Amicus Curiae Brief — Nuclear Regulatory Commission, et al., Petitioners v. Texas, et al.

Nos. 23-1300, 23-1312

In the

Supreme Court of the United States

NUCLEAR REGULATORY COMMISSION, et al.,

Petitioners,

v.

TEXAS, et al.,

Respondents.

INTERIM STORAGE PARTNERS, LLC,

Petitioner,

v.

TEXAS, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

HOLTEC INTERNATIONAL

IN SUPPORT OF PETITIONERS

A nne R. Leidich

Counsel of Record

Jay E. Silberg

Pillsbury Winthrop Shaw Pittman LLP

1200 Seventeenth Street, NW

Washington, DC 20036

(202) 663-8707

anne.leidich@pillsburylaw.com

Counsel for Amicus Curiae

334455

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 5

I. The Fifth Circuit’s Hobbs Act Ruling Has

Subjected Holtec To Unnecessary And

Repetitive Multi-Circuit Litigation. ..................... 5

A. Fasken Has Subjected The Holtec License To

Repetitive And Unnecessary Litigation Across

Multiple Circuit Courts. .................................. 5

B. The Fifth Circuit’s Ultra Vires Exception Gave

Life To Fasken’s Excessive Multiple Circuit

Court Challenge. ............................................ 10

II. Legislative History Demonstrates That The

Commission Has Acted Well Within Its

Statutory Authority. ........................................... 14

A. The History Of The Atomic Energy Act Shows

That The Commission Has The Authority To

Issue Licenses For Spent Fuel Storage. ....... 14

B. The History Of The Nuclear Waste Policy Act

Further Demonstrates The Commission’s

Authority To Issue Licenses For Spent Fuel

Storage. .......................................................... 24

CONCLUSION ......................................................... 29

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Beyond Nuclear, Inc. v. NRC,

113 F.4th 956 (D.C. Cir. 2024) ...... 3, 7, 8, 10, 12, 13

Bullcreek v. NRC,

359 F.3d 536 (D.C. Cir. 2004) .......................... 10, 29

Carpenter v. DOT,

13 F.3d 313 (9th Cir. 1994).................................... 11

Edwards’ Lessee v. Darby,

12 Wheat. 206, 6 L. Ed. 603 (1827) ....................... 24

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ................................................ 28

Fasken Land & Minerals, Ltd. v. NRC,

No. 21-1147 (D.C. Cir. July 25, 2021) ............. 2, 7-8

Fasken Land & Minerals, Ltd. v. NRC,

No. 23-60377, 2024 WL 3175460

(5th Cir. Mar. 27, 2024) ............................. 1, 3, 9, 13

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .................................................. 17

Illinois v. NRC,

591 F.2d 12 (7th Cir. 1979).................................... 25

In re Holtec Int’l,

CLI-20-04, 91 NRC 167 (Apr. 23, 2020) .............. 6, 7

Loper Bright Enters. v. Raimondo,

603 U.S. ___, 144 S. Ct. 2244 (2024) ..................... 24

N. States Power Co. v. Minnesota,

447 F.2d 1143 (8th Cir. 1971), aff’d,

405 U.S. 1035 (1972).............................................. 15

iii

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ................................................ 17

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

587 U.S. 601 (2019) ................................................ 28

Simmons v. ICC,

716 F.2d 40 (D.C. Cir. 1983) .................................. 11

Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004).............................. 29

Statutes and Other Authorities:

28 U.S.C. § 2133 ........................................................ 19

28 U.S.C. § 2134 .................................................. 19, 21

28 U.S.C. § 2341 .......................................................... 5

28 U.S.C. § 2343 ........................................................ 13

28 U.S.C. § 2344 .................................................... 5, 11

42 U.S.C. § 2013(c) .................................................... 18

42 U.S.C. § 2014(aa) .................................................. 22

42 U.S.C. § 2014(e)(1) ................................................ 23

42 U.S.C. § 2014(e)(3) ................................................ 22

42 U.S.C. § 2014(e)(4) ................................................ 23

42 U.S.C. § 2014(v) .................................................... 21

42 U.S.C. § 2021 ........................................................ 19

42 U.S.C. § 2021(b) .................................................... 20

42 U.S.C. § 2073(a) .............................................. 16, 20

42 U.S.C. § 2073(a)(1) ............................................... 17

42 U.S.C. § 2073(a)(2) ............................................... 17

42 U.S.C. § 2073(a)(3) ............................................... 17

iv

42 U.S.C. § 2073(a)(4) ....................... 16, 17, 18, 19, 21

42 U.S.C. § 2093(a)(4) ......................................... 17, 19

42 U.S.C. § 2111(b) .............................................. 22, 23

42 U.S.C. § 2111(b)(2) ............................................... 23

42 U.S.C. § 2201(m) ................................................... 19

10 C.F.R. Part 70 ....................................................... 25

10 C.F.R. Part 72 ................................................. 25, 26

39 Fed. Reg. 32,345 (Sept. 6, 1974) .......................... 25

43 Fed. Reg. 46,309 (Oct. 6, 1978) ............................ 25

45 Fed. Reg. 74,693 (Nov. 12, 1980) ......................... 25

47 Fed. Reg. 20,231 (May 11, 1982) .......................... 25

69 Fed. Reg. 52,314 (Aug. 25, 2004) ......................... 28

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

72 Fed. Reg. 55,864 (Oct. 1, 2007) ............................ 22

78 Fed. Reg. 12,034 (Mar. 18, 2024) ....................... 5-6

83 Fed. Reg. 13,802 (Mar. 30, 2018) ...........................6

83 Fed. Reg. 14,897 (Apr. 6, 2018) ..............................6

83 Fed. Reg. 22,714 (May 16, 2018) ............................6

83 Fed. Reg. 39,919 (Jul. 16, 2018) .............................6

83 Fed. Reg. 42,527 (Aug. 22, 2018) ......................... 28

88 Fed. Reg. 30,801 (May 12, 2023) ............................8

128 Cong. Rec. 32,560 (1982) .................................... 27

Amending the Atomic Energy Act and Authorization

of Stanford Accelerator Project, Hearing before the

Joint Committee on Atomic Energy, 86th Cong.,

2d Sess. (1959) ....................................................... 18

v

Backgrounder on Radioactive Waste: High-Level

Waste, U.S. Nuclear Reg. Comm’n,

https://www.nrc.gov/reading-rm/doccollections/fact-sheets/radwaste.html ................... 15

H.R. Rep. No. 1569 .................................................... 11

H.R. Rep. No. 85-2272 ............................................... 17

Licensing Uranium Enrichment Plants: Oversight

Hearing Before the Subcommittee on Energy and

the Environment of the Committee on Interior

and Insular Affairs, 101st Cong., 2d Sess.

