its final environmental impact statement. 85 Fed. Reg.

27,447, 27,448 (May 8, 2020). The agency became well

aware of the petitioners’ concerns.

Under Water

38a

Transp. and its progeny, Fasken and Texas should qualify for “party aggrieved” status.

Going back to the courts’ presumption of judicial review of agency action, the presumption may be overcome “only on a showing of clear and convincing evidence of a contrary legislative intent.” Abbott Labs. v.

Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 1511 (1967);

Traynor v. Turnage, 485 U.S. 535, 542, 108 S. Ct. 1372,

1378 (1988); see also Rhode Is. Dept. of Env. Mgmt. v.

United States, 304 F.3d 31, 41-42 (1st Cir. 2002). As

the First Circuit also pointed out, requiring intervention

for “party aggrieved” status is “circular . . . [t]he

NRC cannot now claim that by refusing to grant the

Commonwealth’s requests to become a party, the NRC’s

decisions are beyond review.”

Massachusetts, 878

F.2d at 1520.

We acknowledge that the D.C. Circuit and Tenth Circuit have counterintuitively adopted NRC’s circular position. 2 This panel’s position, however, relies on the

above citations from the D.C. Circuit and other courts.

The bottom line for Hobbs Act “party aggrieved” status

is to participate in agency proceedings, which both

Fasken and Texas did; federal courts should not be

bound to defer to varying agency rules and procedures

to interpret this singular statutory language—whose

purpose after all is to facilitate judicial review. NRC

See, e.g., Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 239

(D.C. Cir. 2022); NRDC v NRC, 823 F.3d 641, 643 (D.C. Cir. 2016);

State ex rel. Balderas v NRC, 59 F.4th 1112, 1117 (10th Cir. 2023).

In Balderas, the court denied review to New Mexico, which had

submitted comments only on the environmental impact statement

issued after the licensure. That decision is distinguishable at least

from Fasken’s position.

39a

admits that the panel correctly noted judicial consensus

that the “degree of participation necessary to achieve

party status varies according to the formality with which

the proceeding is conducted.” Federal Respondents’

Pet. for Reh’g En Banc at 7. Consequently, according

to the nature of the proceedings, the fact and scope of

the petitioner’s “participation” should be determinative

for judicial review, not the NRC’s denial of “participation” to Fasken. NRC’s insistence on strict compliance

with its intervention rules is rather bold, not only from

the standpoint of eliminating judicial review, but also

because NRC quotes the statute that the Commission

“shall admit any such person as a party . . . ” Id.

And to the point that this decision has “created” a circuit conflict, we disagree in part. These petitioners

satisfy “party aggrieved” status under the numerous

cases that apply a broader standard of “participation.”

There is no circuit conflict with such cases. The conflict here is with the Balderas decision’s denial of New

Mexico’s standing to challenge the ISP license. Inasmuch as the conflict is about statutory standing to appeal, a finding of standing means that our court will perform its duty of judicial review.

In light of the split of authorities, is “party aggrieved” status an issue of overarching significance?

Not at all. The Hobbs Act jurisdictional provision is

rarely debated, as anyone trying to research this term

will quickly ascertain. This is likely for a couple of reasons.

First, much agency activity covered by the

Hobbs Act is conducted in a closed circle of experts, lobbyists and lawyers well familiar with the rules and proclivities of the administrators; therefore, arguments

over statutory standing seldom arise. Second, with

40a

“participation” as the bottom line from a judicial standpoint,3 which is also the baseline of D.C. court opinions

(albeit with varying applications of the term), substantive judicial review occurs only where “parties” have actually “participated” in the challenged proceedings.

Fasken and Texas were no strangers to NRC here. Indeed, the NWPA specifically required “consultation”

with the states before siting of spent nuclear fuel may

occur anywhere. 4 That provision as well should have

garnered Texas “party aggrieved” status.

For these reasons, the panel decision is comfortably

footed on statutory standing under the Hobbs Act.

