📢 Caveat Lector
This analysis is brought to you by the Nuclear Inner‑Critic Podcast at HealthPhysics.blog, where my critique emerges not from afar, but from inside the arena. For a decade and a half, I served the State of Texas as the appointee of two Governors: member and chairman of the Texas Radiation Advisory Board, and inaugural Chair of the Low‑Level Radioactive Waste Compact Commission—working shoulder‑to‑shoulder with federal regulators. What I saw then — and still see now — is often not partnership, but paternalism: agencies overriding the goals of states faithfully expressing their citizens’ will through elected leadership.
Our mission is simple: transparency, accountability, and unflinching scrutiny of nuclear policymaking. We believe states—not Washington insiders—should have a voice when federal decisions impact local populations, industries, and long‑term trust in nuclear safety.
Breaking News Story
If West Virginia v. EPA was the judicial declaration that agencies can’t make up their own power, then the Court’s decision in NRC v. Texas is a warning that even when they do, you might not be allowed to object.
In a 6–3 decision handed down June 18, the U.S. Supreme Court ruled that the State of Texas and a prominent landowner in the Permian Basin could not challenge the Nuclear Regulatory Commission’s (NRC) controversial license for a private Consolidated Interim Storage Facility (CISF) for spent nuclear fuel—even though Congress never authorized such a facility, and even though the facility would be sited in a state that explicitly rejected it by law.
The decision—authored by Justice Kavanaugh and joined by the Chief Justice and the Court’s three liberal members—didn’t resolve the central question: Did the NRC violate the Nuclear Waste Policy Act (NWPA) by licensing a private national nuclear waste facility? Instead, the Court ducked it. On a technicality.
A Hollow Victory for Federal Power
The Court ruled that Texas and Fasken Land and Minerals, Ltd. lacked standing under the Hobbs Act to challenge the license because they weren’t officially admitted as “parties” to the agency’s internal adjudicatory hearing.
That’s right: even though Texas submitted detailed objections, passed a state law banning the project, and participated in the environmental review process, it was not deemed a “party aggrieved” under the statutory framework. As a result, the NRC’s license—issued under what many view as a dubious expansion of its authority—is shielded from review.
Justice Gorsuch, writing in dissent, didn’t mince words. In fact, his opening paragraph reads like a constitutional thunderclap:
“To hear the Court tell it, Texas and Fasken lost this case not because they are wrong about the law—but because they knocked on the wrong bureaucrat’s door.”
In other words, the Supreme Court admits the challengers might be right—but declines to hear the case because the NRC refused to let them in the front door.
A Closed-Loop of Unaccountable Power
Gorsuch lambasted the majority for letting the NRC, a federal agency, control who gets to sue it by controlling who it lets into its internal process — effectively giving agencies the power to block judicial oversight.
“No statute authorizes the Commission to pick and choose who may obtain judicial review of its final actions,” Gorsuch wrote. “Yet that is what the Commission did.”
The result, according to Gorsuch, is a “Kafkaesque scheme” where the NRC can deny someone a hearing — and then later argue that they lack standing to appeal because they didn’t have a hearing. It’s a self-sealing loophole that ensures no one can challenge the agency.
In rejecting Texas’s claim to standing, the Court elevates form over substance and invites agencies to strategically insulate their most consequential decisions from review.
A Smokescreen of Statutory Silence
Texas and Fasken argued that — except where Congress and the host state have explicitly consented — the NWPA expressly prohibits the NRC from licensing off-site, private SNF storage facilities — deceptively named as "Away from Reactor" storage facilities, but in reality the NWPA's "Monitored Retrievable Storage" (MRS) facilities by another name and on the cheap — without the infrastructure to service, maintain, or repackage used fuel canisters susceptible to leaking. Because, hot cells are expensive!
That’s not the case here. Congress never approved this MRS license. The State of Texas passed a law rejecting it.
Yet the NRC proceeded, claiming the Atomic Energy Act gave it “broad authority,” despite no specific authorization in the NWPA. This is the very sort of statutory sleight of hand the Court struck down in West Virginia v. EPA — where the Court held that major policy decisions require a clear mandate from Congress, not agency improvisation.
Gorsuch drew a sharp contrast between that principle and the Court’s inaction here:
“The very same NRC that denied Texas and Fasken a hearing now asks us to say that Texas and Fasken were not ‘parties’ to the proceedings they were barred from joining. That sort of catch-22 cannot be the law.”
Federalism Denied, Not on the Merits—But on the Signature Block
Perhaps the most jarring implication of this ruling is what it says about state sovereignty. If a state, through its legislature and governor, objects to being the site of a federal nuclear waste 'interim <wink wink>storage facility', should it not have standing to sue? The answer now, apparently, is: only if the agency gives you permission to object.
In a federalism-conscious era, where the Court has shown increasing deference to the rights of states to push back against federal power (as in Dobbs, West Virginia v. EPA, and Murthy v. Missouri), this decision feels like a step backward — not because the Court rejected Texas’s arguments, but because it refused to hear them.
Final Verdict: Rule of Law Deferred
The Court’s ruling is a cautionary tale about the limits of judicial oversight. The rule of law means little if the door to the courtroom is locked by agency discretion. The NRC’s license may stand for now, but not because the Court upheld it on the merits — because it never reached them.
And in that silence, a deeper issue echoes: if agencies can fence off legal challenges by controlling who gets inside their process, then what recourse do states and citizens really have when federal power exceeds its bounds?
As Gorsuch warned:
“At day’s end, this case is not just about nuclear waste. It is about accountability and the rule of law.”
Indeed. And this time, both were left waiting outside.
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