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

Supreme Court briefJan 15, 2025

Ask Donna

What actually matters in this document.

Text

Nos. 23-1300, 23-1312

In the Supreme Court of the United States

UNITED STATES NUCLEAR REGULATORY COMMISSION, ET

AL., PETITIONERS

STATE OF TEXAS, ET AL.

INTERIM STORAGE PARTNERS, LLC, PETITIONER

STATE OF TEXAS, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE STATE RESPONDENTS

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

BENJAMIN W. MENDELSON

SARA B. BAUMGARDNER

Assistant Solicitors General

(512) 936-1700

Counsel for State Respondents

Aaron.Nielson@oag.texas.gov

QU E S TIO NS PR E S E NTE D

The Nuclear Regulatory Commission, an independent agency already insulated from executive oversight,

asks this Court to hold that the Commission’s own rules

insulate it from judicial review of its compliance with a

legislative mandate on where to store the nation’s spent

nuclear fuel. The questions presented are:

1. Whether the State whose very land, water, and air

stand to be polluted by spent nuclear fuel may challenge

a license—issued over its objection—to store that fuel either as a “party aggrieved” under, or in accord with an

ultra vires exception to, the Administrative Orders Review Act, commonly called the Hobbs Act. 28 U.S.C.

§2344.

2. Whether the Atomic Energy Act and the Nuclear

Waste Policy Act, which never mention temporary

away-from-reactor storage of spent nuclear fuel by private parties, nonetheless authorize the Commission to license such a facility, notwithstanding Congress’s express command that the nation’s spent fuel should be

permanently disposed of in Yucca Mountain, Nevada.

(I)

TABLE OF CONTENTS

Page

Questions Presented ......................................................... I

Table of Authorities ........................................................ IV

Introduction....................................................................... 1

Statement .......................................................................... 2

I. Statutory and Regulatory Background ............... 2

II. ISP’s Application and License for a

“Consolidated Interim Storage Facility” ............ 5

III. Proceedings in the Court of Appeals ................... 6

Summary of Argument ..................................................... 7

Argument........................................................................... 9

I. Texas May Challenge ISP’s Unlawful

License ................................................................... 9

A. Texas is a “party aggrieved” .......................... 9

1. Texas is a “party aggrieved”

because it participated in agency

proceedings ................................................ 9

2. The Commission may not limit a

court’s jurisdiction ................................... 12

3. Petitioners’ counterarguments fail......... 17

B. Courts may enjoin ultra vires action ........... 21

1. Nonstatutory review applies here .......... 21

2. Petitioners’ counterarguments again

fail............................................................. 23

II. Congress Has Not Authorized the

Commission to License Private, Offsite

Storage Facilities ................................................ 24

A. The Commission has limited authority to

license offsite storage .................................... 24

1. The AEA does not allow ISP’s license ... 24

2. The NWPA also dooms ISP’s license ..... 28

(II)

III

3. The major-questions and noelephants-in-mouseholes doctrines

also apply .................................................. 31

B. Petitioners’ theories again fall flat ............... 34

1. Petitioners misunderstand the

separation of powers ................................ 34

2. Petitioners misread the statutes ............ 35

3. Petitioners cite inapposite cases ............. 43

4. Petitioners cite irrelevant examples ...... 46

Conclusion ....................................................................... 48

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Abramski v. United States,

573 U.S. 169 (2014) ......................................................... 9

In re Aiken County,

725 F.3d 255 (D.C. Cir. 2013) ................................ 2, 4, 7

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) ............................................ 31, 34-35

Ala. Power Co. v. FCC,

311 F.3d 1357 (11th Cir. 2002) .............................. 11, 12

Am. Bar Ass’n v. FTC,

430 F.3d 457 (D.C. Cir. 2005) ...................................... 34

Am. Bus. Ass’n v. Slater,

231 F.3d 1 (D.C. Cir. 2000) .......................................... 25

Am. Hosp. Ass’n. v. Becerra,

596 U.S. 724 (2022) ....................................................... 46

Atl. City Elec. Co. v. FERC,

295 F.3d 1 (D.C. Cir. 2002) .......................................... 34

State ex rel. Balderas v. NRC,

59 F.4th 1112 (10th Cir. 2023) ............................... 19, 20

Bates & Guild Co. v. Payne,

194 U.S. 106 (1904) ....................................................... 22

Bd. of Governors of Fed. Rsrv. Sys. v. MCorp

Fin., Inc.,

502 U.S. 32 (1991) ......................................................... 24

Beyond Nuclear, Inc. v. NRC,

113 F.4th 956 (D.C. Cir. 2024) ..................................... 45

Biden v. Nebraska,

143 S.Ct. 2355 (2023) ........................................ 31, 32, 34

Cases—Continued:

Page(s)

Bowles v. Russell,

551 U.S. 205 (2007) ....................................................... 13

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ......................................................... 9

Brown v. Gardner,

513 U.S. 115 (1994) ....................................................... 20

Bullcreek v. NRC,

359 F.3d 536 (D.C. Cir. 2004) .......................... 43, 45, 47

Carlyle Towers Condo. Ass’n, Inc. v. F.D.I.C.,

170 F.3d 301 (2d Cir. 1999) .......................................... 13

Carr v. Saul,

593 U.S. 83 (2021) ......................................................... 20

Chevron U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) ................................................. 20, 42

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) .................................................. 27-28

County of Rockland v. NRC,

709 F.2d 766 (2d Cir. 1983) ...................................... 2, 37

Darby v. Cisneros,

509 U.S. 137 (1993) ................................................. 10, 18

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ....................................................... 29

DeVillier v. Texas,

601 U.S. 285 (2024) ....................................................... 21

DHS v. MacLean,

574 U.S. 383 (2015) ....................................................... 39

Env’t Def. v. Duke Energy Corp.,

549 U.S. 561 (2007) ....................................................... 17

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ....................................................... 32

Cases—Continued:

Page(s)

Erlenbaugh v. United States,

409 U.S. 239 (1972) ....................................................... 28

Ethyl Corp. v. EPA,

51 F.3d 1053 (D.C. Cir. 1995) ...................................... 34

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................ 31-32, 33, 36, 37

Fed. Express Corp. v. U.S Dep’t of Com.,

39 F.4th 756 (D.C. Cir. 2022) ................................. 22, 23

Fischer v. United States,

603 U.S. 480 (2024) ........................................... 27, 40, 41

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ........................................... 12, 15, 23

Fla. Power & Light Co. v. Westinghouse Elec. Corp.,

826 F.2d 239 (4th Cir. 1987) ........................................ 32

Gage v. U.S. Atomic Energy Comm’n,

479 F.2d 1214 (D.C. Cir. 1973) .............................. 10, 12

Gundy v. United States,

588 U.S. 128 (2019) ....................................................... 25

Hamer v. Neighborhood Housing Servs. of Chi.,

583 U.S. 17 (2017) ......................................................... 13

Harrington v. Purdue Pharma LP,

603 U.S. 204 (2024) ....................................................... 41

Heating, Air Conditioning & Refrigeration Distribs.

Int’l v. EPA,

71 F.4th 59 (D.C. Cir. 2023) ......................................... 32

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ......................................................... 15

Idaho v. DOE,

945 F.2d 295 (9th Cir. 1991) .................................... 3, 33

VII

Cases—Continued:

Page(s)

Illinois v. Gen. Elec. Co.,

683 F.2d 206 (7th Cir. 1982) ............................ 44, 45, 47

Illinois v. NRC,

591 F.2d 12 (7th Cir. 1979) .......................................... 47

Jersey Cent. Power & Light Co. v. Township of

Lacey,

772 F.2d 1103 (3d Cir. 1985) ............................. 44-45, 47

Kentucky v. Biden,

23 F.4th 585 (6th Cir. 2022) ......................................... 41

Knick v. Township of Scott,

588 U.S. 180 (2019) .................................................. 21-22

Kucana v. Holder,

558 U.S. 233 (2010) ........................................... 13, 14, 15

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ................................................... 8, 34

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) ................................................. 22, 23

Leedom v. Kyne,

358 U.S. 184 (1958) ............................................. 6, 22, 24

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ............................................. 8, 20, 23

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ....................................................... 18

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ....................................................... 26

McCarthy v. Madigan,

503 U.S. 140 (1992) ....................................................... 20

MCI Telecomms. Corp. v. AT&T Co.,

512 U.S. 218 (1994) ....................................................... 32

VIII

Cases—Continued:

Page(s)

NARUC v. DOE,

736 F.3d 517 (D.C. Cir. 2013) ........................................ 4

Nat’l Ass’n of Home Builders v. U.S. Army

Corps of Eng’rs,

417 F.3d 1272 (D.C. Cir. 2005) ................................... 15

Neustar, Inc. v. FCC,

857 F.3d 886 (D.C. Cir. 2017) ...................................... 15

New York v. NRC,

681 F.3d 471 (D.C. Cir. 2012) .................................. 3, 29

NRDC v. NRC,

582 F.2d 166 (2d Cir. 1978) .......................................... 32

NRDC v. NRC,

823 F.3d 641 (D.C. Cir. 2016) ...................................... 19

Ohio Nuclear-free Network v. NRC,

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

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ................................................. 44, 45

Pulsifer v. United States,

601 U.S. 124 (2024) ....................................................... 38

Qwest Servs. Corp. v. FCC,

509 F.3d 531 (D.C. Cir. 2007) ...................................... 16

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) ................................................. 32, 35

Rapanos v. United States,

547 U.S. 715 (2006) ................................................. 43, 46

Richman Bros. Records, Inc. v. FCC,

124 F.3d 1302 (D.C. Cir. 1997) .................................... 14

Cases—Continued:

Page(s)

Rodriguez v. United States,

480 U.S. 522 (1987) ....................................................... 38

S. Cal. Edison Co. v. United States,

93 Fed. Cl. 337 (Fed. Cl. 2010) .................................... 47

Salinas v. U.S. R.R. Ret. Bd.,

592 U.S. 188 (2021) ....................................................... 12

Santos-Zacaria v. Garland,

598 U.S. 411 (2023) ....................................................... 15

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ....................................................... 39

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ....................................................... 15

Simmons v. ICC,

716 F.2d 40 (D.C. Cir. 1983) ........................................ 18

Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004) ............................... 43-44

Steel Co. v. Citizens for Better Env’t,

523 U.S. 83 (1998) ......................................................... 16

Sturgeon v. Frost,

587 U.S. 28 (2019) ................................................... 37, 41

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) ................................................. 27, 40

Texas v. United States,

891 F.3d 553 (5th Cir. 2018) ...................................... 4, 5

Truck Ins. Exch. v. Kaiser Gypsum Co.,

602 U.S. 268 (2024) ....................................................... 17

United States v. Lee,

106 U.S. 196 (1882) ....................................................... 21

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ....................................................... 45

Cases—Continued:

Page(s)

United States v. Stewart,

311 U.S. 60 (1940) ................................................... 28, 36

United States v. Texas,

507 U.S. 529 (1993) ....................................................... 23

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................... 31, 33, 35

Vt. Yankee Nuclear Power Corp. v. NRDC, Inc.,

435 U.S. 519 (1978) ................................................. 10, 15

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................... 8, 31

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................. 14, 32

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ....................................................... 22

Statutes and Rules:

5 U.S.C.:

§§551(4)-(7).................................................................... 15

§702 .......................................................................... 10, 17

15 U.S.C. §717r(a) .............................................................. 14

28 U.S.C.:

§1331 .............................................................................. 20

§2342(2) ......................................................................... 21

§2342(6) ......................................................................... 21

§2344 ............................................................................ I, 9

§2347(b)(1)-(2) ............................................................... 11

§2347(b)(3) ..................................................................... 11

§2348 .............................................................................. 11

42 U.S.C.:

§1997e(a)........................................................................ 14

§2011 et seq...................................................................... 2

Statutes and Rules—

Continued:

Page(s)

§§2011-12 ....................................................................... 37

§2011(b) ......................................................................... 38

§2014 .............................................................................. 26

