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

Nos. 23-1300, 23-1312

In the

Supreme Court of the United States

NUCLEAR REGULATORY COMMISSION, et al.,

Petitioners,

v.

TEXAS, et al.,

Respondents.

INTERIM STORAGE PARTNERS, LLC,

Petitioner,

v.

TEXAS, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

BEYOND NUCLEAR, INC.

IN SUPPORT OF RESPONDENTS

Mindy Goldstein

Turner Environmental

Law Clinic

Emory University

School of Law

1301 Clifton Road

Atlanta, GA 30322

Diane Curran

Counsel of Record

Harmon, Curran, Spielberg

& Eisenberg, L.L.P.

1725 DeSales Street N.W.,

Suite 500

Washington, D.C. 20036

(240) 393-9285

dcurran@harmoncurran.com

Counsel for Amicus Curiae

January 22, 2025

130909

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

THE SUPREME COURT SHOULD

REVERSE AND VACATE NRC’S ISP

LICENSING DECISION FOR FAILING

TO COMPLY WITH THE PLAIN AND

U N DISPU T ED R EQU IR EM EN T S

OF THE NUCLEAR WASTE POLICY

ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. ISP’s License Includes a Concededly

Unlawful License Condition . . . . . . . . . . . . . 7

B. By Licensing ISP to Contract with

DOE for Private Storage of FederallyOwned Spent Fuel, NRC Violated the

Plain Language and Statutory Scheme

of the Nuclear Waste Policy Act . . . . . . . . . . 8

ii

Table of Contents

Page

C. By Licensing ISP to Contract with DOE

for Private Storage of Federally-Owned

Spent Fuel in Violation of the Nuclear

Waste Policy Act, NRC Violated the

Administrative Procedure Act . . . . . . . . . . 11

II. A N E X E R C I S E O F J U D I C I A L

RESTRAINT IS WARRANTED . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Bailey v. United States,

516 U.S. 137 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Barr v. American Association

of Political Consultants,

591 U.S. 610 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Beyond Nuclear, Inc. v.

Nuclear Regulatory Comm’n,

113 F.4th 956 (D.C. Cir. 2024) . . . . . . . . . . . . . . 2, 3, 11

Bostock v. Clayton County,

590 U.S. 644 (2020) . . . . . . . . . . . . . . . . . 4-6, 11, 12, 14

Bullcreek v. NRC,

359 F.3d 536 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . 13

Corner Post, Inc. v. Board of Governors

of the Federal Reserve System,

603 U.S. 799 (2024) . . . . . . . . . . . . . . . . . . . . . . . 7-8, 11

Dobbs v. Jackson Women’s Health Association,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Don’t Waste Michigan, et al. v. NRC,

No. 21-1048,

2023 WL 395030 (D.C. Cir. Jan. 25, 2023) . . . . . . . 1, 2

iv

Cited Authorities

Page

In re Holtec International,

91 N.R.C. 167 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Interim Storage Partners, L.L.C.,

92 N.R.C. 463 (2019) . . . . . . . . . . . . . . . 1, 2, 5, 7, 12, 13

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Niz-Chavez v. Garland,

593 U.S. 155 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Office of Personnel Management v. Richmond,

496 U.S. 414 (1990) . . . . . . . . . . . . . . . . . . . . 5, 6, 12, 14

Skull Valley Band of Goshute Indians v. Nielsen,

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

cert. denied, 546 U.S. 1060 (2005) . . . . . . . . . . . . . . . 13

Texas v. Nuclear Regulatory Comm’n,

78 F.4th 827 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . 1, 3

Statutes, Rules and Regulations

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 12

5 U.S.C. § 706(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5 U.S.C. § 706(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 12

v

Cited Authorities

Page

5 U.S.C. § 706(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

28 U.S.C. §§ 2341 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 2344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. §§ 2011 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. §§ 10101 et seq. . . . . . . . . . . . . . . . . . . . . . . . 4, 5

42 U.S.C. §§ 10121-45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 10131(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 10134(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 10134(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. §§ 10151-57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10151(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

42 U.S.C. § 10155(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10155(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10156(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. §§ 10161-69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vi

