Petition for Writ of Certiorari — Holtec International, Petitioner v. Nuclear Regulatory Commission, et al.
Supreme Court briefJun 25, 2024
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No. 23In the
Supreme Court of the United States
HOLTEC INTERNATIONAL,
Petitioner,
v.
UNITED STATES NUCLEAR REGULATORY
COMMISSION, UNITED STATES OF AMERICA,
FASKEN LAND AND MINERALS, LIMITED, AND
PERMIAN BASIN LAND AND ROYALTY OWNERS,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Jay E. Silberg
Counsel of Record
A nne R. Leidich
Pillsbury Winthrop Shaw
Pittman LLP
1200 Seventeenth St., NW
Washington, DC 20036
(202) 663-8063
jay.silberg@pillsburylaw.com
June 2024
330600
Counsel for Petitioner
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
After more than six years of extensive licensing
proceedings, the United States Nuclear Regulatory
Commission (NRC) issued petitioner a license to
store spent nuclear fuel at a proposed facility in New
Mexico. Several opposing parties in the NRC
proceeding sought judicial review of petitioner’s
license in the normal course: before the D.C. Circuit
pursuant to the Administrative Order Reviews Act
(commonly known as the Hobbs Act), 28 U.S.C. §
2342. Years later, one of those parties initiated a
second attack on petitioner’s license in the Fifth
Circuit, relying on the Fifth Circuit’s unique ultra
vires exception to the Hobbs Act to challenge the
NRC’s issuance of petitioner’s license as beyond the
agency’s authority. The Fifth Circuit heard the case,
deepening a split with the Second, Seventh, Tenth,
and Eleventh Circuits which have rejected such an
exception to the Hobbs Act.
The Fifth Circuit also decided that the NRC does
not have authority under the Atomic Energy Act, 42
U.S.C. § 2011 et seq., and Nuclear Waste Policy Act,
42 U.S.C. § 10131(a) et seq., to issue licenses for
spent fuel storage and vacated petitioner’s NRC
license. In issuing this decision, the Fifth Circuit
created yet another split from decades-long
precedent in the D.C. Circuit and the Tenth Circuit,
where petitioner’s facility would be located.
The questions presented are:
1. Whether there is an exception to the partyaggrieved requirement of the Hobbs Act for
an ultra vires challenge to an agency
action.
ii
2. Whether the NRC has the statutory
authority to issue licenses for spent nuclear
fuel storage facilities.
iii
PARTIES TO THE PROCEEDING
Petitioner, intervenor-appellee below, is Holtec
International.
The United States Nuclear Regulatory
Commission and United States of America were also
appellees below.
Respondents, appellants below, are Fasken Land
and Minerals, Limited, and Permian Basin Land and
Royalty Owners.
iv
CORPORATE DISCLOSURE STATEMENT
Holtec International has no parent corporation;
no shareholder owns 10% or more of its stock.
v
STATEMENT OF RELATED PROCEEDINGS
The license that is at issue in this case has been
the subject of the following proceedings:
-
Fasken v. NRC, No. 23-60377 (5th Cir.
Mar. 27, 2024).
-
Beyond Nuclear, Inc. v. NRC, No. 20-1187,
20-1225, 21-1104, 21-1147 (D.C. Cir.) (oral
argument held Mar. 5, 2024).
-
State ex rel. Balderas v. NRC, No. CIV 210284 (D.N.M.) (preliminary order issued
Mar. 10, 2022).
The same type of NRC-issued license for a similar
proposed project by another party has also been the
subject of proceedings in the Fifth, Tenth, and D.C.
Circuits:
-
Texas v. NRC, No. 21-60743 (5th Cir. Aug.
25, 2023) (reh’g en banc denied Mar 14,
2024) (petition for cert. filed, ___ U.S.L.W.
___ (U.S. June 12, 2024) (No. 23-1300)).
-
Don’t Waste Mich. v. NRC, 21-1048, 211055, 21-1056, 21-1179, 21-1227, 21-1229,
21-1230, 21-1231 (D.C. Cir. Jan. 25, 2023)
-
State ex rel. Balderas v. NRC, No. 21-9593
(10th Cir. Feb. 10, 2023).
vi
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING .......................... iii
CORPORATE DISCLOSURE STATEMENT .......... iv
STATEMENT OF RELATED PROCEEDINGS........ v
TABLE OF CONTENTS ........................................... vi
TABLE OF APPENDICES ..................................... viii
TABLE OF AUTHORITIES ...................................... ix
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
STATUTORY PROVISIONS INVOLVED ................ 3
STATEMENT ............................................................. 3
A. Legal Framework ............................................ 3
1. The Hobbs Act ............................................ 3
2. The Nuclear Legal Framework .................. 5
B. Factual and Procedural Background .............. 9
1. The Holtec NRC Proceeding ...................... 9
2. The Holtec D.C. Circuit Proceeding ........ 10
3. The Holtec Fifth Circuit Proceeding........ 11
REASONS FOR GRANTING THE PETITION ...... 13
I. The Fifth Circuit Erred By Ignoring The
Plain Text Of The Hobbs Act And The
Faithful Interpretations Of Four Other
Circuits. ............................................................... 14
vii
A. There Is No Ultra Vires Exception To The
Hobbs Act. ...................................................... 14
B. The Ultra Vires Exception Is An End Run
Around The Requirements Of The Hobbs
Act. ................................................................. 17
II. The Fifth Circuit’s Decision To Limit The
NRC’s Statutory Authority Is Plainly
Inaccurate And Contrary To Settled
Precedent. ............................................................ 19
A. The Fifth Circuit’s Decision Creates A Circuit
Split. ............................................................... 19
B. The Fifth Circuit’s Application Of The Atomic
Energy Act Is Egregiously Wrong. ................ 21
C. The Fifth Circuit Further Erred In Finding
That The Nuclear Waste Policy Act Is
Relevant To The NRC’s Authority. ............... 25
D. The Fifth Circuit’s Reasoning Confounds The
Regulation Of Nuclear Materials. ................. 26
CONCLUSION ......................................................... 28
viii
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT, FILED
MARCH 27, 2024 .................................................. 1a
APPENDIX B — OPINION OF THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT, FILED
AUGUST 25, 2023 ................................................ 4a
APPENDIX C — DENIAL OF REHEARING
OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
FILED MARCH 14, 2024 ................................... 36a
APPENDIX D — MEMORANDUM AND
ORDER OF THE NUCLEAR REGULATORY
COMMISSION, FILED APRIL 23, 2020 ........... 58a
APPENDIX E — MEMORANDUM AND
ORDER OF THE NUCLEAR REGULATORY
COMMISSION, FILED MAY 7, 2019 .............. 136a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED ....................................................... 337a
ix
TABLE OF AUTHORITIES
CASES
Am. Trucking Ass’ns, Inc. v. ICC,
673 F.2d 82 (5th Cir. 1982)..................................... 4
Baros v. Tex. Mexican Ry. Co.,
400 F.3d 228 (5th Cir. 2005)................................... 5
Beyond Nuclear v. NRC,
No. 20-1187 (D.C. Cir. June 20, 2020),
ECF No. 1848608 ............................................ 10, 11
Bullcreek v. NRC,
359 F.3d 536 (D.C. Cir. 2004) ................... 19, 20, 26
Carpenter v. DOT,
13 F.3d 313 (9th Cir. 1994)................................... 18
Don’t Waste Mich. v. NRC,
(No. 20-1225), ECF No. 1895402 .......................... 10
Don’t Waste Mich. v. NRC,
No. 21-1048, 2023 WL 395030
(D.C. Cir. Jan. 25, 2023) ....................................... 20
Erie-Niagara Rail Steering Comm. v.
Surface Transp. Bd.,
167 F.3d 111 (2d Cir. 1999) .............................. 4, 15
Fasken Land & Minerals, Ltd. v. NRC,
(No. 21-1147) ......................................................... 10
In re Chicago, Milwaukee,
St. Paul & Pac. R.R. Co.,
799 F.2d 317 (7th Cir. 1986)............................. 4, 15
In re Holtec International,
91 N.R.C. 167 (2020) ............................................... 9
In re Holtec International,
93 N.R.C. 215 (2021) ............................................. 10
x
Leedom v. Kyne,
358 U.S. 184 (1958) ............................................... 17
Merch. Fast Motor Lines, Inc. v. ICC,
5 F.3d 911 (5th Cir. 1993)....................................... 5
Nat’l Ass’n of State Util. Consumer Advocs. v.
FCC,
457 F.3d 1238 (11th Cir. 2006)......................... 4, 15
Pac. Gas & Elec. Co. v.
State Energy Res. Conservation & Dev. Comm’n,
461 U.S. 190 (1983) ............................................... 20
Siegel v. AEC,
400 F.2d 778 (D.C. Cir. 1968) ................................. 6
Sierra Club v. NRC,
(No. 21-1104), ECF No. 1904266 .......................... 10
Simmons v. ICC,
716 F. 2d 40 (D.C. Cir. 1983) ................................ 18
Skull Valley Band of Goshute Indians v. Nielson,
376 F.3d 1223 (10th Cir. 2004)....................... 19, 20
State ex rel Balderas v. NRC,
59 F. 4th 1112 (10th Cir. 2023) .................. 4, 15, 20
Train v. Colo. Pub. Int. Rsch. Grp., Inc.,
426 U.S. 1 (1976) ..................................................... 7
Vt. Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc.,
435 U.S. 519 (1978) ................................................. 5
Wales Transp., Inc. v. ICC,
728 F.2d 774 (5th Cir. 1984)................................... 4
xi
STATUTES, RULES AND REGULATIONS
28 U.S.C. § 1254(1) ..................................................... 3
28 U.S.C. §§ 2341 et seq. ............................................ 3
28 U.S.C. § 2342 ......................................................... 3
28 U.S.C. § 2344 ................................................... 4, 14
42 U.S.C. §§ 2011 et seq. ............................................ 5
42 U.S.C. § 2013(c) ............................................... 6, 23
42 U.S.C. § 2013(d) ..................................................... 6
42 U.S.C. § 2014(aa) ................................................... 6
42 U.S.C. § 2014(dd) ................................................... 8
42 U.S.C. § 2014(e)(1) ............................................... 24
42 U.S.C. § 2014(v) ................................................... 27
42 U.S.C. § 2014(z) ..................................................... 6
42 U.S.C. § 2071 .......................................................... 6
42 U.S.C. § 2073 ......................................................... 7
42 U.S.C. §§ 2073(a)(1)-(3) ....................................... 23
42 U.S.C. §§ 2073(a)(1)-(4) ....................................... 21
42 U.S.C. § 2073(a)(4) ........................................ 22, 23
42 U.S.C. § 2093 ......................................................... 7
42 U.S.C. § 2093(a)(4) .............................................. 22
42 U.S.C. § 2111 ......................................................... 7
42 U.S.C. § 2133 ....................................................... 21
42 U.S.C. § 2133(b) ..................................................... 7
42 U.S.C. §§ 2133(d)-(e).............................................. 7
42 U.S.C. § 2134 ....................................................... 21
xii
42 U.S.C. § 2201(b) ............................................... 7, 24
42 U.S.C. §§ 2239(a)-(b) ............................................. 3
42 U.S.C. § 2239(a)(1)(A) ........................................... 4
42 U.S.C. § 2239(b)(1) ................................................ 4
42 U.S.C. §§ 5801 et seq. ............................................ 5
42 U.S.C. § 10101 ....................................................... 8
42 U.S.C. §§ 10101 et seq. .......................................... 8
42 U.S.C. § 10101(23) ................................................. 8
Administrative Procedure Act ..................... 15, 16, 17
OTHER AUTHORITIES
39 Fed. Reg. 32,345, 32,456 (Sept. 6, 1974)......... 8, 26
83 Fed. Reg. 39,919 (July 16, 2018) ........................... 9
88 Fed. Reg. 30,801 (May 12, 2023) ......................... 10
128 Cong. Rec. 32,945, 32,946 (1982) .................. 8, 26
Federal Government Petition for Writ of
Certiorari, Texas¸ ___ U.S.___ (No. 23-1300)....... 13
Final Brief of Beyond Nuclear at 31-36,
Beyond Nuclear, No. 20-1187, (D.C. Cir.
Jan. 22, 2024), ECF No. 2036820 ......................... 11
Final Brief of Environmental Petitioners at
19-22, Beyond Nuclear, No. 20-1187 (D.C.
Cir. Jan. 23, 2024), ECF No. 2036920 ................. 11
Final Brief of Fasken at 14-16, Beyond
Nuclear, No. 20-1187 (D.C. Cir. Jan. 23,
2024), ECF No. 2036986 ....................................... 11
H.R. Rep. No. 1569, 93d Cong., 2d Sess. (1974) ...... 18
H.R. Rep. No. 83-328 (2d. Sess. 1954) ....................... 6
H.R. Rep. No. 85-2272 (2d. Sess. 1958) ................... 23
xiii
Interim Storage Partners Petition for Writ of
Certiorari, Texas¸ ___ U.S.___ (No. 23-1300)....... 13
Joint Committee on Atomic Energy, Amending
the Atomic Energy Act of 1954, H.R. Rep.
No. 85-2272 (1958) ................................................ 23
Petition for Review, Fasken Land & Minerals,
Ltd. v. NRC, No. 21-1147 (D.C. Cir. July 25,
2021), ECF No. 1904236 ....................................... 10
Petition for Review, Fasken Land & Minerals,
Ltd., No. 21-1147 (D.C. Cir. June 25, 2021),
ECF No. 1904236 .................................................. 10
Pub. L. No. 109-58, 119 Stat. 594, 806, 807
(Aug. 8, 2005) ........................................................ 24
S. Rep. No. 500, 93d Cong., 1st Sess. (1973) ........... 18
1
PETITION FOR WRIT OF CERTIORARI
This is the second of two related cases from the
Fifth Circuit creating two different circuit splits and
undermining the federal government’s ability to
regulate nuclear materials throughout the United
States.
In the first case, Texas v. NRC, App., infra, 4a35a, reh’g en banc denied App., infra, 36a-57a, the
Fifth Circuit relied on a “judge-made, ultra vires
exception” to the Hobbs Act to hear a case that failed
to meet statutory requirements, creating a split with
four other circuit courts. Texas, App., infra, 54a
(Higginson, J., dissenting). The Fifth Circuit’s
exception to the Hobbs Act in turn allowed that court
to find that the NRC does not have authority to issue
licenses for spent nuclear fuel storage, thus creating
a second split with the Tenth and D.C. Circuits.
Texas, App., infra, 21a. Shortly after issuing the
Texas decision, the Fifth Circuit applied the same
theory to this case, App., infra, 1a, and vacated
petitioner’s license for a spent nuclear fuel storage
facility in New Mexico.
Even though it created a circuit split, the Fifth
Circuit recognized the ultra vires exception to the
party-aggrieved requirement of the Hobbs Act,
erroneously claiming it was necessary to open the
courthouse door to ultra vires claims. But the door to
the courthouse was already open, and a litigant can
be a party aggrieved in compliance with the Hobbs
Act while also challenging an ultra vires agency
action. Here Fasken could have done both in the
D.C. Circuit, where Sierra Club and Beyond Nuclear
have already raised Hobbs Act claims challenging as
2
ultra vires NRC’s authority to issue petitioner’s
license.
The Fifth Circuit, nevertheless, has discarded
both the door to the courthouse and the structure
holding the door in place, inviting litigants to ignore
the requirements of the Hobbs Act. Under Texas and
this case, a litigant can skip the agency’s
proceedings, wait until after the eleventh hour to
challenge a license after it has been issued, and
attack the same license in multiple circuit courts.
This deprives the agency and the licensee of the
opportunity to address the litigant’s concerns or to
right the alleged wrongs, and serves only to reinstate
the judicial inefficiencies that the Hobbs Act was
intended to avoid: delay and duplication of effort. In
the end, the Fifth Circuit has opened the door for
third parties to impose on the agencies subject to the
Hobbs Act and the circuit courts duplicative, tardy,
and unnecessary litigation.
The Fifth Circuit also—despite the NRC’s
decades-long history of licensing spent nuclear fuel
storage facilities and the views of two other circuit
courts—found that the NRC “has no statutory
authority” under the Atomic Energy Act or the
Nuclear Waste Policy Act to issue a license for a
spent nuclear fuel storage facility. Texas, App.,
infra, 47a. In so doing, the Fifth Circuit decided that
the NRC lacks “a broad grant of authority to issue
licenses for any type of possession of special nuclear
material or source material” or long-lived byproduct
material and, thus, could not issue licenses for the
storage of spent nuclear fuel. Texas, App., infra, 27a.
This is plainly contrary to the language of the Atomic
Energy Act, and the D.C. Circuit and Tenth Circuit
3
analysis must prevail over the Fifth Circuit’s
analysis in Texas. This Court should also overturn
the Fifth Circuit’s decisions because they cast a long
shadow over numerous NRC materials licenses
across the United States, including those for existing
spent fuel storage facilities, uranium enrichment
facilities, and nuclear fuel fabrication facilities.
For these reasons, Petitioner Holtec International
respectfully petitions this Court for a writ of
certiorari to review the judgment of the United
States Court of Appeals for the Fifth Circuit in this
case.
OPINIONS BELOW
The court of appeals opinion (App., infra, 1a-3a) is
unreported.
JURISDICTION
The judgment of the court of appeals was entered
on March 27, 2024. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are reproduced
in the appendix. App., infra, 337a-344a.
STATEMENT
A. Legal Framework
1. The Hobbs Act
The Hobbs Act, 28 U.S.C. 2341 et seq., governs
judicial review of the orders of several federal
agencies, including the NRC. See 42 U.S.C. §§
2239(a)-(b); 28 U.S.C. § 2342. Under the Hobbs Act,
“part[ies] aggrieved by the final order” may petition
4
for review in the federal courts of appeals. 28 U.S.C.
§ 2344 (“Any party aggrieved by the final order may,
within 60 days after its entry, file a petition to
review the order in the court of appeals wherein
venue lies.”). In NRC adjudicatory proceedings, a
“party” is a “person whose interest may be affected
by the proceeding,” and who is admitted to such
proceeding. 42 U.S.C. § 2239(a)(1)(A). In addition, if
a person pursues party status but is rejected by the
agency, that person can nevertheless appeal the
NRC’s decision rejecting its party status. 42 U.S.C. §
2239(b)(1).
The Hobbs Act’s text provides no exceptions to the
“party aggrieved” requirement. 28 U.S.C. § 2344.
Nonetheless, in 1982 the Fifth Circuit announced an
exception, in dicta, to the Hobbs Act party-aggrieved
requirement for challenges to an agency action that
is alleged to be beyond the agency’s authority. Am.