(Mar. 6, 1990) ......................................................... 21

Pub. L. 86-300, 73 Stat. 574 (1959) .......................... 19

Pub. L. 88-489, §§ 5-8, 78 Stat. 603 (1964)............... 20

Pub. L. No. 83-703, 68 Stat. 919 (1954) ........ 16, 17, 23

Pub. L. No. 109-58, 119 Stat. 594 ............................. 23

Radioactive Waste Legislation: Hearings on

H.R. 1993, H.R. 2800, H.R. 2840, H.R. 2881,

and H.R. 3809 Before the Subcomm. On

Energy and the Environment of the House

Comm. On Interior and Insular Affairs,

97th Cong., 1st Sess. (July 9, 1981) ...................... 26

S. Rep. No. 500 .......................................................... 11

Sup. Ct. R. 37.6 ............................................................1

1

INTEREST OF AMICUS CURIAE

Holtec International (Holtec) 1 is the owner and

licensee of a spent fuel storage facility license issued

by the Nuclear Regulatory Commission (the

“Commission” 2 or “NRC”) and vacated by the Fifth

Circuit in Fasken Land & Minerals, Ltd. v. NRC, No.

23-60377, 2024 WL 3175460, at *1 (5th Cir. Mar. 27,

2024) (per curiam).

Holtec and the Federal

Government have filed pending petitions for certiorari

on that decision. See Docket Nos. 23-1341, 23-1352.

The Fifth Circuit decision vacating Holtec’s license

was a summary decision based entirely on the

erroneous decision in Texas v. NRC, ISP. Pet. App. 1a31a,3 on review here. As a result, resolution of this

case will also decide whether the Fifth Circuit had the

right to hear the case challenging Holtec’s license and

whether Holtec has a valid Commission license for its

own facility.

Holtec is filing this amicus brief for two reasons:

first, to explain how the Fifth Circuit decision in this

case has subjected Holtec’s license to needlessly

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amicus curiae or its counsel made a

monetary contribution to its preparation or submission.

2 Both the NRC and its predecessor, the Atomic Energy

Commission, are referred to as the “Commission” herein.

3 This amicus brief incorporates by reference the appendix filed

by Petitioner Interim Storage Partners in conjunction with its

Petition for Review. All citations to “ISP. Pet. App.” refer to such

appendix submitted by the Petitioner found within Docket No.

23-1312.

2

duplicative litigation in multiple circuit courts, and

second, to provide legislative history and historical

context behind both the Atomic Energy Act and the

Nuclear Waste Policy Act beyond that included in the

Interim Storage Partners’ (“ISP’s”) and the Federal

Petitioners’ briefs.

SUMMARY OF ARGUMENT

For over six years, a single challenger has forced

Holtec to defend its spent fuel storage license in

repeated and often meritless litigation spanning

multiple jurisdictions. Fasken Land and Minerals

and Permian Basin Land and Royalty Owners

(“Fasken”) first filed a procedurally-improper motion

with the Commission to dismiss Holtec’s license

application on September 14, 2018—asserting that

the Commission lacked the authority to issue Holtec’s

license.

Fasken then filed numerous other

contentions against the license over the next several

years,

continually

disregarding

Commission

procedures while polishing and reusing repetitive and

untimely claims, before pursuing Commission appeals

in an equally haphazard fashion. The Commission

rightfully rejected each of Fasken’s challenges, and

Fasken sought review of these Commission’s decisions

in the D.C. Circuit in July 2021 as allowed under the

Hobbs Act. See Petition for Review, Fasken Land &

Minerals, Ltd. v. NRC, No. 21-1147 (D.C. Cir. July 25,

2021), ECF No. 1904236.

The D.C. Circuit independently reviewed and

affirmed these Commission decisions on appeal,

finding that “the Commission reasonably determined

that Fasken did not meet [the Commission’s]

regulatory criteria because the contentions were

procedurally defective, untimely, and immaterial.”

3

Beyond Nuclear, Inc. v. NRC, 113 F.4th 956, 970 (D.C.

Cir. 2024). Fasken did not seek rehearing or petition

for certiorari of this decision.

This should have marked an end to Fasken’s

litigation on the Holtec license. But Fasken did not

rest upon its Hobbs Act challenge in the D.C. Circuit.

Fasken took another bite at the apple, pursuing a

second, parallel circuit court challenge—two years

after initiating the first—in the Fifth Circuit. There,

Fasken finally freed itself from its numerous

procedural and substantive failings before the

Commission and succeeded in vacating the Holtec

license. Fasken Land & Mins., 2024 WL 3175460 at

*1.

“If at first you don’t succeed, try, try again,” should

not be a viable litigation strategy for judicial review of

Commission decisions under the Hobbs Act. The

Hobbs Act has a number of procedural guardrails

intended to prevent multiple, staggered proceedings

in the circuit courts. The only reason that Fasken was

able to take its opportunistic approach in Holtec’s case

is because the Fifth Circuit decision in Texas

jettisoned those guardrails in cases where a litigant

alleges that the agency has exceeded its statutory

authority.

That cannot be right. The Hobbs Act does not turn

off when a litigant challenges an agency’s

interpretation of its statutory authority. To decide

otherwise would engender chaos. If this Fifth Circuit

decision were to become governing law for the circuit

courts, then a litigant like Fasken could always file

two challenges in parallel, limited only by the

generous venue provision of the Hobbs Act which

allows litigation in either the D.C. Circuit or the

4

petitioner’s home circuit. In cases with multiple

litigants, even more circuit courts could be brought

into the fray. Multiple courts would then have to hear

the case based solely on an allegation that the agency

acted outside its statutory bounds.

Such a system would risk causing a

disproportionate number of circuit splits, as different

circuits hearing simultaneous challenges may come to

differing conclusions on the extent of an agency’s

authority—as happened to Holtec. While the Fifth

Circuit decided that the Commission acted outside its

statutory authority under the Atomic Energy Act, the

D.C. Circuit ruled the opposite when deciding the

first-filed proceeding on the Holtec license. For this

reason alone, the decision below should be overturned.

The Texas decision cannot be further justified by

claiming that the Commission acted well outside of its

statutory authority. In fact, the legislative histories

of both the Atomic Energy Act and the Nuclear Waste

Policy Act demonstrate that the Commission was

acting well within the bounds of its statutory

authority in issuing licenses for spent fuel storage.