Cited Authorities

Page

42 U.S.C. § 10161(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10161(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10161(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10163(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10168(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10168(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10168(d)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 10222(a)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Other Authorities

Brief for Federal Respondents (Fifth Circuit Docket

No. 21-60743, Apr. 18, 2022) . . . . . . . . . . . . . . . . . . . 5, 6

Brief for Respondent Fasken Land and Minerals,

Ltd. (Jan. 15, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Brief for State Respondent (Jan. 15, 2025) . . . . . . . . . . . 3

Brief for the Federal Petitioners (Dec. 2, 2024) . . . . 3, 10

vii

Cited Authorities

Page

Brief of Amicus Curiae Nuclear Energy Institute,

Inc. in Support of Petitions for Certiorari

(Docket Nos. 23-1300, 23-1312, 23-1341, and

23-1352, July 12, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Brief of Intervenor Interim Storage Partners,

LLC (Fi f th Ci r. Docket No. 21- 6 074 3 ,

Apr. 25, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Brief of Petitioner Interim Storage Partners, LLC

(Dec. 2, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Initial Brief of Petitioners Fasken Land and

Minerals, Ltd. and Permian Basin Land

and Royalty Owners (Fifth Circuit Docket

No. 21-60743, Feb. 7, 2022) . . . . . . . . . . . . . . . . . . . . . . 6

Reply Brief of Fasken et al. (Fifth Cir. Docket

No. 21-60743, May 16, 2022) . . . . . . . . . . . . . . . . . . . . . 6

1

INTEREST OF AMICUS CURIAE

Beyond Nuclear, Inc. (“Beyond Nuclear”) is a

nonprofit, nonpartisan membership organization that

advocates for permanent disposal of “spent” (i.e.

(i.e.,,

used) nuclear reactor fuel and other highly radioactive

nuclear waste in a deep underground repository.1 It has

members who live and work in close proximity to the

Interim Storage Partners (“ISP”) facility at issue in this

proceeding, which would store up to 40,000 metric tons of

spent fuel from U.S. commercial reactors above ground.

Interim Storage Partners, L.L.C.,

L.L.C., 92 N.R.C. 463, 466

(2019) (“Interim

(“Interim Storage Partners”)

Partners”) (review denied, Don’t

Waste Michigan, et al. v. NRC,

NRC, No. 21-1048, 2023 WL

395030 (D.C. Cir. Jan. 25, 2023)) (“Don’t

(“Don’t Waste Michigan”).

Michigan”).

Beyond Nuclear and its members are concerned about

potential injuries to their health and environment due to

both routine and accidental releases of radioactivity from

the spent fuel during transportation to and/or storage at

the facility. See Texas v. Nuclear Regulatory Comm’n,

Comm’n, 78

F.4th 827, 832 (5th Cir. 2023) (observing that spent fuel

is “intensively radioactive and must be carefully stored”)

(internal quotations and citations omitted).

While Beyond Nuclear did not take part in the Fifth

Circuit judicial proceeding on review, it participated in

the ISP-related administrative proceeding before the

U.S. Nuclear Regulatory Commission (“NRC”) by first

moving to dismiss the proceeding and then by requesting

1. No counsel for any party authored this brief in whole or

in part, and no entity or person aside from amicus and its counsel

made any monetary contribution toward the preparation or

submission of this brief.

2

an adjudicatory hearing on ISP’s license application. See

Interim Storage Partners,

Partners, 92 N.R.C. at 467-469. 2 Beyond

Nuclear raised a single claim to the Commission: that

issuance of the license would violate the Nuclear Waste

Policy Act (“NWPA”) by unlawfully permitting ISP to

contract with the federal government for the private

storage of federally-owned spent reactor fuel. 3

All parties, NRC’s Atomic Safety and Licensing

Board, and the NRC Commissioners agreed that the

NWPA prohibited private storage of federally-owned

spent fuel. Interim Storage Partners,

Partners, 92 N.R.C. at 467.

Yet, the Commission refused to vacate the ISP license

or sever the unlawful provision, reasoning that it could

lawfully condition the license on the anticipation or

“hope[ ]” that the NWPA would be amended in the future.