§2014(v)(1) ..................................................................... 27

§2014(v)(2) ..................................................................... 27

§2014(cc) ........................................................................ 27

§2014(cc)(1) ................................................................... 27

§2014(cc)(2) ................................................................... 27

§2014(ee)........................................................................ 45

§2014(u) ......................................................................... 27

§2073 .................................................................. 40, 41, 44

§2073(a) ....................................................... 25, 26, 40, 42

§2073(a)(1) ..................................................................... 27

§2073(a)(2) .............................................. 26, 27, 28 41, 42

§2073(a)(3) ......................................................... 26, 27, 41

§2073(a)(4) ............................................. 26, 27, 40, 41, 42

§2093(a) ....................................................... 25, 26, 28, 40

§2093(a)(1) ............................................................... 26, 27

§2093(a)(2) ............................................................... 26, 27

§2093(a)(3) ............................................................... 26, 27

§2093(a)(4) ................................................... 26, 27, 40, 42

§2111 ........................................................................ 40, 44

§2111(a) ........................................... 25, 26, 27, 28, 40, 42

§2133 .............................................................................. 41

§2133(a) ......................................................................... 26

§2134 .............................................................................. 41

§2201(b) ....................................................... 25, 39, 40, 43

§2210i(a) ........................................................................ 26

§2210i(b) .................................................................. 26, 39

§2239(a)(1)(A) ......................................................... 13, 18

§5842 .................................................................... 2, 28, 36

XII

Statutes and Rules—

Continued:

Page(s)

§10101(18)...................................................................... 28

§10101(23)................................................................ 39, 45

§10131(a)(2) ........................................................... 4, 9, 33

§10131(a)(3) ......................................................... 4, 33, 43

§10131(a)(4) ................................................................... 28

§10131(a)(6) ..................................................................... 4

§10131(a)(7) ................................................. 4, 6, 9, 33, 35

§10132 .............................................................................. 4

§10134 .............................................................................. 4

§10136 ............................................................................ 31

§10151 ...................................................................... 28, 30

§§10151-57 ....................................................... 4, 9, 30, 37

§10151(a)(1) ............................................................. 29, 42

§10151(a)(2) ................................................................... 30

§10151(a)(3) ................................................................... 30

§10151(b)(1) ................................................................... 29

§10152 ............................................................................ 30

§10155 ...................................................................... 28, 30

§10155(d) ....................................................................... 31

§10155(h) ........................................................... 30, 37, 47

§10156 ............................................................................ 28

§10156(e)........................................................................ 31

§§10161-69 ................................................................. 4, 30

§10161(b) ....................................................................... 30

§10166 ............................................................................ 31

§10169 ............................................................................ 31

§10172 ............................................................................ 28

§10172(a) ..................................................................... 4, 9

§10172(a)(1) ..................................................................... 1

§10222(a)(5)(B) ............................................................... 4

XIII

Statutes and Rules—

Continued:

Page(s)

47 U.S.C.:

§155(c)(7) ....................................................................... 14

§405(a) ........................................................................... 14

§405(b)(2) ....................................................................... 14

Act of June 30, 1980, Pub. L. No. 96-295,

§204(a), 94 Stat. 787 ..................................................... 36

10 C.F.R.:

Part 72 ........................................................................... 43

§72.3 ............................................................................... 39

Agency Materials:

In re Gen. Elec. Co.,

22 N.R.C. 851 (1985)............................................... 41, 47

In re Interim Storage Partners LLC,

90 N.R.C. 31 (2019) ...................................................... 17

In re Kan. Gas & Elec. Co.,

5 N.R.C. 301 (1977) ................................................ 46, 47

NRC, Final Rule, Licensing Requirements

for the Storage of Spent Fuel in an

Independent Spent Fuel Storage

Installation, 45 Fed. Reg. 74,693

(Nov. 12, 1980) .......................................................... 3, 37

NRC, Proposed Rule, Storage of Spent Fuel

in an Independent Fuel Spent Storage

Installation, 43 Fed. Reg. 46,309

(Oct. 6, 1978) ................................................................... 3

NRC, NUREG-0404, Generic Environmental

Impact Statement on Handling and

Storage of Spent Light Water Power

Reactor Fuel (Mar. 1978) .............................................. 3

XIV

Agency Materials—

Continued:

Page(s)

NRC, NUREG-0527, Regulation of Federal

Radioactive Waste Activities: Report to

Congress on Extending the Nuclear

Regulatory Commission’s Licensing or

Regulatory Authority to Federal

Radioactive Waste Storage and Disposal

Activities (Sept. 1979),

https://www.google.com/books/edition/Re

gulation_of_Federal_Radioactive_Waste/

ERpSAAAAMAAJ?hl=en&gbpv=0 .................... 24-25

Private Fuel Storage L.L.C.,

56 N.R.C. 390 (Dec. 18, 2002) ...................................... 12

Other Authorities:

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 YALE L.J. 908 (2017) ............................................. 22

Jared P. Cole, An Introduction to Judicial

Review of Federal Agency Action, CONG’L

RSCH. SERV. (Dec. 7, 2016) ...................................... 2, 22

BLACK’S LAW DICTIONARY (4th ed. 1951) ....................... 10

KENNETH CULP DAVIS & RICHARD J. PIERCE,

JR., ADMINISTRATIVE LAW TREATISE (3d

ed. 1994) ......................................................................... 22

Felix Frankfurter, Some Reflections on

the Reading of Statutes, 47 COLUM. L.

REV. 527 (1947) ............................................................. 28

Ronald M. Levin, The Case for (Finally)

Fixing the APA’s Definition of “Rule,”

56 ADMIN. L. REV. 1077 (2004) ................................... 15

Other Authorities—

Continued:

Page(s)

Oral Argument, Texas v. NRC, 78 F.4th 827

(5th Cir. 2023), https://www.ca5.uscourts.

gov/OralArgRecordings/21/21-60743—_829-2022.mp3 .................................................................. 45

THE OXFORD ENGLISH DICTIONARY

(2d. ed. 1989) ................................................................. 10

Nico Portuondo, The Return of Yucca

Mountain? GOP Floats Waste Site's

Revival, E&E NEWS (Apr. 11, 2024),

https://perma.cc/ZS52-ZC4K .................................... 1, 5

THE RANDOM HOUSE DICTIONARY OF THE

ENGLISH LANGUAGE (2d unabridged ed.

1987) ............................................................................... 10

ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF

LEGAL TEXTS (2012) ................ 27, 28, 35, 36, 39, 41, 42

Jonathan R. Siegel, Suing the President:

Nonstatutory Review Revisited,

97 COLUM. L. REV. 1612 (1997) ............................. 21, 22

WEBSTER’S NEW INT’L DICTIONARY

(2d. ed. 1949) ................................................................. 17

INT RO D U C TIO N

Decades ago, Congress determined that the federal

government should dispose of the nation’s spent nuclear

fuel deep underground in a permanent facility in Yucca

Mountain, Nevada. For various reasons—mostly political, some practical—construction of that facility has

stalled and now is all but “dead.” Nico Portuondo, The

Return of Yucca Mountain? GOP Floats Waste Site’s

Revival,

E&E

NEWS

(Apr.

11,

2024),

https://perma.cc/ZS52-ZC4K. “By law,” however, “Yucca

Mountain is still the government’s official plan to deal

with the more than 85,000 metric tons of spent nuclear

fuel that has piled up at more than 100 locations across

the country.” Id.; see also 42 U.S.C. §10172(a)(1).

After ignoring its statutory duties for decades, in recent years, the federal government has begun focusing

on what it claims is a policy workaround: so-called “interim storage projects.” Portuondo, supra. Rather than

placing spent fuel in a facility dedicated to permanent

(and safe) disposal, private facilities away from reactors

will store waste on a nominally temporary basis. Congress, however, has never authorized such a scheme. In

any event, how can storage be temporary if there is little

prospect of “an eventual permanent repository”? Id.

Here, the Nuclear Regulatory Commission purports

to allow a private entity to store thousands of tons of

spent nuclear fuel above Texas’s Permian Basin—the

world’s most productive oil field and the only source of

safe water for hundreds of miles. Although the Commission describes this scheme as an “interim” measure, the

license has a forty-year term, is renewable, and is unaccompanied by any plan to transfer the waste to a nonexistent permanent repository.

(1)

Nothing about this license is lawful. Congress has already legislated a solution to the nation’s nuclear-waste

problem: permanent storage in Yucca Mountain. No

statute mentions, let alone authorizes, private interim

offsite storage. Instead, the only interim storage Congress has permitted is in federal facilities, and only under defined circumstances. Because the Commission has

created its own plan “without any legal basis,” In re Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013), its actions

cannot stand.

Nonetheless, the Commission and its licensee contend that Texas and local landowners may not challenge

this unlawfulness, even arguing that an agency’s rules

can limit a federal court’s jurisdiction. This position contravenes statutory language and creates a morass of linedrawing problems. Regardless, “[n]onstatutory review

of federal agency action is available” where, as here, “an

agency action is ultra vires.” Jared P. Cole, An Introduction to Judicial Review of Federal Agency Action at

3 n.33, CONG’L RSCH. SERV. (Dec. 7, 2016).

ST ATE ME N T

I. Statutory and Regulatory Background

A. Enacted in 1954, the Atomic Energy Act (AEA)

granted authority over certain aspects of nuclear power.

Congress has since redistributed that authority to the

Nuclear Regulatory Commission and the Department of

Energy. 42 U.S.C. §§2011 et seq.; see id. §5842. The Commission has “jurisdiction over nuclear plant licensing and

regulation,” while the Department is primarily charged

with “energy research and development.” County of

Rockland v. NRC, 709 F.2d 766, 769 n.2 (2d Cir. 1983).

As the nuclear-energy market boomed following the

AEA’s enactment, nuclear waste from spent nuclear fuel

piled up. “Prior to the late 1970’s,” however, that was

unconcerning. Idaho v. DOE, 945 F.2d 295, 298-99 (9th

Cir. 1991). Because “it was accepted that spent fuel

would be reprocessed,” id., power plants built capacity

onsite to store spent fuel briefly before reprocessing.

But in the “mid-70’s,” the reprocessing concept “collapsed.” Idaho, 945 F.2d at 298-99. The nation thus had

nowhere to place a growing stockpile of material that remains radioactive “for time spans seemingly beyond human comprehension.” New York v. NRC, 681 F.3d 471,

474 (D.C. Cir. 2012). Although acknowledging that onsite

storage facilities could be expanded with “negligible” environmental impacts, NRC, NUREG-0404, Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel at ES-5

(Mar. 1978), the Commission proposed “installations

built specifically” for long-term storage “that are not

coupled to either a nuclear power plant or a fuel reprocessing plant,” NRC, Proposed Rule, Storage of Spent

Fuel in an Independent Fuel Spent Storage Installation, 43 Fed. Reg. 46,309, 46,309 (Oct. 6, 1978).

Despite a lack of legal authority, the Commission

plowed ahead. See, e.g., NRC, Final Rule, Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg.

74,693 (Nov. 12, 1980). This development prompted

alarm. Some commenters warned of the significant

“transportation risks” associated with moving nuclear

waste. Id. at 74,696. Others “expressed a concern that

the promulgation of a rule covering” this issue “would

decrease pressures on both industry and government to

solve the radioactive waste problem.” Id. at 74,693.

B. In 1982, Congress enacted the Nuclear Waste

Policy Act (NWPA) to resolve this “national problem”

and “major subject[] of public concern” for which

“[f]ederal efforts” had thus far “not been adequate.”

42 U.S.C. §10131(a)(2)-(3), (7). Finding that “State and

public participation in the planning and development of

repositories is essential in order to promote public confidence,” id. §10131(a)(6), the NWPA tasked the Department with establishing a permanent repository to place

the nation’s spent nuclear fuel deep underground, id.

§10132. And it made the Commission responsible for licensing that repository. Id. §10134. In 1987, Congress

amended the NWPA to specify Yucca Mountain, id.