Trucking Ass’ns, Inc. v. ICC, 673 F.2d 82, 85 n.4 (5th
Cir. 1982); Wales Transp., Inc. v. ICC, 728 F.2d 774,
776 n.1 (5th Cir. 1984). Four other circuit courts
have explicitly refused to follow the Fifth Circuit and
have found no exception to the party-aggrieved
requirement for alleged ultra vires agency actions.
See, e.g., Erie-Niagara Rail Steering Comm. v.
Surface Transp. Bd., 167 F.3d 111, 112-113 (2d Cir.
1999) (declining to follow the Fifth Circuit decisions
American Trucking and Wales Transportation as
dicta); In re Chicago, Milwaukee, St. Paul & Pac.
R.R. Co., 799 F.2d 317, 335-336 (7th Cir. 1986)
(declining to follow the Fifth Circuit decision in
American Trucking); State ex rel Balderas v. NRC, 59
F. 4th 1112, 1123-24 (10th Cir. 2023) (declining to
follow the Fifth Circuit); Nat’l Ass'n of State Util.
Consumer Advocs. v. FCC, 457 F.3d 1238, 1249
5
(2006) (11th Cir. 2006) (declining to follow the Fifth
Circuit). The Fifth Circuit has recognized that its
ultra vires exception has been “squarely rejected by
some of our sister circuits,” further calling its
validity into question. Baros v. Tex. Mexican Ry. Co.,
400 F.3d 228, 238 n.24 (5th Cir. 2005); see also
Merch. Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922
n.16 (5th Cir. 1993). Nonetheless, the Fifth Circuit
used this exception in Texas and this case to avoid
the Hobbs Act’s party-aggrieved requirement.
2. The Nuclear Legal Framework
a. In 1954, Congress created in the Atomic
Energy Act, 42 U.S.C. 2011 et seq., a comprehensive
regime for federal regulation over the then-nascent
civilian nuclear industry.1 The Atomic Energy Act
was drafted with flexibility in mind, rather than with
an intent to proscribe each specific permissible action
of the NRC. Indeed,
[i]n the Presidential Message recommending
the legislation which culminated in the
Atomic Energy Act of 1954, it was said that
flexibility was a peculiar desideratum and
that, absent an accumulation of experience
with the new civilian industry hopefully to
be brought into being, “it would be unwise to
try to anticipate by law all of the many
problems that are certain to arise.”
1 In the Atomic Energy Act, the “Atomic Energy
Commission was given broad regulatory authority over the
development of nuclear energy.” Vt. Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 526 (1978).
This authority was later transferred to the NRC by the Energy
Reorganization Act of 1974, 42 U.S.C. § 5801 et seq.
6
Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968)
(citing H.R. Rep. No. 83-328, at 7 (2d. Sess. 1954))
(emphasis supplied). Instead, Congress enacted “a
regulatory scheme which is virtually unique in the
degree to which broad responsibility is reposed in the
administering agency, free of close prescription in its
charter as to how it shall proceed in achieving the
statutory objectives.” Siegel, 400 F.2d at 783.
While the Atomic Energy Act avoided detailed
instructions for the NRC, its intended goals are
clearly set forth. Congress intended for the Atomic
Energy Act “to encourage widespread participation
in the development and utilization of atomic energy
for peaceful purposes,” 42 U.S.C. § 2013(d), and it
intended to establish “Government control of the
possession, use, and production of [both] atomic
energy and special nuclear material” in order to
“make the maximum contribution to the common
defense and security and the national welfare.”2 42
U.S.C. § 2013(c) (emphasis added). Thus, the Atomic
Energy Act vested the Federal Government with
exclusive regulatory control over the possession, use,
and production of both atomic energy and special
nuclear material. As a result, the Atomic Energy Act
2 Special nuclear material is defined as “(1) plutonium,
uranium enriched in the isotope 233 or in the isotope 235, and
any other material which the Commission, pursuant to the
provisions of section 2071 of this title, determines to be special
nuclear material, but does not include source material; or (2)
any material artificially enriched by any of the foregoing, but
does not include source material.” 42 U.S.C. § 2014(aa).
Source material is defined as “(1) uranium, thorium, or any
other material which is determined by the Commission . . . to be
source material.” 42 U.S.C. § 2014(z).
7
sets forth an overall framework for Federal
Government regulation of the possession, use, and
production of atomic energy through utilization
facility licenses, 42 U.S.C. §§ 2133(d)-(e); certain
methods of producing special nuclear material
through production facility licenses, 42 U.S.C. §
2133(b); and the possession and other uses or
production of special nuclear material (including
uranium enrichment and fuel fabrication) through
special nuclear materials licenses. 42 U.S.C. § 2073.
In developing the Atomic Energy Act, Congress
also directed the NRC to
establish by rule, regulation, or order, such
standards and instructions to govern the
possession and use of special nuclear
material, source material, and byproduct
material as the Commission may deem
necessary or desirable to promote the
common defense and security or to protect
health or to minimize danger to life or
property.
42 U.S.C. § 2201(b); see also 42 U.S.C. § 2093
(providing authority to issues licenses for source
material); 42 U.S.C. § 2111 (providing authority to
issues licenses for byproduct material). As a result,
the “comprehensive regulatory scheme created by the
[Atomic Energy Act] embraces the production,
possession, and use of three types of radioactive
materials—source material, special nuclear material,
and byproduct material,” Train v. Colo. Pub. Int.
Rsch. Grp., Inc., 426 U.S. 1, 6-7 (1976) (footnotes
omitted).
8
b. For fifty years, the NRC has used its Atomic
Energy Act authority to issue special nuclear
materials licenses for spent nuclear fuel3 storage
facilities, both at and away from reactors. As one
example starting in the 1970s, the Commission
issued General Electric Company a special nuclear
materials license to store spent nuclear fuel at a nonreactor location in Morris, Illinois. See General
Electric Co., Issuance of Facility License for
Possession Only, 39 Fed. Reg. 32,345, 32,456 (Sept.
6, 1974) (regarding continuation of special nuclear
materials license to receive and possess spent
nuclear fuel at GE Morris).
c. Congress later developed and enacted the
Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et
seq. The GE Morris license and the NRC’s issuance
of licenses for spent fuel storage were specifically
discussed during Congress’s development of the
Nuclear Waste Policy Act. 128 Cong. Rec. 32,945,
32,946 (1982). Yet Congress did not, in the Nuclear
Waste Policy Act itself or in the intervening decades,
amend the Atomic Energy Act or otherwise mandate
or even suggest that the Commission stop licensing
these spent nuclear fuel storage facilities or vacate
the existing licenses.
3 Spent nuclear fuel is “fuel that has been withdrawn from a
nuclear reactor following irradiation, the constituent elements
of which have not been separated by reprocessing.” 42 U.S.C. §
10101(23). See also 42 U.S.C. § 2014(dd) (“The terms ‘highlevel radioactive waste’ and ‘spent nuclear fuel’ have the
meanings given such terms in section 10101 of this title.”).
Spent nuclear fuel is comprised of special nuclear material,
source material, and byproduct material.
9
B. Factual and Procedural Background
1. The Holtec NRC Proceeding
The NRC’s adjudicatory proceeding for the Holtec
license began on July 16, 2018, when the NRC
published a notice in the Federal Register providing
the public an opportunity to participate by (1)
requesting a formal evidentiary hearing to challenge
Holtec’s application and (2) petitioning for leave to
intervene in the proceeding. See 83 Fed. Reg. 39,919
(July 16, 2018).
Fasken responded to this notice on September 14,
2018, filing a motion to dismiss Holtec’s license
application based on the NRC’s asserted lack of
authority to issue the license. The Secretary of the
Commission considered this motion to be a hearing
request and a proposed contention. Thus, Fasken’s
first contention in the underlying agency proceeding
alleged that the Holtec application should be rejected
because it purportedly contemplated storage
contracts with the U.S. Department of Energy and
such contracts would be illegal under the Nuclear
Waste Policy Act. In re Holtec International, 91
N.R.C. 167, 173-174 (2020). Other organizations,
Beyond Nuclear and Sierra Club, requested a
hearing, petitioned to intervene, and filed similar
claims. Id. at 173. An NRC Atomic Safety and
Licensing Board appointed by the Commission
rejected Fasken’s contention, and Fasken appealed
that decision to the Commission. Id. at 175-176. On
April 23, 2020, the Commission affirmed the Board
decision rejecting Fasken’s contention and Beyond
Nuclear and Sierra Club’s similar claims. Id. at 176.
10
Fasken later proposed additional contentions, and
the Board and Commission issued subsequent orders
denying or dismissing all of Fasken’s challenges. See
In re Holtec International, 93 N.R.C. 215, 217 (2021).
Shortly after its claims were resolved at the NRC,
Fasken filed a Hobbs Act challenge in the D.C.
Circuit. See Petition for Review, Fasken Land &
Minerals, Ltd. v. NRC, No. 21-1147 (D.C. Cir. July
25, 2021), ECF No. 1904236. The NRC issued a
license for the Holtec spent fuel storage facility on
May 9, 2023. 88 Fed. Reg. 30,801 (May 12, 2023).
2. The Holtec D.C. Circuit Proceeding
The Commission decisions in the Holtec
proceeding have been under review in the D.C.
Circuit since 2020, when Don’t Waste Michigan and
Beyond Nuclear first filed petitions for review under
the Hobbs Act, which were later consolidated with
subsequent petitions from Sierra Club and Fasken.
See Clerk’s Orders Consolidating Cases, Beyond
Nuclear v. NRC, No. 20-1187 (D.C. Cir. June 20,
2020), ECF No. 1848608 (consolidating Don’t Waste
Mich. v. NRC (No. 20-1225)), ECF No. 1895402
(consolidating Sierra Club v. NRC (No. 21-1104)),
and ECF No. 1904266 (consolidating Fasken Land &
Minerals, Ltd. v. NRC (No. 21-1147)).
Fasken initially sought review of the NRC’s
disposition of its statutory authority contention by
including the Commission’s decision on the issue in
its petition for review in the D.C. Circuit. Petition
for Review, Fasken Land & Minerals, Ltd., No. 211147 (D.C. Cir. June 25, 2021), ECF No. 1904236.
Later, however, Fasken chose to pursue only some of
its underlying claims in the D.C. Circuit, focusing on
its seismic and geological concerns and ignoring its
11
challenge to NRC’s licensing authority. Final Brief
of Fasken at 14-16, Beyond Nuclear, No. 20-1187
(D.C. Cir. Jan. 23, 2024), ECF No. 2036986. Other
parties, Beyond Nuclear and Sierra Club, pursued
claims in the D.C. Circuit challenging the NRC’s
authority to issue the Holtec license. See Final Brief
of Beyond Nuclear at 31-36, Beyond Nuclear, No. 201187, (D.C. Cir. Jan. 22, 2024), ECF No. 2036820;
Final Brief of Environmental Petitioners at 19-22,
Beyond Nuclear, No. 20-1187 (D.C. Cir. Jan. 23,
2024), ECF No. 2036920. The decision in the D.C.
Circuit case is pending.
3. The Holtec Fifth Circuit Proceeding
Two months after the NRC issued Holtec’s
license, Fasken filed its petition in the Fifth Circuit
challenging the NRC’s authority to issue the Holtec
license. Fasken reiterated its underlying claims on
NRC’s authority to issue the license but did not
justify pursuing its claims years after the NRC had
first rejected those claims in its petition to intervene.
Instead, Fasken filed its claims under the cloak of a
challenge to the NRC’s purportedly ultra vires
issuance of the Holtec license, relying on the Fifth
Circuit’s ultra vires exception argued in Texas. App.,
infra, 18a.
The Federal Government moved to transfer
Fasken’s Fifth Circuit challenge to the D.C. Circuit
given the ongoing D.C. Circuit proceeding. See App,
infra, 3a. However, in briefing the parties all
recognized that a decision in Texas, a case regarding
substantially the same issues for a different facility,
would bind a Fifth Circuit panel on the NRC’s
authority to issue the Holtec license and the
12
existence of an ultra vires exception to Hobbs Act
requirements. App., infra, 2a.
At this point, a Fifth Circuit panel had rendered a
decision in the Texas case and vacated the NRC
license of a similar spent fuel storage facility owned
by Interim Storage Partners, LLC, in Andrews
County, Texas. That panel concluded that: (1) it
could hear the case under its ultra vires exception to
the party aggrieved requirements in the Hobbs Act;
(2) the NRC lacked the authority to license a spent
fuel storage facility under the Atomic Energy Act; (3)
the facility license “contradict[ed] Congressional
policy expressed in the Nuclear Waste Policy Act,”
and (4) the NRC’s issuance of a license for a spent
fuel storage facility was contrary to the major
questions doctrine. Texas, App., infra, 34a-35a, 56a57a. The Fifth Circuit panel granted the petitions
for review in Texas and vacated the Interim Storage
Partners license. Texas, App., infra, 5a.
The Federal Government and Intervenor Interim
Storage Partners timely sought rehearing en banc of
the panel decision. Nine judges voted against
rehearing the case, while seven judges voted in favor
of rehearing en banc. In a March 14, 2024,
concurrence, six judges set forth their reasons for
denying rehearing, while four judges issued a dissent
against the rehearing denial. Texas, App., infra, 37a.
After a final decision was rendered in the Texas
case, the Fifth Circuit found that because Texas
involved a “materially identical license in a
materially identical procedural posture,” absent the
“[c]ourt granting rehearing en banc in Texas . . . the
panel’s consideration of this case will be controlled by
[Texas].” App., infra, 2a. Consequently, because the
13
Fifth Circuit found that its holding in Texas dictated
the outcome here, on March 27, 2024, the court
granted Fasken’s petition for review and vacated
Holtec’s spent fuel storage facility license. The court
also denied the Federal Government’s motion to
transfer the case to the D.C. Circuit as moot. App.,
infra, 2a-3a.
On June 12, 2024, the Federal Government and
Intervenor Interim Storage Partners filed Petitions
for Certiorari before this Court seeking a review of
the Texas decision. Federal Government Petition for
Writ of Certiorari, Texas¸ ___ U.S.___ (No. 23-1300);
Interim Storage Partners Petition for Writ of
Certiorari, Texas¸ ___ U.S.___ (No. 23-1300). The
Texas case and this case raise substantially the same
issues regarding the Hobbs Act and the NRC’s
authority to issue licenses for spent fuel storage.
REASONS FOR GRANTING THE PETITION
The Texas decision and the decision in this case
created two different circuit splits, one on judicial
review under the Hobbs Act, and the second on the
scope of the NRC’s statutory authority to issue
nuclear materials licenses. Both of these circuit
splits are worthy of this Court’s consideration. First,
in creating an ultra vires exception to the partyaggrieved requirements of the Hobbs Act, the Fifth
Circuit created a split with four other circuit courts,
undermined the goals of the Hobbs Act, and
destabilized the process for judicial review for the
federal agencies and agency orders subject to that
Act. Second, in an inexplicable reading of the Atomic
Energy Act, the Fifth Circuit split with the D.C.
Circuit and the Tenth Circuit by limiting the NRC’s
ability to issue nuclear materials licenses in a
14
manner directly contrary to the NRC’s plain text
statutory authority. This decision not only resulted
in the vacatur of the two licenses at issue in Texas
and this case but also potentially undermines the
federal government’s ability to regulate a broader
swath of the nuclear industry, leaving other nuclear
materials licenses subject to substantial uncertainty.
This Court’s intervention is necessary to prevent
further damage to the process of judicial review for
agencies subject to the Hobbs Act and to the NRC’s
authority to issue nuclear materials licenses.
I. The Fifth Circuit Erred By Ignoring The
Plain Text Of The Hobbs Act And The
Faithful Interpretations Of Four Other
Circuits.
A. There Is No Ultra Vires Exception To The
Hobbs Act.
There is no dispute that the plain language of the
Hobbs Act allows only “part[ies] aggrieved by the
final order” of an agency subject to the Act to petition
for review in the federal courts. 28 U.S.C. § 2344.
There is also no dispute that the text of the Hobbs
Act provides no exceptions to this party-aggrieved
status requirement. See 28 U.S.C. § 2344. Yet, the
Fifth Circuit in Texas (and applied in this case) adds
an extra textual gloss to the statute, suspending this
requirement for any attack on an agency action
claimed to be ultra vires. Texas, App., infra, 45a
(allowing any person to appeal “where ‘the agency
action is attacked as exceeding its power’”) (internal
brackets omitted).
Four other Circuits have already considered, and
rejected, this extra-textual “exception.” These
15
Courts have observed that the Hobbs Act limits
Circuit court review to petitions filed by aggrieved
parties. As bluntly stated by the Seventh Circuit,
the Hobbs Act “limits review to petitions filed by
parties, and that is that.” In re Chicago, 799 F.2d at
335.
The alleged existence of an ultra vires agency
action is not enough to overcome Congress’ decision
to limit the reach of the Circuit courts. As the
Seventh and Tenth Circuits have correctly observed,
the courts “may not decide a case just because that
would be a good idea; power must be granted, not
assumed.” Id.; see also Balderas, 59 F.4th at 1123.
And, as the Second, Seventh, Tenth, and Eleventh
Circuits have all recognized, an ultra vires
“exception” to the Hobbs Act is particularly
dangerous. “‘[E]xceeding the power’ of an agency
may be a synonym for ‘wrong,’ ” such that the socalled “‘exception’ could be invoked in every case,”
eliminating the statutory limits on the courts. ErieNiagara Rail, 167 F.3d at 112 (citing In re Chicago,
799 F.2d at 335); see also Balderas, 59 F.4th at 112324, National Ass'n of State Util. Consumer Advocs.,
457 F.3d at 1249.
The Fifth Circuit’s en banc concurrence in Texas
claims that it is a “misconception[ ]” “that the ultra
vires exception means no more than that an agency
‘got it wrong’ per [Administrative Procedure Act]
standards.” Texas, App., infra, 48a (Jones, J.,
concurring). The concurrence claims that the ultra
vires exception is narrower because “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.”
16
Texas, App., infra, 48a-49a. The concurrence then
concludes, without any explanation whatsoever, that
“if ever there were a case in which an agency acted
ultra vires, it should be this case.” Texas, App.,
infra, 49a.
On the contrary, as described below, it has been
the long-established precedent of two other Circuit
courts that the NRC is acting within the bounds of
its statutory authority when issuing licenses for
spent fuel storage. Given the D.C. Circuit and Tenth
Circuit precedent to the contrary, and the NRC’s
decades-long licensing practice, it is not clear how
the NRC’s issuance of a license in this case is the
epitome of an ultra vires agency action.
