Opposition Brief — Interim Storage Partners, LLC, Petitioner v. Texas, et al.

Nos. 23-1300 and 23-1312

In the Supreme Court of the United States

UNITED STATES NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, PETITIONERS

v.

STATE OF TEXAS, ET AL.

INTERIM STORAGE PARTNERS, LLC, PETITIONER

v.

STATE OF TEXAS, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION FOR THE STATE

RESPONDENTS

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 L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

BENJAMIN W. MENDELSON

Assistant Solicitor General

J. ANDREW MACKENZIE

Assistant Attorney General

Aaron.Nielson@oag.texas.gov

(512) 936-1700

Counsel for State Respondents

QUE STIONS P RES ENTED

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

asks this Court to hold that its own rules insulate it from

judicial review of its compliance with a legislative mandate on where to store the nation’s nuclear waste—a

question Congress has already answered. Indeed, decades ago, Congress denied the Commission’s former

chairman’s request for the very authority the Commission now claims. The questions presented are:

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

stand to be polluted by spent nuclear waste may challenge a license to store that waste 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 offsite

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 nuclear waste is to be stored in Yucca Mountain,

Nevada.

(I)

TABL E OF C O NTENTS

Page

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

Table of Authorities ........................................................ III

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

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

I. Statutory Background ........................................... 2

II. ISP’s Application and License for a

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

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

Reasons for Denying the Petition .................................... 8

I. Whether the Rarely Litigated Hobbs Act

Contains an Ultra Vires Exception Does Not

Merit the Court’s Attention................................... 8

A. This is a poor vehicle to resolve whether

there is an ultra vires exception to the

Hobbs Act .......................................................... 8

B. In applying the ultra vires “exception,”

the Fifth Circuit merely declined to

read into the Hobbs Act an atextual

exhaustion rule ................................................ 17

C. Any circuit split is old and recurs too

infrequently to require this Court’s

attention ........................................................... 18

II. The Commission’s Claimed Authority To

License Privately Owned, Off-Site Nuclear

Storage Facilities Is Also Uncertworthy ........... 20

A. The Commission lacks authority to issue

the license ........................................................ 20

B. Petitioners’ alleged circuit split is based

on non-adjudicated assumptions ................... 32

Conclusion ......................................................................... 34

(II)

III

TABLE OF AUTHORITIE S

Page(s)

Cases:

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ........................................................ 12

Abramski v. United States,

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

In re Aiken County,

645 F.3d 428 (D.C. Cir. 2011) ..................................... 1, 5

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) (per curiam) ................................. 21

Ala. Power Co. v. FCC,

311 F.3d 1357 (11th Cir. 2002) ................................14-15

Am. Trucking Ass’ns v. ICC,

673 F.2d 82 (1982) .................................................... 14, 17

Axon Enterprises, Inc. v. FTC,

598 U.S. 175 (2023) .................................................. 13, 17

State ex rel. Balderas v. NRC,

59 F.4th 1112 (10th Cir. 2023) ................................ 12, 19

Biden v. Nebraska,

143 S.Ct. 2355 (2023) ................................... 21, 25, 26, 32

Brown v. Gardner,

513 U.S. 115 (1994) ........................................................ 32

Bullcreek v. NRC,

359 F.3d 536 (D.C. Cir. 2004) ............................22, 32-33

In re Chi., Milwaukee, St. Paul & Pac. R.R. Co.,

799 F.2d 317 (7th Cir. 1986) ......................................... 19

Consolo v. Fed. Mar. Comm’n,

383 U.S. 607 (1966) ........................................................ 19

Corner Post, Inc. v. Board of Governors,

144 S.Ct. 2440 (2024) ..................................................... 11

IV

County of Rockland v. NRC,

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

Darby v. Cisneros,

509 U.S. 137 (1993) ........................................................ 11

Don’t Waste Mich. v. NRC,

No. 21-1048, 2023 WL 395030

(D.C. Cir. Jan. 25, 2023) ........................................... 12-13

Edward Hines Yellow Pine Tr. v. United States,

263 U.S. 143 (1923) ........................................................ 17

Env’t Def. v. Duke Energy Corp.,

549 U.S. 561 (2007) ........................................................ 15

Erie-Niagara Rail Steering Comm. v.

Surface Transp. Bd.,

167 F.3d 111 (2d Cir. 1999) ........................................... 19

Fasken Land & Minerals, Ltd. v. NRC,

No. 23-60377, 2024 WL 3175460

(5th Cir. Mar. 27, 2024) ................................................. 20

FDA v. Brown & Williamson Corp.,

529 U.S. 120 (2000) .................................................. 21, 26

FEC v. Cruz,

596 U.S. 289 (2022) .................................................... 2, 32

Fed. Maritime Comm’n v.

S.C. State Ports Authority,

535 U.S. 743 (2002) .................................................. 15, 16

Fischer v. United States,

144 S.Ct. 2176 (2024) ....................................................... 9

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) .................................................. 10, 18

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

826 F.2d 239 (4th Cir. 1987) ......................................... 23

Gage v. U.S. Atomic Energy Comm’n,

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

V

Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995) .......................................................... 9

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .......................................................... 14

IBB, Inc. v. Alvarez,

546 U.S. 21 (2005) .......................................................... 14

ICC v. Bhd. of Locomotive Eng’rs,

482 U.S. 270 (1987) ........................................................ 19

Idaho v. DOE,

945 F.2d 295 (9th Cir. 1991) ................................. 2, 3, 23

Ind. Mich. Power Co. v. DOE,

88 F.3d 1272 (D.C. Cir. 1996) ................................. 21, 26

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp.,

510 U.S. 27 (1993) .......................................................... 16

Kontrick v. Ryan,

540 U.S. 443 (2004) ........................................................ 12

Kucana v. Holder,

558 U.S. 233 (2010) .................................................8-9, 12

Loper Bright Enterprises v. Raimondo,

144 S.Ct. 2244 (2024) ......................................... 12, 18, 20

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ........................................................ 13

Nat. Res. Def. Council v. NRC,

582 F.2d 166 (2d Cir. 1978) ........................................... 23

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

680 F.3d 819 (D.C. Cir. 2012) ....................................... 23

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

736 F.3d 517 (D.C. Cir. 2013) ............................. 4, 24, 27

Nat’l Ass’n of State Util. Consumer Advocs. v. FCC,

457 F.3d 1238 (11th Cir. 2006) ..................................... 19

VI

New York v. NRC,

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

Ohio Nuclear-Free Network v. NRC,

53 F.4th 236 (D.C. Cir. 2022) ....................................... 12

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

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ........................................................ 21

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc.,

588 U.S. 1 (2019) ............................................................ 19

Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic,

400 U.S. 62 (1970) .......................................................... 19

Pulsifer v. United States,

601 U.S. 124 (2024) ........................................................ 29

Rapanos v. United States,

547 U.S. 715 (2006) ........................................................ 32

Reytblatt v. NRC,

105 F.3d 715 (D.C. Cir. 1997) ......................................... 9

Rodriguez v. United States,

480 U.S. 522 (1987) ....................................................... 32

SEC v. Jarkesy,

144 S.Ct. 2117 (2024) ..................................................... 11

Simmons v. ICC,

716 F.2d 40 (D.C. Cir. 1983) ................................... 13, 14

Skinner & Eddy Corp. v. United States,

249 U.S. 557 (1919) .................................................. 17, 18

Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004) ..................................... 33

Sturgeon v. Frost,

139 S.Ct. 1066 (2019) ..................................................... 32

Texas v. United States,

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

VII

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ........................................................ 30

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................................. 21, 25

Water Transp. Ass’n v. ICC,

819 F.2d 1189 (D.C. Cir. 1987) ..................................9-10

West Virginia v. EPA,

597 U.S. (2022) ............................................................... 32

Yates v. United States,

574 U.S. 528 (2015) .......................................................... 9

Statutes and Rules:

Sup. Ct. R. 10(a) ................................................................... 20

5 U.S.C. §702 ........................................................................ 13

7 U.S.C. §6912(e) ................................................................. 11

28 U.S.C.:

§2112(a) ........................................................................... 14