§10172(a), as the site for the first repository, id. §10134,

which was to begin operations no later than January 31,

1998, id. §10222(a)(5)(B).

The NWPA also directed how spent fuel should be

stored in the interim. Specifically, should onsite storage

prove inadequate, Congress permitted storage of spent

fuel (1) temporarily at a federal facility to avoid a commercial reactor’s shutdown, id. §§10151-57; or (2) temporarily at a federal facility for so-called “monitored retrievable storage,” id. §§10161-69.

C. Although the NWPA “is obviously designed to

prevent the Department from delaying the construction

of Yucca Mountain as the permanent facility while using

temporary facilities,” NARUC v. DOE, 736 F.3d 517, 519

(D.C. Cir. 2013), delay ensued. “[B]y the mid-1990s, the

Department of Energy made clear that it could not meet

the 1998 deadline”; it did not submit a license application

for Yucca Mountain until 2008, Texas v. United States,

891 F.3d 553, 555-56 (5th Cir. 2018). Then, “by its own

admission,” the Commission refused to “comply[] with

the law” requiring it to evaluate that application,

prompting the D.C. Circuit to issue a writ of mandamus.

Aiken, 725 F.3d at 258.

But even that order did not prevent agency intransigence. Texas, 891 F.3d at 557. Instead, the Commission

turned to “interim” facilities, which it hoped would garner local support. Portuondo, supra. Yet interim storage

faces at least three obstacles: (1) Many local communities

do not support it; (2) storage is hardly “interim” where

there are no efforts to build a permanent repository; and

(3) most fundamentally, the statutory directive that

spent nuclear fuel be stored in Yucca Mountain remains

in effect. Id.

II. ISP’s

Application

and

License

for

“Consolidated Interim Storage Facility”

In 2016, Interim Storage Partners’ (ISP’s) predecessor applied for a license to operate a “consolidated interim storage facility” where it could house thousands of

metric tons of spent nuclear fuel in dry-cask,

above-ground storage in Andrews County, Texas, less

than a mile from the Texas–New Mexico border. The license would be valid for forty years, but ISP may seek to

renew it for an additional twenty. J.A.205-06.

Texas strenuously objected. On Texas’s behalf, Governor Greg Abbott submitted comments explaining why

spent fuel is too “dangerous” to be placed anywhere

other than in “a deep geologic repository” and definitely

should not be stored on “a concrete pad” atop an oil field

where 250,000 active oil and gas wells capture 40% of

America’s oil reserves. J.A.117-18. If something were to

happen—be it terrorism or an accident—the result

would devastate the world’s largest producing oil field

and would significantly harm “the entire country.”

J.A.122.

The Texas Commission on Environmental Quality

(TCEQ) warned that because the Commission has disregarded Yucca Mountain, ISP’s facility could “become the

permanent solution” for the nation’s nuclear waste.

J.A.206. Although the Commission says that it “expects”

that the waste will eventually be “shipped to a permanent

geologic repository,” J.A.206, the Commission never addressed what would happen if—as has been the case for

decades—no permanent facility eventuates, J.A.207.

New Mexico’s Governor raised similar concerns, warning of “significant risk” that the nation’s spent nuclear

fuel will stay in Texas forever. J.A.212. Nevertheless, the

Commission licensed ISP’s proposed facility in 2021.

Pet.App.53a.

III. Proceedings in the Court of Appeals

Texas, Governor Abbott, and TCEQ (collectively,

“Texas”) petitioned for review in the Fifth Circuit, ISP

intervened, and the Fifth Circuit made two rulings relevant here.

First, although Texas did not intervene before the

agency by seeking a hearing, the State fits within the “ultra vires exception to the [Hobbs Act’s] party-aggrieved

status requirement.” Pet.App.18a-20a; see also, e.g.,

Leedom v. Kyne, 358 U.S. 184, 188-89 (1958) (recognizing

ultra vires review). Alternatively, the Fifth Circuit suggested that Texas would be a “party aggrieved” under

the Hobbs Act because it “participated—in some way—

in the agency proceedings,” namely by submitting comments, Pet.App.17a-18a.

Second, the Fifth Circuit held that “[w]hat 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 half a century.” Pet.App.29a-30a; see

also 42 U.S.C. §10131(a)(7). The Commission accordingly

needs clear authorization to license private offsite storage facilities. Pet.App.30a. Yet the AEA does not

delegate such authority, and the NWPA affirmatively

“belies the Commission’s arguments.” Pet.App.31a.

In reaching this conclusion, the Fifth Circuit rejected

the Commission’s assertion that because it may license

the possession of other nuclear materials, it “has broad

authority to license storage facilities for spent nuclear

fuel.” Pet.App.22a. After all, the Commission may license

possession of specified materials “only for certain enumerated purposes—none of which encompass storage or

disposal of material as radioactive as spent nuclear fuel.”

Pet.App.22a. The Commission’s contrary argument, the

Fifth Circuit explained, “cannot be reconciled with the

[NWPA],” Pet.App.26a, which “creates a comprehensive

statutory scheme for addressing spent nuclear fuel accumulation,” Pet.App.29a.

The Fifth Circuit declined to rehear the case en banc.

Pet.App.32a. Judge Higginson dissented and argued for

the elimination of that court’s ultra vires exception.

Pet.App.45a-52a. In response, Judge Jones explained

why the State would be a “party aggrieved” regardless

of any such exception. Pet.App.33a-44a.

SU M MA RY O F A RGU ME NT

What to do with the nation’s spent nuclear fuel implicates a host of difficult technological, environmental, and

political considerations. Thankfully, that “policy debate

is not” this Court’s “concern.” Aiken, 725 F.3d at 257.

Because Congress has decided how to handle spent nuclear fuel, all that matters is that Yucca Mountain is not

in Texas and ISP is not the federal government. Petitioners’ efforts to evade these foundational points fail.

I. Jurisdiction exists for two reasons. First, Texas is

a “party aggrieved” under the Hobbs Act because it

participated in agency proceeding by filing comments—

which is both the best reading of the statute and the only

reading that makes sense given that the same provision

governs challenges to adjudications and rulemakings.

Petitioners have no good answer, instead insisting that

the Act is a chameleon, with the meaning of “party

aggrieved” depending on whether an agency

promulgates a rule or issues an order, and that agencies

can create jurisdictional exhaustion requirements. Such

a strained reading flunks multiple canons of construction

and is a recipe for confusion.

Second, Texas can sue to challenge the Commission’s

acts as ultra vires. Although Petitioners make much of the

fact that the Hobbs Act nowhere mentions ultra vires

review, courts have engaged in nonstatutory review for

centuries. If, contrary to reality, the Hobbs Act is

unavailable here, ultra vires review applies.

II. On the merits, Petitioners argue that Congress

never prohibited private interim, offsite storage

facilities. Because “an agency literally has no power to

act … until Congress confers power upon it,” La. Pub.

Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986), however,

the question is not what Congress prohibited, but what

Congress allowed. Petitioners have no good answer for

the fact that Congress repeatedly allowed offsite storage

at a federal facility, not a private one.

This, moreover, “is a major questions case,” West

Virginia v. EPA, 597 U.S. 697, 724 (2022), or, at minimum, a no-elephants-in-mouseholes case. Where an

“issue is one of deep economic and political significance,”

Congress must delegate clearly because “extraordinary

grants of regulatory authority are rarely accomplished

through modest words, vague terms, or subtle devices.”

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 405

(2024) (citation omitted). Here, Congress recognized that

where to house spent nuclear fuel is a “national problem”

and a “major … public concern.” 42 U.S.C. §10131(a)(2),

(7). Congress answered that “major” question, id., both

as to interim offsite storage, id. §§10151-57, and

permanent disposal, id. §10172(a). Congress’s clear

answer was Yucca Mountain or interim federal

facilities—not a private facility in Texas.

ARGU ME N T

I. Texas May Challenge ISP’s Unlawful License.

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

order may seek review in the court of appeals. 28 U.S.C.

§2344. Because ISP all but concedes (at 10) that Fasken

is a party aggrieved, whether Texas is one too is academic. If the Court reaches this question, however,

Texas properly sought review as a party aggrieved or because the Commission acted ultra vires.

A. Texas is a “party aggrieved.”

1. Texas is a “party aggrieved” because it

participated in agency proceedings.

a. The Court’s “statutory interpretation cases almost always start with a careful consideration of the text,

and there is no reason to do otherwise here.” Brnovich v.

Democratic Nat’l Comm., 594 U.S. 647, 667 (2021). As

part of that analysis, courts “should not interpret each

word in a statute with blinders on, refusing to look at the

word’s function within the broader statutory context.”

Abramski v. United States, 573 U.S. 169, 179 n.6 (2014).

A provision “that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.”

Id. Here, applying this rule leads to one conclusion: To

be a “party aggrieved,” Texas must only have participated in some way in the agency proceeding.

As the Commission’s own authority recognizes,

NRC.Br.17, the term “party” in common parlance “is not

restricted to strict meaning of plaintiff or defendant in a

lawsuit, being defined as one concerned in or privy to a

matter, as in the relation of accessory or confidant, and

again a partial person, one who takes sides.” BLACK’S

LAW DICTIONARY 1278 (4th ed. 1951). The term includes

any “person concerned or having or taking part in any

affair, matter, transaction, or proceeding.” Id; see also,

e.g., THE RANDOM HOUSE DICTIONARY OF THE ENGLISH

LANGUAGE 1416 (2d unabridged ed. 1987). Indeed, the

Court has used “person … aggrieved” and “aggrieved

party” interchangeably. Darby v. Cisneros, 509 U.S. 137,

146 (1993) (quoting 5 U.S.C. §702). Thus, absent a contrary, specialized meaning, “party” means “participator.” XI THE OXFORD ENGLISH DICTIONARY 282 (2d. ed.

1989).

That ordinary meaning controls here. Because of the

Hobbs Act’s breadth, the term “party” must apply to

“several quite different agencies and several types of

proceedings,” including adjudications and rulemakings.

Pet.App.38a. After all, the Hobbs Act’s “clear words”

make “no distinction between orders which promulgate

rules and orders in adjudicative proceedings.” Gage v.

U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1218 (D.C.

Cir. 1973). Yet no one disputes that filing comments

makes one a “party aggrieved” for a rulemaking challenge. Id. Accordingly, where a party filed comments setting forth its legal position, it makes no sense to require

further participation in an evidentiary hearing because

notice-and-comment rulemaking does not require hearings. See, e.g., Vt. Yankee Nuclear Power Corp. v.

NRDC, Inc., 435 U.S. 519, 545 (1978).

b. This plain-text reading of “party aggrieved” also

comports with statutory context. For one thing, the

Hobbs Act expressly explains that unless hearings are

otherwise required by law, they are not necessary to

seek review. “When the agency has not held a hearing

before taking the action of which review is sought,” a

“court of appeals shall determine whether a hearing is

required by law” and may “pass on the issues presented”

otherwise. 28 U.S.C. §2347(b)(1)-(2). The court may also

transfer the litigation to a district court for a hearing. Id.

§2347(b)(3). Because jurisdiction attaches irrespective of

whether an agency hearing occurred, it cannot be that a

court lacks jurisdiction unless a party seeks a hearing.

The Hobbs Act’s intervention provision reinforces

that point. Contra NRC.Br.19; ISP.Br.25-26. A party in

interest in an agency proceeding may intervene (often as

a defendant) “as of right” in subsequent court proceedings brought by some other person, but those “whose interests are affected by the order of the agency” and who

are not a party in interest must seek leave to intervene

in such litigation. 28 U.S.C. §2348. By its terms, this provision governs who may intervene in court, but says

nothing about who may institute judicial proceedings.

That Congress distinguished between instituting review

and intervention precludes conflating the concepts. Nor

could the Act work otherwise—there is no party in interest in rulemaking.

Alabama Power Co. v. FCC, 311 F.3d 1357 (11th Cir.

