Fifth Circuit sides with Texas in dispute over nuclear waste storage

The Fifth U.S. Circuit Court of Appeals handed Texas another win in its battle with the Biden administration, this time over a plan to store nuclear waste in the Permian Basin.

In 2021, the Texas legislature nearly unanimously passed a law to ban any future nuclear waste from being stored in Texas. The law went into effect Sept. 9, 2021, after Gov. Greg Abbott signed it. Despite this, the Nuclear Regulatory Commission approved a license for a company to transport and store high-level radioactive waste from Yucca Mountain in Nevada to a facility in west Texas in the Permian Basin.

The Permian Basin, located in west Texas and southeast New Mexico, accounts for nearly 40% of all oil production and nearly 15% of natural gas production in the U.S. It covers more than 86,000 square miles – roughly 10 times the size of New Jersey. Roughly 250 miles wide and 300 miles long, it has more than 7,000 fields.

Texas’ law received widespread praise from environmental groups and the oil and natural gas industry. It bans high-level radioactive waste from being disposed of in Texas, excluding former nuclear power reactors and former nuclear research and test reactors on university campuses predating the law. It also bans state agencies from issuing permits to facilities to store nuclear waste in Texas.

Roughly two weeks after the law went into effect, the NRC granted Interim Storage Partners a license to ship 5,000 metric tons of high-level nuclear waste and store it at a facility in the Permian Basin in Andrews County. In 2023, the NRC also granted a license to Holtec International to store high-level nuclear waste in a facility roughly 40 miles west in southeast New Mexico, also in the Permian Basin.

After the law went into effect, Abbott wrote the NRC chairman expressing his opposition to the plan, saying the NRC was “rushing to issue the requested license.” He said he had “serious concerns with the design of the proposed ISP facility and with locating it in an area that is essential to the country's energy security.” He also said Texas “has made clear that a consolidated interim storage facility is not only unwelcome here, but illegal.”

But on Sept. 20, 2021, NRC granted the license to Interim Storage Partners prompting Abbott, the Texas Commission on Environmental Quality, Fasken Land and Minerals Ltd., and the Permian Basin Land and Royalty Owners to sue. The office of Attorney General filed a petition for review with the Fifth Circuit Court of Appeals, arguing Congress did not give the NRC such authority in the Nuclear Waste Policy Act.

A panel of judges on the Fifth Circuit agreed, ruling in favor of Texas in August 2023. U.S. Circuit Judge James Ho wrote for the majority, saying, “Texas is correct. The Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority. Accordingly, we grant the petition for review and vacate the license.”

The NRC appealed, asking for the full court to hear the case. On March 14, 2024, the Fifth Circuit denied its request, leaving its previous ruling in place.

Judges Jones, Ho and Wilson said the court issued the ruling after “having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor the petition for rehearing en banc is denied.”

They also said seven judges voted in favor of rehearing en banc, nine voted against and one judge recused himself.

Six judges, led by Judge Edith Jones, concurred with the denial.

Four judges, led by Judge Stephen Higginson, issued a lengthy statement explaining their vote in favor of a full hearing and their dissent to the ruling. They also said “the panel disregarded a clear limitation on our own authority” in its ruling.

The NRC has not yet said if it plans to appeal to the U.S. Supreme Court.

The Texas oil and natural gas industry in the Permian Basin leads the U.S. in production and emissions reduction and broke multiple records in 2023, The Center Square has reported. Four of the most productive oil and natural gas counties in the U.S. are in west Texas in the Permian Basin.

Texas has also sued over Biden administration EPA rules targeting the oil and natural gas industry in the Permian Basin, which it also expects to win, The Center Square has reported.