§2342 .................................................................................. 9

§2342(1)-(7) ..................................................................... 19

§2344 .................................................... I, 6, 8, 9, 11, 17, 18

§2348 ................................................................................ 14

42 U.S.C.:

§1997e(a) ......................................................................... 11

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

§2013 ................................................................................ 21

§2014(aa) ......................................................................... 22

§2014(cc) ............................................................. 22. 28, 30

§2014(e) ........................................................................... 22

§2014(ee) ................................................................... 22, 29

§2014(v) ..................................................................... 22, 28

§2014(z) ........................................................................... 22

VIII

§2051 ................................................................................ 31

§2051(a) ........................................................................... 31

§2073 .......................................................................... 27, 30

§2073(a) ........................................................................... 22

§2073(a)(1) ...................................................................... 31

§2073(a)(2) ...................................................................... 31

§2073(a)(3) ...................................................................... 31

§2093 .......................................................................... 27, 30

§2093(a) ........................................................................... 22

§2093(a)(1) ...................................................................... 31

§2093(a)(2) ...................................................................... 31

§2093(a)(3) ...................................................................... 31

§2111 .......................................................................... 27, 28

§2111(a) ..................................................................... 22, 31

§2111(b)(1) ...................................................................... 28

§2133 .......................................................................... 22, 28

§2134 .................................................................... 22, 28, 31

§2210h(2)(B) ................................................................... 29

§2210i(b) .......................................................................... 29

§2239(a)(1)(A) ........................................................... 11, 15

§2239(b)(1) ...................................................................... 11

§10101 .............................................................................. 29

§10101(23) ................................................................. 29, 30

§10131(a)(2) .......................................................3-4, 21, 23

§10131(a)(7) ...................................................... 4, 7, 21, 26

§10131(b)(2) .................................................................... 23

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

§§10133-34 ...................................................................... 23

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

§§10151-10157 .................................................................. 4

§10151(a) ......................................................................... 24

IX

§10151(a)(1) .................................................................... 24

§10151(b) ......................................................................... 24

§10155(b)(1)(B)(i) ........................................................... 24

§10155(h) ......................................................................... 24

§10162(b) ......................................................................... 24

§10168(d)(1) .......................................................... 4, 24, 27

§10172 .............................................................................. 24

§10172(a) ........................................................................... 4

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

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

10 C.F.R.:

§2.1(a) .............................................................................. 15

§2.1(d) .............................................................................. 15

§2.805(b) .......................................................................... 15

§2.1500............................................................................. 15

Miscellaneous:

ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS

(2012) ................................................................... 25, 26, 30

BLACK’S LAW DICTIONARY (4th ed. 1951) .................... 9, 10

EPA, Radioactive Waste,

https://perma.cc/U8D7-DG2T.................................... 5, 6

Natural Resources Defense Council Denial of

Petition for Rulemaking,

42 Fed. Reg. 34,391 (July 5, 1977) ................................. 3

NRC, Spent Fuel Storage: Intent to Prepare

Generic Environmental Impact Statement

on Handling and Storage of Spent Light

Water Power Reactor Fuel,

40 Fed. Reg. 42,801 (Sept. 16, 1975) .......................... 2-3

X

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://perma.cc/3ASZ-CCQW ...................................... 3

THE OXFORD ENGLISH DICTIONARY (2d. ed. 1989) .......... 9

RANDOM HOUSE DICTIONARY OF THE ENGLISH

LANGUAGE (2d unabridged ed. 1987) ........................... 9

I N T RO D U C T IO N

Decades ago, Congress decided that the federal government should store the nation’s nuclear waste deep underground in a facility located in Yucca Mountain, Nevada. See In re Aiken County, 645 F.3d 428, 431 (D.C.

Cir. 2011). For various reasons—mostly political, some

practical—construction of that facility has stalled. Congress, however, has not revisited its command. See

42 U.S.C. §10172(a)(1). Rather than complying, the Commission has now determined that up to 40,000 metric tons

of nuclear waste should be stored above-ground in

Texas’s Permian Basin, the site of the world’s most productive oil field and the only source of safe water for hundreds of miles. The Commission and its licensee also declare that without the Commission’s consent during

agency proceedings, neither Texas nor local landowners

can complain about such brazen disregard of statutory

law. The Fifth Circuit correctly rejected both contentions, and this Court’s review is not warranted.

To start, the Fifth Circuit correctly rejected petitioners’ attempts to insulate the Commission’s decision from

judicial review. Digging up a decades-old, rarely implicated circuit split, the Commission complains that the

Fifth Circuit improperly relied on an “ultra vires exception” to the Hobbs Act. Yet the Fifth Circuit has explained why even if there were no ultra vires exception,

Texas would still be a “party aggrieved,” NRC.Pet.

App.17a, and thus enjoy a statutory right of judicial review. Thus, even if petitioners were correct about an ultra vires exception—and they are not—an entirely independent ground supports the judgment below.

The Court similarly need not get involved in the merits of this dispute. Under our constitutional system, a

federal agency—independent or otherwise—“literally

(1)

2

has no power to act ... unless and until Congress authorizes it to do so by statute.” FEC v. Cruz, 596 U.S. 289,

301 (2022). Here, Congress specified that the nation

would dispose of its nuclear waste at a governmentowned facility at Yucca Mountain. Petitioners cannot

point to a single provision in the Atomic Energy Act or

the Nuclear Waste Policy Act that the Fifth Circuit overlooked and that permits the Commission to evade that

requirement by re-labeling disposal long-term “storage.” As Interim Storage Partners (ISP) is conspicuously not the federal government, and Yucca Mountain

is indisputably not in Texas, the Commission cannot license ISP to operate a de facto disposal facility in Texas.

By no means can the Commission solve its Yucca Mountain problem by disregarding clear statutory language.

S TA TEM ENT

I. Statutory Background

In 1954, Congress enacted the Atomic Energy Act,

granting regulatory authority over nuclear energy to the

Atomic Energy Commission that has since been redistributed to the Nuclear Regulatory Commission and the

Department of Energy. 42 U.S.C. §§2011 et seq. Under

the current division of power, the Commission “retains

jurisdiction over nuclear plant licensing and regulation,”

while the Department is charged with “energy research

and development.” County of Rockland v. NRC, 709 F.2d

766, 769 n.2 (2d Cir. 1983).

“Prior to the late 1970’s,” there was little concern

over the disposal of nuclear waste because “it was accepted that spent fuel would be reprocessed.” Idaho v.

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

plants were thus built to store spent fuel for later reprocessing. See NRC, Spent Fuel Storage: Intent to Prepare

Generic Environmental Impact Statement on Handling

3

and Storage of Spent Light Water Power Reactor Fuel,

40 Fed. Reg. 42,801, 42,801 (Sept. 16, 1975). In the “mid70’s,” the reprocessing concept “collapsed” for technological and political reasons. Idaho, 945 F.2d at 298-99.

Because spent nuclear fuel remains radioactive and cannot truly be gotten rid of, it must be stored “for time

spans seemingly beyond human comprehension.” New

York v. NRC, 681 F.3d 471, 474 (D.C. Cir. 2012).

During the debate over how to address this problem,

the Commission conceded it would need new statutory

authority from Congress to license “waste management

facilities as a third category [of facility] in addition to

production and utilization facilities.”1 In asking for this

authority, the Commission’s chairman admitted to Congress that “waste facilities are neither production nor

utilization facilities as defined by the Atomic Energy

Act,” and that no other statutory authority provided a

basis for the Commission’s licensing authority over a private waste facility. Id. “[T]he Commission’s regulations,”

it explained, “deal[t] with the handling of spent fuel and

other high-level wastes ... only to the extent that such activities are related to on-site activities carried on by the

licensee.” Natural Resources Defense Council Denial of

Petition for Rulemaking, 42 Fed. Reg. 34,391, 34,392

(July 5, 1977) (emphasis added).

