Washington — The Supreme Court restarted plans on Wednesday to temporarily store nuclear waste at sites in rural Texas and New Mexico, despite the country’s impasse over a permanent solution.
The justices voted 6-3 to overturn a federal appeals court decision that invalidated the Nuclear Regulatory Commission’s license granted to a private company for the facility in southwest Texas. The outcome should also reenergize plans for a similar facility in New Mexico, about 40 miles (65 kilometers) away.
The federal appeals court in New Orleans ruled in favor of the opponents of the facilities.
The court’s decision does not constitute a final ruling in favor of the licenses, but it does remove a significant impediment. Justice Brett Kavanaugh’s majority opinion relied on technical procedural rules to conclude that Texas and a major landowner in southwest Texas waived their right to challenge the NRC licensing decision in federal court.
The justices did not rule on a more substantive question, whether federal law authorizes the commission to license temporary storage facilities. However, Kavanaugh stated that “history and precedent offer significant support for the commission’s longstanding interpretation” of its ability to do so.
In dissent, Justice Neil Gorsuch argued that the NRC’s “decision was unlawful” because spent nuclear fuel can only be temporarily stored in two places under federal law: a nuclear reactor or a federally owned facility. Justices Samuel Alito and Clarence Thomas joined the dissenting opinion.
Approximately 100,000 tons (90,000 metric tons) of spent fuel, some of which dates back to the 1980s, is piling up at current and former nuclear plant sites across the country, with the amount increasing by more than 2,000 tons (1,800 metric tons) each year. The waste was intended to be stored there temporarily before being buried deep underground.
The NRC has stated that temporary storage facilities are required because existing nuclear plants are running out of space. The presence of spent fuel complicates plans to decommission some plants, the Justice Department stated in court documents.
Plans for a permanent underground storage facility at Yucca Mountain, northwest of Las Vegas, have stalled due to strong opposition from most Nevada residents and officials.
The Biden administration filed the NRC appeal, which was maintained by the Trump administration. Texas Republican Gov. Greg Abbott and New Mexico Democratic Gov. Michelle Lujan Grisham are leading the bipartisan opposition to the facilities in their respective states.
Lujan Grisham expressed disappointment with the court’s decision, stating that Holtec International, which was awarded the license for the New Mexico facility, was not welcome in the state. She vowed to do everything she could to prevent the Jupiter, Florida-based company from storing “dangerous” waste in New Mexico.
“Congress has repeatedly failed to secure a permanent location for disposing of nuclear waste, and now the federal government is trying to force de-facto permanent storage facilities onto New Mexico and Texas,” the congresswoman explained. “It is a dangerous and irresponsible approach.”
The NRC granted the Texas license to Interim Storage Partners, based in Andrews, Texas, for a facility capable of accepting up to 5,500 tons (5,000 metric tons) of spent nuclear fuel rods from power plants and 231 million tons (210 million metric tons) of other radioactive waste. The facility would be built next to an existing Andrews County dump site for low-level waste such as protective clothing and other radioactively contaminated materials. The Andrews County site is approximately 350 miles (560 kilometers) west of Dallas, near the Texas-New Mexico state line.
The licenses would allow the companies to operate the facilities for 40 years, with the possibility of a subsequent 40-year renewal.