2002), is not to the contrary. Contra NRC.Br.19;

ISP.Br.25-26. There, the Eleventh Circuit recognized

that a “‘party aggrieved’ is one who participated in the

agency proceeding,” id. at 1366 (emphasis added)—

Texas’s position. But multiple adjudications occurred in

that case. Id. at 1365-67. The court concluded that participating in one adjudication does not make someone a

party aggrieved by a different adjudication. Id. Whether

an entity that had participated in some other way in the

agency proceeding could seek review was not at issue. Id.

at 1366-67.

c. Reading the word “party” to mean “participant”

also comports with the purpose of the “party aggrieved”

requirement: namely, “to ensure that the agency had the

opportunity to consider the issue that petitioners are

concerned with.” Pet.App.17a; see Gage, 479 F.2d at

1219. This allows agencies to compile the administrative

record, the “focal point” for judicial review. Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743 (1985).

This case proves as much. The Commission received

Texas’s objections while the proceeding was ongoing.

J.A.117-22, 203-08. But the Commission had already rejected such legal arguments. See, e.g., Private Fuel Storage L.L.C., 56 N.R.C. 390, 392 (Dec. 18, 2002). It thus

would serve no purpose to require Texas to seek an evidentiary hearing to advance a legal argument the Commission had already rejected.

d. Finally, if any doubts existed, the “strong presumption favoring judicial review of administrative action” squelches it. Salinas v. U.S. R.R. Ret. Bd., 592 U.S.

188, 196 (2021) (citation omitted). Nothing suggests that

Congress overcame that presumption by embedding in

the Hobbs Act a term whose meaning supposedly

changes depending on the form of proceeding an agency

uses. And Congress plainly did not enact such a chameleon-like provision to allow an agency to block judicial review by denying intervention based on its view of the

merits, as happened to Fasken and would have happened

to Texas.

2. The Commission may not limit a court’s

jurisdiction.

Beyond what the Hobbs Act says, the Court should

not lose sight of what the Hobbs Act is—a jurisdictional

statute. Jurisdictional statutes trigger special rules of interpretation that also require affirmance.

a. Because “[o]nly Congress may determine a lower

federal court’s subject-matter jurisdiction,” Hamer v.

Neighborhood Housing Servs. of Chi., 583 U.S. 17, 19

(2017), it follows that “[w]ithin constitutional bounds,

Congress decides what cases the federal courts have jurisdiction to consider” and “under what conditions,”

Bowles v. Russell, 551 U.S. 205, 212-13 (2007). “Separation-of-powers concerns, moreover, caution … against

reading legislation, absent clear statement, to place in

executive hands authority to remove cases from the Judiciary’s domain.” Kucana v. Holder, 558 U.S. 233, 237

(2010). Because Congress does not lightly let foxes guard

henhouses, it is “axiomatic” that “agencies can neither

grant nor curtail federal court jurisdiction.” Carlyle

Towers Condo. Ass’n, Inc. v. F.D.I.C., 170 F.3d 301, 310

(2d Cir. 1999).

Here, neither the AEA nor the Hobbs Act authorizes

the Commission to impose jurisdictional requirements

on federal courts—and certainly not clearly enough to

overcome the clear-statement rule. The AEA says that

“the Commission shall grant a hearing upon the request

of any person whose interest may be affected by the proceeding, and shall admit such person as a party to such

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

If someone requests a hearing, the Commission thus

must make that person a party. But see supra p. 12 (noting that the Commission blocked Fasken from intervening); infra pp. 16-17, 24. But it does not say someone

must request a hearing to seek judicial review. If it did,

the AEA would superimpose a jurisdictional requirement onto the Hobbs Act—a different statute addressing

many agencies having nothing to do with the AEA.

Nor does the Hobbs Act require following

agency-created rules before seeking judicial review. Of

course, when Congress conditions judicial review on compliance with agency procedures, those procedures can be

jurisdictional. E.g., Richman Bros. Records, Inc. v. FCC,

124 F.3d 1302, 1303 (D.C. Cir. 1997). But when Congress

wants compliance with them to be “a condition precedent

to judicial review,” 47 U.S.C. §155(c)(7), it says so—expressly, id.; see also, e.g., 15 U.S.C. §717r(a); 42 U.S.C.

§1997e(a). Indeed, Congress explicitly enacted a jurisdictional exhaustion requirement for the FCC (another

agency covered by the Hobbs Act) in the Communications Act but did not do so for the NRC in the AEA. See

47 U.S.C. §405(a), (b)(2); see also, e.g., 15 U.S.C. §717r(a);

42 U.S.C. §1997e(a).

b. Congress’s use of “party aggrieved” is also not a

permission slip for agencies to create jurisdictional exhaustion requirements for three additional reasons.

First, “[w]hen a statute is reasonably susceptible to

divergent interpretation,” the Court “adopt[s] the reading that accords with traditional understandings and

basic principles: that executive determinations generally

are subject to judicial review.” Kucana, 558 U.S. at 251.

The Court has “consistently applied that interpretive

guide” and “assumes that Congress legislates with

knowledge of the presumption,” id. at 251-52 (cleaned

up). Because Congress has not clearly indicated that the

Commission can impose jurisdictional requirements, the

presumption holds.

Second, Congress “does not hide elephants in mouseholes” or “alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

Here, far from the “clear and convincing evidence”

needed “to dislodge the presumption,” Kucana, 558 U.S.

at 252, “Congress intended to provide for initial court of

appeals review of all final orders in licensing proceedings

whether or not a hearing before the Commission occurred or could have occurred,” Lorion, 470 U.S. at 737

(emphasis added).

Third, exhaustion requirements are essentially never

jurisdictional. E.g., Santos-Zacaria v. Garland, 598 U.S.

411, 417 (2023). So even if the AEA imposes such a requirement (it doesn’t), it would not bar review.

c. Reading “party aggrieved” as “participant” also

avoids jurisdictional confusion. “[A]dministrative simplicity is a major virtue in a jurisdictional statute.” Hertz

Corp. v. Friend, 559 U.S. 77, 79 (2010). Not only do complex jurisdictional rules “encourage gamesmanship” and

“eat[] up time and money,” but they burn “[j]udicial resources,” as courts must raise such issues sua sponte. Id.

at 94.

Here, ascribing jurisdictional consequences to the

distinction between rulemaking and adjudication is a recipe for confusion. The line between the two can be paper

thin—especially after SEC v. Chenery Corp., 332 U.S.

194 (1947). Congress defined “rule” as “the whole or a

part of an agency statement of general or particular applicability” and “adjudication” largely as what’s left over.

5 U.S.C. §551(4)-(7) (emphases added). Decades of bewilderment have ensued. See Ronald M. Levin, The Case for

(Finally) Fixing the APA’s Definition of “Rule,” 56 ADMIN. L. REV. 1077 (2004). An agency’s choice of label is

not dispositive, e.g., Nat’l Ass’n of Home Builders v. U.S.

Army Corps of Eng’rs, 417 F.3d 1272, 1284-85 (D.C. Cir.

2005), and an agency may solicit comments in an adjudication, e.g., Neustar, Inc. v. FCC, 857 F.3d 886, 895 (D.C.

Cir. 2017), while holding an evidentiary hearing in a

rulemaking, e.g., Vt. Yankee, 435 U.S. at 524. And the

FCC—perhaps the most common Hobbs Act litigant—

sometimes switches between the two categories in the

middle of a single proceeding or issues one decision that

is both a rulemaking and an adjudication. See Qwest

Servs. Corp. v. FCC, 509 F.3d 531, 535-36 (D.C. Cir.

2007).

If “party aggrieved” means “participant,” such confusion between rulemaking and adjudication is relatively

harmless because courts can tell whether a litigant filed

comments or otherwise participated in agency proceedings. But if the existence of a federal court’s jurisdiction

depends on which category applies, commenters will be

forced to flood agencies with motions to intervene in the

face of any ambiguity. Moreover, if failure to follow an

agency’s procedural rules can bar judicial review, courts

will have to determine in every case—potentially sua

sponte, and without knowing the full universe of relevant

rules or even having access to the full record—whether

every procedure was followed. And if failure to follow

only certain rules may bar “party” status, courts will

have to determine which rules are jurisdictional before

doublechecking whether those particular rules were followed. Courts also will be forced to resolve ancillary litigation regarding alleged violations of the rules and develop new doctrines to prevent agencies from creating

jurisdictional traps or using ticky-tack violations to defeat judicial review.

d. Finally, the principle that jurisdiction and the

merits are distinct also supports jurisdiction. Whether a

claim is meritorious “does not implicate subject-matter

jurisdiction, i.e., the court’s … power to adjudicate the

case.” Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,

89 (1998). Yet here, the Commission refused to let

Fasken intervene—thereby, in Petitioners’ view, precluding review of the subsequent licensing order—because the Commission believed Fasken was wrong on the

merits. See In re Interim Storage Partners LLC, 90

N.R.C. 31, 52 (2019). Nothing in “party aggrieved” empowers agencies to control access to courts by making

such threshold merits determinations.

3. Petitioners’ counterarguments fail.

Petitioners advance at least six counterarguments.

None persuades.

First, the Commission asks the Court (at 17-18) to

use cases construing the False Claims Act or arising in

the class-action context to interpret the Hobbs Act term

“party.” But the presumption that “the same term has

the same meaning” is not an ironclad rule even when the

term appears “in a single statute.” Env’t Def. v. Duke

Energy Corp., 549 U.S. 561, 574 (2007). After all, “most

words have different shades of meaning and consequently may be variously construed.” Id.

Here, the Hobbs Act is a different statute—one with

its own context and history. And it would be particularly

inappropriate to look across contexts with respect to the

meaning of the term “party,” as the Court has already

recognized that the meaning of that specific term varies.

For example, another of Petitioners’ cases—this one in

the bankruptcy context—adopts Texas’s view of the “ordinary meaning” of “party”: namely, “one concerned in

an affair; a participator.” Truck Ins. Exch. v. Kaiser

Gypsum Co., 602 U.S. 268, 278 (2024) (quoting WEBSTER’S NEW INT’L DICTIONARY 1784 (2d. ed. 1949)).

Second, Petitioners make much of the distinction between the terms “party aggrieved” in the Hobbs Act and

“person ... aggrieved” in §702 of the APA. NRC.Br.18;

ISP.Br.24. This Court, however, read “person …

aggrieved” and “aggrieved party” interchangeably in

Darby. 509 U.S. at 146. To be sure, then-Judge Scalia

reasoned that to “give meaning to that apparently intentional variation, [courts] must read ‘party’ 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). But he said nothing about the question here: how

someone becomes a “party” before an agency. And when

he joined this Court, he explained that “person … aggrieved” requires only that a plaintiff (1) “identify some

agency action that affects him” and (2) “show that he has

suffered legal wrong because of the challenged agency

action.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

882-83 (1990) (quotation marks omitted). It does not require intervening in agency proceedings.

Third, the Commission relies (at 19-20) on the AEA’s

distinction between “person” and “party.” But the question is whether Texas may seek review under the Hobbs

Act, not the AEA. The Hobbs Act covers many agencies—not just the Commission—so the AEA does not

dictate the Hobbs Act’s meaning. Nor does the Commission’s argument work on its own terms. The relevant

AEA provision, 42 U.S.C. §2239(a)(1)(A), shows that one

way to become a party is to request a hearing. Because

the Hobbs Act applies to rulemakings and adjudications

alike, that cannot be the only way to become a party. Neither does the AEA require anyone to seek a hearing.

Fourth, Petitioners argue that agencies must be able

to create procedures for their own proceedings, and ISP

invokes the specter of someone “slipping a handwritten

note under the door of the agency headquarters after the

deadline for comments has passed.” ISP.Br.27. But filing

comments after a proceeding is over is not participation.

Timely submitting comments in connection with a pending proceeding is different in kind.