In 1982, Congress responded by enacting the Nuclear

Waste Policy Act (NWPA) to comprehensively address

what it acknowledged was “a national problem” and a

“major subject[] of public concern.” 42 U.S.C.

See 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 at G-10 (Sept.

1979), https://perma.cc/3ASZ-CCQW.

1

4

§10131(a)(2), (7). The NWPA tasked the Department

with establishing a suitable location for a permanent geologic repository to indefinitely store the nation’s radioactive waste and spent nuclear fuel deep below the

Earth’s surface. 42 U.S.C. §10132. And it made the Commission responsible for licensing that repository, ensuring that it is safe and environmentally benign. Id. §10134.

Conspicuously absent from the NWPA is the authority

sought by the Commission to license private, off-site

storage facilities.

Congress amended the NWPA in 1987 to direct the

Department to consider Yucca Mountain—and only

Yucca Mountain, id. §10172(a)—as the site for the nation’s first permanent geologic repository, id. §10134.

True, the NWPA provided limited interim measures to

deal with spent nuclear fuel, such as temporary storage

at a federal facility if necessary to avoid a commercial reactor shut-down. Id. §§10151-10157. But “[t]he statute is

obviously designed to prevent the Department from delaying the construction of Yucca Mountain as the permanent facility while using temporary facilities.” Nat’l

Ass’n of Regul. Util. Comm’rs v. DOE, 736 F.3d 517, 519

(D.C. Cir. 2013); see also 42 U.S.C. §10168(d)(1).

Progress on the Yucca Mountain facility has been

halting at best. “[B]y the mid-1990s, the Department of

Energy made clear that it could not meet” a statutory

deadline to begin accepting waste by January 31, 1998,

and that deadline “came and went without the federal

government accepting any waste.” Texas v. United

States, 891 F.3d 553, 555-56 (5th Cir. 2018) (discussing

42 U.S.C. §10222(a)(5)(B)). In 2008, the Department submitted a license application for the Yucca Mountain facility. Id. at 556. But the Commission, “by its own admission,” refused to follow the instruction to evaluate that

5

application, stating it “has no current intention of complying with the law.” Aiken County, 725 F.3d at 258. That

led the D.C. Circuit to order the Commission to

“promptly continue with the legally mandated licensing

process.” Id. at 267. Yet the licensing process remains

stalled. Texas, 891 F.3d at 557. Congress has never revised its directive that Yucca Mountain is the appropriate repository for the nation’s nuclear waste.

II. ISP’s

Application

and

License

for

“Consolidated Interim Storage Facility”

a

In 2016, ISP—a private party—applied for a license

to operate a “consolidated interim storage facility,”

where it could store up to 40,000 metric tons of spent nuclear fuel in dry-cask, above-ground storage in Andrews

County, Texas. C.I.No.5.1.2 The license would be valid

for 40 years, but it could be renewed for an additional 20,

see C.I.No.1148. Nuclear waste, of course, can remain radioactive for “hundreds of millions of years.” EPA, Radioactive Waste, https://perma.cc/U8D7-DG2T.

Many stakeholders, including Texas, objected to the

issuance of such a license. Consistent with longstanding

precedent regarding how to comply with the Hobbs Act,

Governor Greg Abbott submitted a comment letter addressing problems with the ISP facility. C.I.No.1128.

The Texas Commission on Environmental Quality

(TCEQ) similarly objected to the “unprecedented implications” of the license and the “significant unease” it created. C.I.No.1148. TCEQ warned that because “the U.S.

Department of Energy has been unsuccessful in developing a permanent geologic repository,” a consolidated

“C.I._” refers to the Revised Certified Index of Records, the

cited portions of which can be found in the appendices at docket

numbers. 101-1 and 103-1 in the Fifth Circuit.

2

6

interim storage facility in Texas “will become the permanent solution for dispositioning the nation’s spent nuclear fuel.” Id. In September 2021, the Commission overrode these objections and licensed ISP’s proposed facility. NRC.Pet.App.53a.

III. Proceedings in the Court of Appeals

Texas, Governor Abbott, and TCEQ petitioned for review in the Fifth Circuit. NRC.Pet.App.9a. ISP intervened to defend its license. NRC.Pet.App.9a. The Fifth

Circuit made three rulings relevant here.

First, applying longstanding circuit precedent, the

Fifth Circuit held that Texas did not need to have participated in proceedings before the Commission because

Texas fit within an “ultra vires exception to the [Act’s]

party-aggrieved status requirement.” NRC.Pet.App.18a

(italicization altered); see NRC.Pet.App.18a-20a. Alternatively, the Fifth Circuit explained why Texas would be

a “party aggrieved” even without an ultra vires exception. NRC.Pet.App.17a-18a. The Hobbs Act permits a

“party aggrieved by the final order” to “file a petition to

review the order in the court of appeals wherein venue

lies.” 28 U.S.C. §2344. To be a “party aggrieved,” the

Hobbs Act “requires only that a petitioner have participated—in some way—in the agency proceedings.”

NRC.Pet.App.17a. Texas easily satisfied that requirement by submitting comments. NRC.Pet.App.17a.

Second, on the merits, the Fifth Circuit held the Commission is not entitled to deference because “[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.” NRC.Pet.App.

29a-30a. Congress said as much, emphasizing that “highlevel radioactive waste and spent nuclear fuel have

7

become major subjects of public concern, and appropriate precautions must be taken to ensure that such waste

and spent fuel do not adversely affect the public health

and safety and the environment for this or future generations.” 42 U.S.C. §10131(a)(7); NRC.Pet.App.29a-30a.

The Commission thus needs clear statutory authorization to license private facilities to store nuclear waste

offsite. NRC.Pet.App.30a. Here, the AEA does not

clearly delegate such authority, and the NWPA affirmatively “belies the Commission’s arguments to the contrary.” NRC.Pet.App.30a.

Third, the Fifth Circuit rejected the Commission’s

assertion that because it has the authority to issue licenses for the possession of nuclear material, it “has

broad authority to license storage facilities for spent nuclear fuel.” NRC.Pet.App.21a (emphasis added). Looking to the AEA’s text, the Fifth Circuit concluded the

Commission may issue such licenses to possess specified

material “only for certain enumerated purposes—none

of which encompass storage or disposal of material as radioactive as spent nuclear fuel.” NRC.Pet.App.22a. The

Commission’s contrary argument, the Fifth Circuit explained, “cannot be reconciled with the [NWPA],”

NRC.Pet.App.25a, which “creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation,” NRC.Pet.App.29a. “[P]rioritiz[ing] construction

of the permanent repository,” that scheme “plainly contemplates that, until there’s a permanent repository,

spent nuclear fuel is to be stored onsite at-the-reactor or

in a federal facility.” NRC.Pet.App.29a.

The Fifth Circuit declined to rehear the case en banc.

NRC.Pet.App.31a. Judge Higginson dissented and argued that the Fifth Circuit’s ultra vires exception should

be eliminated. NRC.Pet.App.45a-52a. In response,

8

Judge Jones, joined by five other judges, explained why

the State would be a “party aggrieved” regardless of any

ultra vires exception. NRC.Pet.App.33a-44a.

REA SO NS F OR DE NY ING TH E P ETITION

I. Whether the Rarely Litigated Hobbs Act

Contains an Ultra Vires Exception Does Not

Merit the Court’s Attention.

According to the Commission (at I, 11-19), this case

merits certiorari because the Fifth Circuit improperly

added an ultra vires exception to the Hobbs Act—in

1982. But this case presents a poor vehicle to determine

whether such an exception exists because it would not affect the judgment below: The Fifth Circuit also correctly

explained why it would conclude that Texas is a “party

aggrieved” under the Hobbs Act even without an ultra

vires exception. NRC.Pet.App.20a. In any event, the

Commission’s arguments would allow the very agency

that acts unlawfully to bar the courthouse door.

A. This is a poor vehicle to resolve whether there

is an ultra vires exception to the Hobbs Act.