2. The Ultra Vires Exception to the “Party Aggrieved” Requirement

Even if Texas and Fasken were not “parties aggrieved” under the Hobbs Act, the panel nevertheless

had jurisdiction to hear their appeal. As explained in

the opinion, this court has long recognized an exception

to the “party aggrieved” requirement regarding challenges to the lawfulness of the agency’s action. Texas

and Fasken each argued that the NRC’s actions were

unauthorized either by the AEA or the NWPA. Texas,

78 F.4th at 839-40. Accordingly, the panel relied on the

rule that “a person may appeal an agency action even if

D.C. court opinions also reasonably foreclose de minimis participation as a basis for Hobbs Act judicial review. See ACA Int’l,

885 F.3d at 711; Water Transp. Ass’n, 819 F.2d at 1192-93.

42 U.S.C. § 10155(d)(1)-(2) requires the Department of Energy

to exercise very limited interim storage of spent nuclear fuel

through “a cooperative agreement under which [the] State . . .

shall have the right to participate in a process of consultation and

cooperation”) (emphasis added). Needless to say, no such consultation or cooperation occurred here.

41a

not a party to the original agency proceeding . . . if

the agency action is attacked as exceeding [its] power”

or if the appellant “challenges the constitutionality of

the statute conferring authority on the agency.” Am.

Trucking Associations, Inc. v. ICC, 673 F.2d 82, 85 n.4

(5th Cir. 1982); accord Wales Transp., Inc. v. ICC, 728

F.2d 774, 776 n.1 (5th Cir. 1984).

Texas and Fasken challenged the lawfulness of the

NRC’s actions and the legality of the NRC’s conduct.

But this court’s exception to the “party-aggrieved” requirement is criticized as a relic of ages past that perished in the early 1980s. Of course, the Supreme Court

has not overruled our ultra vires exception, and this

court has recognized its existence in at least two more

recent cases. See Baros v. Tex. Mexican Ry. Co., 400

F.3d 228, 238 n.24 (5th Cir. 2005) (noting other courts’

disagreement); Merchants Fast Motor Lines, Inc. v.

ICC, 5 F.3d 911, 922 (5th Cir. 1993). 5

Three reasons are posited to overrule ultra vires jurisdiction to review the statutory or constitutional basis

for agency actions. First, it is contended that our court

decisions crafted the rule based on cases that predate

Congress’s bringing the ICC within the ambit of the

Hobbs Act. That is just wrong. Wales and American

Trucking both postdate Hobbs Act review of ICC actions and cite the Hobbs Act. There is no ground to

To be sure, other courts have rejected applying ultra vires review in cases involving the Hobbs Act. See Balderas, 59 F.4th at

1123-24; Nat’l Ass’n Of State Util. Consumer Advocates, 457 F.3d

at 1249; Erie-Niagara Rail Steering Comm. v. Surface Transp.

Bd., 167 F.3d 111, 112-13 (2d Cir. 1999); Matter of Chicago, Milwaukee, St. Paul & Pacific R. Co., 799 F.2d 317, 334-35 (7th Cir.

1986).

42a

attribute our courts’ decisions to judicial mistakes, and

consequently, Wales and American Trucking can be

reconciled as to both holdings.

Second, this court’s ultra vires exception was not

made out of whole cloth. A similar rule is acknowledged by the Supreme Court, this court, and our sister

circuits in various contexts. See, e.g., Leedom v. Kyne,

358 U.S. 184, 190, 79 S. Ct. 180, 185 (1958) (“This Court

cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action

taken in excess of delegated powers.”); 6 Kirby Corp.,

109 F.3d at 269 (acknowledging “judicial review is

proper under the rule set forth in Kyne, despite there

being a statutory provision prohibiting such review, because the agency’s challenged action is so contrary to

the terms of the relevant statute that it necessitates judicial review independent of the review provisions of the

relevant statute”); see also, e.g., Long Term Care Partners, LLC v. United States, 516 F.3d 225, 233 (4th Cir.

2008) (recognizing there is “a nonstatutory exception to

the [APA] § 704 finality requirement in cases in which

agencies act outside the scope of their delegated powers

and contrary to ‘clear and mandatory’ statutory prohibitions”); Rhode Island Dep’t of Envtl. Mgmt., 304 F.3d

at 42 (“[E]ven after the passage of the APA, some residuum of power remains with the district court to review

agency action that is ultra vires.”); Chamber of ComThe parties did not cite Leedom, and I agree that the Supreme

Court clarified its application in Bd. of Governors of Fed. Reserve

Sys. v. MCorp Fin., Inc., 502 U.S. 32, 112 S. Ct. 459 (1991). Nonetheless, Leedom represents the principle that the Article III courts

are not totally closed to plaintiffs who claim agency action has violated the agency’s statutory mandate or the Constitution.