ISP’s example, moreover, reveals the danger of Petitioners’ position. Under their logic, an agency could deprive the indigent of judicial review simply by promulgating rules with onerous formatting requirements like

barring handwritten comments or demanding that all

submissions be on 8.5” x 14” paper. Petitioners’ view that

submitting comments to an agency has no more jurisdictional significance than filing an amicus brief is also

wrong. NRC.Br.28; ISP.Br.26. Congress directs how

someone becomes a party in court or before an agency.

Here, no one disputes that under the Hobbs Act, filing

comments to an agency can make someone a party for

purposes of judicial review. The only question is whether

agency-created procedures can curtail that right to review for some proceedings.

Fifth, Petitioners lean heavily on a handful of

lower-court decisions, NRC.Br.28; ISP.Br.25, but such

cases underscore why jurisdiction exists here. For example, Ohio Nuclear-free Network v. NRC, 53 F.4th 236

(D.C. Cir. 2022), claims that “invocation of the appropriate and available administrative procedure … is the statutorily prescribed prerequisite for this court’s jurisdiction to entertain a petition to review a final NRC order,”

id. at 240 (quotation marks and alterations omitted). But

that is not what the Hobbs Act says, and Petitioners cannot wring an exhaustion requirement out of the word

“party.” NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016),

and State ex rel. Balderas v. NRC, 59 F.4th 1112 (10th

Cir. 2023), are unpersuasive for similar reasons.

In all events, even if these cases were correct a year

ago, they are anachronisms today. Consider Balderas,

which held that “to assess status as a party,” courts must

focus on “the practices of the agency.” 59 F.4th at 1117.

The Tenth Circuit reasoned that “if the Commission had

required intervention and New Mexico didn’t seek leave

to intervene,” then courts “would lack jurisdiction under

the Hobbs Act.” Id. But agency practices cannot define a

jurisdictional statute. Because agencies no more “administer” the Hobbs Act than they “administer” 28 U.S.C.

§1331, such analysis would not work even under Chevron. See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S.

837, 842 (1984). But it cannot possibly be correct after

Loper Bright.

Nor does it matter how long the Commission’s rules

have existed. Contra ISP.Br.25. The Commission can

create rules for its proceedings. The question here is

whether compliance with those rules is a jurisdictional

requirement for judicial review. The Commission’s rules

do not purport to govern a court’s jurisdiction. And even

if they did, “[a] regulation’s age is no antidote to clear

inconsistency with a statute.” Brown v. Gardner, 513

U.S. 115, 122 (1994). Because Texas is a “party aggrieved” under the Hobbs Act, jurisdiction exists.

Finally, Petitioners retreat to policy. ISP complains

(at 28) that “[i]f any person can sue in court,” there would

be no point in having “extensive safety-based adjudicatory hearings at the agency level at all.” But it is not true

that “any person” may seek review—a person must have

participated in agency proceedings and have standing.

Moreover, an “extensive safety-based adjudicatory hearing[],” ISP.Br.28, may make sense for factual objections,

but not for questions of law, cf. Carr v. Saul, 593 U.S. 83,

92-93 (2021). Even if exhaustion of legal issues could be

relevant, it would have been futile here because the Commission “predetermined” its view of the State’s arguments. McCarthy v. Madigan, 503 U.S. 140, 148 (1992);

supra p. 12. ISP’s rhetoric, moreover, elides that the

Hobbs Act does not require hearings. Supra pp. 10-11.

In fact, to the extent policy is relevant, it cuts against

Petitioners. The rule from this case will apply not only to

governments and energy companies, but also to victims

of housing discrimination and small farmers. E.g.,

28 U.S.C. §2342(2), (6). Many people lack the resources

or training to intervene in complex agency proceedings.

Petitioners’ logic would also allow agencies covered by

the Hobbs Act to add onerous, confusing, or pointless

hoops before such a commenter can be a “party” to a

rulemaking. The Court should not ascribe to Congress

the intent to deprive anyone of his or her day in court.

B. Courts may enjoin ultra vires action.

1. Nonstatutory review applies here.

In all events, courts need not rely on a specific statute

where, as here, agency action is ultra vires.

a. Nonstatutory review has been a feature of our law

for centuries. “Indeed, the most famous case of all, Marbury v. Madison, was a nonstatutory review case,” and

“Chief Justice Marshall himself applied nonstatutory review again in the well-known case of Osborn v. Bank of

the United States.” Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 COLUM. L.

REV. 1612, 1625 (1997). In neither case did the plaintiff

have a “specific, statutory mechanism” to sue under, yet

the Court held that relief was available via mandamus or

the common law. Id. at 1633. And throughout much of the

early republic, takings lawsuits were resolved not

through statutory causes of action—which did not exist

until the Tucker Act—but through nonstatutory relief.

United States v. Lee, 106 U.S. 196 (1882); accord DeVillier v. Texas, 601 U.S. 285, 292-93 (2024); Knick v. Township of Scott, 588 U.S. 180, 197-201 (2019).

Those challenging agency action also historically

have not relied on a cause of action like the APA’s to challenge ultra vires action. See, e.g., Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation,

126 YALE L.J. 908, 948, 972 & n.271 (2017). Review was

available where an agency head “exceeded his authority

or this court should be of opinion that his action was

clearly wrong.” Bates & Guild Co. v. Payne, 194 U.S. 106,

109 (1904). Hence, “[l]ong before the APA, the ‘main

weapon in the arsenal for attacking federal administrative action’ was a suit in equity seeking injunctive relief.”

Fed. Express Corp. v. U.S Dep’t of Com., 39 F.4th 756,

763 (D.C. Cir. 2022) (quoting KENNETH CULP DAVIS &

RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE §18.4, at 179 (3d ed. 1994)).

Such review has continued into modern times. No

statute provided a cause of action in, for example,

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952). Siegel, supra, at 1636, 1672 & n.265. And “review

of federal agency action is available when an agency action is ultra vires, that is, when the agency has plainly

violated an unambiguous and mandatory legal requirement.” Cole, supra, at 3 n.33 (citing, inter alia, Kyne, 358

U.S. at 188-89; Larson v. Domestic & Foreign Com.

Corp., 337 U.S. 682, 689-90 (1949)). Courts thus need not

rely on statutory causes of action “to strike down an

[agency] order … made in excess of [the agency’s] delegated powers and contrary to a specific prohibition in the

Act.” Kyne, 358 U.S. at 188.

b. The Fifth Circuit properly applied this longstanding body of law, explaining that ultra vires review allows

a person who was “not a party to the original agency proceeding” to seek review “where,” inter alia, “the agency

action is attacked as exceeding [its] power.” Pet.App.19a.

As Judge Jones explained, the doctrine “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.” Pet.App.43a. Such analysis

echoes Larson, where this Court explained that if an “officer’s powers are limited by statute, his actions beyond

those limitations” are “ultra vires” and so “may be made

the object of specific relief.” 337 U.S. at 689.

For reasons explained by the Fifth Circuit and set

forth below, “[t]he Commission has no statutory authority to issue the license.” Pet.App.21a; infra Part II. It is

not a close question. An apt term to describe such defiance of Congress is ultra vires.

2. Petitioners’ counterarguments again fail.

Petitioners deride ultra vires review as atextual,

NRC.Br.20; ISP.Br.19, yet ignore history. “Statutes

which invade the common law … are to be read with a

presumption favoring the retention of long-established

and familiar principles, except when a statutory purpose

to the contrary is evident.” United States v. Texas, 507

U.S. 529, 534 (1993). It is implausible that Congress displaced longstanding common law with the phrase “party

aggrieved.” E.g., Fed. Express, 39 F.4th at 763 (nonstatutory review survived APA’s enactment).

Nor is ultra vires a synonym for “wrong,” and it does

not require courts to draw “highly malleable distinctions” between claims. Contra ISP.Br.22; NRC.Br.15.

Courts have long protected against ultra vires action.

Petitioners’ concerns, moreover, ring particularly hollow

now that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Loper Bright, 603 U.S. at 413. Nothing about an administrative record, the “focal point for judicial review,” Lorion, 470 U.S. at 743, speaks to what a statute means.

Petitioners insist that cases like Kyne are irrelevant

because “there is a meaningful and adequate opportunity

for judicial review under the relevant statute.” ISP.Br.21

(referencing Bd. of Governors of Fed. Rsrv. Sys. v.

MCorp Fin., Inc., 502 U.S. 32, 43-44 (1991)). Fasken was

refused intervention because the Commission did not

think Fasken’s arguments were meritorious. The same

would have happened to Texas; after all, the Commission

previously rejected Texas’s primary legal objections.

This conflation of the merits and jurisdiction misreads

the Hobbs Act, but if Petitioners were correct, it would

be proof positive there is not “a meaningful and adequate

opportunity for judicial review.” Petitioners cannot have

it both ways.

II. Congress Has Not Authorized the Commission to

License Private, Offsite Storage Facilities.

Congress mandated that spent nuclear fuel should be

permanently disposed of at Yucca Mountain. Congress

just as clearly mandated that temporary storage may

take place at only one of two locations: the reactor site or

a federally operated facility. That language controls.

A. The Commission has limited authority to

license offsite storage.

1. The AEA does not allow ISP’s license.

a. Petitioners appear to agree that the AEA is silent

regarding the key issue here—whether the Commission

may license a private entity to possess or store spent nuclear fuel. As the Commission’s Chairman recognized in

1978, the AEA “does not explicitly authorize regulation

of radioactive waste facilities.” 1 That silence is all but

NRC, NUREG-0527, Regulation of Federal Radioactive

Waste Activities: Report to Congress on Extending the Nuclear

Regulatory Commission’s Licensing or Regulatory Authority to

dispositive. Because agencies “are creatures of statute,”

they “have no inherent powers” and “may act only because, and only to the extent that, Congress affirmatively has delegated them the power to act.” Am. Bus.

Ass’n v. Slater, 231 F.3d 1, 9 (D.C. Cir. 2000) (Sentelle,

J., concurring).

Nor can Petitioners draw support from what Congress allowed the Commission to do. Unlike the sweeping grants of authority that generated concern in recent

years, see, e.g., Gundy v. United States, 588 U.S. 128

(2019), the AEA is highly reticulated. The Commission

may “issue licenses to,” among other things, “possess …

special nuclear material,” 42 U.S.C. §2073(a), “distribute

source material within the United States to qualified applicants requesting such material,” id. §2093(a), and “use

byproduct material,” id. §2111(a). Even then, licenses

are purpose-specific: Licensees cannot do just anything

with such materials; they can do only things like research

and development, medical testing, or national defense.

Id. §§2073(a), 2093(a), 2111(a), 2201(b).

Petitioners have not identified a statute that allows

the Commission to license private, offsite possession of

“spent nuclear fuel,” the material at issue here. Rather,

Congress distinguished “spent nuclear fuel” from “special nuclear material,” “source material[],” and “byproduct material[]” when it required the Commission to “establish a system” to ensure the secure transfer of “byproduct materials, source materials, special nuclear

materials, high-level radioactive waste, spent nuclear

fuel, transuranic waste, and low-level radioactive waste.”

Federal Radioactive Waste Storage and Disposal Activities at G-9

(Sept.

1979),

https://www.google.com/books/edition/Regulation_of_Federal_Radioactive_Waste/ERpSAAAAMAAJ?hl=en&gbpv=0.

Id. §2210i(a)-(b) (emphases added). Indeed, Congress

separately defined “special nuclear material,” “source

material,” “byproduct material,” and “spent nuclear

fuel” in 42 U.S.C. §2014, confirming their separateness.

Because the AEA expressly distinguishes “spent nuclear

fuel” from materials the Commission may license, “it is

fair to suppose that Congress considered the unnamed

possibility” of authorizing licenses for such material “and

meant to say no to it.” Marx v. Gen. Revenue Corp., 568

U.S. 371, 381 (2013) (quotation marks omitted).

b. Even if the AEA authorized licenses for possessing spent nuclear fuel, it does not do so for storing it.