1. The Fifth Circuit correctly explained why Texas

is a party aggrieved under the Hobbs Act. This conclusion flows directly from “the plain text of the Hobbs Act,”

NRC.Pet.App.17a, which permits a “party aggrieved by

the final order” to “file a petition to review the order in

the court of appeals wherein venue lies,” 28 U.S.C. §2344,

but imposes no specific limitations on how an individual

may become a “party.” “When a statute is ‘reasonably

susceptible to divergent interpretation,’” courts are to

“adopt[] the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review,” absent

“clear and convincing evidence” to the contrary. Kucana

9

v. Holder, 558 U.S. 233, 251, 252 (2010) (quoting

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995)).

Because the term “party” is undefined, courts look to

its ordinary meaning as defined not just by “dictionary

definitions of its component words” but also “the specific

context in which that language is used, and the broader

context of the statute as a whole.” Yates v. United States,

574 U.S. 528, 537 (2015); see also Fischer v. United

States, 144 S.Ct. 2176, 2183 (2024). Courts thus do not

“interpret each word in a statute with blinders on” because a word that “may seem ambiguous in isolation is

often clarified by the remainder of the statutory

scheme.” Abramski v. United States, 573 U.S. 169, 179

n.6 (2014).

Here, Congress chose the broad term “party aggrieved.” 28 U.S.C. §2344. As contemporaneous dictionaries show, “party” was understood since the time of the

Hobbs Act to include any “person concerned or having or

taking part in any affair, matter, transaction or proceeding.” BLACK’S LAW DICTIONARY 1278 (4th ed. 1951); accord, e.g., RANDOM HOUSE DICTIONARY OF THE ENGLISH

LANGUAGE 1416 (2d unabridged ed. 1987); THE OXFORD

ENGLISH DICTIONARY XI, 281-82 (2d. ed. 1989).

This broad understanding of “party” is confirmed by

statutory context. After all, the Hobbs Act uses the term

“party aggrieved” in a single sentence that covers both

agency adjudications and rulemakings. 28 U.S.C. §2344;

see Reytblatt v. NRC, 105 F.3d 715, 720-21 (D.C. Cir.

1997). The Commission admits as much. NRC.Pet.19 n.2.

Yet no one disputes that someone who submits comments in a rulemaking from one of the handful of agencies subject to the Hobbs Act, see 28 U.S.C. §2342, may

seek review. See, e.g., NRC.Pet.19 n.2 (citing Water

10

Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C. Cir.

1987)).

Such a broad understanding is also consistent with

the purpose of the requirement—namely, “to ensure that

the agency had the opportunity to consider the issue that

petitioners are concerned with.” NRC.Pet.App.17a; see

also Gage v. U.S. Atomic Energy Comm’n, 479 F.2d

1214, 1219 (D.C. Cir. 1973). The “focal point for judicial

review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 743 (1985). By imposing a “party aggrieved” requirement, the Hobbs Act facilitates “[t]he task of the

reviewing court” in “apply[ing] the appropriate APA

standard of review,” id. at 743-44, by ensuring that the

future petitioner’s grievances are made part of the administrative record. As the Commission admits, this case

presents no such concerns: Texas made its views of the

ISP license known to the Commission using the process

that the Fifth Circuit blessed 42 years ago. See

NRC.Pet.6-7.

2. In contending that the Fifth Circuit nonetheless

lacked jurisdiction, the Commission insists that “party”

“‘has a precise meaning in legal parlance’ and generally

means ‘he or they by or against whom a suit is brought.’”

NRC.Pet.12 (quoting BLACK’S, supra, at 1278). The

Commission’s own authority, however, states that

“party” “is not restricted to strict meaning of plaintiff or

defendant in a lawsuit.” BLACK’S, supra, 1278 (emphasis

added). Those concepts are given a different name with

which Congress was doubtless familiar: “litigant.” Id. at

1082. Because Congress chose to use the general term

party rather than the specific term litigant, the Hobbs

Act “requires only that a petitioner have participated—

11

in some way—in the agency proceedings, which Texas

did through comments.” NRC.Pet.App.17a.

The Commission’s view that one must nonetheless be

a “recognized party to the underlying agency proceeding,” NRC.Pet.12, presents another problem: It is effectively an administrative exhaustion requirement that appears nowhere in the Hobbs Act, 28 U.S.C. §2344, and

that the agency controls. NRC.Pet.5 (summarizing Commission processes). On the Commission’s view, a challenger must intervene to exhaust—but the Commission

may simply deny intervention. Thus, no judicial review.

Congress knows how to draft mandatory exhaustion

requirements. See, e.g., 7 U.S.C. §6912(e); 42 U.S.C.

§1997e(a). Courts must not create one that does not exist

in the statute, see, e.g., Darby v. Cisneros, 509 U.S. 137,

154 (1993), especially where the agency may make them

impossible to fulfill. And, as the Fifth Circuit explained,

“neither the Hobbs Acts nor the Atomic Energy Act impose a mandatory exhaustion requirement.” NRC.Pet.

App.16a n.2. To the contrary, the AEA states the “Commission shall grant a hearing upon the request of any

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

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

added). It also states that “[a]ny final order entered in

any proceeding of the kind” is subject to judicial review,

id. §2239(b)(1). Tellingly absent is any language requiring an interested party to seek a hearing in the first instance.

Just months ago, this Court held that: (1) a party may

sue a federal agency when it is injured, Corner Post, Inc.

v. Board of Governors, 144 S.Ct. 2440 (2024); (2) challengers may be entitled to have a jury decide facts, SEC

v. Jarkesy, 144 S.Ct. 2117 (2024); and (3) the agency gets

12

no deference on the law it administers, Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024). Those decisions would have little value if an agency may reach an

agreement with the beneficiary of a challenged action

while preventing those harmed by that action from ever

having a day in court. The “traditional tools of statutory

construction” do not permit the Commission to arrogate

to itself authority to limit who can access the federal

courts. Id. at 2264. Certainly, nothing in the Hobbs Act

overcomes the general presumption in favor of judicial

review of administrative decisions. See Kucana, 558 U.S.

at 237.

The Commission points (at 19) to two lower-court

cases agreeing that under agency rules, States are not a

party aggrieved merely because they submitted comments. Decided before Loper Bright, these cases “evaluate” a party’s level of participation—and thereby its aggrieved status—“based on the practices of the agency”

and the agency’s rules. State ex rel. Balderas v. NRC, 59

F.4th 1112, 1117 (10th Cir. 2023); Ohio Nuclear-Free

Network v. NRC, 53 F.4th 236, 238-40 (D.C. Cir. 2022).

But agencies have never had the power to determine a

court’s jurisdiction through rulemaking, see, e.g., Kontrick v. Ryan, 540 U.S. 443, 452 (2004), and they certainly

don’t now, see Loper Bright, 144 S.Ct. at 2273; accord

NRC.Pet.App.34a-35a (Jones, J.). This point is particularly true for rules that would negate the presumption of

reviewability. See, e.g., Abbott Labs. v. Gardner, 387 U.S.

136, 141 (1967).

It is no response that Texas could have obtained review had it sought and been denied leave to intervene because the agency would have asserted that the State was

not aggrieved in the larger agency proceedings. Cf. Don’t

Waste Mich. v. NRC, No. 21-1048, 2023 WL 395030, at *3

13

(D.C. Cir. Jan. 25, 2023). Not only was such a box-checking exercise not required by Fifth Circuit precedent

when Texas had to decide whether to ask the Commission’s permission to intervene, but it further highlights

the self-serving nature of the Commission’s position:

Only leave to intervene could authorize Texas to seek judicial review, but only the Commission could grant leave

to intervene. The Commission effectively contends that

it may act as its own overseer. Contra Axon Enterprises,

Inc. v. FTC, 598 U.S. 175, 180 (2023).

3. In a tacit acknowledgment that any ruling by this

Court on the ultra vires exception will not save the permit at hand, the Commission makes four additional arguments why litigation is required to transform a participant in the agency process into a “party aggrieved.”

NRC.Pet.12-14. All are wrong.