This brief includes a detailed recounting of those

legislative histories supporting the Commission’s

authority to issue licenses for uses like spent fuel

storage, well beyond the history incorporated into

ISP’s and the Federal Petitioners’ briefs.

For these reasons, the decision below should be

overturned.

5

ARGUMENT

I. The Fifth Circuit’s Hobbs Act Ruling Has

Subjected Holtec To Unnecessary And

Repetitive Multi-Circuit Litigation.

The Hobbs Act, 28 U.S.C. 2341 et seq., governs

judicial review of the orders of several federal

agencies, including the Commission, and allows

“part[ies] aggrieved by [a] final [agency] order” to “file

a petition to review . . . in the court of appeals” of the

agency order “within 60 days after” the order is

issued. 28 U.S.C. § 2344. In this case, however, the

Fifth Circuit applied “an exception” to these

requirements “where ‘the agency action is attacked as

exceeding [its] power.’” See ISP. Pet. App. 19a. The

Fifth Circuit then applied this exception to Holtec’s

case, allowing Fasken to challenge the Commission’s

issuance of the Holtec license despite Fasken’s

ongoing Hobbs Act challenge in the D.C. Circuit. This

result demonstrates how the Fifth Circuit’s ultra vires

exception to the Hobbs Act was (and can be) used as

an end run around the requirements of the Hobbs Act.

Fasken was allowed to pursue multiple claims against

a single agency action in multiple circuit courts, with

no regard for the Hobbs Act’s 60-day filing deadline,

subjecting the Holtec license to unnecessary litigation

and creating an open conflict between two circuits on

the license itself.

A. Fasken Has Subjected The Holtec License

To Repetitive And Unnecessary Litigation

Across Multiple Circuit Courts.

1. Holtec’s licensing journey started in early 2018,

when the Commission first docketed its spent fuel

storage license application in the Federal Register. 78

6

Fed. Reg. 12,034 (Mar. 18, 2024). Shortly after, the

Commission started the public engagement process

needed to develop an environmental impact

statement, soliciting comments and holding public

meetings. See, e.g., 83 Fed. Reg. 13,802 (Mar. 30,

2018); 83 Fed. Reg. 14,897 (Apr. 6, 2018); 83 Fed. Reg.

22,714 (May 16, 2018).

After months of public engagement, the

Commission started the adjudicatory proceeding for

the Holtec license on July 16, 2018, by publishing a

notice in the Federal Register. See 83 Fed. Reg.

39,919 (Jul. 16, 2018). This notice provided the public

an opportunity to participate by: (1) requesting a

formal evidentiary hearing to challenge Holtec’s

application; and (2) petitioning for leave to intervene

in the proceeding. Id.

Fasken responded to this notice on September 14,

2018, by filing a procedurally improper motion to

dismiss Holtec’s license application based on the

Commission’s asserted lack of authority to issue the

Holtec license. The Secretary of the Commission

generously treated this motion as a petition to

intervene, a hearing request, and a proposed

contention. Thus, Fasken’s first proffered contention

in the Commission proceeding alleged that the Holtec

application should be rejected because it purportedly

contemplated storage contracts with the U.S.

Department of Energy and such contracts would be

illegal under the Nuclear Waste Policy Act. In re

Holtec Int’l, CLI-20-04, 91 NRC 167, 173-174 (Apr. 23,

2020). Other organizations, Beyond Nuclear and

Sierra Club filed similar claims. Id.

An Atomic Safety and Licensing Board appointed

by the Commission rejected Fasken’s contention, and

7

Fasken appealed that decision to the Commission

itself. Id. at 175-176. On April 23, 2020, the

Commission affirmed the Board decision rejecting

these claims because “the license itself would not

violate the [Nuclear Waste Policy Act] by transferring

the title to the fuel” to Department of Energy and that

Act “does not prohibit a nuclear power plant licensee

from transferring spent nuclear fuel to another

private entity.” Id. at 176.

After the Board decided these initial contentions

and terminated the adjudicatory proceeding, Fasken

attempted to file several new contentions “primarily

claiming that Holtec’s application did not adequately

disclose the control of subsurface mineral rights at the

facility nor the extent of extraction operations in the

vicinity of the facility.” Beyond Nuclear, 113 F.4th at

969-970. The Board rejected these contentions, and

Fasken appealed some of the Board decisions to the

Commission. The Commission decided that these

contentions “were procedurally defective, untimely,

and immaterial.” Id. “[A]ny challenge to Holtec’s

assertions about the ownership of subsurface mineral

rights should have been made when Holtec’s initial

environmental report was published,” and Fasken

could not justify its belated attempts having “fail[ed]

to demonstrate that [any purportedly new]

information was previously unavailable or materially

different from information available during the

licensing proceeding.” Id.

2. Shortly after its claims were rejected by the

Commission, Fasken filed its first circuit court

challenge to the Holtec licensing proceeding via a

procedurally-appropriate Hobbs Act challenge in the

D.C. Circuit. See Petition for Review, Fasken Land &

8

Minerals, Ltd. v. NRC, No. 21-1147 (D.C. Cir. June 25,

2021), ECF No. 1904236. Holtec had been in the D.C.

Circuit since 2020, when Don’t Waste Michigan and

Beyond Nuclear first filed their petitions for review

under the Hobbs Act. These petitions, a subsequent

petition from Sierra Club, and the Fasken petition

described above, were consolidated by the D.C. Circuit

into one proceeding. Beyond Nuclear, 113 F.4th at

961.

This D.C. Circuit proceeding included challenges

to the Commission’s authority to issue the Holtec

license. Fasken itself initially sought review of the

Commission’s disposition of its statutory authority

claims by challenging the Commission’s decision on

that issue in its petition for review. Petition for

Review, Fasken Land & Minerals, Ltd., No. 21-1147

(D.C. Cir. June 25, 2021), ECF No. 1904236

(petitioning for review of CLI-20-04). But Fasken

later chose to abandon its statutory authority claims,

instead focusing only on its geological and mineral

rights concerns. See Beyond Nuclear, 113 F.4th at

969-70. Two other parties, however, continued to

challenge the Commission’s statutory authority to

issue the Holtec license.

Id. at 963-65.

The

proceeding was put into abeyance at the request of the

Commission, pending issuance of the Holtec license,

id. at 962, which was later issued on May 9, 2023. 88

Fed. Reg. 30,801 (May 12, 2023).