43a

merce of U.S. v. Reich, 74 F.3d 1322, 1330-31 (D.C. Cir.

1996) (“The procurement power must be exercised consistently with the structure and purposes of the statute

that delegates that power. . . . It does not follow,

then, that the President’s broad authority under the

Procurement Act precludes judicial review of executive

action for conformity with that statute—let alone review

to determine whether that action violates another statute.” (citation and quotations omitted)). Courts apply this exception for good reason. Indeed, “[w]ere

such unauthorized [agency] actions to go unchecked,

chaos would plainly result.” Dart, 848 F.2d at 224.

Thus, “[w]hen an executive acts ultra vires, courts are

normally available to reestablish the limits on his authority.” Id.

Third, two additional misconceptions should be dispelled. The first is that the ultra vires exception means

no more than that an agency “got it wrong” per APA

standards. See Matter of Chicago, Milwaukee, St. Paul

& Pacific R. Co., 799 F.2d 317, 334-35 (7th Cir. 1986).

That is plainly not what Wales and American Trucking

stand for. Instead, and as the above cases demonstrate, the term literally refers to being “outside” the

agency’s power, i.e., in defiance of the limits placed by

Congress in the agency’s governing statute or the Constitution. None of the cases cited above have misunderstood this term or misapplied the rule to challenges

involving less than an absence of statutory or constitutional authority. The “got it wrong” criticism is misleading hyperbole. Second, we need not speculate

about any limits on who can challenge agency action as

ultra vires, because in this case there is no doubt whatsoever about the petitioners’ Article III standing. Nor

is there doubt that NRC’s rejection of “party aggrieved”

44a

status, if that were to be decided, has denied them any

other avenue of redress.

If ever there were a case in which an agency acted

ultra vires, it should be this case. And these petitioners should have Hobbs Act standing to contest the

NRC’s illegal licensing.

45a

STEPHEN A. HIGGINSON, Circuit Judge, joined by

GRAVES , DOUGLAS, and RAMIREZ, Circuit Judges, dissenting from denial of rehearing en banc:

To hold that the Nuclear Regulatory Commission

lacked authority to license private, away-from-reactor

storage of spent nuclear fuel without a clear delegation

from Congress, the panel disregarded a clear limitation

that Congress imposed on our own authority.

Through the Hobbs Act, Congress provided for judicial review of a Nuclear Regulatory Commission “final

order entered in any proceeding” under the Atomic Energy Act “for the granting, suspending, revoking, or

amending of any license.”

42 U.S.C. § 2239(b)(1),

(a)(1)(A). But, like challenges to all agency actions

governed by the Hobbs Act, Congress limited jurisdiction to where “[a]ny party aggrieved by the final order”

seeks judicial review of the order. 28 U.S.C. § 2344.

The panel erred when it ignored this limitation, deepening one circuit split that arose from our court’s atextual

dicta in a footnote over forty years ago and threatening

to create another with new, troubling dicta of its own.

This exercise of jurisdiction has grave consequences

for regulated entities’ settled expectations and careful

investments in costly, time-consuming agency proceedings, inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this

uncertainty. See Amicus Nuclear Energy Institute Br.

4-7. And it does so across a wide range of industries—

including agriculture, transportation, development, and

communications—because the Hobbs Act’s exclusive jurisdiction provision governs actions taken by many

agencies. See 28 U.S.C. § 2342(1)-(7).

46a

This case concerns a license issued by the Commission to a private company, Interim Storage Partners, for

operation of a temporary, away-from-reactor spent nuclear fuel storage facility in Andrews County, Texas.

Two private entities—Permian Basin Land and Royalty

Owners and for-profit oil and gas extraction organization Fasken Land and Minerals (collectively, “Fasken”)

—sought to intervene in the licensing proceeding but

were denied. Their petitions for review in the D.C.

Circuit of the orders denying intervention were either

dismissed or denied. Don’t Waste Michigan v. NRC,

No. 21-1048, 2023 WL 395030, at *1-3 (D.C. Cir. Jan. 25,

2023) (per curiam). Texas never sought to intervene in

the licensing proceeding. Instead, it sent letters to the

Commission both during a public comment period on a

draft environmental impact statement performed on the

license and after Texas passed a law prohibiting storage

of spent nuclear fuel.

