March 5th Oral Arguments: Listen and download here
Read the Transcript here.
TL:DR Summary
The Supreme Court is reviewing a case that challenges the NRC’s authority to license private nuclear waste storage sites (CISFs).
Texas, multiple states, and industry groups argue that the NRC overstepped its authority under the Nuclear Waste Policy Act (NWPA) by licensing a private spent nuclear fuel (SNF) storage facility in Andrews County, Texas.
A ruling against the NRC could halt private CISFs and force Congress to act, while a ruling in favor would strengthen federal control over SNF storage.
Key Legal Arguments in the Case
NRC’s authority under federal law is unclear – The NWPA never explicitly allows private CISFs, and Texas argues the NRC is expanding its own power beyond what Congress intended.
Federal vs. state rights – Texas passed a law banning SNF storage without state approval, claiming states should control nuclear waste storage within their borders.
Seismic risks & economic concerns – The Permian Basin, a top U.S. oil-producing region, is experiencing increased earthquakes, and opponents argue NRC ignored this in its environmental review.
Why This Case Matters for the Nuclear Industry
If the NRC loses: Private CISFs may be ruled illegal, requiring Congress to authorize new waste storage policies.
If the NRC wins: Federal control over SNF storage is solidified, but state resistance could escalate.
If the Supreme Court issues a narrow ruling: The fight over SNF storage continues, with legal uncertainty persisting.
Amicus Briefs Filed Against the NRC
States (Texas, Utah, Idaho, New Mexico, etc.) – Argue the NRC is violating state sovereignty and should follow Congress’s original plan for Yucca Mountain.
Industry Groups (Permian Basin Oil & Gas, Farm Bureau) – Claim storing nuclear waste in the Permian Basin threatens U.S. energy production.
Environmental and Citizen Groups – Raise safety, transportation, and long-term environmental risks.
Local Governments (Fort Worth) – Express concern over nuclear waste transport risks in major infrastructure hubs.
Final Thought
Regardless of the ruling, this case will shape U.S. nuclear waste policy for decades. If the Supreme Court limits the NRC’s authority, Congress may finally be forced to act on nuclear waste disposal.
I. Introduction: The Supreme Court Takes on a High-Stakes Nuclear Waste Case
A Legal and Regulatory Crossroads for the Nuclear Industry
For decades, the question of what to do with America’s growing stockpile of spent nuclear fuel (SNF) has been one of the most contentious policy debates in the energy sector. Nuclear power remains a critical pillar of U.S. energy independence and decarbonization efforts, yet its long-term viability hinges on one unsolved problem: where to store the waste.
The Nuclear Regulatory Commission (NRC) has long relied on a patchwork of temporary storage solutions, including on-site storage at reactors and independent spent fuel storage installations (ISFSIs, pronounced ‘iss-fiss-see’). However, with no permanent geological repository in sight after the collapse of the Yucca Mountain project, the NRC began licensing Consolidated Interim Storage Facilities (CISFs) — privately operated sites intended to hold SNF until a permanent disposal solution is found.
Now, one of those licenses is under direct legal attack, and the U.S. Supreme Court is set to hear arguments today, March 5, 2025, in a case that could fundamentally reshape the future of SNF management.
At the center of this legal battle is a proposed CISF in Andrews County, Texas, licensed by the NRC to Interim Storage Partners (ISP), a private consortium. The Fifth Circuit Court of Appeals vacated the license, which ruled that the NRC had overstepped its authority under the Nuclear Waste Policy Act (NWPA) and Atomic Energy Act (AEA). Now, the Supreme Court must decide whether the NRC’s licensing decision was lawful — or an unconstitutional overreach.
The stakes are enormous. A ruling against the NRC could invalidate private CISF projects, forcing Congress to act or indefinitely leave SNF stranded at reactor sites. A ruling in favor of the NRC would cement federal authority over SNF storage, overriding state-level resistance and opening the door for more private storage sites.
For industry insiders, policymakers, and state regulators, this case is more than a legal dispute — it’s a defining moment in nuclear waste policy that could shape storage strategies for decades.
A Personal Perspective: The Battle Over the Texas CISF
My connection to this case is not just academic. I was directly involved in the initial licensing process for the Texas CISF, steering it from near rejection to formal acceptance by the NRC. As someone who has spent years working at the intersection of industry, regulation, and policy, including serving as Chair of the Texas Radiation Advisory Board and Texas Low-Level Radioactive Waste Compact Commission, I understand the delicate balance required to secure public and political support for nuclear projects.