The Commission may grant licenses to “possess … special nuclear material,” 42 U.S.C. §2073(a), “issue licenses

for and to distribute source material,” id. §2093(a), or license “use” of “byproduct material,” id. §2111(a)—but

only for particular activities. For example, the Commission may license an entity to “possess,” id. §2073(a),

“special nuclear material” or “source material” only for

research and development, id. §§2073(a)(1)-(2),

2093(a)(1)-(2), “medical therapy,” id. §§2073(a)(2),

2093(a)(2), “utilization or production facilities,” id.

§§2073(a)(3), 2093(a)(3); see id. §2133(a), or “such other

uses as the Commission determines to be appropriate to

carry out the purposes of this chapter,” id. §§2073(a)(4),

2093(a)(4). Likewise, it may license the “use” of “byproduct material” only for research and development, medical therapy, “industrial uses, agricultural uses, or such

other useful applications as may be developed.” Id.

§2111(a).

The Commission did not license ISP to possess spent

nuclear fuel for any of these purposes. Pet.App.55a. Neither Petitioner argues to the contrary—for example,

that ISP’s license concerns “research and development”

or “medical therapy.” 42 U.S.C. §§2073(a)(1)-(2),

2093(a)(1)-(2), 2111(a).

Nor does ISP’s license pertain to “utilization or production facilities,” each of which also has a specific definition. Id. §§2073(a)(3), 2093(a)(3). A “[u]tilization facility” is “any equipment or device, except an atomic

weapon,” that the Commission has determined is “capable of making use of special nuclear material” in significant ways. Id. §2014(cc), (cc)(1); see also id. §2014(cc)(2).

And a “production facility” includes “any equipment or

device” that the Commission determines is “capable of

the production of special nuclear material” in significant

ways. Id. §2014(v)(1); see also id. §2014(v)(2). ISP’s license does not authorize ISP to use “special nuclear material”—which is, again, different from “spent nuclear

fuel,” supra pp. 25-26—in any “equipment or device,”

42 U.S.C. §2014(cc)(1)-(2). Neither does it authorize ISP

to “make, produce, or refine” anything. Id. §2014(u).

The catchall provisions, id. §§2073(a)(4), 2093(a)(4),

2111(a), cannot fill this gap. “[C]ourts … interpret a ‘general or collective term’ at the end of a list of specific”

terms “in light of any ‘common attribute[s]’” the “specific

items” share. Sw. Airlines Co. v. Saxon, 596 U.S. 450, 458

(2022) (quotation marks omitted); see also ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 199 (2012). Thus, a

“general or collective term at the end of a list of specific

items is typically controlled and defined by reference to

the specific classes … that precede it.” Fischer v. United

States, 603 U.S. 480, 487 (2024) (quotation marks omitted).

The specific uses for which the Commission may license possession or use of the enumerated materials thus

“control[s] and define[s],” Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 115 (2001), the “other uses” for

which the Commission may license possession or use.

Each of the specifically listed activities involves an affirmative, productive application of the material. See 42

U.S.C. §§2073(a), 2093(a), 2111(a). Storage (whether

temporary or permanent) does not.

2. The NWPA also dooms ISP’s license.

a. Even if the AEA, standing alone, were ambiguous, the NWPA requires affirming the Fifth Circuit’s

judgment. Statutes “dealing with the same subject,” like

the AEA and NWPA, “being in pari materia,” “are to be

interpreted together, as though they were one law.”

SCALIA & GARNER, supra, at 252 (emphasis omitted).

“Statutes cannot be read intelligently if the eye is closed

to considerations evidenced in affiliated statutes.” Felix

Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 539 (1947). So, “a ‘later act

can … be regarded as a legislative interpretation of [an]

earlier act … in the sense that it aids in ascertaining the

meaning of the words as used in their contemporary setting.’” Erlenbaugh v. United States, 409 U.S. 239, 243-44

(1972) (alteration in original) (quoting United States v.

Stewart, 311 U.S. 60, 64-65 (1940)); see id. at 244 (indicating that this canon can help resolve textual ambiguities).

The NWPA limits the type of facilities the Commission may license to “provide for the permanent disposal

of … spent nuclear fuel.” 42 U.S.C. §10131(a)(4). Until

the federal government fulfills the Yucca Mountain mandate, the Department may not consider, id. §10101(18),

and the Commission may not license, a repository anywhere else, id. §§5842, 10172. Furthermore, Congress

provided for temporary offsite storage—but only in federal repositories, and only under certain circumstances.

Id. §§10151, 10155-56.

b. Numerous features of the NWPA confirm that the

Commission cannot grant ISP’s license. First, ISP’s facility will likely be anything but temporary. For over

thirty-five years, the Executive Branch has refused to

comply with Congress’s directives about Yucca Mountain. The Commission offers no reason to believe that the

next forty years—or more—will be different. The Commission “apparently has no long-term plan other than

hoping for a geologic repository,” and if it “continues to

fail in its quest to establish one,” then spent nuclear fuel

must “be stored” at purportedly “temporary” storage

sites “on a permanent basis.” New York, 681 F.3d at 479.

Before granting this license, the federal government

made clear that it would not pursue a facility in Yucca

Mountain—the only authorized permanent repository.

Any assurance that this license is temporary is thus unserious. The Court is “not required to exhibit a naiveté

from which ordinary citizens are free.” Dep’t of Com. v.

New York, 588 U.S. 752, 785 (2019) (quotation marks

omitted).

Second, even if a presumption of good faith required

assuming that the ISP facility will be temporary, it would

not save the license. Congress has declared that “the persons owning and operating civilian nuclear power reactors 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) (emphasis added); accord id.

§10151(b)(1). It thus charged the Commission to “expedite … the addition of [any] needed new storage capacity

at the site of each civilian nuclear power reactor” to meet

that end. Id. §10151(a)(2); see also id. §10152 (using

“shall”). Congress thus indicated that outside of limited

exceptions for federal facilities, reactors should store

their own spent fuel onsite until a permanent national repository is built.

True, Congress recognized that sometimes, storage

at a reactor site might not be able “reasonably [to] provide adequate storage capacity.” Id. §10151(a)(3). In

those circumstances, Congress ordered the federal government to “provide” limited “interim storage” capacity

“of spent nuclear fuel” away from the reactor site. Id.

Even then, however, Congress limited the circumstances

under which the federal government may “provide” such

storage: It may do so only at a federal facility. Id.

§§10151-57. It may also construct “monitored retrievable

storage” facilities, id. §§10161-69, but that category does

not encompass ISP’s proposed facility, id. §10161(b).

Thus, the Commission may license interim storage only

if it is (1) located at the reactor site or (2) federally owned

and operated. See 42 U.S.C. §§10151, 10155. ISP’s facility

is neither.

Third, Congress declared that “[n]otwithstanding

any other” law, “nothing in” the NWPA “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 the NWPA’s enactment. Id.

§10155(h). Yet ISP’s facility is not located at a reactor

site and (of course) not federal.

These provisions confirm that the Commission cannot license a private, offsite interim storage facility for

spent nuclear fuel. ISP tries (at 3-4, 9-10) to portray this

clear language as unfairly punishing industry for the

federal government’s mistakes. But the statute says

what it says, and it is for Congress—not the Commission—to change it. Regardless, equity hardly favors ISP.

Under the NWPA, Texas was supposed to enjoy statutory protections, including a veto over siting of an interim-storage facility that only Congress could override.

See 42 U.S.C. §§10136, 10155(d), 10156(e), 10166, 10169.

Unfortunately, the Commission ignored those requirements, too.

3. The major-questions and no-elephants-inmouseholes doctrines also apply.

a. Additional rules of interpretation further confirm

that Congress never authorized this license.

The major-questions doctrine serves two purposes.

First, it “is a tool for discerning—not departing from—

the text’s most natural interpretation.” Biden v.

Nebraska, 143 S.Ct. 2355, 2376 (2023) (Barrett, J.,

concurring). It starts from the premise that Congress

“speak[s] clearly when authorizing an agency to exercise

powers of ‘vast “economic and political significance.”’”

Ala. Ass’n of Realtors v. HHS, 594 U.S. 758, 764 (2021)

(per curiam) (quoting Util. Air Regul. Grp. v. EPA, 573

U.S. 302, 324 (2014)). Second, it helps effectuate

nondelegation principles. “Much as constitutional rules

about retroactive legislation and sovereign immunity

have their corollary clear-statement rules, Article I’s

Vesting Clause has its own: the major questions

doctrine.” West Virginia, 597 U.S. at 740 (Gorsuch, J.,

concurring). Congress thus must speak clearly when

delegating authority to address questions with a fraught

“political history,” including “Congress’s creation of ‘a

distinct regulatory scheme’” and the “industry’s

‘significant’ role in ‘the American economy.’” Nebraska,

143 S.Ct. at 2382 (Barrett, J., concurring) (quoting FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

159-60 (2000)).

Distinct in a critical respect from the major-questions

doctrine, the no-elephants-in-mouseholes doctrine provides that even if a question is not major in terms of economic or political significance, an agency still cannot use

ancillary provisions to alter “fundamental details of a

regulatory scheme.” Heating, Air Conditioning & Refrigeration Distribs. Int’l v. EPA, 71 F.4th 59, 67-68

(D.C. Cir. 2023) (quoting Whitman, 531 U.S. at 468); see

also Epic Sys. Corp. v. Lewis, 584 U.S. 497, 515 (2018);

MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 22531 (1994). This doctrine does not sound in nondelegation

concerns, Heating, 71 F.4th at 67-68; instead, it is particularized application of the “commonplace” rule that “the

specific governs the general,” which applies with special

force where “Congress has enacted a comprehensive

scheme and has deliberately targeted specific problems

with specific solutions,” RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 645 (2012) (cleaned

up).

b. It was “clear that from the very beginnings of

commercial nuclear power,” Congress “was aware of the

absence of a permanent waste disposal facility.” NRDC

v. NRC, 582 F.2d 166, 170 (2d Cir. 1978). But indefinite

private storage was not then regarded “as a feasible and

acceptable method of disposal … of spent [nuclear] fuel.”

Fla. Power & Light Co. v. Westinghouse Elec. Corp., 826

F.2d 239, 244 (4th Cir. 1987). Instead, “[g]overnment and

industry accepted reprocessing as the only practical

method of disposing of spent fuel.” Id. at 246; supra

pp. 2-3. The AEA’s failure to authorize offsite storage of

spent nuclear fuel reflects this widespread belief.

So, when “the private reprocessing industry collapsed” in the 1970s, “the nuclear industry was confronted with an unanticipated accumulation of spent nuclear fuel” with no long-term plans for managing nuclear

waste. Idaho, 945 F.2d at 298. Congress, in turn, recognized that this “accumulation”—which occurred decades

after the AEA’s enactment—created a “national problem,” 42 U.S.C. §10131(a)(2), and that “spent nuclear

fuel” is a “major subject[] of public concern,” id.

§10131(a)(7). It answered that “major” question by enacting the NWPA to solve “the problems of civilian radioactive waste disposal.” Id. §10131(a)(3).

In the NWPA—a subsequent, more specific statute

than the AEA—Congress decided that the “solution” to

this “problem[],” id., was a permanent national repository deep underground in Nevada, and until then,

“limit[ed] temporary storage to private at-the-reactor

storage or at federal sites,” Pet.App.29a; see supra

pp. 3-4. Yet given political sensitivities, Congress’s decision “has been hotly politically contested for over a half

century.” Pet.App.30a. And it was not until decades after

the NWPA’s enactment—and after the Executive

Branch made clear it would not obey Congress’s directives regarding Yucca Mountain—that the Commission

purported to issue a license like this one.

Where, as here, “an agency claims to discover in a

long-extant statute an unheralded power to regulate ‘a

significant portion of the American economy,’” courts

“typically greet its announcement with a measure of

skepticism.” Util. Air, 573 U.S. at 324 (quoting Brown &

Williamson, 529 U.S. at 159). And where, as here, Congress enacts a comprehensive scheme to address a specific problem, agencies cannot invoke ancillary provisions of an older statute that do not mention that

problem to bypass Congress’s scheme. To uphold this license, the Court “would have to conclude that Congress

not only” hid “a rather large elephant in a rather obscure

mousehole,” but also “buried” that elephant “beneath an

incredibly deep mound of specificity, none of which bears

the footprints of the beast or any indication that Congress even suspected its presence.” Am. Bar Ass’n v.