First, relying on Simmons v. ICC, 716 F.2d 40, 43

(D.C. Cir. 1983), the Commission insists that the Fifth

Circuit conflates the term “person ... aggrieved” as used

in the APA and the term “party aggrieved” as used in the

Hobbs Act. Not so. As noted above, those are not the only

options available to Congress. Supra pp.10-11. Moreover, the term “person ... aggrieved” in the APA, 5 U.S.C.

§702, imposes only two requirements: (1) that the plaintiff “identify some ‘agency action,’” and (2) that he “show

that he has suffered legal wrong” as a result. Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83 (1990). The

“person ... aggrieved” language in the APA does not require participation in an agency proceeding like the term

“party aggrieved” does in the Hobbs Act.

Simmons is not to the contrary. There, the petitioner

commented on only the first of two rulemakings of which

it later sought judicial review under the Hobbs Act. 716

F.2d at 42. To preserve the distinction between “party”

14

and “person,” the court held that the Hobbs Act must

have used “party aggrieved” to mean “a party before the

agency, not a party to the judicial proceeding,” id. at

43—relying on the very Fifth Circuit decision to which

petitioners attribute the circuit split, id. at 42 (citing, inter alia, Am. Trucking Ass’ns v. ICC, 673 F.2d 82, 84

(1982) (per curiam)). But, as Judge Jones noted, it “was

uncontested” that the petitioner was a “party aggrieved”

by the first rulemaking in which he participated,

NRC.Pet.App.37a—underscoring that “party aggrieved” and “litigant” are not synonymous in this context, supra pp.10-11.

Second, the Commission insists (at 13) that “party aggrieved” should nonetheless be treated like a party to a

court proceeding because the Hobbs Act affords intervention rights to a “party in interest in the proceeding”

not afforded to “[c]ommunities, associations, corporations, firms, and individuals, whose interests are affected

by the order of the agency.” 28 U.S.C. §2348. But §2348

supports the State’s view. Courts presume “that ‘identical words used in different parts of the same statute’

carry ‘the same meaning.’” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 85 (2017) (quoting IBB,

Inc. v. Alvarez, 546 U.S. 21, 34 (2005)). And only individuals who participated in the agency proceeding are called

“parties”—no matter whether their interests would be

affected. It would also make sense to give such participants intervention as of right if they are also parties aggrieved who can initiate a separate suit that must, as a

matter of law, be transferred to and consolidated with

the earlier-filed suit. 28 U.S.C. §2112(a).

The State’s interpretation is consistent with the cases

the Commission cites. For example, Alabama Power Co.

v. the Federal Communications Commission, 311 F.3d

15

1357 (11th Cir. 2002), correctly recognizes that a “‘party

aggrieved’ is one who participated in the agency proceeding, id. at 1366 (emphasis added). In that case, multiple adjudications occurred. Id. at 1365-67. The court

found that being a participant in one adjudication does

not make one a party aggrieved by a different adjudication. Id. Whether the petitioner could have sought review

had it participated in some other way in the agency proceeding was not at issue. Id. at 1366-67.

Third, the Commission makes much (at 12) of the fact

that the AEA’s hearing provision uses both “person” and

“party.” But it is the Hobbs Act, not the AEA’s hearing

provision, that is at issue, and it is always perilous to try

to extrapolate meanings across statutes. Env’t Def. v.

Duke Energy Corp., 549 U.S. 561, 574 (2007). That is particularly so because the AEA’s hearing provision applies

to both licensing proceedings and rulemaking proceedings. 42 U.S.C. §2239(a)(1)(A); see 10 C.F.R. §§2.1(a), (d)

2.805(b); 2.1500. Accordingly, when the AEA states that

the Commission shall “grant a hearing upon the request

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

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

added), it means that a “person” is one interested in the

Commission’s actions who becomes a “party” when he

participates in some way in the agency proceeding,

whether a rulemaking or an adjudication.

Fourth, the Commission is wrong (at 14) to rely on

Federal Maritime Commission v. South Carolina State

Ports Authority, 535 U.S. 743, 762 (2002) (FMC). That

case asked whether sovereign immunity precluded the

Federal Maritime Commission from adjudicating a private party’s complaint against a State, id. at 792—a context that inherently uses the term “party” to mean

16

“litigant.” But see supra pp.10-11. As a result, ordinary

rules of issue preservation and appellate procedure

would hold that “if a party fails to appear before the

[Commission], it may not then argue the merits of its position in an appeal of the Commission’s determination

filed under [the Hobbs Act]. FMC, 535 U.S. at 762.

Here, by contrast, the State is not “seeking to contest

the merits of a complaint filed against it by a private

party” where it “must defend itself in front of the [Commission] or substantially compromise its ability to defend

itself at all.” Id. at 762. Instead, it is challenging a license

that risks a public-health disaster by enabling the storage of up to 40,000 metric tons of nuclear waste in aboveground vessels over the world’s most productive oil field,

as well as the water supply for Midland-Odessa (among

others). The issuance of that license over Texas’s objections “aggrieves” Texas by any ordinary meaning of the

term—regardless of whether the Hobbs Act contains an

ultra vires exception.

4. Regardless, petitioners have not sought clarification of what it takes to be a “party aggrieved” within the

terms of the Hobbs Act—only whether an ultra vires exception allows a stranger to the agency proceeding to

seek judicial review. Because the Fifth Circuit’s alternative analysis that Texas is a party aggrieved under the

Hobbs Act even absent an ultra vires exception falls outside the scope of the question presented, this is a poor

vehicle to decide that question. See, e.g., Izumi Seimitsu

Kogyo Kabushiki Kaisha v. U.S. Philips Corp.,

510 U.S. 27, 31-32 (1993).

17

B. In applying the ultra vires “exception,” the

Fifth Circuit merely declined to read into the

Hobbs Act an atextual exhaustion rule.

Even were Texas not a party aggrieved, review would

be uncalled for because while the Commission (at 11),

and ISP (at 1, 22-24) make much of the Fifth Circuit’s

“ultra vires” exception, it really is no exception at all. In

1982, the Fifth Circuit observed that this Court has recognized “two rare instances” in which a stranger to an

agency proceeding could nonetheless appeal: (1) if the

agency action is “attacked as exceeding the power of the

Commission,” or (2) the appellant “challenges the constitutionality of the statute conferring authority on the

agency.” Am. Trucking, 673 F.2d at 85 n.4 (citing, inter

alia, Edward Hines Yellow Pine Tr. v. United States,

263 U.S. 143, 147 (1923); Skinner & Eddy Corp. v. United

States, 249 U.S. 557, 563-64 (1919)). In other words, this

is not an exception at all because the Hobbs Act is about

reviewing agency orders—not challenges to the “statute

conferring authority on the agency.” Compare id., with

28 U.S.C. §2344. Instead, the putative “exception” is

nothing more than a rule that appearing in a Commission

proceeding is not required to challenge whether the

Commission exceeded its authority by holding that proceeding in the first place. That is not the same thing as

challenging an agency’s use of authority. Cf. Axon, 598

U.S. at 185-88.

Nor is the term “ultra vires” a synonym for “wrong.”

Contra NRC.Pet.15. As Judge Jones explained, “the

term literally refers to being ‘outside’ the agency’s

power, i.e., in defiance of the limits placed by Congress

in the agency’s governing statute or the Constitution.”

NRC.Pet.App.43a. To the extent the Fifth Circuit has

applied the rule, but see infra Part I.C., it has done so

18

only in cases involving an absence of statutory or constitutional authority. NRC.Pet.App.43a. This Court has

done the same. See, e.g., Skinner & Eddy Corp., 249 U.S.

at 562.

Apart from precedent, such a rule makes sense for

two reasons. First, as explained above, unlike other statutes, the Hobbs Act contains no exhaustion requirement.

See 28 U.S.C. §2344; NRC.Pet.App.16a n.2. If Congress

had wanted to require a petitioner to make statutory interpretation and constitutional arguments to an agency,

it could have done so. Supra p.11.