What makes this case particularly striking is how the NRC’s licensing approach alienated key stakeholders in Texas and New Mexico. For decades, nuclear projects have relied on state and local cooperation to move forward, yet in this case, the NRC’s approach fueled legal and political opposition rather than defusing it.
What Went Wrong?
Texas state leaders, including Governor Greg Abbott and the legislature, vehemently opposed the project and even passed a law banning SNF storage within the state without explicit legislative approval.
Fasken Land and Minerals, Ltd., one of the most influential oil and gas companies in the Permian Basin, argued that the facility poses an economic and environmental risk to the region’s booming energy sector.
U.S. Senators John Cornyn and Ted Cruz and Texas lawmakers filed an amicus brief warning that the NRC’s decision disregarded seismic risks, economic disruption, and congressional intent.
What started as a routine regulatory approval process has exploded into a full-blown legal and political fight that now sits before the highest court in the land.
The Supreme Court Case: Federal vs. State Power Over Nuclear Waste
This case presents four major legal questions that the Supreme Court must answer:
1. Did the NRC have the statutory authority to license a private CISF, or did it overstep the limits set by Congress in the NWPA?
Texas and Fasken argue that Congress never authorized private CISFs and that the NRC created new regulatory authority out of thin air.
The NRC counters that the NWPA does not explicitly prohibit private CISFs, so it retains broad authority under the AEA to regulate SNF storage.
2. Did the NRC improperly reclassify the Texas CISF as an “Away-From-Reactor ISFSI” to sidestep federal restrictions on MRS facilities?
Texas and Fasken claim that historically, “Away-From-Reactor ISFSIs” have been utility-owned facilities located within a few miles of a nuclear plant.
By applying this classification to a national-level CISF, the NRC avoided the stricter requirements for Monitored Retrievable Storage (MRS) facilities, which require state and congressional approval.
3. Does Texas have the right to reject a federal nuclear waste site within its borders, or does federal preemption override state law?
Texas passed a law banning SNF storage without state approval, arguing that states have the right to control their own land use.
The NRC argues that federal nuclear policy preempts state laws, making Texas’s ban irrelevant.
4. Did the NRC manipulate its procedural rules to prevent legal challenges?
Texas and Fasken were denied hearings during the licensing process, blocking them from developing a record for judicial review.
The NRC insists that their objections lacked merit, so hearings were not required.
The Supreme Court’s ruling will set a precedent that could impact not just this facility but all future SNF storage projects.
Why This Case Matters for the Nuclear Industry
For the nuclear industry, this case represents a turning point in how SNF is managed:
1. If the Supreme Court upholds the Fifth Circuit’s decision
The NRC loses its ability to license private CISFs without explicit congressional approval.
Future SNF storage solutions become politically and legally uncertain.
The debate over Yucca Mountain could be revived as alternatives become legally unworkable.
2. If the Supreme Court overturns the Fifth Circuit’s decision
The NRC cements its authority to license private CISFs, regardless of state opposition.
State-led opposition to nuclear waste storage will likely intensify, leading to further legal and political fights.
Public trust in the NRC’s decision-making process may erode, especially if the ruling is seen as federal overreach.
3. If the Supreme Court issues a narrow ruling
The Court may rule that the NWPA does not clearly authorize or prohibit private CISFs, punting the issue back to Congress.
This would create continued legal uncertainty, forcing Congress to pass new legislation clarifying federal SNF storage policy.
Regardless of the outcome, this case is a wake-up call for the nuclear industry. The old model of relying on federal regulators to push SNF storage solutions through without state and local buy-in is proving unsustainable.
II. The Texas and Fasken Opposition Briefs: A Regulatory Showdown
Texas and Fasken vs. the NRC: A Legal, Economic, and Environmental Battle
The legal battle over the Texas CISF is not just about nuclear waste policy — it’s about federal authority, state rights, economic risks, and regulatory transparency. What began as a routine licensing process by the NRC has now escalated into a multi-front legal challenge led by the State of Texas, Fasken Land and Minerals, Ltd., and powerful political allies in Congress.
Texas and Fasken have joined the fight at the U.S. Supreme Court, arguing that the NRC overstepped its legal authority in granting a license for the private CISF, disregarded state sovereignty, and ignored the economic and environmental risks of siting a nuclear waste facility in the Permian Basin.
This case could redefine the future of SNF storage, determining whether private companies can bypass state opposition and build national-scale nuclear waste facilities under NRC oversight alone.
A. The Legal Argument: Did the NRC Exceed Its Authority Under the NWPA?
The NWPA of 1982 was designed to establish a national framework for managing SNF. It was clear on one point:
Congress envisioned nuclear waste storage as a federal responsibility, requiring state participation and oversight. But did it authorize private companies to step in and store SNF independently?