Fasken and Texas petitioned for review of the license

in this court and licensee Interim Storage Partners intervened. Texas argued, as relevant here, that the license should be vacated because the Commission does

not have the authority to license private entities for temporary, away-from-reactor storage of spent nuclear fuel.

The panel concluded that it had jurisdiction under the

Hobbs Act, granted the petitions for review, and vacated

the license. Texas v. NRC, 78 F.4th 827, 837-40, 844

(5th Cir. 2023).

The panel suggested that, while neither Fasken nor

Texas were parties in the licensing proceeding that produced the challenged order, it may be that “participat[ion]—in some way—in the agency proceedings,

47a

which Texas did through comments and Fasken did by

seeking intervention and filing contentions,” was sufficient. Id. at 838. But the panel rested its assertion of

jurisdiction on our court’s “ultra vires exception to the

party-aggrieved status requirement.”

Id. at 839.

Under the exception, there are “ ‘two rare instances’

where a ‘person may appeal an agency action even if not

a party to the original agency proceeding’—(1) where

‘the agency action is attacked as exceeding [its] power’

and (2) where the person ‘challenges the constitutionality of the statute conferring authority on the agency.’ ”

Id. (quoting Am. Trucking Ass’ns v. ICC, 673 F.2d 82,

85 n.4 (5th Cir. 1982) (per curiam)). The panel concluded that two of the challenges attacked the Commission as exceeding its power: Texas’s argument that

“the Commission lacks the statutory authority to license

the facility” and Fasken’s argument that “the Commission violated the National Environmental Policy Act and

Administrative Procedure Act by allowing a licensing

condition that violates the Nuclear Waste Policy Act.”

Id. at 839-40.

II.

Lest troubling dicta again be elevated to binding

precedent without examination, I write first to explain

why the panel is wrong to suggest, without so holding,

that Texas and Fasken might be “part[ies] aggrieved”

under the plain text of the Hobbs Act. The panel intimates that requiring that a “party aggrieved” be a party

to the underlying proceeding here would “impose an extratextual gloss by requiring a degree of participation not

contemplated in the plain text of the statute.” Id. at

839. But giving effect to the words that Congress

48a

chose—and refusing to read in words that it did not

choose—does no such thing.

The Hobbs Act’s narrow, exclusive-jurisdiction provision limits review to those petitioners who are a “party

aggrieved by the final order,” 28 U.S.C. § 2344, in contrast with the broader judicial review provision of the

Administrative Procedure Act under which a “person”

“aggrieved by agency action” may petition for review, 5

U.S.C. § 702. I don’t disagree that party status, because the Hobbs Act encompasses a variety of agency

actions, turns on the nature of the agency proceedings.

But in these proceedings the answer is clear. With the

Atomic Energy Act, Congress carefully delineated the

only process by which the Commission could make a

“person” a “party” in the licensing proceeding context:

“[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).1

Where the Commission denies a person’s attempt to become a party—that is, where the Commission denies

intervention—Congress provided for judicial review of

that denial under the Hobbs Act. Id. § 2239(b)(1).

Indeed, Congress relied on the “person” versus “party” distinction throughout the Atomic Energy Act. For example, after the conclusion of certain licensing proceedings for the construction of plants,

the Commission must publish a notice of intended operation before

fuel is loaded into the plant so that “any person whose interest may

be affected by operation of the plant, may within 60 days request

the Commission to hold a hearing on whether” the construction

complies with the license. Id. § 2239(a)(1)(B)(i). This distinction

made by Congress contemplates that a person may not be party to

a licensing proceeding for a plant’s construction but may later challenge whether subsequent construction complies with the license.

49a

Pursuant to this congressionally devised process, Fasken

sought to become a party to the proceeding and, when

the Commission denied intervention, obtained full review of that denial in the D.C. Circuit. Don’t Waste

Michigan, 2023 WL 395030, at *1-3. Texas never

sought to become a party.

Without the answer that Congress supplied, the

panel relied on what it guessed Congress intended as

“the function of the ‘party aggrieved’ status requirement.” NRC, 78 F.4th at 838. This put the panel in

the more difficult position of attempting to discern what

degree of participation in the agency proceeding was

enough. Id. at 838-39. But no such inquiry is required here or even permitted because, in the context of

Commission licensing proceedings, Congress has answered the question already.