3. Two months after the Commission issued

Holtec’s license, and two years after it initiated its

first challenge in the D.C. Circuit, Fasken filed

another challenge in the Fifth Circuit. Fasken

reiterated its underlying claims against the

Commission’s authority to issue the license but did

9

not explain the timeliness of pursuing these claims

years after the Commission had first rejected them.

See generally, Initial Brief of Fasken, No. 23-60377

(5th Cir. Oct. 2, 2023), ECF No. 51. Nor did Fasken

justify its pursuit of claims in two separate courts of

appeals. Id. Instead, Fasken filed its claims under

the cloak of a challenge to the Commission’s

purportedly ultra vires issuance of the Holtec license,

id. at 14, relying on the Fifth Circuit’s ultra vires

exception applied in the Texas case. ISP. Pet. App.

19a, 41a-45a.

The Federal Government moved to transfer

Fasken’s Fifth Circuit challenge to the D.C. Circuit in

light of the ongoing D.C. Circuit proceeding. See

Fasken Land & Mins., 2024 WL 3175460 at *1. In

addition, Holtec argued that venue was improper in

the Fifth Circuit given Fasken’s non-Hobbs Act

claims. Brief of Holtec, Fasken Land & Minerals,

Ltd., No. 23-60377 at 23-25 (5th Cir. Dec. 8, 2023),

ECF No. 74. However, in briefing the parties all

recognized that a decision in the Texas case would

bind a Fifth Circuit panel regarding the substantive

issues on the Commission’s authority to issue the

Holtec license and the existence of an ultra vires

exception to the Hobbs Act. Fasken Land & Mins.,

2024 WL 3175460 at *1.

After a final decision was rendered in Texas, the

Fifth Circuit found that because the Holtec proceeding

involved a “materially identical license in a materially

identical procedural posture” that absent the “[c]ourt

granting rehearing en banc,” Texas controlled the

decision on the Holtec license. Id. Consequently, the

court granted Fasken’s petition for review and

vacated Holtec’s spent fuel storage facility license,

10

while also denying the Federal Government’s motion

to transfer the case to the D.C. Circuit as moot. Id.

The Fifth Circuit, however, did not address the

propriety of allowing Fasken two bites at the apple in

two separate circuit courts against a single

Commission licensing proceeding.

4. After the Fifth Circuit issued its decision, the

D.C. Circuit issued a decision on Fasken’s earlier-filed

claims and the claims filed by other challengers in the

Holtec licensing proceeding. This decision, and the

Fifth Circuit decision, reached diametrically opposite

conclusions as to the Commission’s authority to issue

the Holtec license. The D.C. Circuit correctly found

that “[t]he [Atomic Energy Act] ‘authorized the NRC

to regulate the possession, use, and transfer of the

constituent materials of spent nuclear fuel’ and to

license the storage of spent nuclear fuel at onsite and

away-from-reactor storage facilities.”

Beyond

Nuclear, 113 F.4th at 964 (citing Bullcreek v. NRC,

359 F.3d 536, 538, 542-43 (D.C. Cir. 2004)). “[T]he

[Nuclear Waste Policy Act] does not affect ‘the NRC’s

authority under the [Atomic Energy Act] to license

and regulate private use of private away-from-reactor

spent fuel storage facilities.’” Beyond Nuclear, 113

F.4th at 964. The D.C. Circuit also rejected Fasken’s

various other claims regarding the geology and

mineral rights at the Holtec site. Id. at 969-70.

B. The Fifth Circuit’s Ultra Vires Exception

Gave Life To Fasken’s Excessive Multiple

Circuit Court Challenge.

The Hobbs Act sets the procedures for appealing

decisions of several administrative agencies,

including the Commission. Congress intended that

11

the Hobbs Act would ensure the “elimination of

multiple suits challenging the same [agency] order

[and] limitation of the time for filing review to 60 days

after entry of the order.” Simmons v. ICC, 716 F.2d

40, 44 (D.C. Cir. 1983) (citing H.R. Rep. No. 1569, at

4-6, 93d Cong., 2d Sess. (1974), S. Rep. No. 500, at 34, 93d Cong., 1st Sess. (1973)). “By creating a strict

time frame for review and bypassing district courts,

Congress hoped [the Hobbs Act would] increase the

speed, efficiency and consistency of judicial review.”

See also Carpenter v. DOT, 13 F.3d 313, 316 (9th Cir.

1994).

Among other requirements, the Hobbs Act only

allows litigation from a “party aggrieved by [a] final

[agency] order.” 28 U.S.C. § 2344. Because Congress

in the Hobbs Act chose the phrase “party aggrieved,”

circuit courts other than the Fifth Circuit have only

allowed challenges from either: (1) parties to the

agency’s underlying proceeding, or (2) non-parties

challenging an agency decision denying the litigant

party status. See ISP. Pet. App. 15a-18a. In short, a

non-party must challenge the agency’s decision

denying its petition to intervene and denying it party

status. And a challenger like Fasken must justify its

numerous procedural failings and untimely and

immaterial claims before the agency on judicial

review.

The Fifth Circuit, however, uniquely relied on “an

exception”

to

this

“party-aggrieved

status

requirement” “where ‘the agency action is attacked as

exceeding [its] power.’” See ISP. Pet. App. 19a. This

exception, as applied to Holtec’s case, allowed Fasken

to challenge the Commission’s issuance of the Holtec

license without addressing its party-aggrieved status.

12

The result demonstrates how the Fifth Circuit’s ultra

vires exception to the Hobbs Act was (and can be) used

as an end run around the requirements of the Hobbs

Act, as Fasken was allowed to pursue multiple claims

against a single agency proceeding in multiple circuit

courts, with no regard for the Hobbs Act’s 60-day filing

deadline.

Fasken participated in the Commission’s licensing

proceeding on the Holtec license by filing a petition to

intervene that was ultimately rejected, and Fasken

never gained party status. Fasken nevertheless

initiated a procedurally-proper Hobbs Act appeal of

the Commission’s decision rejecting its petition to

intervene and its potential party status in the D.C.

Circuit. That court ultimately faulted Fasken for its

numerous, repeated procedural and substantive

failings in the Commission’s proceeding below.

Beyond Nuclear, 113 F.4th at 969-970.

Years after filing in accordance with the Hobbs Act

in the D.C. Circuit, Fasken filed its second circuit

court petition in the Fifth Circuit again challenging

the Holtec licensing proceeding, this time under the

cloak of a challenge to the Commission’s purportedly

ultra vires issuance of the Holtec license. Fasken was

thus able to side-step its first-filed Hobbs Act petition

in the D.C. Circuit and escape its underlying claims

that failed before the Commission. And Holtec was

burdened with litigation in multiple circuit courts,

initiated years apart, on its spent fuel storage license.