Texas’s Argument: NRC Created Authority Where None Exists
The NWPA does not explicitly authorize private CISFs — it only allows federally controlled MRS facilities.
The NRC avoided calling the Texas CISF an MRS facility because doing so would trigger strict federal and state oversight requirements.
If Congress intended to allow private CISFs, it would have explicitly said so.
Texas argues that by licensing a private CISF, the NRC has granted itself power that Congress never approved, violating the separation of powers principle and expanding agency discretion beyond legal limits.
Fasken’s Argument: NRC’s Reclassification of the CISF Is a Regulatory Loophole
Fasken, representing major oil and gas interests in the Permian Basin, argues that the NRC deliberately reclassified the Texas CISF as an “Away-From-Reactor ISFSI” to bypass the stricter rules for federally managed MRS facilities.
Historically, Away-From-Reactor ISFSIs have been:
Utility-owned storage sites located within a few miles of a nuclear plant.
Temporary storage solutions used to relieve on-site reactor fuel pools.
But now, the NRC has expanded the definition to include a national-level private CISF located in a state that has passed a law banning SNF storage.
What changed? Nothing except the NRC’s regulatory interpretation.
Fasken argues that this “creative reclassification” was a deliberate move to sidestep legal scrutiny and avoid Congress's clear requirements on MRS facilities under the NWPA.
The Counterargument from NRC and ISP
The NRC insists that the NWPA does not explicitly prohibit private CISFs, meaning the agency retains broad regulatory authority under the AEA.
ISP argues that Texas and Fasken are misinterpreting the NWPA and that private CISFs have historically been considered legal under NRC regulations.
The federal government asserts that Texas’s objections are politically motivated rather than grounded in genuine statutory limitations.
B. The Economic and Environmental Risks: The Battle Over the Permian Basin
Beyond the legal battle, the economic and environmental stakes are just as high.
1. The Permian Basin: The Beating Heart of U.S. Energy Production
The Permian Basin is one of the most valuable energy-producing regions in the world, accounting for:
Nearly 50% of all U.S. crude oil production.
Significant natural gas output, supporting domestic and international markets.
Billions of dollars in private and public infrastructure investments.
Fasken and Texas argue that placing a high-level nuclear waste storage facility in this region threatens its long-term economic stability and could have ripple effects across the entire U.S. energy market.
2. Seismic Risks: Is NRC Ignoring the Data?
One of the most alarming issues raised by Fasken and Texas is the risk of induced seismicity — earthquakes caused by fracking and wastewater injection wells.
Over the last decade, seismic activity in the Permian Basin has increased dramatically, with some areas experiencing magnitude 4+ earthquakes.
Fasken argues that the NRC failed to properly assess this risk, instead relying on outdated seismic models that do not reflect the region’s current geological activity.
A moderate earthquake near the CISF could:
Damage the stainless steel SNF storage canisters, increasing the risk of radiation leaks.
Compromise the facility’s structural integrity, leading to emergency response situations.
Force regulatory shutdowns of nearby oil and gas operations, disrupting national energy markets.
The NRC’s counterargument is that the CISF is designed to withstand expected seismic events and that Texas and Fasken’s concerns are overstated. However, the agency’s failure to address the increasing seismic data could weaken its position before the Supreme Court.
3. The NRC’s Failure to Address CISCC
Fasken argues that the NRC ignores a known safety risk — Chloride-Induced Stress Corrosion Cracking (CISCC).
CISCC is a well-documented failure mechanism for thin-walled stainless steel SNF canisters (all US canisters), which can cause leaks in the lone environmental barrier over time.
The NRC failed to require a hot cell for repackaging leaking canisters, meaning damaged fuel would have to be transported offsite, increasing safety risks and voiding transportation cask certifications.
NRC responds that CISCC is not an immediate concern and that future solutions can be developed, but Fasken argues this “wait and see” approach is dangerous and irresponsible.
C. Procedural Manipulation: The NRC’s Denial of Hearings
Another major point of contention is how the NRC handled opposition during the licensing process.
1. Texas and Fasken’s Right to a Hearing
Under the Administrative Procedure Act (APA) and the AEA, affected parties have the right to request a hearing if they believe a licensing decision:
Exceeds agency authority.
Ignores major safety concerns.
Fails to comply with procedural requirements.
2. The NRC’s Response: “Your Concerns Are Meritless”
Texas and Fasken argue that the NRC deliberately denied hearings to suppress opposition.
The NRC counters that the hearing requests lacked merit and were unnecessary under regulatory guidelines.