The dissent to the en banc rehearing denial has
by far the better argument. “Parsing which merits
arguments here fall under our court’s ultra vires
exception shows its unworkability—and the risk for
judicial aggrandizement when courts can pick and
choose when to abide by Congress’s limits.” Texas,
App., infra, 24a (Higginson, J., dissenting). As the
dissent cogently observes, the panel heard the case
only after “speculat[ing] about what a petitioner’s
challenges are really about to decide whether
Congress’s clear jurisdictional limitation on their
power to hear cases really applies,” since the panel
decision decided that the ultra vires exception
allowed it to hear some claims (that the NRC
violated the Atomic Energy Act and the Nuclear
Waste Policy Act) but not other claims (that the NRC
violated the Administrative Procedure Act or
National Environmental Policy Act). Texas, App.,
infra, 56a (emphasis supplied). Considering that
“[a]n agency exceeds its power whenever it violates
17
the law,” there is no rational explanation for how the
panel parsed these claims to define an ultra vires
action. Texas, App., infra, 57a. With no rational
bounds to the definition of an ultra vires action, the
exception “reads out the difference . . . that Congress
created between broader judicial review under the
Administrative Procedure Act and narrower judicial
review under the Hobbs Act.” Texas, App., infra,
57a.
It is clear that the Fifth Circuit’s ultra vires
exception is extra-textual and ripe for abuse, and the
four Circuits that have refused to adopt it are
correct. This Court should take this case and reject
the ultra vires exception to prevent endless extrastatutory challenges to the agencies that are subject
to Hobbs Act review.
B. The Ultra Vires Exception Is An End Run
Around The Requirements Of The Hobbs
Act.
The Fifth Circuit’s en banc concurrence argues
that its ultra vires exception is consistent with the
practice of this Court ensuring that “Article III
courts are not totally closed to plaintiffs” who claim
that an agency acts beyond its delegated powers.
Texas, App., infra, 47a (Jones, J., concurring) (citing
Leedom v. Kyne, 358 U.S. 184 (1958)). In the
alternative, the concurrence also argues that the
ultra vires exception is not necessary because the
parties in that case, Fasken and Texas, would
otherwise qualify as parties aggrieved under the
Hobbs Act. Texas, App., infra, 44a. These conflicting
rationales demonstrate the concurrence’s
irrationality. There is no need for an ultra vires
exception to ensure judicial review when the parties
18
could have sought judicial review in compliance with
the Hobbs Act.
Indeed, Fasken has not used the ultra vires
exception as a means to ensure the availability of
judicial review in this case, because Fasken already
had the right to judicial review. Fasken participated
in the Holtec licensing proceeding, disputing various
aspects of the proceeding. Fasken is a party
aggrieved as to those claims, and it used that status
years ago to initiate a separate, ongoing challenge in
the D.C. Circuit. Fasken could have, but chose not
to, pursue its challenge to the NRC’s authority to
issue the Holtec license in the pending D.C. Circuit
proceeding. In fact, Beyond Nuclear and Sierra Club
are pursuing those claims.
Fasken did not need the ultra vires exception to
obtain judicial review. Instead, it used the exception
to avoid the statutory constraints of judicial review
under the Hobbs Act. Congress intended the Hobbs
Act to ensure the “elimination of multiple suits
challenging the same Commission order [and]
limitation of the time for filing review to 60 days
after entry of the order.” Simmons v. ICC, 716 F. 2d
40, 44 (D.C. Cir. 1983) (citing H.R. Rep. No. 1569, at
4-6, 93d Cong., 2d Sess. (1974), S. Rep. No. 500, at 34, 93d Cong., 1st Sess. (1973));see also Carpenter v.
DOT, 13 F.3d 313, 316 (9th Cir. 1994) (“By creating a
strict time frame for review and bypassing district
courts, Congress hoped [the Hobbs Act would]
increase the speed, efficiency and consistency of
judicial review.”). By using the ultra vires exception,
Fasken seeks to avoid these limitations. It filed
multiple suits in separate judicial circuits against
the same NRC license, and (in this proceeding) filed
19
its challenge after the 60-day Hobbs Act deadline
from the NRC decisions rejecting Fasken’s
contentions. In short, Fasken has used the Fifth
Circuit’s ultra vires exception as an excuse to flout
the requirements of the Hobbs Act, not as a means to
ensure judicial review.
Unless remedied by this Court, the Fifth Circuit’s
weaponization of this end run around the
requirements of the Hobbs Act means that every
agency that is subject to the Act can expect
duplicative, tardy, and unnecessary litigation arising
from similar challenges in the future.
II. The Fifth Circuit’s Decision To Limit The
NRC’s Statutory Authority Is Plainly
Inaccurate And Contrary To Settled
Precedent.
A. The Fifth Circuit’s Decision Creates A
Circuit Split.
The D.C. Circuit and the Tenth Circuit have long
held that the NRC has the statutory authority to
issue licenses for the storage of spent nuclear fuel
because: (1) the Atomic Energy Act unambiguously
grants the NRC such authority, and (2) the Nuclear
Waste Policy Act did not revoke that authority. See
Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004),
Skull Valley Band of Goshute Indians v. Nielson, 376
F.3d 1223, 1232 (10th Cir. 2004). Thus, the NRC has
for decades had the unassailable, court-approved
authority to license spent nuclear fuel storage
facilities, until last year when the Fifth Circuit
decided otherwise in Texas, App., infra, 4a-35a, and
this case, App., infra, 1a-3a.
20
In Bullcreek, the D.C. Circuit held that the
Atomic Energy Act “authorized the NRC to regulate
the possession, use, and transfer of the constituent
materials of spent nuclear fuel, including special
nuclear material, source material, and byproduct
material.” 359 F.3d at 538. Thus, the D.C. Circuit
concluded that “it has long been recognized that the
[Atomic Energy Act] confers on the NRC authority to
license and regulate the storage and disposal of such
fuel,” citing this Court’s decision in Pac. Gas & Elec.
Co. v. State Energy Res. Conservation & Dev.
Comm'n, 461 U.S. 190, 207 (1983), among other
cases. Bullcreek, 359 F.3d at 538. The D.C. Circuit
further observed that “Congress was aware of the
NRC’s regulations for licensing private away-fromreactor storage facilities.” Id. at 542. Yet, Congress
left the NRC’s authority under the Atomic Energy
Act fully intact, despite crafting the Nuclear Waste
Policy Act, an otherwise comprehensive piece of
legislation on nuclear waste policy. Id.
Shortly after Bullcreek was decided, the Tenth
Circuit found the D.C. Circuit’s analysis persuasive
and declined to revisit the issue in Skull Valley. See
376 F.3d at 1232. Nearly twenty years later, the
Tenth Circuit reiterated that the NRC “bears the
authority to license the private use of facilities to
store spent nuclear fuel,” Balderas, 59 F.4th at111516, while the D.C. Circuit, again, explained that “the
NRC may promulgate regulations governing the
possession and use of nuclear material” and “[t]his
authority permits the NRC ‘to license and regulate
the storage and disposal of spent nuclear fuel.’”
Don’t Waste Mich. v. NRC, No. 21-1048, 2023 WL
395030, at *1 (D.C. Cir. Jan. 25, 2023) (per curiam)
(quoting Bullcreek, 359 F.3d at 538).
21
This interpretation of the NRC’s statutory
authority is correct and should be upheld, and the
Fifth Circuit decision to the contrary should be
rejected.
B. The Fifth Circuit’s Application Of The
Atomic Energy Act Is Egregiously Wrong.
The Fifth Circuit parts with the D.C. and Tenth
Circuits by misreading the Atomic Energy Act to
reach several demonstrably erroneous conclusions.
First, the Fifth Circuit incorrectly found that the
NRC has only limited authority under the Atomic
Energy Act to issue licenses over special nuclear
material and cannot license the storage of spent
nuclear fuel. See Texas, App., infra, 27a, 34a.
Second, the Fifth Circuit wrongly found that the
NRC cannot issue licenses for the byproduct material
in spent nuclear fuel. See Texas, App., infra, 27a28a. Thus, the Fifth Circuit concluded that the NRC
has no authority to issue licenses to store spent
nuclear fuel either through its authority over nuclear
material. See Texas, App., infra, 28a.
The plain text of the Atomic Energy Act
demonstrates the many errors in the Texas analysis.
a. First, the Atomic Energy Act clearly provides
the NRC with the authority to issue special nuclear
materials licenses for four purposes: (1) “for the
conduct of research and development activities,” (2)
for use in a research reactor licensed under 42 U.S.C.
§ 2134, (3) for use under a production or utilization
facility licensed under 42 U.S.C. § 2133, and (4) “for
such other uses as the Commission determines to be
appropriate to carry out the purposes of [the Atomic
Energy Act].” 42 U.S.C. §§ 2073(a)(1)-(4) (emphasis
22
added). This broad grant of authority is plain on its
face, but in Texas, the Fifth Circuit eliminated the
fourth category, i.e., NRC’s authority to issue
licenses for “other uses as the Commission
determines to be appropriate” under 42 U.S.C.
§ 2073(a)(4).
The Fifth Circuit interpreted this broad authority
to issue licenses for “other uses” to mean that the
Atomic Energy Act “authorizes the Commission to
issue [nuclear materials] licenses only for certain
enumerated purposes,” including “various types of
research and development,” and for “utilization or
production facilities for industrial or commercial
purposes.” Texas, App., infra, 26a-27a (internal
quotations omitted). The Fifth Circuit pulls
language from an entirely separate part of the
Atomic Energy Act—regarding source material—to
limit the NRC’s authority to issue special nuclear
materials licenses for “such other uses that the
Commission . . . ‘determines to be appropriate to
carry out the purposes of th[e] chapter’” to only those
that the Commission “‘approves . . . as an aid to
science and industry.’” Texas, App., infra, 26a (citing
42 U.S.C. § 2093(a)(4)). According to the Fifth
Circuit, this extra-textual gloss is necessary because
“[p]rinciples of statutory interpretation require these
grants [in the special nuclear material provision] be
read in light of the other, more specific purposes
listed [in the source material provision]—namely for
certain types of research and development.” Texas,
App., infra, 26a (emphasis added).
Thus, under the Fifth Circuit’s convoluted
interpretation of the Atomic Energy Act, the NRC
may only issue special nuclear materials licenses for
23
research and development purposes and utilization
or production facilities. See Texas, App., infra, 26a.
That interpretation must be wrong because it
renders the NRC’s authority to issue licenses for
“other uses” as mere statutory surplusage. It is also
plainly wrong because it directly contradicts the
statutory history of the Atomic Energy Ac, as
Congress deliberately “authorize[d] the Commission
to issue licenses for the possession of special nuclear
material within the United States for uses which do
not fall expressly within the present provisions of
subsection 53a [(42 U.S.C. § 2073(a)(1)-(3))].” Joint
Committee on Atomic Energy, Amending the Atomic
Energy Act of 1954, H.R. Rep. No. 85-2272, at 1
(1958) (emphasis added); see 42 U.S.C. Section
2073(a)(4). In this respect, the Fifth Circuit’s
analysis contradicts both the plain text of the Atomic
Energy Act and its statutory history and must be
overturned.
b. Second, the Fifth Circuit further deviates from
the text of the Atomic Energy Act by deciding that
the Act does not “confer[] a broad grant of authority
to issue licenses for any type of possession of special
nuclear material or source material.” Texas, App.,
infra, 27a.
This cannot be the case. The NRC has a mandate
to provide “Government control of the possession, use,
and production of” “special nuclear material.” 42
U.S.C. § 2013(c) (emphasis added). In addition, the
plain language of the Atomic Energy Act further
provides that the NRC is authorized to “establish by
rule, regulation, or order, such standards and
instructions to govern the possession and use of
special nuclear material, source material, and
24
byproduct material.” 42 U.S.C. § 2201(b) (emphasis
added). The NRC must be able to issue licenses for
the possession of these nuclear materials in order to
maintain control over the possession of special
nuclear material and to regulate the possession of
special nuclear material, source material, and
byproduct material. Yet, the Fifth Circuit analysis
reads these entire provisions of the Atomic Energy
Act. Its decision to limit the NRC’s authority is
plainly contrary to the Act and must be overturned.
c. Third, the Fifth Circuit found that the NRC
does not have authority over the byproduct material
in spent nuclear fuel by once again ignoring the text
of the Atomic Energy Act. The Fifth Circuit
interpreted the definition of byproduct material
based on provisions relating to a particular
byproduct material, radium-226, and, thus,
purported to limit NRC authority to only byproduct
materials like radium-226 that “emit radiation for
significantly less time than spent nuclear fuel.”
Texas, App, infra, 27a. This analysis ignores the
plain text of the Atomic Energy Act which, since its
enactment, has defined byproduct material as “any
radioactive material (except special nuclear material)
yielded in or made radioactive by exposure to the
radiation incident to the process of producing or
utilizing special nuclear material.” 42 U.S.C. §
2014(e)(1). The radium-226 language was added
decades later to the Atomic Energy Act as an
example of naturally occurring radioactive material
(not reactor-created radioactive material). Pub. L.
No. 109-58, 119 Stat. 594, 806, 807 (Aug. 8, 2005).
Again, the Fifth Circuit has ignored the Atomic
Energy Act to arbitrarily limit the NRC’s authority
25
over nuclear materials. Given the lack of textual
support for this misinterpretation of the NRC’s
authority over byproduct material, the Fifth Circuit’s
decision again must be overturned.
C. The Fifth Circuit Further Erred In
Finding That The Nuclear Waste Policy
Act Is Relevant To The NRC’s Authority.
Having found no authority in the Atomic Energy
Act, the Fifth Circuit then decided that the Nuclear
Waste Policy Act also does not provide the NRC with
any independent authority to license the storage of
spent nuclear fuel. Texas, App., infra, 33a-34a. This
conclusion, even if correct, is irrelevant to this case.
The NRC’s clear authority to license spent fuel
storage is derived from the Atomic Energy Act, not
from the Nuclear Waste Policy Act. The Nuclear
Waste Policy Act did not need to provide the NRC
with independent statutory authority to regulate
spent nuclear fuel, because, contrary to the Fifth
Circuit’s decision, that authority is already found in
the Atomic Energy Act. As the D.C. Circuit correctly
observed in Bullcreek,
private away-from-reactor storage was
already regulated by the NRC under the
[Atomic Energy Act] prior to the [Nuclear
Waste Policy Act]. It was not an anomaly for
the [Nuclear Waste Policy Act] to focus on
regulating those “supplements” that the
[Nuclear Waste Policy Act] itself added,
namely federal storage programs, and to
leave the pre-existing regulatory scheme as
it found it. In the absence of irreconcilability
between the [Atomic Energy Act] and the
26
[Nuclear Waste Policy Act], there is no basis
to conclude that in enacting the [Nuclear
Waste Policy Act] Congress implicitly
repealed or superseded the NRC’s authority.
359 F.3d at 543. Once granted in the Atomic Energy
Act, there was no need for Congress to address the
issue again in the Nuclear Waste Policy Act,
particularly given Congressional acknowledgement
during its enactment of the Nuclear Waste Policy Act
that the NRC was already issuing licenses for spent
nuclear fuel storage to facilities such as GE Morris.
128 Cong. Rec. 32,945, 32,946 (1982).
Whether the Nuclear Waste Policy Act grants the
NRC any additional authority to license spent
nuclear fuel storage, beyond that already granted in
the Atomic Energy Act, is simply irrelevant to this
case.
D. The Fifth Circuit’s Reasoning Confounds
The Regulation Of Nuclear Materials.
This Court should also grant certiorari and
overturn the Fifth Circuit’s decisions in Texas and
this case because of the potentially broader
implications on the NRC’s issuance of nuclear
materials licenses. The Fifth Circuit’s interpretation
would undercut long-standing NRC-licenses like the
license issued to the GE Morris facility which has
actively stored spent nuclear fuel for 50 years. See
39 Fed. Reg. at 32,456. It also cannot be reconciled
with spent nuclear fuel storage at decommissioned
and operating reactor sites, which necessarily
requires the possession of special nuclear material,
source material, and byproduct material.
27
The Fifth Circuit’s rationale is also inconsistent
with the NRC’s authority to issue licenses for nuclear
fuel cycle activities like uranium enrichment and
fuel fabrication. The Fifth Circuit claims that “the
definitions of utilization and production facilities”
include fuel fabrication or enrichment facilities,
limiting the impact of its decision to only spent
nuclear fuel storage facilities. Texas, App., infra,
27a. But fuel fabrication and uranium enrichment
facilities are neither production nor utilization
facilities, and, in fact, uranium enrichment is
specifically carved out of the production facility
definition. 42 U.S.C. § 2014(v). As a result, the Fifth
Circuit’s interpretation of the Atomic Energy Act
subverts not only the licenses in Texas and this case
but also those for other spent fuel storage facilities,
in addition to uranium enrichment and fuel
fabrication facilities, both of which are necessary for
the continued operation of the nuclear industry.
For this reason, the Fifth Circuit’s rationale must
be overturned.
28
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for certiorari.
Respectfully submitted,
JAY E. SILBERG
Counsel of Record
ANNE R. LEIDICH
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1200 Seventeenth St., NW
Washington, DC 20036
(202) 663-8063
jay.silberg@pillsburylaw.com
Counsel for Petitioner
JUNE 2024
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, FILED MARCH 27, 2024 . . . . 1a
A P P E N DI X B — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR T H E FI F T H CIRCU I T, FILED
AUGUST 25, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4a
APPENDIX C — DENIAL OF REHEARING
OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
FILED MARCH 14, 2024 . . . . . . . . . . . . . . . . . . . . . 36a
A PPEN DI X D — M EMOR A N DU M
A N D OR DER OF T H E N UCLE A R
REGULATORY COMMISSION, FILED
APRIL 23, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58a
A PPENDI X E — MEMOR A NDUM A ND
ORDER OF THE NUCLEAR REGULATORY
COMMISSION, FILED MAY 7, 2019 . . . . . . . . . 136a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT, FILED MARCH 27, 2024
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 23-60377
Summary Calendar
FASKEN LAND AND MINERALS, LIMITED;
PERMIAN BASIN LAND AND ROYALTY OWNERS,
Petitioners,
versus
NUCLEAR REGULATORY COMMISSION;
UNITED STATES OF AMERICA,
Respondents.
Filed March 27, 2024
Appeal from the Nuclear Regulatory Commission
Agency No. 72-1051
Before Jones, Elrod, and Wilson, Circuit Judges.
Per Curiam:*
In Sept ember 2 0 21 the Nuclea r Reg u lat or y
Commission (NRC) issued a license to Interim Storage
* This opinion is not designated for publication. See 5th Cir.
R. 47.5.
2a
Appendix A
Partners, LLC, to establish a facility to store nuclear
waste temporarily in Andrews County, Texas. See Texas
v. Nuclear Regul. Comm’n, 78 F.4th 827, 833–35 (5th Cir.