Having flouted the requirements of the Hobbs Act,

Fasken initiated duplicate judicial reviews in the hope

of improving its chance of success, not as a means to

ensure judicial review in the first instance.

13

In the end, two irreconcilable decisions were issued

on the Holtec license. The Fifth Circuit vacated the

Holtec license based on the decision in Texas. Fasken

Land & Mins., 2024 WL 3175460 at *1. The D.C.

Circuit then issued its own decision upholding the

Commission’s authority to issue the Holtec license.

Beyond Nuclear, Inc., 113 F.4th at 956, 969-70. It

cannot be that Congress intended for the Hobbs Act to

allow such an incongruous result. Yet, the Fifth

Circuit’s ultra vires exception almost guarantees more

duplicative, tardy, and unnecessary litigation and the

creation of numerous incompatible circuit court

decisions going forward.

If this Court were to affirm the Fifth Circuit’s ultra

vires exception, making it the standard across all

circuit courts, any challenger to a Commission

proceeding could disregard the need to participate as

a party before the Commission and simply wait until

after the eleventh hour to file challenges. Or, like

Fasken, a challenger could use the ultra vires

exception to escape an inconvenient record below. The

challenger could then initiate litigation in more than

one circuit court, just like Fasken, since the Hobbs Act

venue provision allows for two possible venues (the

D.C. Circuit and the circuit where the challenger

resides or has its principal office). 28 U.S.C. § 2343.

The addition of other challengers, residing in other

circuits, could extend the litigation even further to

encompass even more circuit courts.

A mere

allegation that the agency has exceeded its statutory

authority could scatter litigation across the circuit

courts, leading to more circuit splits like the Holtec

proceeding and eliminating any benefits to the speed,

efficiency and consistency of judicial review through

the Hobbs Act.

14

For this reason, the Fifth Circuit’s decision

allowing an ultra vires exception should be rejected

and overturned.

II. Legislative History Demonstrates That The

Commission Has Acted Well Within Its

Statutory Authority.

There also was no ultra vires action in this case.

The Fifth Circuit’s finding that the Commission was

acting outside its statutory authority is simply wrong

and contrary to decades of legislative history

underpinning both the Atomic Energy Act and the

Nuclear Waste Policy Act.

A. The History Of The Atomic Energy Act

Shows That The Commission Has The

Authority To Issue Licenses For Spent

Fuel Storage.

In the decision on review, the Fifth Circuit claimed

that the Atomic Energy Act “authorizes the

Commission to issue such [special nuclear material]

licenses only for certain enumerated purposes,” and

particularly that the Commission could only issue

licenses “for various types of research and

development,” or “utilization and production

facilities.” ISP. Pet. App. 22a-23a. According to the

Fifth Circuit, the Commission cannot issue licenses

for “storage or disposal of material as radioactive as

spent nuclear fuel.” ISP. Pet. App. 22a.

This is, however, simply contrary to both basic

logic and the history of the Atomic Energy Act.

Congress enacted the Atomic Energy Act to ensure

federal government regulation of the nuclear

industry, including special nuclear material—which

is used to produce nuclear fission—and the other

15

highly radioactive materials that are in spent fuel. 4 It

is backwards for the Fifth Circuit to claim that the

federal government should lose authority as nuclear

materials become more radioactive. It makes far more

sense that Congress would expect the Commission to

extend its authority over nuclear materials to cover

any postulated regulatory gaps, particularly over

special nuclear material or especially radioactive

materials. The plain text of the statute and legislative

history support the latter interpretation.

1. There is no doubt that the Commission exercises

expansive authority over special nuclear materials.

As first enacted in 1946, the Atomic Energy Act

“created a government monopoly for the production

and use of fissionable material.” N. States Power Co.

v. Minnesota, 447 F.2d 1143, 1148 (8th Cir. 1971),

aff’d, 405 U.S. 1035 (1972). While Congress amended

the Act in 1954 to end the government’s total

monopoly over special nuclear material, initially by

allowing leasing of special nuclear material to

Commission licensees, the revised Act continued to

demonstrate Congress’ intent that the federal

government would exercise complete regulatory

Fresh nuclear fuel is composed of source material (uranium)

enriched with a limited quantity of special nuclear material

(uranium-235) capable of producing nuclear fission. Once

nuclear fuel is used, nuclear fission and radiation exposure cause

spent fuel to be comprised of the original source and special

nuclear material, plus fission products from split atoms (which

are considered byproduct material) and new special nuclear

material like plutonium. See Backgrounder on Radioactive

Waste: High-Level Waste, U.S. Nuclear Reg. Comm’n,

https://www.nrc.gov/reading-rm/doc-collections/factsheets/radwaste.html (last updated Jan. 26, 2024). These

various nuclear materials are intermingled throughout spent

fuel and cannot be separated without significant effort.

4

16

control over special nuclear material. These 1954

amendments added a provision to the Act setting forth

the conditions under which the Commission could

lease special nuclear material:

The Commission is authorized to issue

licenses for the possession of, to make

available for the period of the license, and to

distribute special nuclear material within the

United States to qualified applicants

requesting such material—(1) for the conduct

of research and development activities of the

types specified in section 31; (2) for use in the

conduct of research and development

activities or in medical therapy under a

license issued pursuant to section 104; or (3)

for use under a license issued pursuant to

section 103.

42 U.S.C. § 2073(a), Pub. L. No. 83-703, § 53, 68 Stat.

919, 930 (1954).

There is no indication that Congress initially

intended for this licensing system to have any

regulatory gap in federal authority over special

nuclear material. In fact, there could be no gap since

special nuclear material was all owned by the federal

government and leased out pursuant to § 2073(a).

However, to the extent any gap existed, Congress

deliberately closed it four years later by adding

§ 2073(a)(4) and delegating authority to the

Commission to self-identify any such gaps in its

licensing authority. Specifically, Congress authorized

the Commission to issue licenses and lease material

“for such other uses as the Commission determines to

be appropriate to carry out the purposes of [the

Atomic Energy Act].” 42 U.S.C. § 2073(a)(4). This

17

expansion of authority was intended “to authorize the

Commission to issue licenses for the possession of

special nuclear material . . . for uses which do not fall

expressly within the present provisions of subsection

53a [42 U.S.C. § 2073(a)(1)-(3)],” allowing the

Commission to issue “licenses for incipient new

[i]ndustrial uses.”

