Some Context for This Article's Thesis
This article is written from the perspective of two gray matter "data sets":
My experience as a Texas public official for over 14 years representing the interests of two governors and the state in nuclear matters of all shapes and forms. That experience includes the ardent, lifelong support of nuclear power and the responsible management and disposal of radioactive waste, along with chairing public meetings with hundreds of people in attendance, where I was pilloried for maintaining and defending such views.
My experience as a participant in the nuclear industry for nearly 40 years, where I have had the honor of working with some of the brightest minds in the industry (and planet!) within the Department of Energy (DOE) complex and the Nuclear Regulatory Commission (NRC).
I have the utmost respect for the nuclear industry professionals at the DOE and NRC who have collectively attempted to solve the matter of the ultimate destination (or use!) of spent nuclear fuel (SNF). As the recent public discourse has shown, stakeholder consent is critical to the success of any endeavor seeking to resolve these weighty issues.
As an organization, the DOE has long been engaged in the matter of stakeholder consent for a broad range of issues at its sites across the country with varying degrees of success. Regardless of its degree of success in securing stakeholder consent, the DOE acknowledges its critical importance.
On the other hand, the NRC will be the first to tell you that "consent" is not a requirement in their licensing procedures or statutes.
And, my friends, it shows.
The Public Agog over ChatGPT
With all the furor over public officials issuing fiats and sundry proclamations condemning the use of ChatGPT in place of brain cells by our lockdown-battered student populations, I decided to tiptoe around the curtain to ask ChatGPT to pretend to be a constitutional lawyer and write me a legal brief on a particular topic of national interest.
With the full acknowledgment that I am riddled head-to-toe with all manner of biases and opinions, I did my level best to craft a prompt that might be deemed “neutral” if one squints very hard at the wording with one’s good eye.
But first, let’s back it up for a second …
Before we get to incredibly biased ChatGPT prompts, let's provide some context over this rather contentious matter currently before the Fifth Circuit U.S. Court of Appeals in State of Texas v. NRC (21-60743), where Texas has invoked the "major questions" doctrine from the recent Supreme Court decision in West Virginia v. EPA.
"Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to 'clear congressional authorization' for the authority it claims." United States Supreme Court, 20-1530 West Virginia v. EPA, 30 June 2022 (emphases added)
Since the promulgation of 10 CFR Part 72, "Storage of Spent Fuel in an Independent Spent Fuel Storage Installation (ISFSI)" in 1978 (FEDERAL REGISTER, VOL. 43, NO. 195, FRIDAY, OCTOBER 6, 1978, pg 46309), the NRC has at times approached Congress for a clarification of its authority to license the storage of SNF once removed from reactors. Beginning with NUREG-0527, the conversation with Congress started a year later:
Unfortunately, try as you might, you will not find the words "spent nuclear fuel" within the four corners of the Atomic Energy Act (42 U.S.C. Sect. 2011, et seq) where the licensing authority of the NRC resides, hence opening up the NRC to review under the Major Questions Doctrine.
Where you will find "spent nuclear fuel" spelled out in all of its ominous detail is in the Nuclear Waste Policy Act, 42 USC 10101, et seq, where the clear intent of Congress is found for the DOE to undertake the siting, licensing, construction, and operation of national-level SNF storage facilities — called "Monitored Retrievable Storage (MRS) Facilities" in 42 USC 10161-69 — with the consent of the affected state(s) and tribal government(s) secured apriori and with compensation agreements in place.
How Did We Get Here?
The NRC has been licensing spent nuclear fuel (SNF) storage facilities at 10 CFR 50 licensed nuclear power plants (NPPs) for the last 40 years. In this author's humble opinion, there is exactly ZERO dispute over the NRC's authority to license the storage of SNF at NPPs or at "away from reactor" SNF storage facilities outside an NPP's security perimeter.
Examples of these licensing practices are easy to find.
General licensed (10 CFR Part 50) ISFSIs that are constructed inside an NPP's existing security perimeter, thereby allowing the utility to utilize existing security, safety, and environmental provisions of its Part 50 license in the construction of an ISFSI with preapproved vendor equipment.
Specific licensed (10 CFR Part 72) ISFSIs built outside a 10 CFR Part 50 licensed boundary and requiring the NPP licensee to develop stand-alone security, safety, and environmental (et al.) programs to manage the SNF storage operation.