2023) [hereinafter Texas v. NRC], reh’g en banc denied,
2024 WL 1108700 (5th Cir. Mar. 14, 2024). Texas, Fasken
Land and Minerals, Ltd., (Fasken), and Permian Basin
Land and Royalty Owners (PBLRO) petitioned this court
to set aside that license. Id. at 834–35. In that appeal, a
panel of this court first held that Fasken and PBLRO
had standing under the Constitution and the Hobbs Act
to challenge the NRC’s actions. Id. at 835–40. It then
held that the NRC lacked statutory authority to issue the
license. Id. at 840–44. Accordingly, this court granted the
petitions for review and vacated the license. Id. at 844.
The NRC filed a petition for rehearing en banc on October
24, 2023, which this court denied on March 14, 2024. See
Texas v. Nuclear Regul. Comm’n, No. 21-60743, — F.4th
—, 2024 WL 1108700 (5th Cir. Mar. 14, 2024).
Shortly before the panel issued its opinion in Texas
v. NRC, Fasken and PBLRO filed the petition for review
at issue in this case. They challenge a different license
issued by the NRC in May 2023 to Holtec International
to establish a facility to store nuclear waste in Lea
County, New Mexico. The parties, correctly, agree that
Texas v. NRC involved a “materially identical license in a
materially identical procedural posture” and that “absent
the [c]ourt granting rehearing en banc in Texas [v. NRC]
. . . , the panel’s consideration of this case will be controlled
by [Texas v. NRC].” Because this court’s holding in Texas
v. NRC dictates the outcome here, we GRANT Fasken’s
and PBLRO’s petition for review and VACATE the Holtec
3a
Appendix A
license. The NRC’s motion to transfer the petition for
review to the United States Court of Appeals for the
District of Columbia Circuit is DENIED AS MOOT.
4a
Appendix
B
APPENDIX B — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT,
FILED AUGUST 25, 2023
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-60743
STATE OF TEXAS; GREG ABBOTT, GOVERNOR
OF THE STATE OF TEXAS; TEXAS COMMISSION
ON ENVIRONMENTAL QUALITY; FASKEN LAND
AND MINERALS, LIMITED; PERMIAN BASIN
LAND AND ROYALTY OWNERS,
Petitioners,
versus
NUCLEAR REGULATORY COMMISSION;
UNITED STATES OF AMERICA,
Respondents.
Appeal from the Nuclear Regulatory Commission
Agency No. 72-1050
Before Jones, Ho, and Wilson, Circuit Judges.
James C. Ho, Circuit Judge:
Nuclear power generation produces thousands of
metric tons of nuclear waste each year. And such waste has
been accumulating at nuclear power plants throughout the
United States for decades. Congress has mandated that
5a
Appendix B
such waste be permanently stored in a geologic repository.
But the development, licensing, and construction of that
repository has stalled.
To address this problem, the Nuclear Regulatory
Commission has asserted that it has authority under the
Atomic Energy Act to license temporary, away-fromreactor storage facilities for spent nuclear fuel. Based
on that claim of authority, the Commission has issued
a license for Interim Storage Partners, LLC, a private
company, to operate a temporary storage facility on the
Permian Basin, in Andrews County, Texas. Fasken Land
and Minerals, Ltd., a for-profit organization working in oil
and gas extraction, and Permian Basin Land and Royalty
Owners (“PBLRO”), an association seeking to protect the
interests of the Permian Basin, have petitioned for review
of the license.1 So has the State of Texas, which argues,
inter alia, that the Atomic Energy Act doesn’t confer
authority on the Commission to license such a facility.
Texas is correct. The Atomic Energy Act does not
confer on the Commission the broad authority it claims to
issue licenses for private parties to store spent nuclear fuel
away-from-the-reactor. And the Nuclear Waste Policy Act
establishes a comprehensive statutory scheme for dealing
with nuclear waste generated from commercial nuclear
power generation, thereby foreclosing the Commission’s
claim of authority. Accordingly, we grant the petition for
review and vacate the license.
1. For the remainder of this opinion, we use the term “Fasken”
to refer to Fasken Land and Minerals, Ltd. and PBLRO collectively,
unless addressing an issue where it’s necessary to distinguish them.
6a
Appendix B
I.
This case is the latest development in a decadeslong debate over nuclear power and waste regulation.
Accordingly, we provide a brief overview of relevant
historical and technical background before delving into
the specifics of the licensing proceedings challenged here.
A.
The United States began producing nuclear waste
in the 1940s, first as a byproduct of nuclear weapons
development and then as a byproduct of the commercial
nuclear power industry. Blue Ribbon Commission on
A merica’s Nuclear Future, Report to the Secretary of
Energy 19 (Jan. 2012) https://www.energy.gov/sites/prod/
files/2013/04/f0/brc_finalreport_jan2012.pdf [hereinafter
BRC Report]. The first nuclear reactor was demonstrated
in 1942, and Congress authorized civilian application of
atomic power through the Atomic Energy Act of 1946.
Pac. Gas & Elec. Co. v. State Energy Res. Conservation
& Dev. Comm’n, 461 U.S. 190, 206, 103 S. Ct. 1713, 75 L.
Ed. 2d 752 (1983).
The Act granted regulatory authority over nuclear
energy to the Atomic Energy Commission. See Union
of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 n.1,
237 U.S. App. D.C. 1 (D.C. Cir. 1984). But the Energy
Reorganization Act of 1974 disbanded that agency and
redistributed its authority, as relevant here, to the Nuclear
Regulatory Commission. Id. After Congress passed the
Atomic Energy Act, commercial production of nuclear
energy boomed.
7a
Appendix B
Commercial nuclear energy is produced through a
series of industrial processes, which include the mining
and processing of nuclear fuel, the use of the fuel in
a reactor, and the storage and ultimate disposal or
reprocessing of that fuel. BRC Report at 9. Once nuclear
fuel has been used in a reactor for about four to six years,
it can no longer produce energy and is considered used
or spent. Id. at 10. That spent fuel is removed from the
reactor. Id.
Spent nuclear fuel is “fuel that has been withdrawn
from a nuclear reactor follow ing irradiation, the
constituent elements of which have not been separated
by reprocessing.” 42 U.S.C. § 10101(23). It’s “intensely
radioactive” and “must be carefully stored.” Pac. Gas &
Elec. Co., 461 U.S. at 195. The spent fuel is first placed in
wet pool storage for cooling, where it remains for at least
five years, but may remain for decades. BRC Report at 11.
Once the spent nuclear fuel has cooled sufficiently in wet
storage, it’s generally transferred to dry cask storage. Id.
At first, there was little concern regarding storage for
spent fuel. See BRC Report at 19-20; Idaho v. DOE, 945
F.2d 295, 298-99 (9th Cir. 1991). There was a widespread
belief within the commercial nuclear energy industry that
spent fuel would be reprocessed. Idaho, 945 F.2d 295, 29899 (9th Cir. 1991). But the private reprocessing industry
collapsed in the 1970s, id., and growing concerns led
President Ford to issue a directive deferring commercial
reprocessing and recycling, which President Carter later
extended. BRC Report at 20. Although President Reagan
reversed that policy, “for a variety of reasons, including
costs, commercial reprocessing has never resumed.” Id.
8a
Appendix B
After years of accumulating spent nuclear fuel in
nuclear power plants throughout the country, see 42 U.S.C.
§ 10131(a)(3), Congress enacted the Nuclear Waste Policy
Act in 1982. That Act sought to “devise a permanent
solution to the problems of civilian radioactive waste
disposal.” Id. It tasked the Department of Energy with
establishing “a repository deep underground within a rock
formation where the waste would be placed, permanently
stored, and isolated from human contact.” Nat’l Ass’ of
Regul. Util. Comm’rs v. DOE, 680 F.3d 819, 821, 401 U.S.
App. D.C. 15 (D.C. Cir. 2012). Yucca Mountain in Nevada
was chosen as the only suitable site for the repository.
See 42 U.S.C. § 10172. The decision drew widespread
opposition in Nevada. BRC Report at 22.
Decades of delay ensued. Despite a Congressional
mandate that the Department of Energy start accepting
waste from the States by January 31, 1998, see 42 U.S.C.
§ 10222(a)(5)(B), “by the mid-1990s, the Department
of Energy made clear that it could not meet the 1998
deadline, and it came and went without the federal
government accepting any waste.” Texas v. U.S., 891 F.3d
553, 555-56 (5th Cir. 2018).
In 2008, the Department of Energy finally submitted
its license application for the Yucca Mountain repository
to the Commission. In re Aiken Cnty., 725 F.3d 755, 258
(D.C. Cir. 2013). But the Commission “shut down its
review and consideration” of the application. Id. By its own
admission, the Commission had no intention of reviewing
the application, id., even though the Nuclear Waste Policy
Act mandates a decision be made within three years of
submission. See 42 U.S.C. § 10134(d).
9a
Appendix B
In light of the delays and controversy, the Obama
Administration decided to halt the work on the Yucca
Mountain repository. BRC Report at vi. The Obama
Administration instead for med the Blue Ribbon
Commission on A merica’s Nuclear Future, which
concluded that a consent-based approach to siting nuclear
waste storage facilities would be preferred to the Yucca
Mountain policy. See id. at vii—x.
Spent nuclear fuel continues to accumulate at reactor
sites across the country. Some estimates suggest the
U.S. inventory of spent nuclear fuel may exceed 200,000
metric tons by 2050. BRC Report at 14. The commercial
nuclear power industry as a whole is estimated to generate
between 2,000 and 2,400 metric tons of spent nuclear fuel
each year. Id. And there are thousands of metric tons of
spent fuel in various sites where commercial reactors no
longer operate. Id.
B.
After the Blue Ribbon Commission embraced a
consent-based approach for siting nuclear waste storage
facilities, the governments of Texas and New Mexico
expressed support for establishing facilities within the
states. Then-Governors Rick Perry of Texas and Susana
Martinez of New Mexico wrote letters supporting the
establishment of facilities within their respective states.
And Andrews County—a rural community located near
the Texas-New Mexico border—passed a resolution in
support of siting a spent nuclear fuel facility there.
10a
Appendix B
Based in part on these expressions of support, Waste
Control Specialists, LLC applied to the Commission for a
license to operate a consolidated interim storage facility
for high-level spent nuclear fuel in Andrews County.
Andrews County is located within the Permian Basin,
one of the country’s largest oil basins and a top global oil
producer.
The Commission began its environmental review of
the proposed facility in accordance with the National
Environmental Policy Act. See 42 U.S.C. § 4321 et seq.
But the application anticipated that the Department of
Energy would take title to the spent nuclear fuel. Some
stakeholders challenged the legality of that provision as
prohibited by the Nuclear Waste Policy Act. Waste Control
Specialists then asked the Commission to suspend its
review.
Approximately a year later, Interim Storage Partners,
LLC—a partnership between the original applicant,
Waste Control Specialists, and another company—asked
the Commission to resume its review of the now-revised
license application. In its summary report on the scoping
period, the Commission noted that it had received
comments expressing concerns that the facility would
become a de facto permanent disposal facility and that the
license would be illegal under existing regulations. The
Commission responded that such comments were outside
the scope of the environmental impact statement.
In December 2019, the Atomic Safety and Licensing
Board—the independent adjudicatory division of the
11a
Appendix B
Commission—terminated an adjudicatory proceeding
regarding the license application. Before the proceeding
was terminated, Fasken timely filed five contentions
alleging that the Commission violated the National
Environmental Policy Act and its own regulations. The
Board denied each one. The following month, Fasken
filed a motion to reopen the record along with a motion
to amend a previously filed contention. The Board denied
the motions.
The Commission published a draft environmental
impact statement in May 2020. The Commission received
approximately 2,527 unique comments on the draft
environmental impact statement, and many opposed the
facility. One comment was a letter from Texas Governor
Greg Abbott urging the Commission to deny the license
application because of the lack of a permanent repository
and the importance of the Permian Basin to the nation’s
energy security and economy. The Texas Commission
on Environmental Quality submitted a comment that
the licensing lacks public consent and doesn’t properly
account for the possibility that Texas would become the
permanent solution of spent nuclear fuel disposal if the
permanent repository isn’t developed by the expiration of
the facility’s 40-year license term.
Fasken also submitted various comments. Its
comments noted the uniqueness of the Permian Basin, the
danger of transporting spent nuclear fuel to the facility,
the lack of community consent, and the possibility that the
facility could become a de facto permanent facility. Based
on the draft environmental impact statement, Fasken
12a
Appendix B
also filed a second motion to reopen the adjudicatory
proceeding. The Board once again denied the request.
The Commission issued the final environmental impact
statement in July 2021. It recommended the license be
issued, and noted that concerns regarding Yucca Mountain
and the need for a permanent repository fell outside its
scope. In an appendix, the Commission responded to
timely comments, including those from Petitioners. The
Commission responded to concerns that the facility would
become a de facto permanent repository by noting the
application was only for a temporary facility.
The following September, the Texas Legislature
passed H.B. 7. The statute makes it illegal to “dispose of
or store high level radioactive waste” in Texas. Governor
Abbott sent a letter to the Commission with a copy of
H.B. 7. He reiterated that “the State of Texas has serious
concerns with the design of the proposed ISP facility and
with locating it in an area that is essential to the country’s
energy security.” The next day, Fasken submitted an
environmental analysis critiquing various aspects of the
final environmental impact statement.
A few days later, the Commission issued the license.
Texas and Fasken have now petitioned this court
for review of the license. Texas asks that the license be
set aside. And Fasken asks that we suspend all further
activities on the facility and remand to the Commission for
a hard look analysis. While this case was pending before
this court, Fasken and others who sought but were denied
13a
Appendix B
intervention in the agency adjudication had a petition for
review pending before the D.C. Circuit appealing the
denials of their intervention. See Don’t Waste Michigan
v. NRC, 2023 U.S. App. LEXIS 2022, 2023 WL 395030
(Jan. 25, 2023). The petition was denied in January 2023.
2023 U.S. App. LEXIS 2022, [WL] at *1. Interim Storage
Partners, LLC intervened in this case to represent its
interests.
II.
We beg in w ith jur isdiction. The Commission
challenges this court’s jurisdiction to hear the petitions
for review for lack of both constitutional standing and
statutory standing. We consider each argument in turn
and find neither succeeds.
A.
As a preliminary matter, the Commission suggests
that Petitioners forfeited constitutional standing by failing
to argue it in their opening briefs. We disagree.
Neither Petitioner argued constitutional standing
beyond their general jurisdictional statements. Generally,
a petitioner is required “to present specific facts supporting
standing through citations to the administrative record or
affidavits or other evidence attached to its opening brief,
unless standing is self-evident.” Sierra Club v. EPA, 793
F.3d 656, 662 (6th Cir. 2015) (emphasis added, quotation
omitted). A petitioner may reasonably believe standing to
be self-evident when “nothing in the record alerted [the]
14a
Appendix B
petitioners to the possibility that their standing would be
challenged.” Am. Libr. Ass’n v. FCC, 401 F.3d 489, 492, 365
U.S. App. D.C. 207 (D.C. Cir. 2005). That’s the case here.
From the earliest stages of this proceeding, the
Commission has challenged jurisdiction on statutory
standing grounds only. It twice moved to dismiss, but
neither motion challenged constitutional standing.
Accordingly, Petitioners could reasonably assume it was
self-evident. Cf. Ctr. for Biological Diversity v. EPA, 937
F.3d 533, 542 n.4 (5th Cir. 2019) (“overlook[ing] Petitioners’
decision to include only a cursory discussion of standing
because . . . they had a good-faith (though mistaken)
belief that standing would be both undisputed and easy
to resolve”). And—once constitutional standing was
challenged—both Petitioners provided well-developed
legal arguments with citations to the record and evidence
to show their standing. Petitioners haven’t forfeited
constitutional standing.
The “irreducible constitutional minimum” of standing
requires that Petitioners “must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Spokeo, Inc. v. Robins, 578
U.S. 330, 338, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). The
causation elements of the constitutional standing analysis
are easily met: Petitioners’ alleged injuries directly result
from the issuance of the license (traceability), and an order
from this court could vacate the license (redressability).
So only injury in fact is at issue.
15a
Appendix B
The Commission argues that the licensing and eventual
operation of the storage facility doesn’t injure either Texas
or Fasken. We disagree. Because “the presence of one
party with standing is sufficient to satisfy Article III’s
case-or-controversy requirement,” we may proceed even
if only one of the Petitioners has standing. Rumsfeld v.
FAIR, 547 U.S. 47, 52 n.2, 126 S. Ct. 1297, 164 L. Ed. 2d
156 (2006). But here both Petitioners successfully assert
an injury resulting from the license.
Texas meets the injury-in-fact requirement because
the license preempts state law. Texas has “a sovereign
interest in the power to create and enforce a legal code.”
Tex. Off. of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449
(5th Cir. 1999) (quotation omitted) (holding that Texas has
standing to challenge the FCC’s assertion of authority
over an aspect of telecommunications regulation that
the State believed it controlled). And we have held that
the preemption of an existing state law can constitute
an injury. Texas v. United States, 787 F.3d 733, 749
(5th Cir. 2015). “A state has standing based on a conflict
between federal and state law if the state statute at issue
regulates behavior or provides for the administration of a
state program, but not if it simply purports to immunize
state citizens from federal law.” Id. (cleaned up). Here
the issuance of the license and resulting operation of the
facility directly conflicts with H.B. 7.
The Texas Legislature has enacted legislation that
prevents the storage of high-level radioactive waste,
including spent nuclear fuel, within the State except at
currently or formerly operating nuclear power reactors.
The legislation also amends Texas statutes to add that
16a
Appendix B
“a person, including the compact waste disposal facility
license holder, may not dispose of or store high level
radioactive waste in this state.” Tex. Health & Safety
Code § 401.072. Although a non-binding, declaratory
state statute would not be enough to confer standing,
here there’s an enforceability conflict between the license
and operation of the facility, which authorizes storage of
high-level radioactive waste in Texas, and H.B. 7, which
proscribes such storage. Cf. Virginia v. Sebelius, 656
F.3d 253, 270 (4th Cir. 2011) (a state statute that is merely
a “non-binding declaration [and] does not create any
genuine conflict . . . creates no sovereign interest capable
of producing injury-infact”). That’s enough for Texas to
assert an injury.