FTC, 430 F.3d 457, 469 (D.C. Cir. 2005).

B. Petitioners’ theories again fall flat.

Petitioners again press numerous counterarguments.

None supports reversal.

1. Petitioners misunderstand the separation

of powers.

a. To start, the Commission repeatedly faults Texas

(at, e.g., 42, 45-46) for failing to identify where Congress

prohibited it from issuing a license like ISP’s. That’s

backwards. “Were courts to presume a delegation of

power absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony.” Atl.

City Elec. Co. v. FERC, 295 F.3d 1, 9 (D.C. Cir. 2002); see

also La. Pub. Serv., 476 U.S. at 374. Courts do not “presume a delegation of power merely because Congress

has not expressly withheld such power.” Ethyl Corp. v.

EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995).

b. Petitioners also argue that the major-questions

doctrine is inapt. ISP.Br.38-39; NRC.Br.48-49. But that

doctrine constitutes an additional reason to affirm; the

Court can and should reject ISP’s license based on the

AEA’s and NWPA’s plain language alone. See, e.g., Nebraska, 143 S.Ct. at 2375 (invoking major-questions doctrine in the alternative). In any event, the doctrine applies if a case involves questions of “vast ‘economic and

political significance.’” Ala. Ass’n of Realtors, 594 U.S. at

764 (quoting Util. Air, 573 U.S. at 324). ISP does not dispute that this case involves such questions. Nor could it

when Congress declared that what to do with spent nuclear fuel is a “major” problem. 42 U.S.C. §10131(a)(7).

Petitioners thus must show that Congress provided the

Commission with clear authority. Supra pp. 24-25.

The Commission’s insistence (at 49) that “this Court

has never held that the major questions doctrine is implicated whenever a case is of some importance” misses

the mark. The issue is of far more than “some importance”—Congress identified it as a “major subject[]

of public concern.” 42 U.S.C. §10131(a)(7). Furthermore,

the lengths to which the Department and the Commission have gone for decades to escape the NWPA—and

the reasons they have gone to those lengths—confirm

the extraordinary political significance of this issue. Regardless, “Congress has enacted a comprehensive

scheme and has deliberately targeted specific problems

with specific solutions,” RadLAX, 566 U.S. at 645

(cleaned up), precluding the Commission from straining

to circumvent that scheme.

2. Petitioners misread the statutes.

Petitioners attempt to find authority by stitching together, Frankenstein-style, various pieces of the AEA.

That is not how this Court reads statutes.

a. Both Petitioners’ textual arguments founder at

the outset by writing off the NWPA as irrelevant. E.g.,

ISP.Br.15, 38-40; NRC.Br.42. But statutes “dealing with

the same subject” “are to be interpreted together, as

though they were one law.” SCALIA & GARNER, supra, at

252 (emphasis omitted); supra p. 30. And “the meaning

of one statute may be affected by other Acts, particularly

where,” as here, “Congress has spoken subsequently and

more specifically to the topic at hand.” Brown &

Williamson, 529 U.S. at 133; see also SCALIA & GARNER,

supra, at 254-55 (citing, inter alia, Stewart, 311 U.S. at

64). Here, the NWPA clarified that spent nuclear fuel

may be stored in only two types of facilities. Supra

pp. 29-30.

The Commission attempts (at 43-44) to brush off the

NWPA as immaterial to its licensing authority under the

AEA, but the only lawful interim storage for spent nuclear fuel—the issue here—is either onsite or federal.

Supra pp. 4, 29-30. The Commission is also wrong to rely

on a provision that “ma[d]e it a crime to intentionally destroy or damage ‘any nuclear waste storage facility licensed under’” the AEA, NRC.Br.42 (quoting Act of

June 30, 1980, Pub. L. No. 96-295, §204(a), 94 Stat. 787).

But no one disputes that storage facilities onsite are permissible; they must be. Even if Yucca Mountain were operational, waste must cool for years after being removed

from a reactor before it can be safely transported—

meaning that some form of temporary, onsite storage of

spent nuclear fuel inheres in the use of nuclear fuel.

NRC.Br.3. This statute thus says nothing about the relevant locational question regarding where storage will

occur longer-term. Regardless, the phrase “nuclear

waste” encompasses several types of waste; it does not

equal “spent nuclear fuel.” And post-NWPA, this provision refers to the onsite storage facilities or offsite federal storage facilities that the NWPA authorizes.

ISP is also off-base (at 39-42) when it argues that the

NWPA is irrelevant because it often gives directives or

authority to the Department, not the Commission. Congress, however, can address where and how to store

spent nuclear fuel through any agency it wishes. Regardless, the Commission must still issue licenses for spent

nuclear fuel—which is at issue here. See 42 U.S.C. §5842;

County of Rockland, 709 F.2d at 769 n.2. The cases upon

which ISP relies (at 41-42) for the proposition that the

NWPA did not repeal the AEA ignore that the Commission never had authority to license private, offsite storage of spent nuclear fuel. Supra pp. 24-28; see infra

Part II.B.3 (discussing those cases). But if the AEA were

ambiguous, the subsequent and more specific language

of the NWPA would govern. See Brown & Williamson,

529 U.S. at 133.

ISP also gets the NWPA wrong when it argues (at 42)

that the NWPA “was all about permanent disposal of

spent nuclear fuel by [the Department], not temporary

possession of spent nuclear fuel by private parties.” Putting aside that no one can claim with a straight face that

this license is really a “temporary” measure, ISP’s argument fails because the NWPA expressly addresses interim storage. 42 U.S.C. §§10151-57.

ISP faults (at 39-40) the Fifth Circuit for “invok[ing]”

NWPA provisions and insists (at 40) that §10155(h)

“merely limits” the NWPA’s “scope” with no effect on

the AEA. But the Commission issued ISP’s license under

rules that “appl[y] only to ‘temporary storage,’ which the

agency defined as ‘interim storage.’” NRC.Br.4 (quoting

45 Fed. Reg. at 74,694); see Pet.App.53a. That is the precise issue that the NWPA governs. ISP thus ignores the

in pari materia canon and Congress’s specific limits on

storage options for spent nuclear fuel.

b. Petitioners also attempt to ground the Commission’s authority in the AEA’s general purpose statements and findings. E.g., ISP.Br.29-31 (citing 42 U.S.C.

§§2011-12). But although “statements of purpose” may

help clarify ambiguities, “by their nature,” they “cannot

override a statute’s operative language.” Sturgeon v.

Frost, 587 U.S. 28, 57 (2019) (cleaned up).

Even if ISP could avoid this conclusion by calling policy statements “delegations,” ISP.Br.31-32 (citing

42 U.S.C. §2011(b))—and it cannot—it would fare no better. The cited statement provides that “the development,

use, and control of atomic energy shall be directed so as

to promote world peace, improve the general welfare, increase the standard of living, and strengthen free competition in private enterprise.” 42 U.S.C. §2011(b). If that

were a delegation of regulatory authority, it would be unconstitutional, for it is hard to imagine less of an intelligible principle. As a policy statement, however, it cannot

answer the question here because “no legislation pursues

its purposes at all costs.” Rodriguez v. United States, 480

U.S. 522, 525-26 (1987) (per curiam). Instead, the AEA’s

and NWPA’s specific operative terms control.

c. Petitioners also argue that because the AEA permits the Commission to license possession of “special nuclear material,” “source material,” and “byproduct material,” it may issue licenses regarding “spent nuclear fuel”

on the theory that spent nuclear fuel “is composed of”

special nuclear material, source material, and byproduct

material. ISP.Br.29-32; NRC.Br.32-35. That is like saying that because the Federal Aviation Administration

may regulate hydrogen-fueled aircraft and oxygen

equipment on planes, it also may license water. Regardless, the Commission does not have a general power to

license possession of such materials—it may do so only

for specified purposes, none of which is storage. Supra

pp. 26-28.

“In a given statute,” especially one like the AEA that

involves “terms with some heft and distinctiveness,” the

“same term usually has the same meaning[,] and different terms usually have different meanings.” Pulsifer v.

United States, 601 U.S. 124, 149 (2024). Courts thus

presume that “‘Congress’[s] choice of words is … deliberate’ and deserving of judicial respect.” SAS Inst., Inc.

v. Iancu, 584 U.S. 357, 364 (2018). “[D]efined meanings”

thus cannot “be replaced with another” potentially “permissible meaning of the word”—“the definition is virtually conclusive.” SCALIA & GARNER, supra, at 228.

Here, Congress demonstrated that “spent nuclear

fuel”—a defined term—constitutes more than the sum of

its parts. After all, the AEA lists “spent nuclear fuel” as

a separate, independent item from “byproduct materials,

source materials,” and “special nuclear materials.”

42 U.S.C. §2210i(b). Yet none of the licensing provisions

of the AEA references “spent nuclear fuel.” “Congress

generally acts intentionally when it uses particular language in one section of a statute but omits it in another.”

DHS v. MacLean, 574 U.S. 383, 391 (2015). Furthermore, “‘spent nuclear fuel’ means 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) (emphasis

added). The Commission cannot break down “spent nuclear fuel” into its constituent parts.

In fact, the Commission’s own rules preclude such

parsing. “[S]pent nuclear fuel” “includes the special nuclear material, byproduct material, source material, and

other radioactive materials associated with fuel assemblies.” 10 C.F.R. §72.3 (emphasis added). Even the Commission thus recognizes that “spent nuclear fuel” is more

than the sum of “special nuclear material,” “source material,” and “byproduct material.” Id. And nothing in the

AEA authorizes licensing offsite storage of those “other

radioactive materials.” Id.

d. ISP fares no better (at 30-32) by repeating the

words “possession” and “use” in 42 U.S.C. §2201(b). The

Commission may “issue licenses to … possess … special

nuclear material.” Id. §2073(a) (emphasis added). And

“[n]o person may … possess … any byproduct material”

unless the Commission issues a license for the specific

enumerated purposes. Id. §2111(a) (emphasis added).

But the Commission cannot license possession of spent

nuclear fuel at all or any material other than for an enumerated purpose. Supra pp. 24-28.

e. Petitioners fall back on the AEA’s catchall provisions. ISP.Br.30-31, 34-36; NRC.Br.33-35; see also Holtec.Br.16-18. Not only do none of these provisions refer

to “spent nuclear fuel”—itself dispositive—but courts

“interpret a ‘general or collective term’ at the end of a

list of specific items in light of any ‘common attribute[s]’”

the “specific items” share. Sw. Airlines, 596 U.S. at 458.

The “common attribute” that the “specific items” in

§§2073(a), 2093(a), and 2111(a) share are active, affirmative uses of the same type as the enumerated activities.

Supra pp. 26-28. Storage is different.

If the Commission could deem any “use[]” an “appropriate” one (or “approve[]” such a use) to carry out the

AEA’s purposes, 42 U.S.C. §§2073(a)(4), 2093(a)(4), the

catchall provisions would swallow the specifically enumerated terms, rendering them meaningless. See

Fischer, 603 U.S. at 487-88. And if the Commission can

license private offsite storage of spent nuclear fuel

merely because it would help the Commission regulate

“source materials,” NRC.Br.34 (citing 42 U.S.C.

§2093(a)(4)), then entire provisions of the AEA would be

superfluous because the Commission could make the

same argument with respect to “byproduct material” and

“special nuclear material”—both of which have their own

licensing provisions. 42 U.S.C. §§2073, 2111.