What is being challenged in the 5th Circuit, however, is the authority of the NRC to license privately owned, national-level MRS facilities not affiliated with or within hundreds of miles of any NPP — by calling them AFR-ISFSIs — when Congress has clearly stated its desire (in federal law) for the DOE to take on this national responsibility with the consent of affected state(s). The NRC leans heavily on the Bullcreek decision for its authority, while Texas maintains the Bullcreek court constructed a heavily flawed premise:
"First, the Bullcreek court started from a flawed premise. It conceded that the Atomic Energy Act “does not specifically refer to the storage or disposal of spent nuclear fuel,” but cited three cases for the proposition that “it has long been recognized that the [statute] confers on the [Commission] authority to license and regulate the storage and disposal of such fuel.” 359 F.3d at 538. From there, it concluded that the Commission must also have authority to license a private facility away from a reactor. But the cases the court cited dealt with State and local authority to regulate spent nuclear fuel storage—not anything close to this premise." Case: 21-60743, Doc: 00516194148, Pg: 34, Date Filed: 02/07/2022
Thus far, the "re-name game" strategy of the NRC has prevailed.
The NRC terms these national-level MRS facilities — hundreds of miles from any NPP — "AFR-ISFSIs" even though the stated purpose of the facilities in NRC licensing documents exactly matches the stated purpose of MRS facilities in the NWPA. Hence, through its rebranding exercise, the NRC has abrogated the right of Texas to participate in the decision-making process, to consent to the facility (or not), and to receive compensation for hosting the facility at the state and local levels.
Which Brings Us Back to ChapGPT, playing the role of the Constitutional Attorney
I offered the following prompt to ChatGPT:
Prompt: Write a legal brief as if written by a constitutional attorney analyzing the Nuclear Regulatory Commission's decision to license a private party to construct a national-level spent nuclear fuel storage facility designed to store the nation's inventory of spent nuclear fuel for 80 to 100 years prior to final disposal and without consent of the host state and how that decision comports with the Nuclear Waste Policy Act. Include in your analysis the type of design requirements that such a facility would demand for the 80 to 100 years of storage of spent nuclear fuel and compare that with the designs of a standard independent spent fuel storage installation in existence throughout the country.
Plaintiff v. Nuclear Regulatory Commission
Issue: Whether the Nuclear Regulatory Commission's decision to license a private party to construct a national-level spent nuclear fuel storage facility designed to store the nation's inventory of spent nuclear fuel for 80 to 100 years prior to final disposal and without consent of the host state comports with the Nuclear Waste Policy Act.
Facts: The Nuclear Regulatory Commission (NRC) has licensed a private party to construct a national-level spent nuclear fuel storage facility. This facility is designed to store the nation's inventory of spent nuclear fuel prior to final disposal for a period of 80 to 100 years. The host state where the facility is proposed to be built has not provided its consent for the construction of the facility.
Analysis: The NWPA is the primary federal law that governs the management and disposal of the nation's spent nuclear fuel and high-level radioactive waste. The NWPA establishes the legal framework for the development of a permanent geologic repository for the disposal of spent nuclear fuel and high-level radioactive waste. The NWPA also requires the NRC to regulate the safe storage, transportation, and disposal of spent nuclear fuel and high-level radioactive waste.
One of the key provisions of the NWPA is the requirement for consent of the host state for the establishment of a facility for the storage of spent nuclear fuel and high-level radioactive waste. This provision is based on the principle that the federal government should respect the sovereignty of the states in matters related to the management of radioactive waste within their borders.
However, the NRC's decision to license a private party to construct a national-level spent nuclear fuel storage facility without the consent of the host state raises important legal questions about the scope of the NWPA's consent requirement and the constitutional principles of federalism that underlie it. The NRC's decision also raises questions about the type of design requirements that such a facility would demand for the 80 to 100 years of storage of spent nuclear fuel, and how those requirements compare with the designs of a standard independent spent fuel storage installation in existence throughout the country.
In order to determine if the NRC's decision comports with the NWPA, it is necessary to examine the legislative history of the NWPA and the related legal case law. This analysis will provide a framework for evaluating the NRC's decision in light of the NWPA's consent requirement and the constitutional principles of federalism that underlie it.
The legislative history of the NWPA clearly shows that the purpose of the consent requirement was to respect the sovereignty of the states in matters related to the management of radioactive waste within their borders. This respect for state sovereignty is a cornerstone of the federalist system established by the U.S. Constitution. The NWPA's consent requirement is a manifestation of this constitutional principle and is intended to ensure that the federal government does not undermine the sovereignty of the states by imposing a permanent geologic repository or any other facility for the disposal of spent nuclear fuel and high-level radioactive waste within their borders without their consent.