Second, it would make little sense to imply an administrative-exhaustion requirement in a post-Chevron

world. After all, courts “must exercise their independent

judgment in deciding whether an agency has acted

within its statutory authority.” Loper Bright, 144 S.Ct.

at 2273. The “focal point for [that] judicial review” remains the “administrative record” to which “the reviewing court is to apply the appropriate … standard of review.” Lorion, 470 U.S. at 743-44. But now the Court has

made clear that courts are “to conduct a de novo inquiry

into the matter being reviewed and to reach its own conclusions” rather than deferring to the agency’s judgment. Id. at 744. Under such a regime, it would be upside

down to imply (let alone allow an agency to create) an

exhaustion requirement not required by Congress. The

Fifth Circuit was thus entirely correct to prevent the

Commission from imposing an exhaustion requirement

on Texas.

C. Any circuit split is old and recurs too

infrequently to require this Court’s attention.

Even were the Fifth Circuit wrong to apply the supposed ultra vires exception (and it wasn’t), and even if

that error would affect the outcome of this case (and it

19

wouldn’t), that error still would not merit the Court’s

time. So far as Texas can determine, the Hobbs Act has

resulted in only four decisions from this Court in over 70

years. The circuit split to which NRC (at 28) and ISP (at

23) pin their hopes of a fifth has existed for almost 40

years without intervention of this Court or problems to

the handful of federal agencies to whom the Hobbs Act

applies. That is hardly the recipe for a certworthy issue.

The Hobbs Act is far from a controversial statute. It

applies to a small fraction of the hundreds of federal

agencies that form the Executive Branch, see 28 U.S.C.

§2342(1)-(7), and this Court has adjudicated only four

cases interpreting the statute. See PDR Network, LLC

v. Carlton & Harris Chiropractic, Inc., 588 U.S. 1, 3

(2019); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,

277 (1987); Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69 (1970);

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 613 (1966).

The circuit split at issue has existed for nearly 40 of

those 70 years. As noted above, the Fifth Circuit decided

American Trucking in 1982. In 1986, the Seventh Circuit

announced its disagreement. See In re Chi., Milwaukee,

St. Paul & Pac. R.R. Co., 799 F.2d 317, 334-35 (7th Cir.

1986). The Second Circuit followed suit in 1999, see ErieNiagara Rail Steering Comm. v. Surface Transp. Bd.,

167 F.3d 111, 112 (2d Cir. 1999) (per curiam), the Eleventh in 2006, see Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457 F.3d 1238, 1249 (11th Cir. 2006), and

the Tenth last year in a case involving the same license

at issue here, see Balderas, 59 F.4th at 1123-24.

As Fasken explains in its concurrently filed response

(at Part II.A), the Fifth Circuit has no occasion to apply

the ultra vires “exception” with any frequency. To the

contrary, as the Commission admits (at 29), the Fifth

20

Circuit applied the ultra vires exception here “for the

first time since 1984.” The only other recent example is

an unpublished opinion holding that the decision below

(unsurprisingly) determined the outcome of a related

case. Compare Fasken Land & Minerals, Ltd. v. NRC,

No. 23-60377, 2024 WL 3175460, at *1 (5th Cir. Mar. 27,

2024) (per curiam), with ISP.Pet.iii (acknowledging the

cases to be related).

Thus, even if “a United States court of appeals has

entered a decision in conflict with the decision of another

United States court of appeals,” it could hardly be considered an “important matter” requiring this Court’s attention. Sup. Ct. R. 10(a). This is particularly true because certiorari is a discretionary writ. Texas participated in the proceedings here by filing substantive comments—a point the Commission does not (and cannot)

dispute. Under Fifth Circuit precedent, that was sufficient to secure Texas’s right to challenge the lawfulness

of the Commission’s decision. The Court should not grant

review where a party has acted consistent with circuit

precedent, especially because under any plausible standard Texas is a “party aggrieved” regardless.

II. The Commission’s Claimed Authority To License

Privately Owned, Off-Site Nuclear Storage

Facilities Is Also Uncertworthy.

It is also unnecessary for this Court to address the

merits. Congress has already answered the question: the

nation’s nuclear waste must be stored in Nevada, not

Texas. Petitioners’ contrary arguments miss the mark.

A. The Commission lacks authority to issue the

license.

Even before Loper Bright, this Court “expect[ed]

Congress to speak clearly when authorizing an agency to

21

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)). And it has been particularly skeptical of such assertions of power on issues with

uniquely fraught “political histor[ies]” or comprehensive

“regulatory scheme[s].” Biden v. Nebraska, 143 S.Ct.

2355, 2382 (2023) (Barrett, J., concurring) (quoting FDA

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

159-60 (2000)); accord Ind. Mich. Power Co. v. DOE, 88

F.3d 1272, 1273 (D.C. Cir. 1996).

This is a textbook example of such a case: Congress

identified the “problem.” 42 U.S.C. §10131(a)(2), (7). And

Congress provided the solution—a “comprehensive statutory scheme for addressing spent nuclear fuel accumulation.” NRC.Pet.App.29a. That scheme not only requires storage in Yucca Mountain, but it “plainly contemplates that” there may be pushback to the Yucca Mountain site and provides that “until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-thereactor or in a federal facility.” NRC.Pet.App.29a. That

scheme does not include granting the Commission authority to issue offsite-storage licenses.

1. The Commission attempts to locate its authority

in the licensing provisions of the AEA, which were enacted to “‘encourage[] the private sector’ to develop

‘atomic energy for peaceful purposes under a program of

federal regulation and licensing.’” NRC.Pet.2 (quoting

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

& Dev. Comm’n, 461 U.S. 190, 207 (1983)); see 42 U.S.C.

§2013. To that end, the AEA delegates the Commission

authority to issue two types of licenses to private entities: “materials licenses” and “facilities licenses.”

22

NRC.Pet.2 & n.1. Neither type, however, relates to temporary offsite storage of spent nuclear fuel.

Materials licenses entitle licensees to possess specified nuclear materials for statutorily defined ends. Section 2073(a), for example, authorizes licensees to possess

“special nuclear material” for categories of “research

and development,” “medical therapy,” and use under a

facilities license. 42 U.S.C. §2073(a). Section 2093(a) does

the same for “source material.” Id. §2093(a). And

§2111(a) licenses may be issued “to applicants seeking to

use byproduct material for research or development purposes, for medical therapy, industrial uses, agricultural

uses, or such other useful applications as may be developed.” Id. §2111(a).

Despite defining the term “spent nuclear fuel,” the

AEA nowhere authorizes issuance of a materials license

to possess spent nuclear fuel for any reason, let alone for

the sole purpose of storing such material in a standalone

facility. Compare id. §§2014 (aa) (defining “special nuclear material”), (z) (“source material”), (e) (“byproduct

material”), with id. §2014(ee) (“spent nuclear fuel”).

The AEA’s facilities license provisions don’t supply

that authority either. Facilities licenses may be issued to

private entities seeking to construct “utilization” and

“production” facilities. 42 U.S.C. §§2133, 2134. The definitions of neither terms contemplate “storage” of spent

nuclear material. Id. §2014 (cc) (defining “utilization facility”), (v) (defining “production facility”)—as ISP

acknowledges (at 17).

In short, as the Commission’s own authority confirms, the AEA “does not specifically refer to the storage

or disposal of spent nuclear fuel.” Bullcreek v. NRC, 359

F.3d 536, 538 (D.C. Cir. 2004).

23

2. This straightforward textual analysis is bolstered

by historical and statutory context. It was “clear that

from the very beginning of commercial nuclear power [in

the 1950s] the Congress was aware of the absence of a

permanent waste disposal facility,” Nat. Res. Def. Council 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, “Government and

industry accepted reprocessing as the only practical

method of disposing of spent fuel.” Id. at 246. The AEA’s

failure to anticipate the need for repositories for spent

nuclear fuel reflects that “widespread belief.”

NRC.Pet.App.4a.

It was not until the 1970s, when “the private reprocessing industry collapsed” that “the nuclear industry

was confronted with an unanticipated accumulation of

spent nuclear fuel, inadequate private facilities for the

storage of the spent fuel, and no long term plans for managing nuclear waste.” NRC.Pet.App.26a (quoting Idaho,

945 F.2d at 298). “This led Congress to pass the [NWPA]

in 1982” to “provide[] a comprehensive scheme to address the accumulation of nuclear waste.” NRC.Pet.