ISP asserts (at 35) that ejusdem generis is inapt because it “requires a ‘long and detailed list of specific directions,’ with a common ‘link.’” But the Court did not

“require[]” a “long and detailed list of specific directions”

in Harrington v. Purdue Pharma LP, 603 U.S. 204, 217

(2024). Rather, the Court noted that the Bankruptcy

Code contains such lists, while making clear that the

same rule applies to “a list discussing ‘cars, trucks, motorcycles, or any other vehicles.’” Id.; e.g., Fischer, 603

U.S. at 487-88. Only two specific terms need precede the

general one. See SCALIA & GARNER, supra, at 206. Nor

need the statute expressly state a “link” between the

listed items—the list itself is the link. Harrington, 603

U.S. at 218. Contra ISP.Br.35.

ISP also insists (at 36) that ejusdem generis cannot

apply because the general terms here do not count as

catchall terms. But even the Commission refers to them

(at 33) as “catchall” language. And ISP’s notion (at 36)

that these provisions “ensure that the agency can fully

implement the congressionally defined purposes of the

AEA” is just another version of its view that policy statements are “latent well[s] of authority.” Kentucky v.

Biden, 23 F.4th 585, 606 (6th Cir. 2022) (rejecting a similar theory based on Sturgeon).

For its part, rather than contending that ejusdem

generis does not apply, the Commission argues (at 33-34)

that because it has licensed reactors under §§2133 and

2134—which §2073(a)(2) and (3) reference—it may also

license possession of “spent fuel stored in a spent-fuel

storage installation” under §2073(a)(4)’s catchall provision because spent fuel “results from the activities referenced in” §2073(a)(2) and (3). But §2073(a) authorizes the

Commission to license only “special nuclear material”—

not “byproduct material” or “source material,” and

certainly not “spent nuclear fuel.” 42 U.S.C. §2073(a)

(emphasis added). Regardless, just because spent fuel

“results from” certain activities, NRC.Br.34, it hardly

follows that it is like those activities in the relevant ways.

Sewage is not food merely because it results from eating.

“When general words” like §2073(a)(4)’s “follow an enumeration of two or more things, they apply only to …

things of the same general kind or class specifically mentioned.” SCALIA & GARNER, supra, at 199.

The Commission also errs when it argues (at 32, 34)

that it may license storage of special nuclear material

and source material because storage may be a practical

necessity. No one disputes that storage is necessary—

the question, though, is where? Congress made onsite

storage the default option for temporary storage. See

42 U.S.C. §10151(a)(1). The only exception is for federal

repositories. Nor do the phrases “for such other uses as

the Commission determines to be appropriate,” id.

§2073(a)(4), or “any other use approved by the Commission as an aid to science or industry,” id. §2093(a)(4), authorize the Commission to use its “expertise” to go beyond the class of items Congress enacted. Contra

NRC.Br.34, 48. Such arguments would not have worked

under Chevron, let alone today.

The Commission fares no better with “byproduct material.” NRC.Br.35. Ejusdem generis plainly applies to

the catchall language “or such other useful applications

as may be developed.” 42 U.S.C. §2111(a). And the Commission cannot rest its supposed authority to license

“spent nuclear fuel”—a different material—on its authority to license possession of “byproduct material” for

certain uses. Contra ISP.Br.31; NRC.Br.35, 41.

f. Finally, ISP relies (at 29-30) on a grant of rulemaking power. That provision “authorize[s]” the

Commission to “establish … standards and instructions

to govern the possession and use of special nuclear material, source material, and byproduct material … 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). But “spent nuclear fuel” is not “special nuclear material, source material, and byproduct

material,” and even if it were, ISP’s license is not for defense or safety purposes. Because administrative law has

no “adverse possession” rule “insulat[ing]” an agency’s

“disregard of statutory text,” Rapanos v. United States,

547 U.S. 715, 752 (2006), agency rules and practices cannot confer authority that Congress never granted. Petitioners’ invocations of 10 C.F.R. Part 72 thus fail.

Nor did the NWPA’s enactment effectively ratify

those regulations. Contra, e.g., ISP.Br.40-41. 10 C.F.R.

Part 72 had been “on the books,” ISP.Br.4, 17, 32, 40, for

a scant two years when Congress enacted the NWPA, see

NRC.Br.43, and so was hardly settled. If anything, the

NWPA’s enactment vitiated those regulations (if they,

indeed, mean what Petitioners claim), as Congress concluded that prior efforts to solve “the problems of civilian

radioactive waste disposal ha[d] not been adequate,”

42 U.S.C. §10131(a)(3), and permitted two, and only two,

types of interim storage, neither of which applies here.

3. Petitioners cite inapposite cases.

Petitioners also repeatedly invoke a handful of

lower-court cases, none of which support this license.

a. Petitioners’ primary case is Bullcreek v. NRC, 359

F.3d 536 (D.C. Cir. 2004), which ISP’s other main case,

Skull Valley Band of Goshute Indians v. Nielson, 376

F.3d 1223 (10th Cir. 2004), follows, id. at 1249-50. True,

in Bullcreek, the D.C. Circuit stated that “[w]hile the

AEA does not specifically refer to the storage or disposal

of spent nuclear fuel, it has long been recognized that the

AEA confers on the [Commission] authority to license

and regulate the storage and disposal of such fuel.” 359

F.3d at 538. But that statement is pure ipse dixit, with

no analysis of the statutory language. Id. at 538, 542-43.

And the three cases the court cited addressed preemption of state law; none show that the Commission may

“license and regulate the storage and disposal of” spent

nuclear fuel. Id. at 538.

Bullcreek relied on only one decision from this Court:

Pacific Gas and Electric Co. v. State Energy Resources

Conservation and Development Commission, 461 U.S.

190 (1983). But that case concerned power-plant construction and said only that the AEA empowers the

Commission to “license the transfer, delivery, receipt,

acquisition, possession[,] and use of nuclear materials”

generally—not spent nuclear fuel. Id. at 207. Relying on

statutes addressing “special nuclear material,” “source

material,” and “byproduct material,” see id., the Court

addressed “spent nuclear fuel” only in connection with

onsite storage and disposal, e.g., id. at 195. Whether the

Commission could similarly regulate offsite storage was

not at issue.

Illinois v. General Electric Co., 683 F.2d 206 (7th Cir.

1982), is equally inapt. Illinois did not “question the Commission’s authority to regulate the storage of spent nuclear fuel,” id. at 215, unlike Respondents here. And in

observing that Illinois “could not” have questioned that

supposed authority, the court did not analyze the statutes it cited: §§2073 and 2111. Id. at 214-15. Neither empowers the Commission to license offsite possession of

spent nuclear fuel for storage purposes. Supra pp. 24-28.

Jersey Central Power & Light Co. v. Township of

Lacey, 772 F.2d 1103 (3d Cir. 1985), has no relevant

statutory analysis, id. at 1111-12. Instead, the court relied on regulations to aver that the Commission had “licensing and regulatory authority with respect to … the

‘transfer, storage[,] or disposal of radioactive waste matter resulting from the separation in a production facility

of special nuclear material from unradiated nuclear reactor fuel.’” Id. at 1111 (citation omitted); see also id. at

1112. Such “radioactive waste matter” is not spent nuclear fuel. Compare id. at 1111, with 42 U.S.C.

§§2014(ee), 10101(23). In all events, statutes trump regulations.

b. Notwithstanding its shaky footing, the D.C. Circuit has claimed that Bullcreek “held that the AEA provided ‘the [Commission] authority to license and regulate

the storage and disposal of [spent nuclear] fuel.’” Beyond

Nuclear, Inc. v. NRC, 113 F.4th 956, 965 (D.C. Cir. 2024)

(quoting Bullcreek, 359 F.3d at 538). But as the Commission admitted at oral argument below, the Commission’s

AEA authority “wasn’t even specifically challenged” in

Bullcreek. Oral Argument at 30:56-31:02, Texas v. NRC,

78 F.4th 827 (5th Cir. 2023) (No. 21-60743), https://www.

ca5.uscourts.gov/OralArgRecordings/21/21-60743—_829-2022.mp3; see Bullcreek, 359 F.3d at 541. Contra

ISP.Br.33. Nor was it at issue in the cases Bullcreek

cited. See Pac. Gas, 461 U.S. at 207; Jersey Cent.,

772 F.2d at 1111-12; Gen. Elec., 683 F.2d at 215.

ISP counters (at 33) that if “any legitimate doubt” existed regarding the Commission’s “authority under the

AEA … , such doubts would have been aired in those proceedings, rather than conceded.” But the Commission

does not echo ISP’s position—which ignores party

presentation. E.g., United States v. Sineneng-Smith, 590

U.S. 371, 375-76 (2020). Regardless, the Court is bound

by what Congress wrote, not D.C. Circuit precedent. See,

e.g., Am. Hosp. Ass’n. v. Becerra, 596 U.S. 724, 739

(2022).

4. Petitioners cite irrelevant examples.

Finally, ISP claims (at 32) that “[t]here are at least a

dozen existing sites in the country where there is no operating reactor and where spent nuclear fuel is stored, at

least seven of which are privately owned.” The key word

there is “operating”; each storage facility was built on

the site of a reactor that was operating at the time. That

is different in kind from what ISP proposes and confirms

that reactors should store their own spent nuclear fuel

until a permanent repository is built. As noted above, the

AEA permits onsite storage of spent fuel because some

amount of storage is inherent in the license of use. Supra

p. 36. By contrast, even if the AEA contemplated transportation of spent nuclear fuel offsite (which is debatable), the new location would need a separate license,

which Congress has nowhere authorized. Petitioners’

contrary argument, e.g., NRC.Br.40; ISP.Br.36-37, is

thus a red herring.

For its part, the Commission also insists (at 38) that

it “has consistently understood the [AEA] to authorize it

to license the offsite storage of spent nuclear fuel.”

Whatever that “understanding” has been, it cannot contravene clear statutory text. See, e.g., Rapanos, 547 U.S.

at 752. And the Commission’s examples of its “understanding” are underwhelming. When the Atomic Safety

and Licensing Board wrote that “spent nuclear fuel …

could be ‘stor[ed] in offsite facilities,’” NRC.Br.38 (quoting In re Kan. Gas & Elec. Co., 5 N.R.C. 301, 321 (1977)),

it referred to three such facilities, see In re Kan. Gas, 5

N.R.C. at 320-21. One was G.E. Morris, discussed below;

another, in West Valley, New York, was quickly shut

down. Id. at 320-21; see Jersey Cent., 772 F.2d at 1105.

The third, in Barnwell, South Carolina, never operated.

See In re Kan. Gas, 5 N.R.C. at 320-21. The Commission

has apparently not licensed an operating spent-nuclear-fuel storage facility since the collapse of the reprocessing industry or enactment of the NWPA.

Nonetheless, the Commission represents (at 6) that

it has “issued four licenses authorizing private parties to

temporarily store spent fuel at sites where no nuclear reactor has ever been located.” That claim is misleading.

Two are either the subject of this case or of related litigation now pending before this Court. The third, Private

Fuel Storage, was issued decades after the NWPA’s enactment and was the subject of Bullcreek. Notably, that

facility was never built. J.A.302.

That leaves only G.E. Morris, NRC.Br.6, which supports Texas. Licensed in 1967 as a reprocessing facility,

that facility was converted to storage in 1971—before the

NPWA confirmed Congress’s position that such facilities

are not allowed. In re Gen. Elec. Co., 22 N.R.C. 851

(1985); Illinois v. NRC, 591 F.2d 12, 13 n.1 (7th Cir.

1979). At the time, this site was the “only away-from-site

facility” in the entire country that “accept[ed] spent nuclear fuel for storage,” Gen. Elec., 683 F.2d at 208, and

much of the fuel at that facility was already onsite, see S.

Cal. Edison Co. v. United States, 93 Fed. Cl. 337, 344

(Fed. Cl. 2010). Given that controversy about G.E. Morris likely explains Congress’s prohibition on “encourag[ing]” parties to use such offsite storage, 42

U.S.C. §10155(h), it can hardly be said to support Petitioners’ position that they could abandon Yucca Mountain.

C O NC LU SIO N

The Court should affirm.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

JANUARY 2025

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

BENJAMIN W. MENDELSON

SARA B. BAUMGARDNER

Assistant Solicitors General

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.