If the Supreme Court finds that Texas and Fasken were unfairly denied hearings, it could send the case back to the NRC for further review, delaying the project indefinitely.
D. A Legal and Political Showdown with National Consequences
The Texas and Fasken opposition briefs represent a fundamental challenge to the NRC’s licensing authority, combining:
A statutory argument that the NWPA never authorized private CISFs.
An economic argument that the NRC failed to assess risks to the Permian Basin.
A procedural fairness argument that the NRC blocked Texas and Fasken from properly challenging the license.
With the Supreme Court set to hear oral arguments on March 5th, the ruling could reshape federal and state power over nuclear waste storage, setting a precedent that will affect SNF policy for decades to come.
The key question is: Did the NRC follow the law, or did it bend the rules to get the Texas CISF approved?
III. The Cornyn and Cruz Amicus Brief: National Security and Federal Overreach
The Political and Economic Firewall Against NRC’s Licensing Decision
The legal battle over the Texas CISF took on a new dimension when U.S. Senators John Cornyn and Ted Cruz — two of the most influential lawmakers from Texas — entered the fray. By filing an Amicus Curiae (friend of the court) brief in support of the State of Texas and Fasken Land and Minerals, Ltd., Cornyn and Cruz transformed this case from a technical regulatory dispute into a high-stakes battle over economic security, federal overreach, and state sovereignty.
Their brief doesn’t focus on technical safety concerns like CISCC or hot cells. Instead, it warns that the NRC’s licensing of a private CISF in Texas undermines U.S. energy dominance, disregards seismic and environmental risks, and sets a dangerous precedent for expanding federal regulatory power over state-controlled economic resources.
In their view, this is not just a nuclear waste siting issue — it is a direct challenge to congressional authority and Texas’ economic future.
A. The Economic and Energy Security Argument: Protecting the Permian Basin
1. The Permian Basin: America’s Energy Powerhouse at Risk
The Permian Basin is the economic and industrial backbone of Texas, responsible for:
50% of total U.S. crude oil production.
Significant natural gas output, essential for domestic energy security and global exports.
Billions of dollars in investment and infrastructure development.
Cornyn and Cruz argue that the NRC’s decision to license a CISF in the heart of this vital energy region is a reckless gamble with far-reaching economic consequences.
Siting an SNF storage facility in the Permian could discourage further oil and gas investment.
The long-term perception of storing high-level radioactive waste in an active drilling zone could impact mineral lease values and energy market stability.
If this precedent stands, other energy-producing states could face similar regulatory takeovers, where federal agencies dictate land use despite state objections.
The NRC and ISP argue that these concerns are exaggerated, claiming that the facility is designed to operate safely without interfering with oil and gas development. However, Cornyn and Cruz emphasize that no comprehensive economic impact analysis was conducted, and the NRC’s dismissal of these concerns reflects a broader pattern of ignoring state-level expertise.
2. The NRC’s Overreach and Future Land Use Conflicts
Beyond economic concerns, Cornyn and Cruz worry that this case could set a precedent for unchecked federal intervention in resource-rich states.
If the NRC can override Texas’ opposition to nuclear waste storage, what prevents other federal agencies from imposing unwanted projects in oil- and gas-rich states?
Could this decision open the door for more aggressive federal land-use policies, diminishing state control over economic development?
The Amicus Brief frames this as a constitutional question of state rights, arguing that the NRC’s actions threaten the balance between federal authority and state land-use sovereignty.
B. The Seismic Risk and Environmental Oversight Failure
1. The Permian Basin’s Rising Seismic Activity: A Known but Ignored Risk
Cornyn and Cruz highlight another major concern — the NRC’s failure to adequately assess the risk of increased seismic activity in the Permian Basin.
West Texas has experienced a dramatic rise in earthquake frequency due to fracking and wastewater injection wells.
Recent earthquakes have reached magnitudes of 5.4, raising serious concerns about long-term structural stability.
Unlike past nuclear waste storage projects, this facility would be in a geologically active region that was not considered seismically risky until recent years.
Cornyn and Cruz argue that the NRC’s environmental review failed to incorporate the most recent seismic data, instead relying on outdated studies.
The NRC’s response?
The facility was designed to withstand seismic events.
Industry-standard safety margins remain in place.
The risk of seismic activity damaging SNF canisters is low.
However, Cornyn and Cruz counter that these safety assessments were conducted before the full extent of West Texas’ seismic shift was understood. If the NRC had taken this risk seriously, it would have undertaken additional studies before issuing the license.