Interim Storage Partners,

Partners, 92 N.R.C. at 468.4

2. In a separate NRC proceeding, Beyond Nuclear challenged

NRC’s proposal to issue a nearly identical spent fuel storage

license for a facility owned by Holtec International (“Holtec”).

See Holtec International, 91 N.R.C. 167, 173-76 (2020) (“Holtec”)

(review denied, Beyond Nuclear, Inc. v. Nuclear Regulatory

Comm’n, 113 F.4th 956, 964 (D.C. Cir. 2024) (“Beyond Nuclear”)).

3. In the Holtec administrative proceeding, Beyond Nuclear

raised the same single claim. Holtec, 91 N.R.C. at 176

4. See also Holtec, 91 N.R.C. at 176.

In Don’t Waste Michigan, the D.C. Circuit Court of Appeals

denied Beyond Nuclear’s petition for review of Interim Storage

Partners on procedural grounds, and thus did not reach the

merits. 2023 WL 395030. In Beyond Nuclear, however, the court

reached the merits of NRC’s Holtec decision. The court agreed

with the Commission that while the Act prohibits private storage

of federally-owned spent fuel, NRC could lawfully include a

“forward-looking” license condition that anticipated future

changes to the NWPA. 113 F.4th at 964. Beyond Nuclear’s petition

3

The conceded inconsistency of ISP’s license with the

NWPA’s prohibition against private storage of federallyowned spent fuel was not expressly addressed by the Fifth

Circuit. 5 By addressing it now, this Court can ensure that

NRC follows Congress’s plain language as it is written

today, and that Beyond Nuclear and other members of

the public will have an opportunity for a hearing in the

future, if and when that language is amended.

SUMMARY OF ARGUMENT

This Court has accepted for review the following

question posed by NRC, which arises from a conflict

between the Fifth Circuit’s decision in Texas and previous

decisions by the D.C. Circuit and Tenth Circuit:

Whether the Atomic Energy Act of 1954, 42

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

for rehearing en banc or panel rehearing of Beyond Nuclear has

been held in abeyance pending the outcome of this proceeding.

Order (Docket No. 21-1187, Nov. 4, 2024).

5. In their merits briefs to this Court, Fasken Land and

Minerals, Ltd. (“Fasken”) and the State of Texas contend that the

NWPA limits away-from-reactor spent fuel storage to federallyowned facilities; therefore, the NWPA precludes NRC from

applying the Atomic Energy Act to license any away-from reactor

spent fuel storage, regardless of who owns the waste. Brief for

Respondent Fasken Land and Minerals, Ltd. at 17-37 (Jan. 15,

2025); Brief for State Respondent at 24-47 (Jan. 15, 2025). NRC and

ISP argue the opposite. Brief for the Federal Petitioners at 30-49

(Dec. 2, 2024) (“Federal Petitioners’ Brief ”); Brief of Petitioner

Interim Storage Partners, LLC at 29-42 (Dec. 2, 2024) (“ISP

Brief ”). This amicus brief, in contrast, focuses on the NWPA’s

narrower prohibition against private storage of federally-owned

spent fuel without implicating the Atomic Energy Act.

4

Policy Act of 1982, 42 U.S.C. 10101 et seq.,

permit the Nuclear Regulatory Commission

to license private entities to temporarily store

spent nuclear fuel away from the nuclear-reactor

sites where the spent fuel was generated. 6

As stated by NRC, this question (“Question 2”) is

not only broad but momentous. It gets to “the heart

of the Commission’s expertise and congressionally

assigned role” and its resolution is “likely to have wideranging effects.” Petition for a Writ of Certiorari at 27-28

(Docket No. 23-1300, June 12, 2024). According to ISP,

“[t]he repercussions of the Fifth Circuit’s errors are

destabilizing, and potentially devastating, to a critical

industry at a critical time.” ISP Brief at 4. Similarly,

the nuclear industry trade association has warned that

if the Fifth Circuit’s decision is “allowed to stand,” it

“will have far-reaching and destabilizing consequences

for the nuclear industry.” Brief of Amicus Curiae

Nuclear Energy Institute, Inc. in Support of Petitions for

Certiorari (Docket Nos. 23-1300, 23-1312, 23-1341, and

23-1352, July 12, 2024).