Joint Committee on Atomic

Energy, Amending the Atomic Energy Act of 1954,

H.R. Rep. No. 85-2272, at 1 (2d Sess. 1958). Thus,

Congress intended for the Commission to issue

licenses under 42 U.S.C. § 2073(a)(4) for purposes

beyond those already enumerated in § 2073(a)(1)-(3).

When Congress gave the Commission broad

authority to issue licenses for special nuclear material

under § 2073(a)(4), the 1954 Act already had a similar,

but not identical, provision allowing the Commission

to issue licenses for source material “for any other use

approved by the Commission as an aid to science or

industry.” 68 Stat. 933 (Aug. 30, 1954); 42 USC

§ 2093(a)(4). The Fifth Circuit uses a canon of

statutory interpretation to equate these catch-all

source material and special nuclear material licensing

provisions. ISP. Pet. App. 22a. But the special

nuclear material authority uses broader terms, and

this Court assumes that “the legislature says what it

means and means what it says.” Oklahoma v. CastroHuerta, 597 U.S. 629, 642 (2022) (quoting Henson v.

Santander Consumer USA Inc., 582 U.S. 79 (2017)

(cleaned up)).

The textual difference between these two

provisions is easily explained. The broad authority

under § 2073(a)(4) allows the Commission to fill

licensing gaps for special nuclear material where it is

appropriate “to carry out the purposes of [the Atomic

18

Energy Act].” One of those purposes is to maintain

federal government control over special nuclear

material. See 42 U.S.C. § 2013(c) (“It is the purpose

of [the Atomic Energy Act] to … provid[e] for—a

program for Government control of the possession,

use, and production of . . . special nuclear material.”).

Thus, the Commission can issue a § 2073(a)(4) license

so long as it is appropriate to maintain government

control over special nuclear material. Requiring the

Commission to identify an aid to science or industry

would undermine that broader goal.

Shortly after the addition of § 2073(a)(4), the

Commission described, in testimony before the Joint

Committee on Atomic Energy, how it could use this

authority for a variety of fuel-cycle related purposes—

including the accumulation and storage of spent fuel

by a middleman like Holtec. As the Commission

explained, when the Atomic Energy Act was enacted

Congress expected that most fuel cycle services would

be rendered by the Commission “because of

commercial unavailability.” See Amending the Atomic

Energy Act and Authorization of Stanford Accelerator

Project, Hearing before the Joint Committee on Atomic

Energy, at 4, 86th Cong., 2d Sess. (1959). Thus,

whenever a reactor group needed fuel cycle services,

“the reactor group would deal directly with the

Commission.” Id.

This did not occur. Instead, “the Commission

assisted and witnessed the growth of an industry

capable of performing many of the services previously

furnished by the Commission.”

Id. With this

expansion of private industry, the Commission

expected that “[a] natural outgrowth” would be an

arrangement “whereby a given fuel cycle supplier [i.e.

19

a § 2073(a)(4) or § 2093(a)(4) licensee], not a section

103 or 104 licensee, would furnish or arrange for all

steps in the fuel cycle for a given reactor operator.” Id.

This would include collecting and accumulating

spent fuel before its return to the U.S. government.

The Commission explained to Congress that “there

would be considerable merit” “in having the fuel from

a number of reactors delivered in a single batch to the

Commission for processing,” and “[t]he most

convenient manner in so doing would be to have a

middle-man accumulate the [irradiated] fuel under a

section 53 a. (4) [i.e. § 2073(a)(4)] or a section 63 a. (4)

[i.e. § 2093(a)(4)] license at his own financial

responsibility and deliver to [the Commission] for his

own account.” Id. In short, Congress has known,

since 1959, that the Commission could license spent

fuel storage by middlemen like Holtec under

§ 2073(a)(4).5

Further emphasizing the lack of any gap in the

Commission’s authority over special nuclear material,

in 1959, Congress added a new section to the Atomic

Energy Act, 42 U.S.C. § 2021, to allow states to

assume limited responsibilities over some nuclear

materials upon entering into an agreement with the

Commission. This Agreement State program did not,

however, allow the Commission to delegate any

authority over quantities of special nuclear material

5 This conversation arose regarding a proposed modification to

the Act allowing the Commission to directly enter into service

contracts with § 2073(a)(4) and § 2093(a)(4) licensees. Congress

subsequently passed this modification. Pub. L. 86–300, § 1, 73

Stat. 574 (1959); 42 U.S.C. § 2201(m) (allowing contracts with

“persons licensed under section 2133, 2134, 2073(a)(4), or

2093(a)(4) of this title”).

20

sufficient to form a critical mass. 42 U.S.C. § 2021(b).

All special nuclear material in sufficient quantities

(like spent fuel) must be licensed and regulated by the

Commission, as there is no other regulator with

authority.

In the sixty years since creating the Agreement

State program, Congress has never reduced the

Commission’s authority over special nuclear material.

Congress has, however, advanced the Commission’s

special nuclear material authority two times: first,

when ending the government monopoly over special

nuclear materials ownership, and second, when

privatizing uranium enrichment.

First, in a change meant to enable private

ownership of special nuclear material, Congress

expanded the Commission’s authority to issue special

nuclear material licenses under § 2073(a) beyond the

mere “possession of” special nuclear material to allow

private entities to hold “licenses to transfer or receive

in interstate commerce, transfer, deliver, acquire,

possess, own, receive possession of or title to . . .

special nuclear material.” Pub. L. 88-489, §§ 5-8, 78

Stat. 603, 604 (1964). This expansion filled a gap

created when the government ended its monopoly

over the ownership of special nuclear material, but it

did not alter the activities licensed by the

Commission.

Years later, Congress in 1990 expanded the

Commission’s special nuclear material licensing

authority to cover uranium enrichment facilities.

Congress did not do this by adding a new subpart for

enrichment to the Commission’s authority under

§ 2073(a) or by revising § 2073(a) to clearly allow the

Commission to issue facility licenses for special

21

nuclear material. Instead, Congress only needed to

remove uranium enrichment from the definition of a

production facility in 42 U.S.C. § 2014(v). This single

change reallocated the Commission’s licensing

authority over uranium enrichment facilities from a

§ 2134 production facility license to the broad special

nuclear material licensing authority in § 2073(a)(4).

See Licensing Uranium Enrichment Plants: Oversight

Hearing Before the Subcommittee on Energy and the

Environment of the Committee on Interior and Insular

Affairs, at 13, 123, 101st Cong., 2d Sess. (Mar. 6, 1990)

(addressing proposed changes to the Act and

explaining the differences in requirements for

licensing production and utilization facilities as

contrasted to licensing materials). This was possible

because the Commission had the preexisting

authority to license facilities with special nuclear

material under § 2073(a)(4).