C. A National Security Risk: A Strategic Liability for the U.S. Energy Supply
Cornyn and Cruz’s brief raises an argument not present in Texas or Fasken’s filings — the potential national security risks of siting an SNF storage facility near the U.S.-Mexico border.
1. Potential Security Threats from Criminal and Terrorist Activity
The Permian Basin is geographically close to regions that already face security challenges from cartel activity and smuggling operations.
A nuclear waste facility could become a high-profile target for sabotage or attacks.
Unlike a nuclear power plant, which is heavily fortified with multiple layers of security infrastructure, a CISF is less secure and more vulnerable to external threats.
The NRC dismisses these concerns, stating that the facility will have adequate security measures. However, Cornyn and Cruz argue that no national security risk assessment was conducted before licensing the facility, meaning potential vulnerabilities were never seriously analyzed.
2. Geopolitical and Economic Leverage Risks
If the Texas CISF becomes a critical part of the U.S. nuclear waste storage infrastructure, it could become a strategic vulnerability for foreign adversaries seeking to disrupt U.S. energy independence.
In a foreign conflict or diplomatic crisis, adversarial nations could target misinformation campaigns or cyberattacks to undermine confidence in U.S. nuclear storage infrastructure.
No long-term national security assessment was included in the NRC’s licensing decision, leaving these risks unaddressed.
Cornyn and Cruz’s argument? You don’t wait for a crisis to evaluate risk — you conduct the proper security assessments before issuing a license.
D. The Constitutional and Legislative Overreach Argument
1. The NRC Is Expanding Its Own Power Without Congressional Approval
One of the strongest arguments in Cornyn and Cruz’s brief is that the NRC is fundamentally changing federal nuclear waste policy without congressional approval.
The NWPA explicitly requires state and congressional participation for MRS facilities.
By redefining a private CISF as an “Away-From-Reactor ISFSI,” the NRC is creating a new regulatory pathway that Congress never authorized.
This is not just a nuclear waste policy dispute — it’s a separation of powers issue.
2. The Supreme Court’s Role: Will It Reinforce Congressional Oversight?
If the Supreme Court allows the NRC’s licensing decision to stand, it could weaken congressional oversight over nuclear policy.
If it strikes down the license, it may force Congress to revisit nuclear waste policy and create clearer legislative guidelines.
E. The Bigger Battle Over Federal Power and State Rights
The Cornyn and Cruz brief adds a powerful economic, national security, and constitutional dimension to the case against the NRC. Their arguments reinforce that this is not just about one facility — it’s about the role of states in nuclear waste policy, the limits of federal regulatory power, and the long-term economic and security consequences of SNF storage decisions.
The Supreme Court’s ruling will determine whether the NRC acted within its authority or set a dangerous precedent for unchecked federal power.
The key question: Will the Court side with federal regulatory discretion, or will it affirm state sovereignty and congressional intent?
Sidebar: Other Parties That Have Filed Amicus Briefs
IV. The NRC and ISP Reply Briefs: A Counteroffensive
The Federal Government’s Pushback: Defending the Texas CISF License
With the Supreme Court set to hear arguments on March 5th, the NRC and ISP have filed their reply briefs, pushing back hard against the arguments presented by Texas, Fasken, and the Cornyn-Cruz amicus brief.
Their strategy is clear: deflect procedural challenges, reinforce NRC’s regulatory authority, and downplay concerns about seismic risks, economic harm, and national security.
While Texas and Fasken argue that the NRC overstepped its authority, the federal government’s response is direct and unapologetic:
The NRC’s licensing decision was lawful and fully supported by existing statutes.
Texas and Fasken’s concerns are speculative, exaggerated, or outside the NRC’s jurisdiction.
The Fifth Circuit’s ruling, which vacated the license, misinterpreted federal law and should be overturned.
This “all or nothing” approach by the NRC and ISP signals the high stakes of this case — if the Supreme Court sides with Texas and Fasken, it could permanently limit the NRC’s ability to license private CISFs.
So, how strong is their legal counterattack? Let’s break it down.
A. The Procedural Counterattack: Did Texas and Fasken Have the Right to Sue?
One of the most aggressive points in the NRC’s reply brief is its argument that Texas and Fasken had no legal standing to challenge the license in the first place.
The Hobbs Act requires petitioners to be a “party aggrieved” in an administrative proceeding. The NRC argues that Texas and Fasken were not official intervenors in the licensing process and therefore lack standing to challenge the CISF license.
The Fifth Circuit allowed Texas and Fasken’s case under an “ultra vires” exception, ruling that if an agency acts outside of its legal authority, a party can challenge it — even if they were not part of the original process.