There is no need for the Court to entertain this

doomsday scenario. Bostock v. Clayton County,

County, 590 U.S.

6. This amicus brief does not address the other question

accepted by the Court (“Question 1”):

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

authorizes a “party aggrieved” by an agency’s “final

order” to petition for review in a court of appeals, 28

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

claims asserting that an agency order exceeds the

agency’s statutory authority.

5

644, 681 (2020); see also Office of Personnel Management

v. Richmond,

Richmond, 496 U.S. 414, 423-424 (1990) (reasoning

that the Court should look for the narrowest basis for

disposition and proceed to consider a broader one only

if necessary to resolve the case at hand). The Court can

uphold the Fifth Circuit’s decision by resolving a question

that is both narrower and undisputed, although equally

important:

Whether the Nuclear Waste Policy Act of 1982,

42 U.S.C. 10101 et seq., permits the Nuclear

Regulatory Commission to license private

entities to temporarily store federally-owned

spent nuclear fuel away from the nuclear-reactor

sites where the spent fuel was generated.

All parties agree that the plain terms of the NWPA

prohibit NRC from authorizing such storage. See Interim

Storage Partners,

Partners, 92 N.R.C. at 467; Brief for Federal

Respondents at 54 (Fifth Circuit Docket No. 21-60743,

Apr. 18, 2022) (“NRC Fifth Circuit Brief ”);

”) ; Holtec,

Holtec,

91 N.R.C. at 176.

176 . The only dispute is over whether the

license condition authorizing ISP to store federallyowned waste can be ignored until the NWPA is amended.

The Administrative Procedure Act, however, allows no

exception to the well-established doctrine that agencies

must act in accordance with applicable laws of today. See

5 U.S.C. §§ 706(2)(A), (C), (D).

By addressing this straightforward administrative

law question instead of attempting to resolve the scope of

the NRC’s statutory authority to license all away-fromreactor spent fuel storage, this Court would satisfy its

own requirement to exercise judicial restraint. Bostock

Bostock,,

6

590 U.S. at 681; Office of Personnel Management,

Management, 496

U.S. at 423-424. Further, it would avoid wading into

an unnecessary conflict among the circuits that exists

only by virtue of the Fifth Circuit’s unnecessarily broad

justification for its holding.

ARGUMENT

I.

THE SUPREME COURT SHOULD REVERSE

AND VACATE NRC’S ISP LICENSING DECISION

FOR FAILING TO COMPLY WITH THE PLAIN

AND UNDISPUTED REQUIREMENTS OF THE

NUCLEAR WASTE POLICY ACT.

The NWPA unambiguously prohibits an activity

authorized by ISP’s license: private storage of federallyowned spent fuel. This Court should reverse and vacate

NRC’s licensing decision on the sole ground that it violates

the NWPA’s plain terms.7

7. This question was thoroughly briefed below by Fasken,

NRC, and ISP. See Initial Brief of Petitioners Fasken Land and

Minerals, Ltd. and Permian Basin Land and Royalty Owners at

20-26 (Fifth Circuit Docket No. 21-60743, Feb. 7, 2022) (“Fasken

Fifth Circuit Brief ”)); Reply Brief of Fasken et al. at 14-15 (Fifth

Cir. Docket No. 21-60743, May 16, 2022); NRC Fifth Circuit Brief

at 53-57; Brief of Intervenor Interim Storage Partners, LLC at

52-54 (Fifth Cir. Docket No. 21-60743, Apr. 25, 2022). Thus, by

addressing this narrow question in lieu of the broader Question

2, the Court would not risk “the perils of deciding a question

neither presented nor briefed.” Dobbs v. Jackson Women’s Health

Association, 597 U.S. 215, 349 (2022) (Roberts, J. concurring).

7

A.

ISP’s License Includes a Concededly Unlawful

License Condition.

ISP’s license confers on it the lawful right to contract

with the U.S. Department of Energy (“DOE”) for storage

of federally-owned spent fuel. Paragraph 19 of the license

provides that:

Prior to commencement of operations, the

Licensee shall have an executed contract with

the [DOE] or other SNF [spent nuclear fuel]

Title Holder(s) stipulating that the DOE or

other SNF Title Holder(s) is/are responsible

for funding operations required for storing the

material . . .