III.

The panel rested its assertion of jurisdiction, with

neither merits endorsement nor analysis, on this court’s

judge-made, ultra vires exception to Congress’s jurisdictional limitation. Id. at 839-40. Because courts have

“no authority to create equitable exceptions to jurisdictional requirements,” Bowles v. Russell, 551 U.S. 205,

214 (2007), the exception should be eliminated.

This court, in dicta in a footnote over forty years ago,

asserted that the Hobbs Act’s “party aggrieved” requirement does not limit review where “the agency action is attacked as exceeding [its] power.” Am. Trucking Ass’ns, 673 F.2d at 85 n.4 (internal quotation marks

and citation omitted). 2 That assertion, though made in

This was never explained as an outgrowth of the much narrower

exception that the Supreme Court recognized in Leedom v. Kyne,

50a

1982, relied exclusively on Interstate Commerce Commission cases from 1968 and earlier—seven years before

Congress brought judicial review of that body’s orders

within the ambit of the Hobbs Act. See Pub. L. No. 93584, §§ 3, 4, 88 Stat. 1917 (1975). As the Second Circuit

explained, the exception “rests upon” these “pre-1975

cases” “without any acknowledgment of the intervening

change in governing procedure” and with “no compelling support for the proposition that, despite the plain

statutory language to the contrary, such petitions remain valid today.” Erie-Niagara Rail Steering Comm.

v. Surface. Transp. Bd., 167 F.3d 111, 112 (2d Cir. 1999)

(per curiam).

No other circuit has adopted our court’s exception to

the Hobbs Act, and four circuits have rejected it. Balderas v. NRC, 59 F.4th 1112, 1123-24 (10th Cir. 2023);

Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457

F.3d 1238, 1249 (11th Cir. 2006) (Pryor, J.), modified on

other grounds on denial of reh’g, 468 F.3d 1272 (11th

Cir. 2006); Erie-Niagara Rail Steering Comm., 167

F.3d at 112-13; In re Chicago, Milwaukee, St. Paul &

Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986) (Easterbrook, J.). Indeed, the Tenth Circuit in Balderas re358 U.S. 184, 190 (1958). There, the Supreme Court explained that

“the inference would be strong that Congress intended the statutory

provisions governing . . . general jurisdiction . . . to control” where “there is no other means” to “protect and enforce” a

“right” that Congress has created. Id. (internal quotation marks

and citations omitted). But the Court has underscored that this

narrow exception does not apply where there is a “meaningful and

adequate opportunity for judicial review.” Bd. of Governors of Fed.

Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991). Nor does it

apply where Congress has spoken “clearly and directly” to judicial

review. Id. at 44.

51a

jected the exception when New Mexico invoked it to

challenge the same license at issue here. 59 F.4th at

1123-24. In the Seventh Circuit, Judge Easterbrook

explained that our court’s atextual exception reads out

the “party” limitation that Congress imposed because

“ ‘exceeding the power’ of the agency may be a synonym

for ‘wrong,’ so that the statute then precludes review

only when there is no reason for review anyway.” In

re Chicago, 799 F.2d at 335.

Parsing which merits arguments here fall under our

court’s ultra vires exception shows its unworkability—

and the risk for judicial aggrandizement when courts

can pick and choose when to abide by Congress’s limits.

The panel concluded that it had jurisdiction over

Fasken’s argument that “the Commission violated the

National Environmental Policy Act and Administrative

Procedure Act by allowing a licensing condition that violates the Nuclear Waste Policy Act” because the argument “centers on the contention that the Commission

acted beyond its statutory authority by issuing a license

with a condition expressly prohibited by the Nuclear

Waste Policy Act.” NRC, 78 F.4th at 840. But this

asks judges to speculate about what a petitioner’s challenges are really about to decide whether Congress’s

clear jurisdictional limitation on their power to hear

cases really applies.

The panel concluded that it had jurisdiction over

Texas’s argument that “the Commission lacks the statutory authority to license the facility” because that argument “attacks the Commission for licensing a facility

without the authority to do so under the Atomic Energy

Act, and in conflict with the Nuclear Waste Policy Act.”