The NRC says this was an error and insists that the Supreme Court dismiss the case on procedural grounds without addressing the merits.
The implication?
If the Supreme Court accepts this argument, the case could be thrown out entirely, reinstating the CISF license without resolving any of the more significant policy questions.
If the Court rejects this argument, it will move on to the core issue — whether the NRC overstepped its legal authority under the NWPA.
This is a high-risk move by the NRC and ISP. If they fail on procedural grounds, they must rely on their statutory interpretation arguments to salvage the case.
B. The NRC’s Authority Under the NWPA: A Matter of Statutory Interpretation
Texas and Fasken’s central argument is that the NWPA does not authorize private CISFs, and the NRC granted itself power Congress never approved.
The NRC fires back:
1. The NWPA is silent on private CISFs, but silence is not prohibition.
The NRC argues that if Congress wanted to ban private CISFs, it would have done so explicitly.
Since the NWPA only governs federally controlled MRS facilities, the NRC insists it retains full authority under the AEA to license private storage.
2. The NRC has been licensing away-from-reactor ISFSIs for decades.
The agency points to historical precedent, claiming that ISFSIs have always been a part of NRC’s regulatory framework.
Texas and Fasken argue that away-from-reactor ISFSIs were utility-owned and located close to reactors — but the NRC says the Texas CISF is merely an extension of an existing practice, not a new regulatory invention.
3. The Fifth Circuit misunderstood the regulatory framework.
The NRC claims that the Fifth Circuit misread the NWPA and created an artificial restriction on private CISFs that Congress never imposed.
If the Supreme Court upholds the Fifth Circuit ruling, it could set a precedent that limits the NRC’s ability to regulate nuclear waste storage more broadly.
What’s at stake?
If the Supreme Court accepts the NRC’s reading of the NWPA, it will reinforce federal preemption and agency discretion in nuclear waste storage.
If the Court rules that the NWPA prohibits private CISFs, it could permanently limit the NRC’s ability to license similar facilities.
C. Seismic Risks and Environmental Concerns: Are They Overblown?
Texas, Fasken, and Cornyn-Cruz have all raised concerns about placing a CISF in the middle of the Permian Basin, citing increased seismic activity due to fracking and wastewater injection wells.
The NRC and ISP dismiss these concerns outright:
The Texas CISF was designed to withstand seismic activity within established NRC safety limits.
Earthquakes in the region have not yet reached a level that threatens SNF canisters or storage infrastructure.
The NRC’s environmental review process was thorough and legally sufficient.
Texas and Fasken counter that:
Seismic activity in West Texas has increased significantly in recent years, meaning NRC’s seismic models may already be outdated.
A moderate earthquake could damage SNF canisters, increasing safety risks.
The NRC has downplayed worst-case scenarios, leaving open the possibility of future environmental and safety challenges.
Who has the stronger argument?
If the Supreme Court defers to NRC expertise, seismic concerns may not carry much weight.
If the Court believes that the NRC failed to conduct a sufficient environmental review, it could send the case back for further analysis, delaying the project indefinitely.
D. State vs. Federal Power: Does Texas Have the Right to Ban SNF Storage?
Texas passed a state law banning SNF storage within its borders without state approval, setting up a direct conflict between federal preemption and state sovereignty.
The NRC and ISP argue:
The Supremacy Clause of the U.S. Constitution overrides Texas’s law — federal nuclear policy cannot be dictated by individual states.
Texas cannot use state law to block a federally licensed facility, just as states cannot block other federally regulated industries like interstate commerce or telecommunications.
Texas and Fasken counter:
This is not just a Supremacy Clause issue — it’s about whether the NRC even had the authority to license the facility in the first place.
If the NRC lacked legal authority under the NWPA, then Texas’s objections remain valid.
The Supreme Court must decide:
Does Texas have any legal pathway to challenge federal nuclear waste storage decisions?
Or does federal authority completely override state concerns?
E. Will the Supreme Court Reinstate the License or Limit NRC Authority?
The NRC and ISP’s reply briefs represent a strong counterattack against Texas and Fasken's arguments, but their success depends on how the Supreme Court interprets the NWPA and evaluates agency discretion.
Possible Outcomes:
1. The Supreme Court Dismisses the Case on Procedural Grounds
Texas and Fasken lack standing, and the NRC’s license is reinstated without addressing the broader policy questions.
2. The Supreme Court Rules That the NRC Had Legal Authority Under the NWPA
The Fifth Circuit’s ruling is overturned, and the NRC’s power to license private CISFs is affirmed.
3. The Supreme Court Rules That the NWPA Prohibits Private CISFs
The NRC’s authority is permanently curtailed, requiring Congress to rewrite nuclear waste policy.