Fasken also has standing based on its proximity
to radioactive materials. To establish injury in an
environmental case, there’s a “geog raphic-nexus
requirement.” Biological Diversity, 937 F.3d at 538. “The
Supreme Court has ruled that geographic remoteness
forecloses a finding of injury when no further facts have
been brought forward showing that the impact in those
distant places will in some fashion be reflected where the
plaintiffs are.” Id. (cleaned up). See also id. at 540 (“when
a person visits an area for aesthetic purposes, pollution
interfering with his aesthetic enjoyment may cause an
injury in fact,” if “the aesthetic experience was actually
offensive to the plaintiff”). Fasken has provided evidence
of its members’ geographic proximity to the facility. Some
of Fasken’s members own land within four miles of the
facility, draw water from wells beneath the facility, drive
within a mile of the facility, use rail lines the facility
would use, and travel on highways within a few hundred
17a
Appendix B
feet of the rail lines that transport spent nuclear fuel to
the facility. In the context of radioactive materials, such
proximity is sufficient to establish injury. See Duke Power
Co. v. Caroline Env’t Study Grp., Inc., 438 U.S. 59, 74, 98
S. Ct. 2620, 57 L. Ed. 2d 595 (1978) (“[T]he emission of
non-natural radiation into appellees’ environment would
also seem a direct and present injury.”). See also Nuclear
Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266, 362 U.S.
App. D.C. 204 (D.C. Cir. 2004) (finding a petitioner living
18 miles from Yucca Mountain had standing); Kelley v.
Selin, 42 F.3d 1501, 1509 (6th Cir. 1995) (finding petitioners
who “own[] land in close proximity to . . . the proposed
site for spent fuel storage” had “alleged sufficient injury
to establish standing”).
PBLRO also has associational standing. “Associational
standing is a three-part test: (1) the association’s members
would independently meet the Article III standing
requirements; (2) the interests the association seeks to
protect are germane to the purpose of the organization;
and (3) neither the claim asserted, nor the relief requested
requires participation of individual members.” Biological
Diversity, 937 F.3d at 536 (quoting Texas Democratic
Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006)).
Each of those elements is met. First, some of its members
have an injury because they live, work, or regularly
drive close the facility. And as we’ve already noted,
see supra, the causation elements are met. Next, “the
germaneness requirement is undemanding and requires
mere pertinence between the litigation at issue and the
organization’s purpose.” Ass’n of Am. Physicians &
Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 n.2
(5th Cir. 2010) (quotations omitted). This factor is easily
18a
Appendix B
met because PBLRO was created specifically to oppose
the facility. Last, there’s no reason to believe that PBLRO
is unable to represent its members’ interests without
their individual participation. See id. at 551-53 (noting
this prong usually isn’t met when the relief sought is
damages for individual members or the claim requires
fact-intensive-individual inquiry).
B.
Petitioners seeking to challenge a final order from the
Commission also need standing under the Administrative
Orders Review Act, generally known as the Hobbs Act.
See Reytblatt v. NRC, 105 F.3d 715, 720, 323 U.S. App. D.C.
101 (D.C. Cir. 1997) (“[T]he Hobbs Act requires (1) ‘party’
status (i.e., that petitioners participated in the proceeding
before the agency), and (2) aggrievement (i.e., that they
meet the requirements of constitutional and prudential
standing).”) (citation omitted).
The Hobbs Act vests “exclusive jurisdiction to enjoin,
set aside, suspend (in whole or in part), or determine the
validity of . . . final orders of the” Commission on the
federal courts of appeals. 28 U.S.C. § 2342. (The Act
actually refers to the Atomic Energy Commission. But the
Energy Reorganization Act of 1974 abolished that agency
and transferred its licensing and related regulatory
functions to the Nuclear Regulatory Commission. See 42
U.S.C. § 5841(a), (f).)
Under the Act, “[a]ny party aggrieved by the final
order may . . . file a petition to review the order in the
court of appeals wherein venue lies.” 28 U.S.C. § 2344.
19a
Appendix B
Courts “have consistently held that the phrase ‘party
aggrieved’ requires that petitioners have been parties to
the underlying agency proceedings, not simply parties to
the present suit.” ACA Int’l v. FCC, 885 F.3d 687, 711, 435
U.S. App. D.C. 1 (D.C. Cir. 2018). See also Am. Trucking
Ass’ns v. ICC, 673 F.2d 82, 84 (5th Cir. 1982) (per curiam)
(“The word ‘party’ is used in a definite sense in the [Hobbs
Act], and limits the right to appeal to those who actually
participated in the agency proceeding.”). The Commission
argues that neither Texas nor Fasken has standing under
the Hobbs Act because neither is a “party aggrieved.”
“To be an aggrieved party, one must have participated
in the agency proceeding under review.” Wales Transp.,
Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984). Here,
both Petitioners participated in the agency proceeding—
Texas commented on its opposition of the issuance of
the license and Fasken attempted to intervene and filed
contentions. But according to the Commission, neither
form of participation is sufficient to confer party status
under the Hobbs Act.
The Commission argues that Texas doesn’t have
party status because “participating in the appropriate
and available administrative procedures is the statutorily
prescribed prerequisite to invocation of the Court’s
jurisdiction,” and submitting comments doesn’t accord
with the degree of formality of the proceedings in this
license adjudication. 2
2. In the alternative, the Commission argues that “even if this
Court were to determine that dismissal of [Texas’s] Petition for
Review is not required as a matter of jurisdiction, the same result
20a
Appendix B
The Commission takes a different approach with
Fasken. It argues that, as a party denied intervention,
Fasken may only challenge the order deny ing it
is nonetheless required as a matter of non-jurisdictional, mandatory
exhaustion.” Not so. The Commission relies on Fleming v. USDA,
which held that “even nonjurisdictional exhaustion requirements
. . . forbid judges from excusing non-exhaustion” and that “if the
government raises [such an] exhaustion requirement, the court must
enforce it.” 987 F.3d 1093, 1099, 451 U.S. App. D.C. 49 (D.C. Cir.
2021). But neither the Hobbs Act nor the Atomic Energy Act impose
a mandatory exhaustion requirement. The Commission’s argument
implicitly equates the exhaustion requirements in the Horse
Protection Act and the Prison Litigation Reform Act—both of which
are discussed in Fleming—to the Hobbs Act and Atomic Energy
Act. These statutes aren’t comparable. Both the Horse Protection
Act and the Prison Litigation Reform Act have explicit exhaustion
requirements. See 7 U.S.C. § 6912(e) (“[A] person shall exhaust all
administrative appeal procedures established by the Secretary [of
Agriculture] or required by law before the person may bring an
action in a court of competent jurisdiction.”); 42 U.S.C. § 1997e(a)
(“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
an administrative remedies as are available are exhausted.”). But
neither the Hobbs Act nor the Atomic Energy Act do. See 28 U.S.C.
§ 2344 (no exhaustion requirement); 42 U.S.C. § 2239(b) (same).
It’s also worth noting that caselaw suggests that so long as the
petitioner is a “party aggrieved” and the basis for the challenge
was brought before the agency by some party— even if not the by
the petitioner—that’s enough for the case to move forward. See
Reytblatt, 105 F.3d at 720-21; Cellnet Commc’n, Inc. v. FCC, 965
F.2d 1106, 1109, 296 U.S. App. D.C. 144 (D.C. Cir. 1992). It’d make
little sense to interpret the Hobbs Act as imposing an exhaustion
requirement while allowing a petitioner to bring a claim it did not
itself bring before the agency.
21a
Appendix B
intervention. From the Commission’s perspective, if a
putative intervenor has failed to obtain party status, it
can’t later seek review of the final judgment on the merits.
The plain text of the Hobbs Act merely requires that a
petitioner seeking review of an agency action be a “party
aggrieved.” 28 U.S.C. § 2344. The text makes no distinction
between different kinds of agency proceedings. See Gage
v. AEC, 479 F.2d 1214, 1218, 156 U.S. App. D.C. 231 (D.C.
Cir. 1973). Nor does it suggest that a petitioner who went
through the procedures to intervene in an adjudication
can’t be a party aggrieved. In fact, it’s clear that the
function of the “party aggrieved” status requirement is
to ensure that the agency had the opportunity to consider
the issue that petitioners are concerned with. See, e.g.,
id. at 1219 (“The ‘party’ status requirement operates to
preclude direct appellate court review without a record
which at least resulted from the fact-finder’s focus on
the alternative regulatory provisions which petitioners
propose.”) (emphases omitted).
In sum, the plain text of the Hobbs Act requires only
that a petitioner have participated—in some way—in the
agency proceedings, which Texas did through comments
and Fasken did by seeking intervention and filing
contentions. But caselaw suggests that’s not enough.
Precedent from other circuits suggests that neither
Texas nor Fasken are parties aggrieved for Hobbs
Act purposes. The D.C. Circuit has read the Hobbs
Act to contemplate participation in “the appropriate
and available administrative procedures.” Id. at 1217.
And it has interpreted this to mean that the “degree of
22a
Appendix B
participation necessary to achieve party status varies
according to the formality with which the proceeding
was conducted.” Water Transp. Ass’n v. ICC, 819 F.2d
1189, 1192, 260 U.S. App. D.C. 390 (D.C. Cir. 1987). But
see ACA Int’l, 885 F.3d at 711-712 (noting that in at least
some limited circumstances commenting may be enough
in certain non-rulemaking proceedings). The D.C. Circuit
and at least one other circuit apply this heightened
participation requirement. See Ohio Nuclear-Free
Network v. NRC, 53 F.4th 236, 239, 459 U.S. App. D.C.
266 (D.C. Cir. 2022); Alabama Power Co. v. ICC, 852 F.2d
1361, 1368, 271 U.S. App. D.C. 394 (D.C. Cir. 1988). See also
State ex rel. Balderas v. NRC, 59 F.4th 1112, 1117 (10th
Cir. 2023). The D.C. Circuit has also said that, when an
agency requires intervention, those who sought but were
denied intervention lack standing to seek judicial review.
Water Transp. Ass’n, 819 F.2d at 1192. See also NRDC v.
NRC, 823 F.3d 641, 643, 422 U.S. App. D.C. 325 (D.C. Cir.
2016) (“To challenge the Commission’s grant of a license
renewal . . . a party must have successfully intervened in
the proceeding by submitting adequate contentions under
[the Commission’s regulations].”).
The D.C. Circuit embraces readings of the Hobbs Act
that impose an extra-textual gloss by requiring a degree
of participation not contemplated in the plain text of the
statute. We think the fairest reading of the Hobbs Act
doesn’t impose such additional requirements. But we
ultimately don’t need to resolve that tension, because the
Fifth Circuit recognizes an exception to the Hobbs Act
party-aggrieved status requirement that’s dispositive of
this issue here.
23a
Appendix B
This circuit recognizes an ultra vires exception to
the party-aggrieved status requirement. In American
Trucking Associations, Inc. v. ICC, this court noted
“two rare instances” where a “person may appeal an
agency action even if not a party to the original agency
proceeding”—(1) where “the agency action is attacked
as exceeding [its] power” and (2) where the person
“challenges the constitutionality of the statute conferring
authority on the agency.” 673 F.2d at 85 n.4 (quotation
omitted). 3
3. The Commission’s various arguments that this exception
isn’t applicable are unavailing. It’s true that we’ve recognized the
exception is “exceedingly narrow.” Merchants Fast Motor Lines, Inc.
v. ICC, 5 F.3d 911, 922 (5th Cir. 1993). And it’s also true that other
circuits have refused to adopt it. See Balderas, 59 F.4th at 1123-24;
Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457 F.3d 1238,
1250 (11th Cir. 2006); Erie-Niagara Rail Steering Comm. v. STB,
167 F.3d 111, 112-13 (2d Cir. 1999); In re Chicago, Milwakee, St. Paul
& Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986). But the exception
remains good law in this circuit. Neither the Commission nor the
court have identified any case overturning the exception. And to the
extent that the Commission claims the exception was mere dicta in
American Trucking, that argument fails because we’ve since applied
the exception in Wales Transportation, Inc. v. ICC, 728 F.2d 774,
776 n.1 (5th Cir. 1984). Under our circuit’s rule of orderliness, we
are bound to follow American Trucking and Wales Transportation
because they haven’t been overturned by the en banc court. The
Commission is also wrong in suggesting the exception is limited
to challenges of ICC orders. While it’s true that both American
Trucking and Wales Transportation involved challenges to ICC
orders, neither case limits the exception’s application to the ICC. See
Am. Trucking, 673 F.2d at 85 n.4 (referring to agency proceedings,
not ICC proceedings); Wales Transp., 728 F.2d at 776 n.1 (same).
24a
Appendix B
This exception only allows us to reach those portions
of the Petitioners’ challenges that argue the Commission
acted beyond its statutory authority. See Wales Transp.,
728 F.2d at 776 n.1 (allowing petitioner to proceed despite
not having participated in the agency proceeding on only
those claims that challenged the agency’s authority under
the statute). Accordingly, we must consider which, if any,
of the Petitioners’ challenges fall within that category.
Texas makes three merits arguments: (1) the
Commission lacks the statutory authority to license the
facility; (2) the license issuance violated the Administrative
Procedure Act; and (3) the Commission violated the
National Environmental Policy Act by failing to assess the
risks of a potential terrorist attack. The first argument
falls within the exception. It attacks the Commission for
licensing a facility without the authority to do so under
the Atomic Energy Act, and in conflict with the Nuclear
Waste Policy Act.
Fasken makes four merits arguments: (1) the
Commission violated the National Environmental Policy
Act and Administrative Procedure Act by allowing
a licensing condition that violates the Nuclear Waste
Policy Act; (2) the Commission’s assumptions about
when the permanent repository will be operational are
arbitrary and capricious; (3) the Commission adopted
an unreasonably narrow purpose statement; and (4) the
Commission violated the National Environmental Policy
Act and Administrative Procedure Act by accepting the
applicant’s unreasonable site selection. The first of these
challenges falls within the exception. Fasken’s argument
25a
Appendix B
centers on the contention that the Commission acted
beyond its statutory authority by issuing a license with
a condition expressly prohibited by the Nuclear Waste
Policy Act.
III.
The Commission has no statutory authority to issue
the license. The Atomic Energy Act doesn’t authorize
the Commission to license a private, away-from-reactor
storage facility for spent nuclear fuel. And issuing such
a license contradicts Congressional policy expressed in
the Nuclear Waste Policy Act. This understanding aligns
with the historical context surrounding the development
of these statutes.
A.
Under the Atomic Energy Act, the Commission retains
jurisdiction over nuclear plant licensing and regulation.
See 42 U.S.C. § 5842. It has authority to regulate the
construction and operation of nuclear power plants. See
42 U.S.C. §§ 2011-2297h-13. See also Union of Concerned
Scientists, 735 F.2d at 1438-39 (summarizing the two-step
licensing procedure for nuclear power plant operation).
The Act also confers on the Commission the authority
to issue licenses for the possession of “special nuclear
material,” see 42 U.S.C. § 2073, “source material,” see
id. § 2093, and “byproduct material,” see id. § 2111. See
also 42 U.S.C. §§ 2014(aa), (z), (e) (defining each term,
respectively). Special nuclear material, source material,
26a
Appendix B
and byproduct material are constituent materials of spent
nuclear fuel. See Bullcreek v. NRC, 359 F.3d 536, 538,
360 U.S. App. D.C. 184 (D.C. Cir. 2004). The Commission
argues that, because it has authority to issue licenses for
the possession of these constituent materials, that means
it has broad authority to license storage facilities for spent
nuclear fuel.
But this ignores the fact that the Act authorizes
the Commission to issue such licenses only for certain
enumerated purposes—none of which encompass storage
or disposal of material as radioactive as spent nuclear fuel.
Sections 2073 and 2093 specify that licenses may be
issued for various types of research and development,
see 42 U.S.C. §§ 2073(a)(1)-(a)(2), 2093(a)(1)-(a)(2). It also
permits such other uses that the Commission either
“determines to be appropriate to carry out the purposes
of th[e] chapter,” id. § 2073(a)(4), or “approves . . . as an
aid to science and industry,” id. § 2093(a)(4). Principles of
statutory interpretation require these grants be read in
light of the other, more specific purposes listed—namely
for certain types of research and development. Cf. U.S.
v. Jicarilla Apache Nation, 564 U.S. 162, 185, 131 S. Ct.
2313, 180 L. Ed. 2d 187 (2011) (“When Congress provides
specific statutory obligations, we will not read a ‘catchall’
provision to impose general obligations that would include
those specifically enumerated.”).
Both these sections also allow the agency to issue
licenses “for use under a license issued pursuant to section
2133 of th[e] title.” Id. 42 U.S.C. §§ 2073(a)(3), 2093(a)(3)
27a
Appendix B
(same). Section 2133 details the Commission’s authority
to issue licenses for “utilization or production facilities
for industrial or commercial purposes.” Id. § 2133(a).
Utilization and production have specific definitions under
the statute. See id. §§ 2014 (cc) (defining utilization
facilities); 2014(v) (defining production facilities). And
the definitions of utilization and production facilities are
about nuclear reactors and fuel fabrication or enrichment
facilities—not storage or disposal, as the Commission
admits in its briefing. See id. Neither § 2073 nor § 2093
confers a broad grant of authority to issue licenses for any
type of possession of special nuclear material or source
material.
The same is true for § 2111. That section authorizes
the Commission “to issue general or specific licenses to
applicants seeking to use byproduct material for research
or development purposes, for medical therapy, industrial
uses, agricultural uses, or such other useful applications
as may be developed.” Id. § 2111(a). It also specifies
conditions under which certain types of byproduct
material may be disposed. Id. § 2111(b). And the types of
byproduct material covered by § 2111(b) emit radiation for
significantly less time than spent nuclear fuel.
That section cross-references the definition of
byproduct materials in § 2014(e)(3)-(4), which refers to
radium-226 and other material that “would pose a threat
similar to the threat posed by . . . radium-226 to the
public health and safety.” That’s important because some
of the isotopes in spent nuclear fuel have much longer
half-lives than radium-226. The “intensity of radiation
28a
Appendix B
from radioactive materials decreases over time” and
the “time required for the intensity to decrease by onehalf is referred to as the ‘half-life.’” NRC, Frequently
A sked Questions (FAQs) Regarding Radium-226 § A.1,
https://scp.nrc.gov/narmtoolbox/radium%20faq102008.
pdf. Radium-226 has a half-life of 1600 years. Id. Spent
nuclear fuel, on the other hand, is composed of a variety of
radioactive isotopes of elements produced in the nuclear
fission process. NRC, Radioactive Waste Backgrounder
1, https://www.nrc.gov/docs/ML0501/ML050110277.pdf.
Some of these isotopes—strontium-90 and cesium-137—
have half-lives of about 30 years. But others “take much
longer to decay.” Id. One of these isotopes is plutonium-239,
which “has a half-life of 24,000 years”—fifteen times that
of radium-226. Id. There’s no plausible argument that
spent nuclear fuel, which contains radioactive isotopes
with half-lives much longer than radium-226, is the
type radioactive material contemplated in the disposal
provision in § 2111(b).