Id. at 839-40. The panel, however, determined that it

52a

lacked jurisdiction over Texas’s arguments that “the license issuance violated the Administrative Procedure

Act” (unlike, inexplicably, Fasken’s Administrative Procedure Act challenge) and the “National Environmental

Policy Act by failing to assess the risks of a potential

terrorist attack.” Id. But why are these latter two

not also “attack[s]” on the “agency action” as “exceeding

[its] power”? Am. Trucking Ass’ns, 673 F.2d at 85 n.4.

An agency exceeds its power whenever it violates the

law. That includes when, for example, its action is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A).

Our exception reads out the difference, discussed above,

that Congress created between broader judicial review

under the Administrative Procedure Act and narrower

judicial review under the Hobbs Act. And “[t]he merits of that policy are for the Congress rather than us to

determine.”

Simmons v. Interstate Commerce

Comm’n, 716 F.2d 40, 43 (D.C. Cir. 1983) (Scalia, J.).

* * *

For these reasons, I respectfully dissent from denial

of rehearing en banc.

53a

APPENDIX C

LICENSE FOR INDEPENDENT STORAGE OF

SPENT NUCLEAR FUEL AND HIGH-LEVEL

RADIOACTIVE WASTE

Pursuant to the Atomic Energy Act of 1954, as amended,

the Energy Reorganization Act of 1974 (Public Law

93-438), and Title 10, Code of Federal Regulations,

Chapter 1, Part 72, and in reliance on statements and

representations heretofore made by the licensee, a license is hereby issued authorizing the licensee to receive, acquire, and possess the power reactor spent fuel

and other radioactive materials associated with spent

fuel storage designated below; to use such material for

the purpose(s) and at the place(s) designated below; and

to deliver or transfer such material to persons authorized to receive it in accordance with the regulations of

the applicable Part(s). This license shall be deemed to

contain the conditions specified in Section 183 of the

Atomic Energy Act of 1954, as amended, and is subject

to all applicable rules, regulations, and orders of the Nuclear Regulatory Commission now or hereafter in effect

and to any conditions specified herein.

This license is conditioned upon fulfilling the requirements of 10 CFR Part 72, as applicable, the attached Appendix A (Technical Specifications), and the conditions

specified below.

Licensee

Interim Storage Partners LLC (ISP)

WCS CISF 9998 Highway 176 West Andrews,

Texas, 79714

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License No. SNM-2515

Amendment No. 0

Expiration Date Sept. 13, 2061

Docket or Reference No. 72-1050

Byproduct, Source, and/or Special Nuclear Material

A. Spent nuclear fuel elements from commercial

nuclear utilities licensed pursuant to 10 CFR

Part 50, including those stored under either a

Part 50 general license or Part 72 specific license, and associated fuel assembly control

components and associated radioactive materials related to the receipt, transfer, and storage

of that spent nuclear fuel.

B. Greater than Class C Waste, reactor related

material generated as a result of plant operations and decommissioning where radionuclide

concentration limits of Class C waste in 10 CFR

61.55 are exceeded.

Chemical and/or Physical Form

A. Intact fuel assemblies, damaged fuel assemblies, failed fuel and fuel debris, as allowed by

Materials License SNM-2510, Amendment 4;

Table 1-1c or Table 1-1j of Certificate of Compliance No. 1004, Amendments 3 through 13;

Table 1-1t of Certificate of Compliance No.

1004, Amendments 10 through 13; Section 2.1 of

Certificate of Compliance No. 1029, Amendments 0, 1, and 3; Section B 2.1 of Certificate of

Compliance No. 1025, Amendments 0 through

6; Section B 2.1.2 of Certificate of Compliance

No. 1015, Amendments 0 through 5; Table B 2-

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1 of Certificate of Compliance No. 1031, Amendments 0 through 3 Revision 1, and 4 through 5,

modified as described in Condition 9 below.

B. Greater than Class C Waste, as activated and

potentially surface contaminated metals comprised of miscellaneous solid waste resulting

from segmentation and decommissioning processes.

Maximum Amount That Licensee May Possess at

Any One Time Under This License

A. 5,000 Metric Tons (MT) total of Uranium and

Mixed-Oxide (MOX) in the form of intact spent

fuel assemblies, damaged fuel assemblies, failed

fuel assemblies, and fuel debris. In addition,

the cumulative amount of material received and

accepted during the licensed term of the facility

may not exceed 5,000 MT of Uranium plus

MOX.