In the seventy years since the Atomic Energy Act’s

enactment, Congress has consistently maintained the

Commission’s licensing authority to close any

potential gaps in regulating special nuclear material,

including over the nuclear fuel cycle and spent fuel

storage. The Commission has used that authority

accordingly.

There is nothing to suggest that

Congress ever intended to limit the Commission’s

authority over special nuclear material to only a

subset of potential licensees or uses. The Fifth

Circuit’s decision otherwise is entirely inconsistent

with this seventy-year history.

2. Contrary to the Fifth Circuit’s decision, there is

also nothing to suggest that the Commission somehow

lost its authority over spent fuel due to the presence

of material “with half-lives much longer than radium-

22

226.” ISP. Pet. App. 24a. The Fifth Circuit engaged

in a series of mental gymnastics to conclude that a

disposal provision for byproduct material in § 2111(b)

“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.’” ISP. Pet. App. 23a-24a. “[B]ecause some

of the isotopes in spent nuclear fuel [like plutonium2396] have much longer half-lives than radium-226,”

there is “no plausible argument that spent nuclear

fuel” “is the type [of] radioactive material

contemplated in the disposal provision in § 2111(b).”

ISP. Pet. App. 24a.

This tortured analysis is inconsistent with the

history (and plain language) of the Atomic Energy Act.

First, the Fifth Circuit’s reliance on the Commission’s

authority over “types of byproduct material [that] may

be disposed” under 42 U.S.C. § 2111(b), ISP. Pet. App.

23a, to establish the extent of Commission authority

has it backwards. This provision of the Atomic Energy

Act exists to clarify that the Commission’s recently

added (in 2005) authority over naturally occurring

radioactive material would not alter the ability “to

dispose of the newly added byproduct material at a

disposal facility in accordance with [non-nuclear

hazardous waste laws].” 72 Fed. Reg. 55,864, 55,880

(Oct. 1, 2007). As a result, materials like radium-226

“as defined in paragraphs (3) and (4) of [§ 2014(e)],”

may be disposed of “at a disposal facility in accordance

with any Federal or State solid or hazardous waste

Contrary to the Fifth Circuit decision, plutonium is

specifically defined as special nuclear material in the Atomic

Energy Act. 42 U.S.C. § 2014(aa).

6

23

law, including the Solid Waste Disposal Act.” 42

U.S.C. § 2111(b)(2).

This provision essentially

removes these lower-impact materials from the more

heightened requirements applied to the disposal of

Commission-regulated materials like spent nuclear

fuel.

The disposal provision in 42 U.S.C. § 2111(b) also

has no relevance to the agency’s foundational

authority over other byproduct materials, like

materials irradiated in a nuclear reactor found in

spent fuel. Such material has been under Commission

authority since the Atomic Energy Act’s enactment in

1954, when byproduct material was first defined as

“any radioactive material (except special nuclear

material) yielded in or made radioactive by exposure

to the radiation incident to the process of producing or

utilizing special nuclear material.” Pub. L. No. 83703, 68 Stat. 923 (Aug. 30, 1954).

Radium-226 was added to the definition of

byproduct material decades later to cover naturally

occurring radioactive material. Pub. L. No. 109-58,

119 Stat. 594, 806, 807 (Aug. 8, 2005). See 42 U.S.C.

§ 2014(e)(4) (granting the Commission authority over

materials “similar to” radium-226 for “discrete

source[s] of

naturally

occurring

radioactive

material”). This expansion of Commission authority

into naturally occurring radioactive material, which

only came about in the Energy Policy Act of 2005, was

not intended to, and did not, reduce the Commission’s

long-standing authority over materials irradiated in a

nuclear reactor. Id. at § 2014(e)(1).

The Fifth Circuit’s decision never addresses the

Commission’s authority over materials irradiated in a

nuclear reactor, set forth in § 2014(e)(1), reading that

24

clause out of existence in favor of the 2005 additions

regarding naturally occurring radioactive material.

This is another reason that the Fifth Circuit decision

is contrary to the plain language of the Act and should

not be upheld.

B. The History Of The Nuclear Waste Policy

Act

Further

Demonstrates

The

Commission’s Authority To Issue Licenses

For Spent Fuel Storage.

This Court extends “‘great respect’ to the

‘contemporaneous’ and consistent views of the

coordinate branches about the meaning of a statute’s

terms.” Loper Bright Enters. v. Raimondo, 603 U.S.

___, 144 S. Ct. 2244, 2283 (2024). And this Court has

upheld the “contemporaneous construction” of a law

by “those who were called upon to act under the law

and were appointed to carry its provisions into effect,”

where “that construction seems to have received, very

shortly after, the sanction of the legislature.”

Edwards’ Lessee v. Darby, 12 Wheat. 206, 210, 6 L.

Ed. 603 (1827).

This is such a case. The Commission has licensed

spent fuel storage facilities for fifty years and

enshrined its ability to issue such licenses in a

rulemaking over forty years ago.

Congress

subsequently recognized that history, and the

existence of an already-licensed and operating spent

fuel storage facility, and left the Commission’s

authority intact while developing the Nuclear Waste

Policy Act. In the decades since, the Commission has

issued numerous licenses for spent fuel storage, and

two circuit courts have upheld that authority. Yet,

Congress has never acted to revoke the Commission’s

authority to issue these licenses.

Clearly the

25

“‘contemporaneous’ and consistent view” from the

agency, Congress, and the Circuit Courts is that the

Commission has the authority to license spent fuel

storage facilities under the Atomic Energy Act.

The Commission started issuing licenses for spent

fuel storage in the 1970s, when General Electric

Company was issued a special nuclear materials

license under 10 C.F.R. pt. 70, “Domestic Licensing of

Special Nuclear Material,” to store spent fuel at its

away-from-reactor Morris, Illinois facility. See 39

Fed. Reg. 32,345, 32,456 (Sept. 6, 1974) (regarding

continuation of special nuclear materials license to

receive and possess spent fuel); see also Illinois v.

NRC, 591 F.2d 12 (7th Cir. 1979) (rejecting Illinois’

challenge to the Morris special nuclear materials

license).

Within a few years, however, the

Commission recognized that its special nuclear

material licensing regulations, including Part 70,

were “designed for relatively short-term possession in

conjunction with operations,” and there was a “need

for a new regulation covering the requirements for

extended spent fuel storage under static storage

conditions involving no operations on such materials.”