App.26a. Recognizing that “a national problem ha[d]

been created,” 42 U.S.C. §10131(a)(2), Congress adopted

a national solution: “Federal responsibility, and a definite Federal policy, for the disposal of such waste and

spent fuel,” id. §10131(b)(2), “within a rock formation

where the waste would be placed, permanently stored,

and isolated from human contact.” Nat’l Ass’n of Regul.

Util. Comm’rs v. DOE, 680 F.3d 819, 821 (D.C. Cir.

2012); see 42 U.S.C. §§10133-34. The NWPA was

amended a few years later to identify Yucca Mountain

24

“as the only suitable site” for this purpose.

NRC.Pet.App.27a; 42 U.S.C. §10172.

But the NWPA did not stop there. Recognizing the

need for interim measures pending completion of the

Yucca Mountain project, the Act takes pains to emphasize that “primary responsibility for providing interim

storage of spent nuclear fuel” remains on “the persons

owning and operating civilian nuclear power reactors.”

42 U.S.C. §10151(a)(1). Section 10155(b)(1)(B)(i), for example, expressly directs reactor owners to pursue “expansion of storage facilities at the site of [their] power

reactor[s]” should existing storage reach capacity before

a permanent geologic repository becomes available. Id.

§10155(b)(1)(B)(i) (emphasis added). Only if that proves

impossible may reactor owners access limited federal

storage. Id. §10151(a), (b).

Nowhere does the NWPA provide for private, off-site

storage. To the contrary, §10155(h) punctuates that

“nothing in this chapter shall be construed to encourage,

authorize, or require the private ... use ... of any storage

facility located away from the site of any civilian nuclear

power reactor and not owned by the Federal Government.” Id. §10155(h).

The NWPA also provides that the government may

operate one “monitored retrievable storage” center, id.

§10162(b), but only after the Commission has licensed

the repository at Yucca Mountain, id. §10168(d)(1). This

provision is “obviously designed to prevent the Department from delaying the construction of Yucca Mountain

as the permanent facility while using temporary facilities.” Nat’l Ass’n of Regul. Util. Comm’rs, 736 F.3d at

519. The NWPA thus “prioritizes construction of the permanent repository and limits temporary storage to private at-the-reactor storage or at federal sites.”

25

NRC.Pet.App.29a. Nothing in the NWPA’s structure or

history supports anything like what the Commission is

attempting to do here.

Notably, the Commission (at 23-24) and ISP (at 21)

assure the Court that it need not bother with the NWPA,

which they insist deals primarily with where the federal

government, rather than private entities, may store nuclear waste. Yet the NWPA contains a welter of provisions dealing directly with private waste storage, including the issue of where to put privately produced waste

pending completion of the Yucca Mountain project. A

court cannot ignore the fact that Congress has clearly

addressed this specific issue.

3. The statutory history surrounding the Yucca

Mountain project is more evidence that this is one of

those instances in which “commonsense principles of

communication” dictate that we “‘expect Congress to

speak clearly if it wishes to assign [that task] to an

agency.’” Biden, 143 S.Ct. at 2380 (Barrett, J., concurring) (quoting Util. Air Regul. Grp., 573 U.S. at 324).

Far from clearly providing the authority asserted

here, reading the AEA to authorize the Commission to

license private off-site storage facilities would render the

NWPA almost nonsensical—and would fly in the face of

representations made by the Commission’s former

Chairman during the debates leading to the passage of

the NWPA. Supra p.3. It is a bedrock principle that

“[a]ny word or phrase that comes before a court for interpretation is part of” the “corpus juris.” ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 252 (2012)). “It is a logical consequence of this contextual principle that the

meaning of” an earlier provision may be clarified or even

26

“change in light of a subsequent enactment.” Id. at 25455.

Here, the entire point of the NWPA is to create “a

comprehensive scheme for the interim storage and permanent disposal of” spent nuclear fuel, which is irreconcilable with the authority that the Commission claims.

Ind. Mich. Power, 88 F.3d at 1273 (emphasis added).

That scheme “plainly contemplates that, until there’s a

permanent repository, spent nuclear fuel is to be stored

onsite at-the-reactor or in a federal facility.”

NRC.Pet.App.29a.

Furthermore, the history of the Yucca Mountain project also makes plain why the Commission now retreats

from what the scheme clearly contemplates. The Commission doesn’t think that Yucca Mountain is politically

feasible, so it has shifted its focus elsewhere. Yet “no

matter how important, conspicuous, and controversial

the issue, and regardless of how likely the public is to

hold the Executive Branch politically accountable, an administrative agency’s power to regulate ... must always

be grounded in a valid grant of authority from Congress.” Brown & Williamson, 529 U.S. at 161 (citation

omitted).

Indeed, the Court need not rely on political and historical context alone. In the NWPA itself Congress expressly identified “high-level radioactive waste and

spent nuclear fuel” as “major subjects of public concern.”

42 U.S.C. §10131(a)(7). That is, this case doesn’t just present a major question: It presents an answered major

question. To borrow from Justice Barrett’s hypothetical

in Biden v. Nebraska, because the proverbial parent has

specified how the weekend should go, the babysitter is

not at liberty to make different plans. 143 S.Ct. at 237980 (Barrett, J., concurring).

27

That same principle rebuts the insistence of both the

Commission (at 27) and ISP (at 2) that even if the question of where the nation’s nuclear waste should be permanently stored is a major question, the issue of temporary storage is not. Assuming a 60-year license can be

deemed temporary, Congress was “obviously” concerned

about temporary storage when it enacted the NWPA because of the tendency for temporary storage to become

permanent. Nat’l Ass’n of Regul. Util. Comm’rs., 736

F.3d at 519. That is why, for example, Congress conditioned the stop-gap measure of monitored retrievable

storage on the issuance of a license for the construction

of a repository in Yucca Mountain. Id.; 42 U.S.C.

§10168(d)(1). Furthermore, given that nuclear waste is

hazardous for thousands of years, the prospect that such

waste will be moved from a “temporary” site 60 years

from now through an inherently dangerous transport

process does nothing to lessen the political and economic

significance.

4. Nevertheless, the Commission insists (at 20-21)

that its authority to issue licenses for the possession of

“special nuclear material,” 42 U.S.C. §2073, “source material,” id. §2093, and “byproduct material,” id. §2111,

“plainly allow the Commission to grant licenses for

offsite storage of spent nuclear fuel” because special nuclear material, source material, and byproduct material

are “the three components of spent nuclear fuel for purposes connected to generating nuclear power.” But that

argument conflates distinct statutory powers and ignores the limited statutory purpose for which those authorities may be invoked.

To begin, the Commission conflates its authority to

license nuclear facilities with its separate authority to license possession of certain nuclear materials. The AEA

28

authorizes the Commission to license only two types of

facilities: “utilization” and “production” facilities. Id.

§§2133, 2134. These are carefully defined terms that do

not contemplate a standalone facility to store spent nuclear fuel far away from a nuclear reactor. See id.

§2014(v), (cc). The Commission has neither contended

otherwise nor claimed the license at issue falls within

some other kind of facility license.3

That alone should have foreclosed issuance of the ISP

license. ISP’s predecessor-in-interest candidly applied

for a license to “construct and operate a Consolidated Interim Storage Facility.” C.I.No. 5.1. (emphasis added).

Although the Commission ultimately issued something it

styled as a “license for independent storage,” NRC.Pet.

App.53a, that document authorizes the possession of

spent nuclear fuel only at an “[a]uthorized [p]lace of

[u]se,” detailed technical specifications for which are appended to the license, NRC.Pet.App.56a. As the putative

use was, in fact, storage, NRC.Pet.App.53a, the ISP license is an extra-statutory storage-facilities license masquerading as a materials license.