No matter how the Court rules, this case will define the future of SNF storage regulation in the United States.
V. Looking Ahead: What to Listen for in the March 5th Hearing
Listen here: https://www.supremecourt.gov/oral_arguments/live.aspx
Summary of Justices’ Potential Positions in NRC v. Texas & Fasken
The Supreme Court justices will approach this case based on their individual legal philosophies, past rulings on administrative law, federalism, and regulatory authority. Below is a neutral, apolitical summary of how each justice may evaluate the case.
Justices Likely to Focus on the Limits of Agency Authority
These justices may question whether the NRC had explicit congressional authorization to license a private CISF under the NWPA and whether its actions expanded regulatory power beyond what Congress intended.
Chief Justice John Roberts
Likely to focus on statutory interpretation and whether the NWPA grants or limits the NRC’s licensing authority.
May seek a middle-ground approach that provides regulatory certainty without granting agencies unchecked power.
Justice Clarence Thomas
Historically strict in interpreting statutes as written, meaning he may ask whether Congress explicitly authorized private CISFs or if the NRC assumed that authority.
Could question whether federal preemption applies if the NRC lacked proper legal grounds for licensing the facility.
Justice Samuel Alito
May emphasize the importance of clear legislative intent and question whether the NRC created new regulatory authority beyond what was delegated by Congress.
Might focus on whether the NRC’s licensing process followed due process and fair hearing standards.
Justice Neil Gorsuch
Has a history of questioning broad agency interpretations of statutes, meaning he may closely examine whether the NWPA provides sufficient authority for private CISF licensing.
Could raise concerns about the denial of hearings for Texas and Fasken, limiting their ability to challenge the license.
Justice Brett Kavanaugh
Likely to assess whether the NRC followed proper regulatory procedures and whether Congress needs to clarify nuclear waste policy moving forward.
Could be a key swing vote if he sees a balance between regulatory efficiency and statutory clarity.
Justice Amy Coney Barrett
May focus on whether the NRC’s licensing decision aligns with past regulatory interpretations or if it creates new agency authority without explicit legislative approval.
Could explore whether state rights and federal preemption can coexist under the NWPA framework.
Justices Likely to Emphasize Regulatory Consistency and Agency Expertise
These justices may consider whether the NRC’s licensing decision aligns with established regulatory practices and if agencies should be given discretion in technical policy areas.
Justice Sonia Sotomayor
May question whether Texas’ attempt to block the license contradicts long-standing federal authority over nuclear safety and waste storage.
Likely to consider whether agency discretion should be respected in complex technical matters like nuclear waste policy.
Justice Elena Kagan
Likely to argue that Congress has historically given the NRC broad authority over SNF storage, meaning the agency acted within its regulatory framework.
May challenge Texas and Fasken’s assertion that the NRC exceeded its power, particularly if the NRC has historically licensed similar facilities.
Justice Ketanji Brown Jackson
May focus on whether Texas and Fasken had a fair opportunity to challenge the license within administrative procedures.
Could examine whether the NRC followed procedural requirements but may lean toward allowing agency discretion where statutory guidance is not explicit.
Final Thoughts: A Decision That Will Shape Nuclear Waste Policy
If the Court rules against the NRC, it could mean that private CISFs require explicit congressional approval, delaying interim storage solutions.
If the Court rules in favor of the NRC, it could reinforce federal authority over SNF storage but may face continued state opposition.
A middle-ground ruling could focus on procedural fairness, requiring the NRC to provide more transparency while still allowing private CISFs.
Regardless of the outcome, this decision will set a precedent that impacts nuclear waste policy for decades to come. Industry insiders should watch how each justice frames their questions on March 5th, as it will signal the Court’s direction on agency power, state rights, and the future of SNF storage.
VI. Conclusion: A Defining Moment for Nuclear Waste Policy
A Crossroads for the Future of Nuclear Waste Storage
The Supreme Court’s upcoming decision in NRC v. Texas & Fasken is far more than a ruling on one storage facility in West Texas—it is a defining moment that will reshape the regulatory, legal, and political landscape for SNF management in the United States.
For decades, nuclear waste policy has been in a state of limbo. The failure of the Yucca Mountain repository, combined with growing volumes of SNF stored at reactor sites, has forced policymakers to seek alternative solutions—none of which have come without controversy.
Now, the Supreme Court is poised to make a ruling that will answer critical questions:
Does the NRC have the authority to license private CISFs, or did it exceed congressional intent?
Can Texas and other states reject SNF storage within their borders, or does federal preemption override state laws?