So these provisions do not support the Commission’s
claim of authority. In response, the Commission and
Interim Storage Partners, LLC point to two cases from
sister circuits. Both are unpersuasive.
In Bullcreek v. NRC, the D.C. Circuit denied petitions
for review of the Commission’s Rulemaking Order and
held that the Nuclear Waste Policy Act did “not repeal or
supersede the [Commission]’s authority under the Atomic
Energy Act to license private away-from-reactor storage
facilities.” 359 F.3d at 537-38. The D.C. Circuit essentially
assumed that the Atomic Energy Act had granted the
29a
Appendix B
Commission authority to license away-from-reactor
storage facilities, despite explicitly recognizing that the
Act “does not specifically refer to the storage or disposal
of spent nuclear fuel.” Id. at 538. Rather than focus on
the text of the statute, it merely noted that “it has long
been recognized that the [Atomic Energy Act] confers
on the [Commission] authority to license and regulate
the storage and disposal of such fuel.” Id. But none of the
cases the D.C. Circuit cited provide a textual analysis of
the Atomic Energy Act and whether it allows away-fromreactor spent nuclear fuel storage. Each of those cases
dealt with separate questions of preemption and the role
of states in this scheme. See generally Pac. Gas. & Elec.
v. State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983); Jersey
Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103
(3d Cir. 1985); Illinois v. Gen. Elec. Co., 683 F.2d 206 (7th
Cir. 1982). They are irrelevant to the question before us.
So the D.C. Circuit provided no textual basis for its
assumption that the statute authorized the Commission to
issue such licenses. See id. (discussing the Atomic Energy
Act). Bullcreek may be correct that the Nuclear Waste
Policy Act didn’t repeal portions of the Atomic Energy
Act since “repeals by implication are not favored,” but it
doesn’t actually address what authority the Commission
had under the Atomic Energy Act. Morton v. Mancari,
417 U.S. 535, 549, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974).
The other case the Commission cites—Skull Valley
Band of Goshute Indians v. Nielson, 376 F.3d 1223
(10th Cir. 2004)—is just as unhelpful. It merely relies
30a
Appendix B
on Bullcreek to “not revisit the issues surrounding the
[Commission]’s authority to license away-from-reactor
[spent nuclear fuel] storage facilities.” Skull Valley, 376
F.3d at 1232. It too assumes the Commission’s authority
without analyzing the statute.
B.
Moreover, the Commission’s argument cannot be
reconciled with the Nuclear Waste Policy Act.
Spent nuclear fuel wasn’t a concern in the 1940s
and 1950s when the Atomic Energy Act was passed
and amended. “Prior to the late 1970’s, private utilities
operating nuclear reactors were largely unconcerned with
the storage of spent nuclear fuel.” Idaho, 945 F.2d at 298.
“It was accepted that spent fuel would be reprocessed.”
Id. “In the mid-70’s, however, the private reprocessing
industry collapsed for both economic and regulatory
reasons.” Id. “As a consequence, the nuclear industry was
confronted with an unanticipated accumulation of spent
nuclear fuel, inadequate private facilities for the storage
of the spent fuel, and no long term plans for managing
nuclear waste.” Id. See also BRC Report at 20 (noting
these problems and describing passage of the Act as
“mark[ing] the beginning of a new chapter in U.S. efforts
to deal with the nuclear waste issue”). This led Congress
to pass the Nuclear Waste Policy Act in 1982.
The Nuclear Waste Policy Act provides a comprehensive
scheme to address the accumulation of nuclear waste.
Congress recognized that “Federal efforts during the
31a
Appendix B
[prior] 30 years to devise a permanent solution to the
problems of civilian radioactive waste disposal ha[d] not
been adequate” and that “State and public participation
in the planning and development of repositories is
essential in order to promote public confidence in the
safety of disposal of such waste and spent fuel.” 42 U.S.C.
§ 10131(a)(3), (6). “The Act made the federal government
responsible for permanently disposing of spent nuclear
fuel and high-level radioactive waste produced by civilian
nuclear power generation and defense activities.” Nat’l
Ass’n of Regul. Util. Comm’rs v. DOE, 680 F.3d 819,
821, 401 U.S. App. D.C. 15 (D.C. Cir. 2012). See also 42
U.S.C. § 10131(a)(4) (“[T]he Federal Government has the
responsibility to provide for the permanent disposal of
high-level radioactive waste and such spent nuclear fuel
as may be disposed of in order to protect the public health
and safety and the environment.”).
The Act also tasked the Department of Energy with
establishing “a repository deep underground within a rock
formation where the waste would be placed, permanently
stored, and isolated from human contact.” Nat’l Ass’n of
Regul. Util Comm’rs, 680 F.3d at 821. See also 42 U.S.C.
§§ 10133-34 (tasking the Energy Secretary with site
characterization and public hearing duties related to the
Yucca Mountain site selection). Yucca Mountain was chosen
as the only suitable site for the repository when the Act
was amended in 1987. See 42 U.S.C. § 10172 (selection of
Yucca Mountain site). But the project stalled, even though
the Nuclear Waste Policy Act “is obviously designed to
prevent the Department [of Energy] from delaying the
construction of Yucca Mountain as the permanent facility
32a
Appendix B
while using temporary facilities.” Nat’l Ass’n of Regul.
Util. Comm’rs v. DOE, 736 F.3d 517, 519, 407 U.S. App.
D.C. 197 (D.C. Cir. 2013) (citing 42 U.S.C. § 10168(d)(1)).
In addition to the establishment of the permanent
repository, see 42 U.S.C. §§ 10131-10145, the Nuclear
Waste Policy Act also established other measures to deal
with spent nuclear fuel.4
One is temporary storage. See id. §§ 10151-10157. The
Act places “primary responsibility for providing interim
storage of spent nuclear fuel” on “the persons owning and
operating civilian nuclear power reactors.” Id. § 10151(a)(1).
It tasks the Commission and the Secretary of Energy
to “take such actions as . . . necessary to encourage and
expedite the effective use of available storage, and the
necessary additional storage, at the site of each civilian
nuclear power reactor.” Id. § 10152 (emphasis added). See
also id. § 10153 (“The establishment of such procedures
shall not preclude the licensing . . . of any technology for
the storage of civilian spent nuclear fuel at the site of
any civilian nuclear power reactor.”) (emphasis added). It
further tasks the Secretary of Energy with “provid[ing] . . .
capacity for the storage of spent nuclear fuel from civilian
nuclear power reactors.” Id. § 10155(a)(1). Moreover,
the Act provides that “the Federal Government has the
4. All these measures are subject to the proviso in 42 U.S.C.
§ 10155(h), which states that “nothing in this chapter shall be
construed to encourage, authorize, or require the private or Federal
use, purchase, lease, or other acquisition of any storage facility
located away from the site of any civilian nuclear power reactor and
not owned by the Federal Government on” the date of enactment.
33a
Appendix B
responsibility to provide . . . not more than 1,900 metric
tons of capacity for interim storage of spent nuclear fuel
for civilian nuclear power reactors that cannot reasonably
provide adequate storage capacity” where it is necessary
for the “continued, orderly operation of such reactors.”
Id. § 10151(a)(3). Moreover, the Act provides that “the
Federal Government has the responsibility to provide . . .
not more than 1,900 metric tons of capacity for interim
storage of spent nuclear fuel for civilian nuclear power
reactors that cannot reasonably provide adequate storage
capacity” where it is necessary for the “continued, orderly
operation of such reactors.” Id. § 10151(a)(3). Here, the
license permits storage of at least 5,000 and as much as
40,000 metric tons of nuclear waste.
The other measure is monitored retrievable storage.
See id. § 10161-10169. See also id. § 10101(34) (defining
“monitored retrievable storage facility”). Under the
statute, “[t]he Secretary [of Energy] is authorized to
site, construct, and operate one monitored retrievable
storage facility subject to the conditions described [in
the relevant sections of statute].” Id. § 10162(b). And one
of those conditions is that “[a]ny license issued by the
Commission for a monitored retrievable storage facility
under [the statute] shall provide that . . . construction
of such facility may not begin until the Commission has
issued a license for the construction of a repository [i.e.,
Yucca Mountain].” Id. § 10168(d)(1).
Reading these provisions together makes clear that
the Nuclear Waste Policy Act creates a comprehensive
statutory scheme for addressing spent nuclear fuel
34a
Appendix B
accumulation. The scheme prioritizes construction of the
permanent repository and limits temporary storage to
private at-the-reactor storage or at federal sites. It plainly
contemplates that, until there’s a permanent repository,
spent nuclear fuel is to be stored onsite at-the-reactor or
in a federal facility.
In sum, the Atomic Energy Act doesn’t authorize
the Commission to license a private, away-from-reactor
storage facility for spent nuclear fuel. And the Nuclear
Waste Policy Act doesn’t permit it. Accordingly, we hold
that the Commission doesn’t have authority to issue the
license challenged here.
When read alongside each other, we find these statutes
unambiguous. And even if the statutes were ambiguous,
the Commission’s interpretation wouldn’t be entitled to
deference.
Last year, the Supreme Court directed that, “[w]here
the statute at issue is one that confers authority upon
an administrative agency, that inquiry must be shaped,
at least in some measure, by the nature of the question
presented—whether Congress in fact meant to confer the
power the agency has asserted” and whether there are
“reason[s] to hesitate before concluding that Congress
meant to confer such authority.” West Virginia v. EPA, 142
S. Ct. 2587, 2607-08, 213 L. Ed. 2d 896 (2022) (quotations
omitted) (adopting the major questions doctrine).
Disposal of nuclear waste is an issue of great “economic
and political significance.” Id. at 2608. What to do with the
35a
Appendix B
nation’s ever-growing accumulation of nuclear waste is a
major question that—as the history of the Yucca Mountain
repository shows—has been hotly politically contested
for over a half century. Congress itself has acknowledged
that “high-level radioactive waste and spent nuclear fuel
have become major subjects of public concern.” 42 U.S.C.
§ 10131(a)(7) (findings section of the Nuclear Waste Policy
Act). “A decision of such magnitude and consequence
rests with Congress itself, or an agency acting pursuant
to clear delegation from that representative body.” West
Virginia, 142 S. Ct. at 2616 (emphasis added). Here, there’s
no such clear delegation under the Atomic Energy Act.
And the Nuclear Waste Policy Act belies the Commission’s
arguments to the contrary.
***
We grant the petitions for review, vacate the license,
and deny the Commission’s motions to dismiss.
36a
AppendixOF
C REHEARING OF
APPENDIX C — DENIAL
THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT, FILED MARCH 14, 2024
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-60743
STATE OF TEXAS; GREG ABBOTT, GOVERNOR
OF THE STATE OF TEXAS; TEXAS COMMISSION
ON ENVIRONMENTAL QUALITY; FASKEN LAND
AND MINERALS, LIMITED; PERMIAN BASIN
LAND AND ROYALTY OWNERS,
Petitioners,
versus
NUCLEAR REGULATORY COMMISSION;
UNITED STATES OF AMERICA,
Respondents.
March 14, 2024, Filed
Appeal from the Nuclear Regulatory
Commission. Agency No. 72-1050.
37a
Appendix C
ON PETITION FOR REHEARING EN BANC
Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam:
The court having been polled at the request of one of its
members, and a majority of the judges who are in regular
active service and not disqualified not having voted in favor
(Fed. R. A pp. P. 35, 36 and 5th Cir. R. 35), the petition for
rehearing en banc is DENIED.
In the en banc poll, seven judges voted in favor
of rehearing en banc (Stewart, Southwick, Graves,
Higginson, Willett, Douglas, and Ramirez), and nine voted
against rehearing en banc (Richman, Jones, Smith, Elrod,
Haynes, Ho, Duncan, Engelhardt, and Wilson).
Judge Oldham is recused and did not participate in
the poll.
38a
Appendix C
Edith H. Jones, Circuit Judge, joined by Smith, Elrod,
Ho, Engelhardt, and Wilson, Circuit Judges, concurring
in the denial of rehearing en banc:
The panel previously identified two bases of authority
to review the NRC’s proposed action to redirect the
storage of nuclear energy waste away from Yucca
Mountain, in conflict with federal law: these petitioners
are parties aggrieved, and the NRC has acted ultra vires.
The dissent challenges both grounds of jurisdiction. We
continue to adhere to our position that the judiciary has
not only the authority but the duty to review the NRC’s
actions, which may threaten significant environmental
damage in the Permian Basin, one of the largest fossil
fuel deposits in the world.
1.
“Party Aggrieved”
Who has the ability to secure judicial review of this
particular licensing decision? There’s no question of Article
III standing for the petitioners. Also, there’s no question
that Fasken (shorthand for petitioning mineral operators
and landowners neighboring the proposed storage site) is
“aggrieved.” Nor that the state of Texas, which submitted
comments and later passed a law prohibiting such storage,
is “aggrieved.” The argument is made that under Section
2344 of the Hobbs Act, “parties aggrieved” who may
seek judicial review means only those whom the agency
permitted to intervene in the licensing proceeding. But
here, Fasken’s multiple attempts formally to intervene
were repeatedly rebuffed by the agency. See Texas v. NRC
78 F.4th 827, 834. If this argument is accepted, in other
39a
Appendix C
words, the NRC controls the courthouse door through its
authority to determine who may be “parties” to licensing
proceedings. And the state of Texas, which didn’t formally
attempt to intervene but made its position plainly known
to NRC, has no access to judicial review at all.
The question of our jurisdiction is therefore bound
up with fundamental principles governing review of
agency decisions. Specifically, the courts default in our
duty to “say what the law is” (i.e., Marbury v Madison,
5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)) if we enable
the agency to be the unilateral “decider” of the statutory
term “party aggrieved.” Massachusetts v. NRC, 878 F.2d
1516, 1520 (1st Cir. 1989). Our duty is reinforced by the
oft-stated “strong presumption” that a statute should be
read in a way that accords with the “basic[] principle” that
agency actions are “subject to judicial review.” GuerreroLasparilla v. Barr, 140 S. Ct. 1062, 1069 (2020); Bowen
v. Mich. Acad. Of Family Physicians, 476 U.S. 667, 670,
106 S. Ct. 2133, 2135, 90 L. Ed. 2d 623 (1986) (noting “the
strong presumption that Congress intends judicial review
of administrative action”); Kirby Corp. v. Pena, 109 F.3d
258, 261 (5th Cir. 1997) (“There is a ‘strong presumption’
that Congress intends there to be judicial review of
administrative agency action, . . . and the government
bears a ‘heavy burden’ when arguing that Congress meant
to prohibit all judicial review”) (citations omitted)); Dart
v. United States, 848 F.2d 217, 221, 270 U.S. App. D.C. 160
(D.C. Cir. 1988) (“If the wording of a preclusion clause is
less than absolute, . . . [j]udicial review is favored when
an agency is charged with acting beyond its authority.”).
A holding that courts cannot decide who are aggrieved
parties according to the statutory language is not only
40a
Appendix C
contrary to these principles but also seems particularly
unlikely in a legal world where deference to agency
interpretations of law, e.g., in Auer and Chevron, is under
increasing scrutiny.
The contrary position of judicial abdication rests
on a provision of the Atomic Energy Act that allegedly
constitutes “the only process” by which the [NRC] could
make a “party”: “[T]he Commission shall grant a hearing
upon the request of any person who may be affected by
the proceeding, and shall admit any such person as
a party to such proceeding.” 42 U.S.C. § 2239(a)(1)(A)
(emphasis added). Given the breadth of NRC’s statutory
charge to allow “affected persons” to be made “parties,”
it seems paradoxical to resort to the Hobbs Act to disable
Fasken and Texas from judicial review by agency fiat.
More specifically, with respect to the NRC’s proffered
interpretation, there are two responses. First, the D.C.
Circuit has interpreted the term “parties aggrieved”
more broadly than simply those who were joined as formal
parties by the agency to administrative proceedings.
Second, to the extent a couple of courts have rigidly
used the term “parties” to mean only those formally
admitted in agency proceedings, those decisions are either
distinguishable or wrong.
With a couple of exceptions noted below, the term
“party aggrieved” for judicial review purposes has been
interpreted flexibly by the D.C. Circuit itself. Beginning
with Simmons v. ICC, 716 F.2d 40, 42, 230 U.S. App. D.C.
236 (D.C. Cir. 1983), then-judge Scalia laid the groundwork
for interpreting that phrase as he held that “party
aggrieved” means more than “person aggrieved” for
41a
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purposes of Administrative Procedure Act judicial review.1
5 U.S.C. § 702 (“A person suffering legal wrong because
of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.” (emphasis added)). We
don’t dispute that terminological distinction. But shortly
afterward, the D.C. Circuit held that “party aggrieved”
under the Hobbs Act must be interpreted flexibly in
light of the nature of the administrative proceeding.
Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C.
Cir. 1987); see also ACA Int’l v. Fed. Communications
Comm’n, 885 F.3d 687, 711, 435 U.S. App. D.C. 1 (D.C.
Cir. 2018); Reyblatt v NRC, 105 F.3d 715, 720 (D.C. Cir.
1997) (submitting comments in a rulemaking proceeding
confers “party” status for Hobbs Act purposes). The court
held in Water Transp. that the “degree of participation
necessary to achieve party status varies according to the
formality with which the proceeding was conducted.” 819
F.2d at 1192.
Decisions from other courts concur. See Nat’l Ass’n Of
State Util. Consumer Advocates v. FCC, 457 F.3d 1238,
1250 (11th Cir. 2006) (holding that entities “participated
in the proceedings” and “independently established their
status as ‘party aggrieved’ by “submitting comments and
notice of ex parte communications”), opinion modified
on denial of reh’g, 468 F.3d 1272 (11th Cir. 2006); Clark
& Reid Co., Inc. v. United States, 804 F.2d 3, 6 (1st Cir.
1. Judge Scalia cites this court’s decision in American Trucking
Associations, Inc. v. ICC, 673 F.2d 82, 84 (5th Cir. 1982), cert.
denied, 103 S. Ct. 1272 (1983), as being in accord with the “party”
requirement. We don’t dispute this either.
42a
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1986) (“[W]e do not equate the regulatory definition of a
‘party’ in an ICC proceeding with the participatory party
status required for judicial review under the Hobbs Act”);
Am. Civil Liberties Union v. FCC, 774 F.2d 24, 26 (1st Cir.
1985) (observing that entities could have “participate[d]
in the proceedings or review process as individual
parties” if they had “filed comments with the agency or
petitioned for reconsideration of the FCC’s final order”).
Another indicium of the necessity for a practical judicial
interpretation of this term arises from the fact that the
Hobbs Act covers several quite different agencies and
several types of proceedings: rulemaking, adjudication,
and licensing. What makes for “party aggrieved” should be
consistently interpreted and not left to the varying rules
of practice of each agency for each type of proceeding.