The legal case law related to the NWPA and its consent requirement has confirmed the principle that the federal government must respect the sovereignty of the states in matters related to the management of radioactive waste within their borders. For example, in a seminal case, the U.S. Court of Appeals for the Ninth Circuit held that the NWPA's consent requirement was an important aspect of the federalist system established by the U.S. Constitution and that the federal government could not impose a permanent geologic repository or any other facility for the disposal of spent nuclear fuel and high-level radioactive waste within the borders of a state without its consent.
The NWPA requires the NRC to ensure that the storage of spent nuclear fuel is done in a manner that is safe for the public and the environment. In addition, the NWPA requires that spent nuclear fuel be stored in a manner that is consistent with the principles of environmental protection, waste minimization, and the need to avoid undue degradation of the environment.
In licensing the private party to construct a national-level spent nuclear fuel storage facility, the NRC has failed to consider the design requirements necessary for the safe storage of spent nuclear fuel for 80 to 100 years. The facility would need to be designed to withstand the impact of natural disasters, such as earthquakes and hurricanes, and to prevent the release of radioactive material in the event of an accident.
Furthermore, the design requirements for a national-level spent nuclear fuel storage facility would be significantly different from those for a standard independent spent fuel storage installation. The latter is designed to store spent nuclear fuel for shorter periods of time and typically involves the use of dry cask storage, which is less expensive and less complicated than the design requirements for a national-level spent nuclear fuel storage facility.
Conclusion: The NRC's decision to license a private party to construct a national-level spent nuclear fuel storage facility without the consent of the host state and without considering the necessary design requirements for the safe storage of spent nuclear fuel for 80 to 100 years violates the Nuclear Waste Policy Act. The NRC must consider the design requirements necessary for the safe storage of spent nuclear fuel and obtain the consent of the host state before licensing the construction of a national-level spent nuclear fuel storage facility.
So What Does This Mean?
Absolutely nothing. Or damned close.
A.I.s have not (yet) assumed the mantle of "infallible deciders of legal questions," obviating the need for courts, judges, and lawyers to argue before them.
I think that's a good thing.
This AI might inform our opinions and expose our biases, but AI's should be used with great care due to the less-than-transparent construct of their psyches which can be steered with invisible hands.
Ultimately, if you combine my semi-worthless personal opinion with ChatGPT's well-informed-but-likely-biased opinion, you still can't trade it for a cup of coffee.
What might be salvaged from this discourse, however, is the takeaway that the NRC is not an organization concerned in any way with the process of building consent or, once having gained consent, maintaining it.
Based on my attendance at several NRC meetings as an "insider" and as a member of the public, I have concluded that the NRC is best termed an "anti-consent" organization.
Well, as an example, I offer the exchange between one of the ASLB judges and a West Texas rancher during a public meeting in Midland, Texas. The NRC "judge", obviously fresh off the plane for his first visit to West Texas, was incredulous that the rancher was concerned that he might not be able to access his land if anything went sideways at the facility being reviewed.
"Mr. Smith, just how many times do you need to access your land in a year?" the judge asked, incredulous that the rancher might actually need to access his land more times than the NRC deemed reasonable.
The rancher paused for a moment, stunned by the question, and looked at the two other judges, then at the staff, and then back at the judge, "I decide how many times I need to access my ranch, Judge."
In this snapshot of an exchange is found the well-practiced ability of the NRC to dissolve consent with the wave of the hand of a disinterested judge.
Let’s go, DOE. You’re up.
Let me think about it. I wouldn't want cryptic comments made during an interview to interfere with the DOE's good-faith attempt to solve the puzzle.
Mike: The DOE has recently embarked on a $16 million dollar quest to define "consent" and to find communities that might agree to host a storage site for spent nuclear fuel. I applaud this latest, well-funded attempt by the federal government to define and secure consent for a spent nuclear fuel storage site, whether it's proximate to an existing facility or built hundreds of miles away from any reactor. While I commend them for undertaking this task and sincerely wish them all the luck in the world, I am not confident they will ultimately succeed. Having fought radioactive waste battles for most of my professional career, I believe we are a long way away from defining what consent even means. I'll be pleased if they prove me wrong.