Fed. Pet. App. 58a-59a. In approving this license condition,

NRC recognized its inconsistency with the NWPA, which

“does not authorize DOE to take title to [spent fuel] at this

time.” Interim Storage Partners,

Partners, 92 N.R.C. at 467;

467; see

also id. at 468 (recognizing that ISP’s right to “bid[ ] for

a DOE contract” is inconsistent with the NWPA).

Nevertheless, NRC decided it could lawfully include

the condition based on ISP’s “hope[]” that one day

Congress would change the law to allow it to contract with

DOE for storage of federally-owned spent fuel. Interim

Storage Partners,

Partners, 92 N.R.C. at 468. Once the law changed,

NRC reasoned, ISP would have an “advantage” of being

able to bid for a DOE contract “without having to first

amend its license.” Id

Id.. As discussed below, however, the

lawfulness of agency decisions must be judged against the

law of today, and not against a speculative law of the future

or the relative convenience of the regulated entity. Corner

8

Post, Inc. v. Board of Governors of the Federal Reserve

System,, 603 U.S. 799, 823 (2024) (internal quotations

System

omitted) (“[P]leas of administrative inconvenience [for

agencies or regulated entities] . . . never justify departing

from the statute’s clear text”). 8

B. By Licensing ISP to Contract with DOE for

Private Storage of Federally-Owned Spent

Fuel, NRC Violated the Plain Language and

Statutory Scheme of the Nuclear Waste Policy

Act.

The plain language and statutory scheme of the

NWPA establish unequivocally that NRC had no authority

to confer on ISP the right to contract with DOE for

private storage of federally-owned spent fuel. Bailey

v. United States,

States, 516 U.S. 137, 146-47 (1995) (additional

citations omitted) (“The meaning of statutory language,

plain or not, depends on context.”). In enacting the

NWPA, Congress’ overarching purpose was to ensure

the completion of a permanent federal repository for spent

fuel and thereby provide “a reasonable assurance that the

public and the environment will be adequately protected

from the hazards posed by high-level radioactive waste

and such spent nuclear fuel as may be disposed of in a

repository.” 42 U.S.C. § 10131(b)(1); see also Subtitle A,

42 U.S.C. §§ 10121-45 (setting standards and criteria for a

geologic repository). Congress expressly required DOE to

build and operate the required federal repository, licensed

by NRC. 42 U.S.C. §§ 10134(b), (d). Congress also forbade

8. Nor does it matter how much money ISP spent to obtain its

unlawful license. See ISP Brief at 3 (“ISP spent years, and millions

of dollars, to secure its NRC license.”). The Administrative

Procedure Act does not set a monetary threshold for disregarding

the law.

9

transfer to DOE of commercial spent fuel ownership until

after the repository was licensed and operating. 42 U.S.C.

§ 10222(a)(5)(A) (requiring that contracts for disposal of

spent fuel in a repository must provide that “following

commencement of operation of a repository, the Secretary

shall take title to the . . . spent fuel”).

In the meantime, Congress imposed strict and clear

prohibitions and limitations on above-ground interim

storage of federally-owned spent fuel in Monitored

Retrievable Storage facilities (Subtitle C, 42 U.S.C.

§§ 10161-69) and Interim Storage facilities (Subtitle B,

42 U.S.C. §§ 10151-57). For instance, Congress permitted

only DOE—not private companies—to build and operate

either type of storage facility. See 42 U.S.C. § 10163(b)

(Monitored Retrievable Storage) and 42 U.S.C. § 10151(b)

(2) (Interim Storage). Congress further required reactor

licensees to cover the cost of either type of storage

facility. See 42 U.S.C. §§ 10161(a)(4), (b)(2)(B) (Monitored

Retrievable Storage) and 42 U.S.C. § 10156(a)(1) (Interim

Storage). Construction of a Monitored Retrievable Storage

facility also required Congressional approval (42 U.S.C.