B. 231.3 MT (510,000 pounds) of Greater than

Class C Waste.

Authorized Use: The material identified in 6.A,

6.B, 7.A and 7.B above is authorized for receipt, possession, storage, and transfer at the WCS Consolidated Interim Storage Facility (WCS CISF), as described in the WCS CISF Final Safety Analysis Report (FSAR) as updated. Storage of fuel is authorized only in canisters referenced in Section 2.1 of the

Attachment, Appendix A Technical Specifications

and all fuel with assembly average burnup greater

than 45 GWd/MTHM shall be canned inside the canister.

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10. Authorized Place of Use: The licensed material is

to be received, possessed, transferred, and stored at

the WCS CISF, geographically located within Andrews County, Texas.

11. The Technical Specifications contained in the Appendix attached hereto are incorporated into the license. The Licensee shall operate the installation

in accordance with the Technical Specifications in

the Appendix.

12. The licensee shall follow WCS ERP-100, “Consolidated Emergency Response Plan,” Revision 02-082019, and as it may be further revised in accordance

with 10 CFR 72.44(f ).

13. The Licensee shall:

(1)

follow the Physical Protection Plan entitled,

“WCS Consolidated Interim Storage Facility

(CISF) Physical Security Plan,” Revision 5,

dated September 18, 2019, as well as changes

made in accordance with 10 CFR 72.44(e) and

72.186(b);

(2)

follow the Training and Qualification Plan entitled, “WCS Consolidated Interim Storage

Facility (CISF) Training and Qualification

Plan Appendix B to the CISF Physical Security Plan,” dated September 18, 2019, as well

as changes made in accordance with 10 CFR

72.44(e) and 72.186(b);

(3)

follow the Safeguards Contingency Plan entitled “WCS Consolidated Interim Storage

Facility (CISF) Safeguards Contingency

Plan Appendix C to the CISF Physical Security Plan,” dated September 18, 2019, as well

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as changes made in accordance with 10 CFR

72.44(e) and 72.186(b);

(4)

follow the “Additional Security Measures for

the Physical Protection of Dry Independent

Spent Fuel Storage Installations,” dated

September 28, 2007; and

(5)

follow the “Additional Security Measures for

Access Authorization and Fingerprinting at

Independent Spent Fuel Storage Installations,” dated December 19, 2007.

14. Construction of the WCS CISF shall not commence

before funding (equity, revenue, and debt) is fully

committed that is adequate to construct a facility

with the initial capacity as specified by the Licensee

to the NRC. Construction of any additional capacity beyond the initial capacity amount shall commence only after funding is fully committed that is

adequate to construct such additional capacity.

15. The Licensee shall, in its contracts with clients:

(1)

include provisions requiring clients to retain

title to the material identified in 6.A, 6.B, 7.A

or 7.B, and include provisions allocating legal

and financial liability among the Licensee

and the client(s);

(2)

include provisions requiring clients to periodically provide credit information, and, when

necessary, additional financial assurances

such as guarantees, prepayment, or payment

bond(s);

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(3)

include a provision requiring the Licensee

not to terminate the license prior to furnishing storage services covered by the contract.

16. The Licensee shall obtain onsite and offsite insurance coverage in the amounts committed to by ISP

in the ISP license application.

17. To conform with the requirements of 10 CFR 72.42,

the Licensee shall submit a request for license

amendment(s) to incorporate any technically applicable provisions of the Aging Management Programs (AMPs) and Time-Limited Aging Analyses

(TLAAs) approved in future renewals of NAC Systems CoCs 1015 and 1025 and 1031, for all applicable

NAC spent fuel canisters and storage overpacks.

The Licensee shall submit the amendment request(s) within 120 days of the effective date of the

applicable CoC approval. In the event that the

current CoC holder for CoC 1015 and/or 1025 and/or

1031 does not submit a timely renewal as defined in

10 CFR Part 72.240, the Licensee shall submit a license amendment request, incorporating AMP and

TLAA information compliant with 10 CFR 72.42,

within one (1) year following the timely renewal

deadline defined in 10 CFR 72.240(b) for the applicable CoC.

18. The

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