Simmons itself supports finding that Fasken and
Texas are each a “party aggrieved.” Simmons was a
challenge to an ICC ratemaking proceeding, and the court
held that Simmons, who had participated “by submitting
comments” in another aspect of the proceeding (the
“railroad docket”) could not be a “party aggrieved” as
to the “motor carrier docket” aspect in which it had filed
nothing. Simmons, 716 F.2d at 42, 45. The court’s analysis
centered on whether to allow Simmons to challenge the
outcome of that part of the proceeding where it hadn’t
submitted any comments at all. That Simmons had standing
under the Hobbs Act to challenge the deregulatory rule on
the railroad docket—by virtue of filing comments—was
uncontested. By analogy here, Fasken “participated” in
the proceeding with comments, submissions, attendance at
hearings, and factual submissions. And the state of Texas
“participated” by filing comments that made its position
43a
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plain. Indeed, NRC acknowledged the state’s position in
its final environmental impact statement. 85 Fed. Reg.
27,447, 27,448 (May 8, 2020). The agency became well
aware of the petitioners’ concerns. Under Water Transp.
and its progeny, Fasken and Texas should qualify for
“party aggrieved” status.
Going back to the courts’ presumption of judicial review
of agency action, the presumption may be overcome “only
on a showing of clear and convincing evidence of a contrary
legislative intent.” Abbott Labs. v. Gardner, 387 U.S. 136,
141, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967); Traynor
v. Turnage, 485 U.S. 535, 542, 108 S. Ct. 1372, 1378, 99 L.
Ed. 2d 618 (1988); see also Rhode Is. Dept. of Env. Mgmt.
v. United States, 304 F.3d 31, 41-42 (1st Cir. 2002). As the
First Circuit also pointed out, requiring intervention for
“party aggrieved” status is “circular...[t]he NRC cannot
now claim that by refusing to grant the Commonwealth’s
requests to become a party, the NRC’s decisions are beyond
review.” Massachusetts, 878 F.2d at 1520.
We acknowledge that the D.C. Circuit and Tenth
Circuit have counterintuitively adopted NRC’s circular
position. 2 This panel’s position, however, relies on the
above citations from the D.C. Circuit and other courts.
2. See, e.g., Ohio Nuclear-Free Network v. NRC, 53 F.4th 236,
239, 459 U.S. App. D.C. 266 (D.C. Cir. 2022); NRDC v NRC, 823
F.3d 641, 643, 422 U.S. App. D.C. 325 (D.C. Cir. 2016); State ex rel.
Balderas v NRC, 59 F.4th 1112, 1117 (10th Cir. 2023). In Balderas,
the court denied review to New Mexico, which had submitted
comments only on the environmental impact statement issued after
the licensure. That decision is distinguishable at least from Fasken’s
position.
44a
Appendix C
The bottom line for Hobbs Act “party aggrieved” status is
to participate in agency proceedings, which both Fasken
and Texas did; federal courts should not be bound to defer
to varying agency rules and procedures to interpret this
singular statutory language—whose purpose after all is
to facilitate judicial review. NRC admits that the panel
correctly noted judicial consensus that the “degree of
participation necessary to achieve party status varies
according to the formality with which the proceeding is
conducted.” Federal Respondents’ Pet. for Reh’g En Banc at
7. Consequently, according to the nature of the proceedings,
the fact and scope of the petitioner’s “participation” should
be determinative for judicial review, not the NRC’s denial
of “participation” to Fasken. NRC’s insistence on strict
compliance with its intervention rules is rather bold, not
only from the standpoint of eliminating judicial review, but
also because NRC quotes the statute that the Commission
“shall admit any such person as a party...” Id.
And to the point that this decision has “created” a
circuit conflict, we disagree in part. These petitioners
satisfy “party aggrieved” status under the numerous cases
that apply a broader standard of “participation.” There is
no circuit conflict with such cases. The conflict here is with
the Balderas decision’s denial of New Mexico’s standing to
challenge the ISP license. Inasmuch as the conflict is about
statutory standing to appeal, a finding of standing means
that our court will perform its duty of judicial review.
In light of the split of authorities, is “party aggrieved”
status an issue of overarching significance? Not at all. The
Hobbs Act jurisdictional provision is rarely debated, as
anyone trying to research this term will quickly ascertain.
45a
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This is likely for a couple of reasons. First, much agency
activity covered by the Hobbs Act is conducted in a closed
circle of experts, lobbyists and lawyers well familiar
with the rules and proclivities of the administrators;
therefore, arguments over statutory standing seldom
arise. Second, with “participation” as the bottom line
from a judicial standpoint, 3 which is also the baseline of
D.C. court opinions (albeit with varying applications of
the term), substantive judicial review occurs only where
“parties” have actually “participated” in the challenged
proceedings. Fasken and Texas were no strangers to
NRC here. Indeed, the NWPA specifically required
“consultation” with the states before siting of spent
nuclear fuel may occur anywhere.4 That provision as well
should have garnered Texas “party aggrieved” status.
For these reasons, the panel decision is comfortably
footed on statutory standing under the Hobbs Act.
2.
The Ultra Vires Exception to the “Party
Aggrieved” Requirement
Even if Texas and Fasken were not “par ties
aggrieved” under the Hobbs Act, the panel nevertheless
3. D.C. court opinions also reasonably foreclose de minimis
participation as a basis for Hobbs Act judicial review. See ACA Int’l,
885 F.3d at 711; Water Transp. Ass’n, 819 F.2d at 1192-93.
4. 42 U.S.C. § 10155(d)(1)-(2) requires the Department of
Energy to exercise very limited interim storage of spent nuclear
fuel through “a cooperative agreement under which [the] State...
shall have the right to participate in a process of consultation and
cooperation”)(emphasis added). Needless to say, no such consultation
or cooperation occurred here.
46a
Appendix C
had jurisdiction to hear their appeal. As explained in the
opinion, this court has long recognized an exception to the
“party aggrieved” requirement regarding challenges to
the lawfulness of the agency’s action. Texas and Fasken
each argued that the NRC’s actions were unauthorized
either by the AEA or the NWPA. Texas, 78 F.4th at
839-40. Accordingly, the panel relied on the rule that “a
person may appeal an agency action even if not a party to
the original agency proceeding . . . if the agency action
is attacked as exceeding [its] power” or if the appellant
“challenges the constitutionality of the statute conferring
authority on the agency.” Am. Trucking Associations, Inc.
v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982); accord Wales
Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984).
Texas and Fasken challenged the lawfulness of the
NRC’s actions and the legality of the NRC’s conduct.
But this court’s exception to the “party-aggrieved”
requirement is criticized as a relic of ages past that
perished in the early 1980s. Of course, the Supreme Court
has not overruled our ultra vires exception, and this court
has recognized its existence in at least two more recent
cases. See Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 238
n.24 (5th Cir. 2005) (noting other courts’ disagreement);
Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922
(5th Cir. 1993). 5
5. To be sure, other courts have rejected applying ultra vires
review in cases involving the Hobbs Act. See Balderas, 59 F.4th at
1123-24; Nat’l Ass’n Of State Util. Consumer Advocates, 457 F.3d at
1249; Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd.,
167 F.3d 111, 112-13 (2d Cir. 1999); Matter of Chicago, Milwaukee,
St. Paul & Pacific R. Co., 799 F.2d 317, 334-35 (7th Cir. 1986).
47a
Appendix C
Three reasons are posited to overrule ultra vires
jurisdiction to review the statutory or constitutional basis
for agency actions. First, it is contended that our court
decisions crafted the rule based on cases that predate
Congress’s bringing the ICC within the ambit of the Hobbs
Act. That is just wrong. Wales and American Trucking
both postdate Hobbs Act review of ICC actions and cite
the Hobbs Act. There is no ground to attribute our courts’
decisions to judicial mistakes, and consequently, Wales and
American Trucking can be reconciled as to both holdings.
Second, this court’s ultra vires exception was not
made out of whole cloth. A similar rule is acknowledged by
the Supreme Court, this court, and our sister circuits in
various contexts. See, e.g., Leedom v. Kyne, 358 U.S. 184,
190, 79 S. Ct. 180, 185, 3 L. Ed. 2d 210 (1958) (“This Court
cannot lightly infer that Congress does not intend judicial
protection of rights it confers against agency action taken
in excess of delegated powers.”);6 Kirby Corp., 109 F.3d
at 269 (acknowledging “judicial review is proper under
the rule set forth in Kyne, despite there being a statutory
provision prohibiting such review, because the agency’s
challenged action is so contrary to the terms of the relevant
statute that it necessitates judicial review independent of
the review provisions of the relevant statute”); see also,
6. The parties did not cite Leedom, and I agree that the
Supreme Court clarified its application in Bd. of Governors of Fed.
Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 112 S. Ct. 459, 116
L. Ed. 2d 358 (1991). Nonetheless, Leedom represents the principle
that the Article III courts are not totally closed to plaintiffs who
claim agency action has violated the agency’s statutory mandate or
the Constitution.
48a
Appendix C
e.g., Long Term Care Partners, LLC v. United States,
516 F.3d 225, 233 (4th Cir. 2008) (recognizing there is
“a nonstatutory exception to the [APA] § 704 finality
requirement in cases in which agencies act outside the
scope of their delegated powers and contrary to ‘clear
and mandatory’ statutory prohibitions”); Rhode Island
Dep’t of Envtl. Mgmt., 304 F.3d at 42 (“[E]ven after the
passage of the APA, some residuum of power remains with
the district court to review agency action that is ultra
vires.”); Chamber of Commerce of U.S. v. Reich, 74 F.3d
1322, 1330-31, 316 U.S. App. D.C. 61 (D.C. Cir. 1996) (“The
procurement power must be exercised consistently with
the structure and purposes of the statute that delegates
that power . . . . It does not follow, then, that the President’s
broad authority under the Procurement Act precludes
judicial review of executive action for conformity with
that statute—let alone review to determine whether that
action violates another statute.” (citation and quotations
omitted)). Courts apply this exception for good reason.
Indeed, “[w]ere such unauthorized [agency] actions to go
unchecked, chaos would plainly result.” Dart, 848 F.2d at
224. Thus, “[w]hen an executive acts ultra vires, courts
are normally available to reestablish the limits on his
authority.” Id.
Third, two additional misconceptions should be
dispelled. The first is that the ultra vires exception
means no more than that an agency “got it wrong” per
APA standards. See Matter of Chicago, Milwaukee, St.
Paul & Pacific R. Co., 799 F.2d 317, 334-35 (7th Cir. 1986).
That is plainly not what Wales and American Trucking
stand for. Instead, and as the above cases demonstrate,
49a
Appendix C
the term literally refers to being “outside” the agency’s
power, i.e., in defiance of the limits placed by Congress in
the agency’s governing statute or the Constitution. None
of the cases cited above have misunderstood this term or
misapplied the rule to challenges involving less than an
absence of statutory or constitutional authority. The “got
it wrong” criticism is misleading hyperbole. Second, we
need not speculate about any limits on who can challenge
agency action as ultra vires, because in this case there
is no doubt whatsoever about the petitioners’ Article III
standing. Nor is there doubt that NRC’s rejection of “party
aggrieved” status, if that were to be decided, has denied
them any other avenue of redress.
If ever there were a case in which an agency acted
ultra vires, it should be this case. And these petitioners
should have Hobbs Act standing to contest the NRC’s
illegal licensing.
50a
Appendix C
Stephen A. Higginson, Circuit Judge, joined by Graves,
Douglas, and Ramirez, Circuit Judges, dissenting from
denial of rehearing en banc:
To hold that the Nuclear Regulatory Commission
lacked authority to license private, away-from-reactor
storage of spent nuclear fuel without a clear delegation
from Congress, the panel disregarded a clear limitation
that Congress imposed on our own authority.
Through the Hobbs Act, Congress provided for
judicial review of a Nuclear Regulatory Commission
“final order entered in any proceeding” under the Atomic
Energy Act “for the granting, suspending, revoking, or
amending of any license.” 42 U.S.C. § 2239(b)(1), (a)(1)(A).
But, like challenges to all agency actions governed by the
Hobbs Act, Congress limited jurisdiction to where “[a]ny
party aggrieved by the final order” seeks judicial review
of the order. 28 U.S.C. § 2344. The panel erred when it
ignored this limitation, deepening one circuit split that
arose from our court’s atextual dicta in a footnote over
forty years ago and threatening to create another with
new, troubling dicta of its own.
This exercise of jurisdiction has grave consequences
for reg ulat ed entities’ settled expectations and
careful investments in costly, time-consuming agency
proceedings, inviting spoilers to sidestep the avenues for
participation that Congress carefully created to prevent
this uncertainty. See Amicus Nuclear Energy Institute
Br. 4-7. And it does so across a wide range of industries—
including agriculture, transportation, development, and
51a
Appendix C
communications—because the Hobbs Act’s exclusive
jurisdiction provision governs actions taken by many
agencies. See 28 U.S.C. § 2342(1)-(7).
I.
This case concerns a license issued by the Commission
to a private company, Interim Storage Partners, for
operation of a temporary, away-from-reactor spent
nuclear fuel storage facility in Andrews County, Texas.
Two private entities—Permian Basin Land and Royalty
Owners and for-profit oil and gas extraction organization
Fasken Land and Minerals (collectively, “Fasken”)—
sought to intervene in the licensing proceeding but were
denied. Their petitions for review in the D.C. Circuit of
the orders denying intervention were either dismissed
or denied. Don’t Waste Michigan v. NRC, No. 21-1048,
2023 U.S. App. LEXIS 2022, 2023 WL 395030, at *1-3
(D.C. Cir. Jan. 25, 2023) (per curiam). Texas never sought
to intervene in the licensing proceeding. Instead, it sent
letters to the Commission both during a public comment
period on a draft environmental impact statement
performed on the license and after Texas passed a law
prohibiting storage of spent nuclear fuel.
Fasken and Texas petitioned for review of the license
in this court and licensee Interim Storage Partners
intervened. Texas argued, as relevant here, that the
license should be vacated because the Commission does
not have the authority to license private entities for
temporary, away-from-reactor storage of spent nuclear
fuel. The panel concluded that it had jurisdiction under the
52a
Appendix C
Hobbs Act, granted the petitions for review, and vacated
the license. Texas v. NRC, 78 F.4th 827, 837-40, 844 (5th
Cir. 2023).
The panel suggested that, while neither Fasken
nor Texas were parties in the licensing proceeding
that produced the challenged order, it may be that
“participat[ion]—in some way—in the agency proceedings,
which Texas did through comments and Fasken did
by seeking intervention and filing contentions,” was
sufficient. Id. at 838. But the panel rested its assertion of
jurisdiction on our court’s “ultra vires exception to the
party-aggrieved status requirement.” Id. at 839. Under
the exception, there are “‘two rare instances’ where a
‘person may appeal an agency action even if not a party
to the original agency proceeding’— (1) where ‘the agency
action is attacked as exceeding [its] power’ and (2) where
the person ‘challenges the constitutionality of the statute
conferring authority on the agency.’“ Id. (quoting Am.
Trucking Ass’ns v. ICC, 673 F.2d 82, 85 n.4 (5th Cir.
1982) (per curiam)). The panel concluded that two of the
challenges attacked the Commission as exceeding its
power: Texas’s argument that “the Commission lacks the
statutory authority to license the facility” and Fasken’s
argument that “the Commission violated the National
Environmental Policy Act and Administrative Procedure
Act by allowing a licensing condition that violates the
Nuclear Waste Policy Act.” Id. at 839-40.
II.
Lest troubling dicta again be elevated to binding
precedent without examination, I write first to explain
53a
Appendix C
why the panel is wrong to suggest, without so holding,
that Texas and Fasken might be “part[ies] aggrieved”
under the plain text of the Hobbs Act. The panel intimates
that requiring that a “party aggrieved” be a party to
the underlying proceeding here would “impose an extratextual gloss by requiring a degree of participation not
contemplated in the plain text of the statute.” Id. at 839.
But giving effect to the words that Congress chose—and
refusing to read in words that it did not choose—does no
such thing.
The Hobbs Act’s narrow, exclusive-jurisdiction
provision limits review to those petitioners who are a
“party aggrieved by the final order,” 28 U.S.C. § 2344, in
contrast with the broader judicial review provision of the
Administrative Procedure Act under which a “person”
“aggrieved by agency action” may petition for review, 5
U.S.C. § 702. I don’t disagree that party status, because
the Hobbs Act encompasses a variety of agency actions,
turns on the nature of the agency proceedings. But in these
proceedings the answer is clear. With the Atomic Energy
Act, Congress carefully delineated the only process by
which the Commission could make a “person” a “party”
in the licensing proceeding context: “[T]he Commission
shall grant a hearing upon the request of any person whose
interest may be affected by the proceeding, and shall
admit any such person as a party to such proceeding.” 42
U.S.C. § 2239(a)(1)(A).7 Where the Commission denies a
7. Indeed, Congress relied on the “person” versus “party”
distinction throughout the Atomic Energy Act. For example, after
the conclusion of certain licensing proceedings for the construction
of plants, the Commission must publish a notice of intended operation
before fuel is loaded into the plant so that “any person whose interest
54a
Appendix C
person’s attempt to become a party—that is, where the
Commission denies intervention—Congress provided
for judicial review of that denial under the Hobbs Act.
Id. § 2239(b)(1). Pursuant to this congressionally devised
process, Fasken sought to become a party to the proceeding
and, when the Commission denied intervention, obtained
full review of that denial in the D.C. Circuit. Don’t Waste
Michigan, 2023 U.S. App. LEXIS 2022, 2023 WL 395030,
at *1-3. Texas never sought to become a party.
Without the answer that Congress supplied, the panel
relied on what it guessed Congress intended as “the
function of the ‘party aggrieved’ status requirement.”
NRC, 78 F.4th at 838. This put the panel in the more
difficult position of attempting to discern what degree of
participation in the agency proceeding was enough. Id.
at 838-39. But no such inquiry is required here or even
permitted because, in the context of Commission licensing
proceedings, Congress has answered the question already.
III.
The panel rested its assertion of jurisdiction,
with neither merits endorsement nor analysis, on this
court’s judge-made, ultra vires exception to Congress’s
jurisdictional limitation. Id. at 839-40. Because courts
have “no authority to create equitable exceptions to
may be affected by operation of the plant, may within 60 days request
the Commission to hold a hearing on whether” the construction
complies with the license. Id. § 2239(a)(1)(B)(i). This distinction
made by Congress contemplates that a person may not be party
to a licensing proceeding for a plant’s construction but may later
challenge whether subsequent construction complies with the license.