Will this decision reinforce the role of federal agencies in nuclear waste management, or will it force Congress to take action?
The outcome of this case will set a precedent that affects nuclear waste policy, energy security, and federal-state relations for decades to come.
A. What’s at Stake for the Nuclear Industry?
For nuclear operators, fuel suppliers, and policymakers, the ruling will shape how SNF is stored, transported, and regulated. The industry must prepare for three potential scenarios:
1. If the Supreme Court Upholds the NRC’s Authority
The Fifth Circuit’s ruling is overturned, and the Texas CISF license is reinstated.
Private CISFs remain a viable option for interim SNF storage, allowing the NRC to continue licensing similar facilities.
State opposition may intensify, as Texas and New Mexico may pursue new legal and political strategies to block federal storage mandates.
The NRC’s ability to classify future SNF storage sites as “Away-From-Reactor ISFSIs” remains intact, reinforcing regulatory flexibility.
2. If the Supreme Court Limits the NRC’s Authority Under the NWPA
The NRC’s ability to license private CISFs is curtailed, requiring explicit congressional approval for future projects.
Existing CISF licenses could face new legal challenges, introducing uncertainty for other proposed facilities.
SNF remains stranded at reactor sites indefinitely, increasing long-term storage costs and security risks.
Congress may be forced to step in and craft a new, clearer nuclear waste storage policy.
3. If the Supreme Court Dismisses the Case on Procedural Grounds
The Texas and Fasken challenge is thrown out without ruling on the NRC’s legal authority.
The Texas CISF license is reinstated, but opponents may find new avenues to challenge it.
Future lawsuits could arise over other CISF projects, leading to continued regulatory uncertainty.
No matter how the Court rules, the nuclear industry must reassess its long-term waste storage strategy.
B. What This Means for State vs. Federal Authority
One of the most consequential aspects of this case is whether states like Texas have the power to reject federally licensed nuclear waste sites.
If Texas prevails, it could embolden other states to pass similar laws restricting SNF storage, creating a patchwork of state-by-state nuclear waste policies.
If the NRC prevails, it will reinforce federal supremacy over nuclear waste policy but at the cost of alienating states that feel their rights are being ignored.
This ruling could set a powerful precedent for future energy and environmental disputes, including the following:
Federal energy infrastructure siting (pipelines, transmission lines, carbon storage facilities).
State challenges to offshore wind and oil leasing policies.
The role of federal agencies in regulating energy and environmental issues without clear congressional authorization.
As federal and state governments continue to clash over who gets the final say on energy projects, this case could reshape the balance of power.
C. The Supreme Court’s Role in Reshaping Administrative Law
Beyond nuclear waste policy, this case will be another test of the Supreme Court’s recent shift toward limiting agency discretion.
The Court’s ruling in West Virginia v. EPA (2022) restricted federal agencies from interpreting statutes in ways that significantly expand their authority without explicit congressional approval.
If the Court applies the major questions doctrine here, it could signal a broader trend of limiting agency power across multiple regulatory sectors.
If the NRC’s authority is curtailed, it could open the door for similar challenges to agencies like the EPA, DOE, and FERC, reshaping the regulatory landscape.
This case will determine not only how SNF is stored but also how much discretion federal agencies have in energy and environmental policy.
D. The Long-Term Implications for Nuclear Waste Storage Policy
Regardless of the ruling, this case underscores the urgent need for a long-term nuclear waste solution.
The U.S. has over 86,000 metric tons of SNF stored at reactor sites, with no permanent repository.
Interim storage cannot be a permanent solution, yet Congress has repeatedly failed to act on a new national storage strategy.
If private CISFs are ruled unlawful, the pressure to restart Yucca Mountain or find new permanent solutions will intensify.
This case does not solve the nuclear waste problem—it simply determines who has the authority to decide where SNF can go.
The real question that remains unanswered is whether Congress will finally take action to fix America’s nuclear waste policy or continue to leave these decisions to the courts and regulatory agencies.
E. Final Thought: The Future of SNF Storage Hangs in the Balance
This case is not just about Texas, not just about the NRC, and not just about this single facility.
It is about how the United States will handle its nuclear waste problem in the coming decades.
It is about whether the Supreme Court will reinforce the NRC’s authority or force Congress to step up and take responsibility.
It is about the balance between federal power and state sovereignty in deciding where nuclear waste can and cannot go.
As the Supreme Court prepares to issue its ruling, the nuclear industry, state governments, and energy policymakers must be ready for the consequences — because whatever happens next will shape nuclear waste policy for a generation.
March 5th Oral Arguments: Listen and download here
Read the Transcript here.
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