43 Fed. Reg. 46,309 (Oct. 6, 1978) (proposed 10 C.F.R.

pt. 72). This led to the promulgation of 10 C.F.R. Part

72 to enable the Commission to review applications

and issue licenses for spent fuel storage. 45 Fed. Reg.

74,693 (Nov. 12, 1980) (final 10 C.F.R. pt. 72).7

Years after the GE Morris facility was first

licensed and the Commission promulgated Part 72,

7 The GE Morris facility license was transitioned from a Part

70 license to a Part 72 license after issuance of Part 72. See 47

Fed. Reg. 20,231 (May 11, 1982) (noting docket and license

number change).

26

Congress passed the Nuclear Waste Policy Act in an

effort to address the question of the Federal

Government’s role in the final disposition of spent

fuel. During consideration of the Nuclear Waste

Policy Act, Congress explicitly recognized that the

Commission was already licensing privately-owned

away-from-reactor storage facilities.

As the

Commission’s Executive Director for Operations

testified during Congress’ development of the Act:

The Commission has stated with the issuance

of its regulation, 10 C.F.R. Part 72, which

provides

the

licensing

criteria

for

independent spent fuel storage installations,

that there are no compelling safety or

environmental reasons generally favoring

either reactor sites or away-from-reactor

sites. Thus, Part 72 establishes the licensing

framework for such storage either at reactor

sites or away-from-reactors using either wet

or dry storage technologies.

Radioactive Waste Legislation: Hearings on H.R.

1993, H.R. 2800, H.R. 2840, H.R. 2881, and H.R. 3809

Before the Subcomm. On Energy and the Environment

of the House Comm. On Interior and Insular Affairs,

at 326, 97th Cong., 1st Sess. (July 9, 1981). Nowhere

do the hearings or debates suggest that these Part 72

licenses would become invalid after the Nuclear

Waste Policy Act was enacted or that new licenses

would not be issued. In fact, during the debates, Rep.

Corcoran of Illinois recognized that the alreadyexisting Morris, Illinois away-from-reactor storage

facility would continue to operate and that delays in

permanent disposal would “put[] even greater

pressure on the [away-from-reactor] facility at

27

Morris.” 128 Cong. Rec. 32,945 (1982). There is no

hint that after the Nuclear Waste Policy Act became

law, the GE Morris facility was expected to close or

become the last of its kind.

The focus instead was on ownership of the Morris

facility, as Rep. Corcoran worked to prevent the

Federal Government from taking over the facility.

See 128 Cong. Rec. 32,560 (1982) (expressing pleasure

that “the compromise bill prohibits the Federal

Government from taking over the interim spent fuel

storage facility in Morris, Ill.”).

A Senate bill

preceding the Nuclear Waste Policy Act would have

“grant[ed] the Secretary of Energy the authority to

‘construct, acquire or lease one or more [away-fromreactor] facilities.’” 128 Cong. Rec. 32,946 (1982).

Rep. Corcoran objected and a provision was added to

the Act (Section 10155(h)) to address “the heart of the

problem that many of us have, that is, the concern

about whether or not private [away-from-reactor]

storage facilities would be vulnerable to a federal

takeover under [the Act].” 128 Cong. Rec. 28,033

(1982). Thus, the Nuclear Waste Policy Act would

limit the “use, purchase, lease, or other acquisition” of

away-from-reactor storage facilities not already

owned by the Federal Government. See 128 Cong.

Rec. 32,560 (1982). It would also “prohibit the

Secretary [of Energy] from providing capacity for the

storage of spent nuclear fuel” at private facilities like

Morris, Ill., see 128 Cong. Rec. 32,560 (1982),

constraining the Federal Government’s ability to

provide storage at away-from-reactor facilities. It

would not alter the ability of private parties to store

spent fuel.

28

Congress is expected to “legislate against the

backdrop of existing law,” Parker Drilling Mgmt.

Servs., Ltd. v. Newton, 587 U.S. 601, 611 (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).

Congress was aware of the Commission’s existing

licenses for offsite spent fuel storage. Yet, after all of

this discussion, the Nuclear Waste Policy Act neither

explicitly nor implicitly repealed the Commission’s

existing authority to license privately-owned interim

storage of spent fuel, whether at new facilities or

already-existing facilities like GE Morris.

Since the issuance of the Nuclear Waste Policy Act,

the Commission has issued numerous licenses for

spent fuel storage facilities. See 69 Fed. Reg. 52,314

(Aug. 25, 2004) (listing thirty-eight Part 72 licenses as

of date of publication). These licenses have been

issued for spent fuel storage facilities both at and

away-from-reactor sites and decommissioned reactor

sites (where a reactor no longer exists). See, e.g., 83

Fed. Reg. 42,527 (Aug. 22, 2018) (regarding spent fuel

storage facility at decommissioned reactor site); 71

Fed. Reg. 10,068 (Feb. 28, 2006) (issuing materials

license for away-from-reactor spent fuel storage

facility).

One of these facilities was subject to extensive

litigation in the courts, leading both the D.C. Circuit

and the Tenth Circuit to find that the Commission has

the statutory authority to issue licenses for privatelyowned away-from-reactor spent fuel storage because

the Atomic Energy Act unambiguously grants the

Commission such authority, and the Nuclear Waste

Policy Act did not revoke that authority.

See

29

Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004),

Skull Valley Band of Goshute Indians v. Nielson, 376

F.3d 1223, 1232 (10th Cir. 2004). Thus, in addition to

long-standing

Commission

practice,

and

Congressional assent, the Commission has also for

decades exercised the unassailable, court-approved

authority to license privately-owned, away-fromreactor spent fuel storage facilities, until the Fifth

Circuit decided otherwise in this case and Holtec’s

case.

In summary, for decades, the three coordinate

branches of U.S. government have all agreed on one

thing: the Commission has the authority to issue

licenses for spent fuel storage. The Fifth Circuit’s

decision in the underlying case is insufficient to alter

that well established allocation of authority, and the

Fifth Circuit’s rationale must be overturned.

CONCLUSION

For the foregoing reasons, this Court should

overturn the Fifth Circuit’s decision in the underlying

case and find that there is no ultra vires exception to

the Hobbs Act and that the Commission has the

authority to issue licenses for spent fuel storage.

30

Respectfully submitted,

ANNE R. LEIDICH

Counsel of Record

JAY E. SILBERG

PILLSBURY WINTHROP SHAW

PITTMAN LLP

1200 Seventeenth St., NW

Washington, DC 20036

(202) 663-8707

anne.leidich@pillsburylaw.com

Counsel for Amicus Curiae

DECEMBER 2024