§ 10161(b)) and could not commence until NRC had

licensed a repository. 42 U.S.C. § 10168(d)(1).9

In addition, Congress limited the quantity of spent

fuel that could be stored at these interim facilities. See

See,, e.g.

e.g.,,

42 U.S.C. §§ 10168(d)(3), (4) (limiting Monitored Retrieval

9. The Act’s only exception to the prohibition against federal

ownership of spent fuel prior to the licensing of a repository was for

the emergency Interim Storage program, which sunset on January

1, 1990. 42 U.S.C. § 10156(a)(1). Under this now-defunct program,

reactor licensees could transfer no more than 1,900 metric tons

of spent fuel to DOE, by demonstrating an urgent lack of onsite

storage capacity. 42 U.S.C. §§ 10155(a), (b).

10

Storage capacity to 10,000 metric tons after licensing of

a repository but prior to opening of the repository, and

after opening to 15,000 metric tons); 42 U.S.C. § 10151(b)

(2) (limiting the capacity of Interim Storage facilities to

1,900 metric tons prior to 1990).10

This statutory scheme was the result of careful work

by Congress to ensure the federal government retained

control over all activities related to federally-owned spent

fuel, and that interim storage of federally-owned spent

fuel would never undermine or supplant the ultimate

goal of permanent spent fuel disposal in a repository.

ISP’s license flouts Congress’s goals and violates the

many storage and disposal requirements enshrined in

the NWPA. It unlawfully provides for private storage

of federally-owned spent fuel before a repository has

been licensed; assumption by DOE of the cost of spent

fuel storage; and accumulation of 40,000 metric tons of

spent fuel, far in excess of the quantity contemplated by

Congress for an interim storage facility and far beyond

the time frame contemplated by Congress for the Interim

Storage Program.11

10. Thus, ISP misconstrues the NWPA in arguing that it “was

all about permanent disposal of spent nuclear fuel by DOE, not

temporary possession of spent nuclear fuel by private parties.” ISP

Brief at 42. While permanent storage of spent fuel was indeed the

NWPA’s ultimate goal, Congress recognized that the goal could not

be achieved without forbidding private storage of federally-owned

spent fuel until a repository opened and imposing other limitations

on storage. See Federal Petitioners’ Brief at 5 (recognizing that

in addition to providing for permanent storage of spent fuel, the

NWPA “also directed the [DOE] to provide limited interim storage

of spent fuel if certain conditions were met.”).

11. See note 9, supra.

11

C.

By Licensing ISP to Contract with DOE for

Private Storage of Federally-Owned Spent

Fuel in Violation of the Nuclear Waste

Policy Act, NRC Violated the Administrative

Procedure Act.

The inclusion in ISP’s license of a condition that is

facially—and concededly—inconsistent with the NWPA

and its statutory scheme constitutes a violation of

NRC’s obligation under the Administrative Procedure

Act to follow the law as written by Congress. See 5

U.S.C. §§ 706(2)(A), (C), (D). Because ISP’s license is

not “in accordance with law,” is “in excess of statutory

jurisdiction, authority, or limitations,” and is “short of

statutory right,” it must be vacated. Id

Id.;

.; see also Loper

Bright Enterprises v. Raimondo,

Raimondo, 603 U.S. 369, 393 (2024)

(“The text of the APA means what it says.”). No matter

how sincerely ISP “hopes” that Congress will amend the

NWPA, see Section I.A above, “only the written word is

the law.” Bostock

Bostock,, 590 U.S. at 653 (“When the express

terms of a statute give us one answer and extratextual

considerations suggest another, it’s no contest.”). Similarly,

no matter how “forward-looking” the NRC wishes to be

in its licensing actions, see Beyond Nuclear,

Nuclear, 93 F.4th at

964, the Administrative Procedure Act requires that those

licensing actions must be “in accordance” with the law of

today. 5 U.S.C. § 706(2)(A).12

12. By the same token, the “need to anticipate changing

conditions and regulatory shifts,” Beyond Nuclear, 113 F.4th at

964, does not override the clear admonition of the Administrative

Procedure Act to comply with the law. See Corner Post, 603 U.S.

at 823 (“pleas of administrative inconvenience . . . never justify

departing from the statute’s clear text”) (internal quotations and

citations omitted).