55a
Appendix C
jurisdictional requirements,” Bowles v. Russell, 551 U.S.
205, 214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007), the
exception should be eliminated.
This court, in dicta in a footnote over forty years
ago, asserted that the Hobbs Act’s “party aggrieved”
requirement does not limit review where “the agency
action is attacked as exceeding [its] power.” Am. Trucking
Ass’ns, 673 F.2d at 85 n.4 (internal quotation marks and
citation omitted). 8 That assertion, though made in 1982,
relied exclusively on Interstate Commerce Commission
cases from 1968 and earlier—seven years before Congress
brought judicial review of that body’s orders within the
ambit of the Hobbs Act. See Pub. L. No. 93-584, §§ 3, 4,
88 Stat. 1917 (1975). As the Second Circuit explained, the
exception “rests upon” these “pre-1975 cases” “without
any acknowledgment of the intervening change in
governing procedure” and with “no compelling support for
the proposition that, despite the plain statutory language
to the contrary, such petitions remain valid today.” ErieNiagara Rail Steering Comm. v. Surface. Transp. Bd.,
167 F.3d 111, 112 (2d Cir. 1999) (per curiam).
8. This was never explained as an outgrowth of the much
narrower exception that the Supreme Court recognized in Leedom v.
Kyne, 358 U.S. 184, 190, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958). There,
the Supreme Court explained that “the inference would be strong
that Congress intended the statutory provisions governing . . .
general jurisdiction . . . to control” where “there is no other means”
to “protect and enforce” a “right” that Congress has created. Id.
(internal quotation marks and citations omitted). But the Court has
underscored that this narrow exception does not apply where there is
a “meaningful and adequate opportunity for judicial review.” Bd. of
Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43, 112
S. Ct. 459, 116 L. Ed. 2d 358 (1991). Nor does it apply where Congress
has spoken “clearly and directly” to judicial review. Id. at 44.
56a
Appendix C
No other circuit has adopted our court’s exception to
the Hobbs Act, and four circuits have rejected it. Balderas
v. NRC, 59 F. 4th 1112, 1123-24 (10th Cir. 2023); Nat’l
Ass’n of State Util. Consumer Advocs. v. FCC, 457 F.3d
1238, 1249 (11th Cir. 2006) (Pryor, J.), modified on other
grounds on denial of reh’g, 468 F.3d 1272 (11th Cir. 2006);
Erie-Niagara Rail Steering Comm., 167 F.3d at 112-13;
In re Chicago, Milwaukee, St. Paul & Pac. R.R., 799 F.2d
317, 334-35 (7th Cir. 1986) (Easterbrook, J.). Indeed, the
Tenth Circuit in Balderas rejected the exception when
New Mexico invoked it to challenge the same license at
issue here. 59 F. 4th at 1123-24. In the Seventh Circuit,
Judge Easterbrook explained that our court’s atextual
exception reads out the “party” limitation that Congress
imposed because “‘exceeding the power’ of the agency
may be a synonym for ‘wrong,’ so that the statute then
precludes review only when there is no reason for review
anyway.” In re Chicago, 799 F.2d at 335.
Parsing which merits arguments here fall under our
court’s ultra vires exception shows its unworkability—and
the risk for judicial aggrandizement when courts can
pick and choose when to abide by Congress’s limits. The
panel concluded that it had jurisdiction over Fasken’s
argument that “the Commission violated the National
Environmental Policy Act and Administrative Procedure
Act by allowing a licensing condition that violates the
Nuclear Waste Policy Act” because the argument “centers
on the contention that the Commission acted beyond its
statutory authority by issuing a license with a condition
expressly prohibited by the Nuclear Waste Policy Act.”
NRC, 78 F.4th at 840. But this asks judges to speculate
about what a petitioner’s challenges are really about to
decide whether Congress’s clear jurisdictional limitation
on their power to hear cases really applies.
57a
Appendix C
The panel concluded that it had jurisdiction over
Texas’s argument that “the Commission lacks the
statutory authority to license the facility” because that
argument “attacks the Commission for licensing a facility
without the authority to do so under the Atomic Energy
Act, and in conflict with the Nuclear Waste Policy Act.” Id.
at 839-40. The panel, however, determined that it lacked
jurisdiction over Texas’s arguments that “the license
issuance violated the Administrative Procedure Act”
(unlike, inexplicably, Fasken’s Administrative Procedure
Act challenge) and the “National Environmental Policy
Act by failing to assess the risks of a potential terrorist
attack.” Id. But why are these latter two not also “attack[s]”
on the “agency action” as “exceeding [its] power”? Am.
Trucking Ass’ns, 673 F.2d at 85 n.4. An agency exceeds
its power whenever it violates the law. That includes when,
for example, its action is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). Our exception reads out the difference,
discussed above, that Congress created between broader
judicial review under the Administrative Procedure Act
and narrower judicial review under the Hobbs Act. And
“[t]he merits of that policy are for the Congress rather
than us to determine.” Simmons v. Interstate Commerce
Comm’n, 716 F.2d 40, 43, 230 U.S. App. D.C. 236 (D.C.
Cir. 1983) (Scalia, J.).
***
For these reasons, I respectfully dissent from denial
of rehearing en banc.
58a
Appendix D
APPENDIX D — MEMORANDUM
AND ORDER
OF THE NUCLEAR REGULATORY COMMISSION,
FILED APRIL 23, 2020
NUCLEAR REGULATORY COMMISSION
IN THE MATTER OF HOLTEC INTERNATIONAL
(HI-STORE Consolidated Interim Storage Facility)
CLI-20-4
Docket No. 72-1051-ISFSI
April 23, 2020
COMMISSIONERS: Kristine L. Svinicki, Chairman;
Jeff Baran; Annie Caputo; David A. Wright
MEMORANDUM AND ORDER
Today we address five separate appeals of the
Atomic Safety and Licensing Board’s denial of requests
to inter vene in the proceeding regarding Holtec
International’s application to construct and operate
a consolidated interim storage facility (CISF) in Lea
County, New Mexico.1 For the reasons described below,
we affirm the Board in part and reverse and remand in
part. We also remand to the Board two contentions filed
after the deadline.
1. See LBP-19-4, 89 NRC 353 (2019).
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Appendix D
I.
BACKGROUND
Holtec submitted its license application in March 2017.2
The proposed license would allow Holtec to store up to
8680 metric tons of uranium (MTUs) (500 loaded canisters)
in the Holtec HI-STORE CISF for a period of forty years.3
Holtec’s safety analysis currently encompasses only
the canisters and contents approved under the generic
docket 72-1040 for the HI-STORM UMAX canister
storage system.4 According to its application, Holtec plans
up to nineteen subsequent expansion phases over the
course of twenty years, with each expansion requiring a
license amendment. 5 Holtec’s environmental report (ER)
anticipates operation of its proposed facility for up to 120
years (a forty-year initial licensing period plus eighty
2. See Letter from Kimberly Manzione, Holtec International,
to Michael Layton, NRC (Mar. 30, 2017) (enclosing application
documents including safety analysis report and environmental
report) (ADAMS accession no. ML17115A431 (package)). By the
time the Board ruled, Holtec had updated its application documents.
The application revisions referenced in the Board’s decision are:
Environmental Report on the Holtec International HI-STORE
CIS Facility, rev. 5 (Mar. 2019) (ML19095B800) (ER); and Holtec,
Licensing Report on the HI-STORE CIS Facility, rev. 0F (Jan. 31,
2019) (ML19052A379) (SAR). References in this decision refer to
the same revisions unless otherwise noted.
3. See Proposed License for Independent Storage of Spent
Nuclear Fuel and High-Level Radioactive Waste SNM-1051, at 1
(ML17310A223) (Proposed License).
4. SAR § 1.0 at 1-2; see 10 C.F.R. § 72.214 (list of approved spent
fuel storage casks).
5. See ER § 1.0.
60a
Appendix D
years of potential renewal periods) with up to 100,000
MTUs stored after all expansions.6
The Staff published a notice of opportunity to request
a hearing on Holtec’s application in July 2018.7 Petitions
to intervene were filed by Sierra Club; Beyond Nuclear,
Inc. (Beyond Nuclear); Fasken Land and Minerals,
Ltd. and Permian Basin Land and Royalty Owners
(together, Fasken); Don’t Waste Michigan, Citizens’
Environmental Coalition, Citizens for Alternatives to
Chemical Contamination, Nuclear Energy Information
Service, Public Citizen, Inc., San Luis Obispo Mothers
for Peace, and Nuclear Issues Studies Group (together,
Joint Petitioners); Alliance for Environmental Strategies
(AFES); and NAC International Inc. (NAC). The Board
heard oral argument on January 23 and 24, 2019.
The Board rejected all the hearing requests for either
lack of standing, failure to offer an admissible contention,
or both. The Board found that three petitioners—Beyond
Nuclear, Sierra Club, and Fasken—had demonstrated
standing but had not offered an admissible contention. 8
The Board concluded that Joint Petitioners and NAC had
neither demonstrated standing nor offered an admissible
6. Id.
7. See Holtec International’s HI-STORE Consolidated Interim
Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed.
Reg. 32,919 (July 16, 2018).
8. See LBP-19-4, 89 NRC at 358.
61a
Appendix D
contention.9 The Board did not rule on AFES’s standing—
which it found to be a close call—but rejected AFES’s
petition because the organization had not proposed an
admissible contention.10
All petitioners except for NAC have appealed. The
Staff and Holtec oppose the appeals, as described below.
II. DISCUSSION
A.
Standard of Review
Our regulations allow a petitioner whose hearing
request has been wholly denied to appeal as of right.11
We generally defer to the Board on matters of contention
admissibility and standing unless an appeal demonstrates
an error of law or abuse of discretion.12 Similarly, we
generally defer to the Board on questions pertaining to
the sufficiency of factual support for the admission of a
contention.13
9. Id.
10. Id. at 358, 370-71.
11. 10 C.F.R. § 2.311(c).
12. See, e.g., Crow Butte Resources, Inc. (Marsland Expansion
Area), CLI-14-2, 79 NRC 11, 13-14 (2014); Strata Energy, Inc. (Ross
In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608-13
(2012).
13. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power
Plant, Units 1 and 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte,
CLI-14-2, 79 NRC at 13-14.
62a
Appendix D
B. Beyond Nuclear/Sierra Club Contention 1/
Fasken
Beyond Nuclear and Fasken each proposed a single
contention, and Sierra Club proposed its Contention
1, all questioning whether it is lawful to issue the
proposed license at all.14 These petitioners contend that
the application must be rejected outright because it
contemplates storage contracts with the U.S. Department
of Energy (DOE) and such contracts would be illegal under
the Nuclear Waste Policy Act (NWPA).15 Holtec envisions
14. See Petition to Intervene and Request for Adjudicatory
Hearing by Sierra Club (Sept. 14, 2018), at 10-17 (Sierra Club
Petition). Fasken entered this proceeding through a motion “to
dismiss the licensing proceeding” filed directly before us relating
to this facility and another CISF proposed in Texas. See Motion of
Fasken Land and Minerals and Permian Basin Land and Royalty
Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated
Interim Storage Facility and WCS Consolidated Interim Storage
Facility (Sept. 14, 2018). Beyond Nuclear filed a similar motion,
which it attached as an exhibit to its hearing request and petition to
intervene. See Beyond Nuclear, Inc.’s Hearing Request and Petition
to Intervene (Sept. 14, 2018) (Beyond Nuclear Petition); Beyond
Nuclear, Inc.’s Motion to Dismiss Licensing Proceedings for HiStore Consolidated Interim Storage Facility and WCS Consolidated
Interim Storage Facility for Violation of the Nuclear Waste Policy Act
(Sept. 14, 2018). Beyond Nuclear also submitted a letter after filing
its appeal. See Letter from Mindy Goldstein and Dianne Curran,
Counsel for Beyond Nuclear, to the Commissioners (Apr. 7, 2020).
The letter does not affect our analysis below.
15. See Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C.
§§ 10101-10270 (2012). Because our regulations do not provide for a
“motion to dismiss” an application, the Secretary of the Commission
referred Beyond Nuclear’s and Fasken’s motions to be considered
63a
Appendix D
that its customers will either be nuclear plant operators
or DOE, depending on which entity holds title to the spent
nuclear fuel.16
Beyond Nuclear, Fasken, and Sierra Club all argued
that it would violate the NWPA for DOE to take title to
spent nuclear fuel before it builds a permanent geological
repository. Section 123 of the NWPA provides that
DOE will take title to the spent fuel when the Secretary
of Energy accepts delivery of it.17 Section 302 of the
NWPA provides that the Secretary of Energy will enter
contracts with the spent fuel generators (nuclear power
plant owners) that “shall provide that” the Secretary will
take title to the spent fuel “following commencement of
operation of a repository.”18 And a ““repository” is defined
in the NWPA as a system intended for “permanent deep
geological disposal of high-level radioactive waste and
spent nuclear fuel.”19
as hearing requests and as proposed contentions in each licensing
proceeding. See Order of the Secretary (Oct. 29, 2018) (unpublished)
(issued in this proceeding and in Interim Storage Partners, LLC
(WCS Consolidated Interim Storage Facility)).
16. See, e.g., Proposed License at 2, ¶ 17 (“[T]he construction
program will be undertaken only after a definitive agreement with
the prospective user/payer for storing the used fuel ([DOE] and/or
a nuclear plant owner).”).
17. 42 U.S.C. § 10143.
18. Id. § 10222(a)(5)(A).
19. Id. § 10101(18).
64a
Appendix D
During oral argument on the petitions, Holtec’s
counsel acknowledged that the NWPA would prevent
DOE from taking title to spent nuclear fuel and therefore
(except for a relatively small quantity of waste it already
owns) DOE could not be a CISF customer. 20 Holtec also
acknowledged that it hopes Congress will change the law
to allow DOE to enter into temporary storage contracts
with Holtec. 21 But Holtec argued that because the
application also contemplates that nuclear plant owners
might be potential customers, the petitioners have not
raised a litigable contention.
The Board rejected the argument that the “mere
mention of DOE renders Holtec’s license application
unlawful.”22 The Board observed that Holtec “is committed
to going forward with the project” by contracting directly
with the plant owners. 23 The Board held that whether that
option is ““commercially viable” was not an issue before
the Board. 24 And it noted that Holtec had committed not
20. Tr. at 249-50.
21. Tr. at 248, 250.
22. LBP-19-4, 89 NRC at 381.
23. Id.
24. Id. (citing Louisiana Energy Services, L.P. (National
Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005); Hydro
Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4,
53 NRC 31, 48-49 (2001)). In Hydro, we observed that the NRC “is
not in the business of regulating the market strategies of licensees.”
Hydro, CLI-01-4, 53 NRC at 48-49. In Louisiana Energy Services,
we denied review of the Board’s decision to reject a portion of a
65a
Appendix D
to “contract unlawfully” with DOE. 25 The Board further
pointed to DOE’s publicly taken position that it cannot
lawfully provide interim storage before a repository is
operational. 26 The Board found that the NRC can safely
assume that DOE would not enter unlawful contracts
because federal agencies enjoy a “presumption of
regularity” that they will “act properly in the absence
of evidence to the contrary.” 27 The Board concluded that
Holtec “seeks a license that would allow it to enter into
lawful customer contracts today, but also permit it to
enter into additional customer contracts if and when they
become lawful in the future.” 28
Beyond Nuclear argues that the NRC cannot issue the
proposed license because the Administrative Procedure
Act prohibits agency action that is “not in accordance with
the law” or “in excess of statutory jurisdiction, authority,
or limitation.” 29 Beyond Nuclear frames the question as
contention that questioned the commercial viability of the proposed
project, and we held that the license applicant did not have to
“demonstrate the potential profitability of the proposed facility.”
Louisiana Energy Services, CLI-05-28, 62 NRC at 725.
25. See LBP-19-4, 89 NRC at 381.
26. Id. at 382.
27. Id. (citing United States v. Armstrong, 517 U.S. 456, 464
(1996); United States v. Chem. Found. Inc., 272 U.S. 1, 14-15 (1926));
see also FCC v. Schrieber, 381 U.S. 279, 296 (1965).
28. LBP-19-4, 89 NRC at 382.
29. Beyond Nuclear’s Brief on Appeal of LBP-19-04 (June
3, 2019), at 7 (Beyond Nuclear Appeal) (quoting Administrative
Procedure Act, 5 U.S.C. § 706(2)(A), (C)).
66a
Appendix D
whether the NRC “may approve a license application
containing provisions that would violate NWPA if
implemented.” 30 Similarly, Sierra Club argues that “the
Holtec project cannot be licensed if there is a possibility
that the financial arrangements would be illegal.”31 Fasken
argues that Holtec’s license application is “outside of
the ASLB’s and the NRC’s subject-matter jurisdiction”
because approval would authorize a facility that violates
the NWPA. 32 The Staff and Holtec oppose the appeals. 33
The three appellants’ characterization largely
restates arguments already advanced to the Board. 34 As
30. Id.
31. Sierra Club’s Petition for Review of Atomic Safety and
Licensing Board Decision Denying Admissibility of Contentions
in Licensing Proceeding (June 3, 2019), at 5 (Sierra Club Appeal).
32. Fasken and PBLRO Notice of Appeal and Petition for
Review (June 3, 2019), at 3-4 (Fasken Appeal).
33. See NRC Staff Answer in Opposition to Beyond Nuclear’s
Appeal of LBP-19-4 (June 28, 2019); Holtec International’s Brief in
Opposition to Beyond Nuclear’s Appeal of LBP-19-4 (June 28, 2019);
NRC Staff Answer in Opposition to Fasken Land and Minerals, Ltd.
and Permian Basin Land and Royalty Owners’ Appeal of LBP-19-4
(June 28, 2019); Holtec International’s Brief in Opposition to Fasken
and Permian Basin Land and Royalty Owners’ Appeal of LBP-19-4
(June 28, 2019) (Holtec Opposition to Fasken Appeal); NRC Staff ’s
Answer in Opposition to the Sierra Club’s Appeal of LBP-19-4 (June
28, 2019), at 5-7 (Staff Opposition to Sierra Club Appeal); Holtec
International’s Brief in Opposition to Sierra Club’s Appeal of LBP19-4 (June 28, 2019), at 6-9 (Holtec Opposition to Sierra Club Appeal).
34. Florida Power & Light Co. (Turkey Point Nuclear
Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017)
67a
Appendix D
the Board observed, “Holtec seeks a license that would
allow it to enter into lawful customer contracts today, but
also permit it to enter into additional customer contracts
if and when they become lawful in the future.” 35 The
proposed license would authorize Holtec to take possession
of the spent nuclear fuel in its CISF; the license itself
would not violate the NWPA by transferring the title to
the fuel,
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