Furthermore, as the Fifth Circuit recognized, the

Commission’s invocation of the AEA’s materials-licensing provisions “ignores the fact that the Act authorizes

the Commission to issue such licenses only for certain

enumerated purposes—none of which encompass storage or disposal of material as radioactive as spent nuclear fuel.” NRC.Pet.App.22a.

Section 2111 arguably permits a disposal facility for certain

types of significantly less hazardous “byproduct materials” specified in “paragraphs (3) and (4) of section 2014(e).” 42 U.S.C.

§2111(b)(1). Petitioners seem to disclaim any reliance on this provision, which would not extend to the materials ISP seeks to store. See

ISP.Pet.16.

3

29

That is, even if the ISP license could somehow be construed as a materials license, the AEA does not provide

the Commission the power to possess “spent nuclear

fuel” by conferring the authority to license possession of

“byproduct material,” “source material,” and “special

nuclear material”—even if they are “constituent materials of spent nuclear fuel.” NRC.Pet.App.21a. “In a given

statute,” especially one like the AEA involving “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).

Here, “spent nuclear fuel” is separately defined as

“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); see id. §2014(ee) (defining

“spent nuclear fuel” by cross reference to §10101). A

neighboring provision further distinguishes “byproduct

material,” “source material,” and “special nuclear material,” from “spent nuclear fuel” by separately listing “byproduct materials, source materials, special nuclear

materials, high-level radioactive waste, spent nuclear

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

Id. §2210i(b) (emphasis added); see also id. §2210h(2)(B)

(similar). It is thus quite wrong to treat “spent nuclear

fuel” as merely the sum of its component parts. See Pulsifer, 601 U.S. at 149.

ISP counters (at 17) that limiting the Commission’s

authority to issue materials licenses to those materials

enumerated by the AEA would prevent nuclear power

plants from handling (as they must) spent nuclear fuel.

But a nuclear power plant is differently situated in that

it operates pursuant to a utilization facility license. See

30

id. §2014(cc). Common sense—not to mention statutory

text—dictates that a license to operate a nuclear power

plant entails government permission to “withdraw[]

[fuel] from a nuclear reactor following irradiation.”

42 U.S.C. §10101(23) (defining “spent nuclear fuel”). And

the NWPA expressly allows such facilities to store spent

nuclear waste on-site. Supra p.21. But neither law nor

logic suggests that by authorizing the Commission to license possession of one type of material, Congress must

have authorized it to license possession of an entirely different and separately defined material. Quite the opposite. Cf. SCALIA & GARNER, supra at 107 (explaining the

expressio unius canon).

Moving on, both the Commission (at 21-23) and ISP

(at 15-18) twice try to expand the permissible purposes

for which a materials license may be issued by ignoring

the enumerated provisions in favor of selective quotes

from the relevant sections’ catchall provisions. Each ignores that “[w]hen Congress provides specific statutory

obligations, [courts] will not read a ‘catchall’ provision to

impose general obligations that would include those specifically enumerated.” NRC.Pet.App.22a (quoting

United States v. Jicarilla Apache Nation, 564 U.S. 162,

185 (2011)).

First, both the Commission (at 22) and ISP (at 15, 18)

accuse the Fifth Circuit of violating the rule against superfluity by narrowing the catchall provisions of §2073

(addressing “special nuclear material”) and §2093

(“source material”) to such a degree that they are coterminous with preceding enumerated provisions allowing

possession of separately defined nuclear materials for

research and development purposes. But Congress did

not authorize licensure of possession of “special nuclear

material” and “source material” “for the conduct of” all

31

“research and development activities”—only those “of

the types specified in section 2051.” 42 U.S.C.

§§2073(a)(1), 2093(a)(1). Section 2051, in turn, specifies

six fields of nuclear research. Id. §2051(a). Similarly,

§2073(a)(2) and §2093(a)(2) authorize licensure of possession of “special nuclear material” and “source material”

for use “under a license issued pursuant to section 2134.”

Id. §§2073(a)(2), 2093(a)(2). And §2134 refers to particular medical, industrial, and commercial purposes carried

out under a facilities license—which ISP conspicuously

doesn’t have. Id. §2134. Notably, the Commission does

not dispute the Fifth Circuit’s interpretation of

§§2073(a)(3) and 2093(a)(3). See NRC.Pet.App.23a.

Second, the Commission (at 23) and ISP (at 16-17)

fault the Fifth Circuit for failing to heed the “plain text”

of §2111(a), which governs licenses to possess byproduct

material. But the Commission understands §2111(a) to

“authorize[] the Commission to license possession of byproduct materials for industrial purposes and other useful applications.” NRC.Pet.23. It is hard to find daylight

between that reading and the Fifth Circuit’s conclusion—which largely consists of quoting the statute—that

Congress has “authorize[d] the Commission ‘to issue

general or specific licenses to applicants seeking to use

byproduct material for research or development purposes, for medical therapy, industrial uses, agricultural

uses, or such other useful applications as may be developed.’” NRC.Pet.App.23a (quoting 42 U.S.C. §2111(a)).

Both refer to byproduct material rather than spent nuclear fuel, and neither says anything about offsite storage.

Finally, the Commission reverts (at 23) to the AEA’s

overarching purpose of “facilitating the generation of nuclear power.” Because “that would be impossible without

32

storage of spent nuclear fuel,” the Commission reasons

(at 23) that the AEA must permit it. But “[t]he question

here is not whether something should be done; it is who

has the authority to do it.” Biden, 143 S.Ct. at 2372. Because “an agency literally has no power to act ... unless

and until Congress confers power upon it,” Cruz, 596

U.S. at 301, the operative question is “whether Congress

in fact meant to confer the power the agency has asserted,” West Virginia v. EPA, 597 U.S. at 687, 721

(2022). That cannot be inferred from general purposes

because “no legislation pursues its purposes at all costs.”

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)

(per curiam). Agencies thus cannot rely on statements of

purpose for substantive authority. See, e.g., Sturgeon v.

Frost, 139 S.Ct. 1066, 1086 (2019)

The Commission similarly maintains (at 22) that its

longstanding regulatory practice of issuing licenses for

temporary offsite storage “reinforces” its reading of the

Atomic Energy Act. See also ISP.Pet.19 (similar). But

both the major and the minor premise are wrong. As

Fasken explains in its response (at 22), the Commission

has no such practice. And even if it did, there is no “adverse possession” rule of administrative law that “insulates [agency] disregard of statutory text.” Rapanos v.

United States, 547 U.S. 715, 752 (2006) (plurality op.). “A

regulation’s age is no antidote to clear inconsistency with

a statute.” Brown v. Gardner, 513 U.S. 115, 122 (1994).

B. Petitioners’ alleged circuit split is based on

non-adjudicated assumptions.

The Commission (at 30) and ISP (at 16, 20) are also

wrong that this Court’s intervention is necessary to correct a circuit split regarding whether the AEA authorizes licensure of temporary, offsite storage facilities. In

Bullcreek v. NRC, the D.C. Circuit held that the NWPA

33

did “not repeal or supersede” what it assumed to be the

Commission’s “authority under the [AEA] to license private away-from-reactor storage facilities.” 359 F.3d at

537-38. But in doing so, as the Fifth Circuit summarized,

the D.C. Circuit “provided no textual basis for its assumption,” instead relying on inapposite authorities.

NRC.Pet.App.25a. The other case cited by the Commission—Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004)—“is just as unhelpful” because it “merely relies on Bullcreek.” Id. The Fifth Circuit was under no obligation to adopt such an unreasoned

position, and this Court need not step in to correct it.

This case, moreover, is not about assumed power—it

is about an actual license. Petitioners do not claim that

cases like Bullcreek arise in this posture, nor could they.

The Court should thus wait to grant certiorari until a

split arises about a license—which is unlikely to ever

arise, given Congress’s express directives regarding

Yucca Mountain and the fact that the Commission itself

has previously disclaimed the authority it now asserts.

34

C O NCL USI O N

The petitions should be denied.

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

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

BENJAMIN W. MENDELSON

Assistant Solicitor General

J. ANDREW MACKENZIE

Assistant Attorney General

(512) 936-1700

AUGUST 2024

Counsel for the State

Respondents