12

II. AN EXERCISE OF JUDICIAL RESTRAINT IS

WARRANTED.

There is no need for this Court to address the broad

question of whether the Atomic Energy Act and the

NWPA generally authorize private away-from-reactor

interim storage of spent reactor fuel. It can uphold the

Fifth Circuit’s decision on the narrower and undisputed

ground that ISP’s license condition is inconsistent with the

NWPA’s prohibition against private storage of federallyowned spent fuel. See Bostock,

Bostock, 590 U.S. at 681; Office of

Personnel Management,

Management, 496 U.S. at 423-424. Because the

ISP license authorizes storage of federally-owned fuel in

violation of the NWPA, basic principles of administrative

law require that it must be reversed and vacated. 5 U.S.C.

§§ 706(2)(A), (B), (C).13

By relying on the narrower Administrative Procedure

Act-based grounds for invalidating the ISP license, the

Court would also avoid resolving a conflict among the U.S.

appellate courts that need not exist. Had the Fifth Circuit

13. Instead of vacating entire licenses, courts often sever only

the unlawful provision. See, e.g, Barr v. American Association

of Political Consultants, 591 U.S. 610, 625 (2020) (explaining

the presumption of severability in the context of statutes). This

is an unusual case, however. The Court need not “imaginatively

reconstruct” whether NRC would have issued the ISP license

without the unlawful provision if only it had known that provision

was unlawful. Id. NRC knew full well that the provision was

unlawful at the time of license issuance. It included the provision

anyway, in order to give ISP a future competitive “advantage”

of being able to bid for a DOE contract “without having to first

amend its license.” Interim Storage Partners, 92 N.R.C. at 468.

Because NRC declined to sever the unlawful provision, the entire

license should be vacated.

13

simply addressed private storage of federally-owned

waste, no conflict would have occurred—because there

is no disagreement among any circuits that the NWPA

prohibits the NRC from issuing a license that permits a

private company to contract with the federal government

for the storage of spent fuel.14

By resolving the narrow issue before it, this Court

could restore public trust that the NWPA “means what

it says” and will be followed by federal agencies and the

courts. See Loper Bright Enterprises,

Enterprises, 603 U.S. at 393.15

And it would ensure that Beyond Nuclear and other

members of the public will have an opportunity for a

hearing in the future, if and when the law is amended.

14. Notably, neither of the circuit court decisions addressing

the NRC’s statutory authority to license away-from-reactor spent

fuel storage concerned storage of federally-owned spent fuel.

Both decisions found only that the NRC could lawfully license a

private company to store privately-owned spent fuel. Bullcreek

v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004)); Skull Valley Band of

Goshute Indians v. Nielsen, 376 F.3d 1223, 1232 (10th Cir. 2004)

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

15. Under the circumstances, concern expressed by ISP

about the “destabilizing effects” of the Fifth Circuit’s “errors,”

ISP Brief at 4, is more appropriately directed at the NRC for

flouting the Administrative Procedure Act and the NWPA in the

Interim Storage Partners decision, thereby “destabilizing” public

confidence in the law. See also Niz-Chavez v. Garland, 593 U.S. 155,

172 (explaining that “words are how the law constrains power”).

14

CONCLUSION

Consistent with the principles of judicial restraint set

forth in Bostock and Office of Personnel Management,

Management,

the Court should uphold the Fifth Circuit’s decision to

vacate ISP’s license, albeit on a narrower ground than

relied on by the Fifth Circuit. The Court can leave for

another day the broader statutory question of whether

any private away-from-reactor storage facility can be

licensed, regardless of who owns the fuel.

Respectfully submitted,

Mindy Goldstein

Turner Environmental

Law Clinic

Emory University

School of Law

1301 Clifton Road

Atlanta, GA 30322

Diane Curran

Counsel of Record

Harmon, Curran, Spielberg

& Eisenberg, L.L.P.

1725 DeSales Street N.W.,

Suite 500

Washington, D.C. 20036

(240) 393-9285

dcurran@harmoncurran.com

Counsel for Amicus Curiae

January 22, 2025