The same principle the Supreme Court used this summer to limit the Environmental Protection Agency's authority to curb carbon emissions should be invoked to stop federal nuclear energy regulators from greenlighting plans to send thousands of tons of radioactive waste to Texas.
That's what Republican Texas Attorney General Ken Paxton and a major oil company are telling a federal appeals court in a case that has forged an unlikely, and temporary, alliance between traditional energy interests and environmental activists.
The outcome of the case, which is pending before the 5th U.S. Circuit Court of Appeals, could have decadeslong implications for the nation's most productive oil and gas plays and determine whether thousands of casks filled with spent nuclear fuels are moved along rail lines that connect Texas to numerous states to its north and east.
Paxton's office has been seeking to block the waste from coming to Texas for years and even named former Gov. Rick Perry, who was U.S. energy secretary under then-President Donald Trump, as a defendant in a 2017 court filing. But the attorney general's latest argument centers on the June 30 Supreme Court ruling in a West Virginia case against the EPA that states federal agencies must have explicit congressional approval on matters legally described as "major questions."
The long-term storage of radioactive waste meets the definition of a "major question," Paxton's office told the appeals court in July.
"West Virginia confirms that this case implicates the major questions doctrine," the office said in a letter to the court.
Has the Nuclear Regulatory Commission been transparent?
Lawyers for the U.S. Nuclear Regulatory Commission and the private company that is seeking to store spent fuel from nuclear power plants said in court filings and in a hearing Monday before a three-judge panel of the 5th Circuit that Paxton and the Midland oil company, Fasken Land and Minerals, are misinterpreting the high court's ruling and misreading long-standing federal law.
"In 1978 — some forty-three years ago — the NRC issued for public notice and comment a proposed rule in the Federal Register that explicitly provided for what Texas now claims the NRC cannot do," Brad Fagg, an attorney for Interim Storage Partners, one of the entities named in the litigation, said in an Aug. 3 court filing.
The published notice, Fagg said, had to do with the agency's issuance of a license to store spent fuel at a location separate from the power plant that had produced it.
"In the many decades since, the NRC has been open, public, and transparent about its exercise of that authority," Fagg said in the filing.
Thousands of tons of nuclear waste
According to a 2020 report by the U.S. Department of Energy, about 2,000 metric tons of nuclear fuel are generated each year, totaling some 83,000 tons since the 1950s. Much of it is stored at 76 reactor sites in 34 states and sealed in steel-lined concrete pools of water or in steel and concrete dry storage casks, the report said.
"For the foreseeable future, the fuel can safely stay at these facilities until a permanent disposal solution is determined by the federal government," the report states.
The dismantling of aging nuclear power plants in recent years has heightened the need for storing spent fuel. In the 1980s, Congress moved forward with plans to warehouse the waste at a site in Nevada's Yucca Mountains. However, opposition and protracted political infighting have effectively shelved those plans.
The Texas site targeted for the spent fuel is in Andrews County, which borders New Mexico just northwest of Midland. It's already home to a low-level radioactive waste site, and it sits along the southern rim of the Permian Basin, which accounts for about 40% of all oil drilled in the United States and around 15% of the natural gas.
The oil and gas resources should eliminate the Andrews County site as a home for nuclear waste, which remains dangerous for thousands of years, Allan Kanner, a lawyer for Fasken, told the 5th Circuit panel.
'Not in my backyard'
"This is the Permian Basin we're talking about," Kanner said. "The nation's energy security depends on the production of (oil and gas in) the Permian Basin. It's basically a bunch of metal casks on top of a parking lot. It's an above-ground facility, which is one reason we think it would make an attractive target for terrorism."
Kanner said Fasken, the largest private landowner in Andrews County, is not against nuclear waste storage but said the site in Andrews County is unsuitable.
"That's what everybody says — not in my backyard," Judge Edith Jones responded.
Tom "Smitty" Smith, a veteran activist who has lobbied the Texas Legislature on environmental matters and progressive causes for decades, said that if the waste is allowed to be sent to Andrews County, everyone whose backyard abuts a railroad line and all of their neighbors would be affected in the event of a derailment or other mishap that causes the casks to leak.
"They decommission these nuclear reactors, tear them down and ship the waste south," Smith said.
Track record for nuclear safety
The Energy Department in its 2020 report downplayed the likelihood of such a leak.
"Over the last 55 years, more than 2,500 cask shipments of used fuel have been transported across the United States without any radiological releases to the environment or harm to the public," the report said.
The Andrews County site is no stranger to controversy. During the 2021 legislative session, Fasken and environmentalists teamed up to kill a measure they warned would open the storage facility to high-level radioactive waste even though the measure's author insisted the bill would have prohibited such waste. A similar measure that contained wording acceptable to environmental groups was finally passed during a special session of the Legislature later in the year.
In September, however, the NRC granted Interim Storage Partners a license for the higher-level storage of such waste in Andrews County. ISP's affiliate, Waste Control Specialists, operates the site.
Because the NRC is a federal agency, its action trumps state law. Still, ISP said that by granting the license, the NRC was satisfied that the company's "scientific, engineering, environmental, safety, and economic assumptions" were sound and that the waste coming to Andrews County would be safely stored.
"The extensive analyses concluded that this facility's commercial interim storage and transport operations satisfy all environmental, health, and safety requirements without negative impact to nearby residents or existing industries," the company said in a news release.
Who has the final authority?
Paxton's office and the lawyer for Fasken, meanwhile, contend that regardless of ISP's assurances, the license should be nullified unless Congress gives its express stamp of approval. But Andrew Averbach, the solicitor general for the NRC, said the license issuance was covered under the agency's long-standing statutory authority.
During the hearing, the 5th Circuit judges did not indicate how they would rule or provide a timetable for when a ruling would come. But Jones noted that during the nuclear energy age Congress has been hands-on when it comes to a range of policies and wondered why statutes governing waste storage are not more specific.
"It overwhelmingly seems to me that Congress chose to have its hand on the neck of the NRC, or whoever the regulatory licensing people were, to tell them what to do," Jones told Averbach. "So I don't see how you can claim that you had this overarching authority."