Idaho, New Mexico, Michigan and Utah are supporting Texas in its opposition to plans for storing nuclear waste in the western part of the Lone Star State.
The issue the Supreme Court will address on Wednesday revolves around the Nuclear Regulatory Commission issuing a license to Interim Storage Partners roughly six years ago to store nuclear waste in West Texas near a current low-level radiological waste facility located in Andrews County, Texas.
The state has protested the storage and in 2021 enacted a law aimed at effectively banning the storage plan. But the company has fought to keep the storage license viable.
A lower court sided with Texas, prompting Interim Storage Partners and the NRC to appeal to the justices.
If the high court sides against Texas, it could mean that nuclear waste would be allowed to be transported far across the country to interim storage sites such as the one proposed in Texas.
Idaho said in its filing to the justices that the court should back Texas and swat down the federal government’s move to temporarily store nuclear waste at interim sites, rejecting these licenses to private holders.
Idaho Attorney General Raul Labrador likened the approach to using duct tape, saying a more permanent storage solution would be the right approach.
“For the United States as a whole, ad hoc siting will mean far more civilians at risk, with nuclear waste spread around the country instead of concentrated in one remote site. It will also dramatically complicate efforts to secure the waste and increase the threat of every nuclear danger, from barrels leaking in the water supply to theft by terrorists developing dirty bombs,” Idaho’s brief reads.
Utah similarly urged the high court to side with Texas, warning that “spent nuclear fuel is a high-level radioactive waste that remains toxic for millions of years.”
“To both manage this waste and protect the American public from harms that could result from an accident involving spent nuclear fuel, Congress directed the Nuclear Regulatory Commission (NRC) to consider licensing a single, permanent government-owned repository for storing spent nuclear fuel at Yucca Mountain, Nevada,” wrote Utah Attorney General Derek Brown.
But activity at the Yucca Mountain site has stalled since the federal government ended funding for the project less than a decade after it had been cleared as the country’s designated waste site.
The NRC, meanwhile, has looked to issuing licenses to privately owned storage facilities.
“But no statute gives the NRC such immense power,” Mr. Brown said.
New Mexico, like Texas, has been in federal court fighting a storage facility on its land.
New Mexico Attorney General Raúl Torrez, joined by the state of Michigan, told the justices the states have a federalism interest in deciding where potentially dangerous radioactive waste can be stored.
Texas argues that Congress had authorized Yucca Mountain as the designated site for nuclear waste storage and while that has stalled, there has not been another clear site identified. By putting waste in Texas — above ground — the state says the NRC is violating federal law as it currently stands.
“Rather than complying, the Commission has now determined that up to 40,000 metric tons of nuclear waste should be stored above-ground in Texas’s Permian Basin, the site of the world’s most productive oil field and the only source of safe water for hundreds of miles,” Texas’ filing reads.
The Nuclear Regulatory Commission, meanwhile, told the justices the commission has the authority to issue licenses to store spent nuclear fuel.
“The Atomic Energy Act authorizes the Commission to license temporary offsite storage of spent nuclear fuel,” former Solicitor General Elizabeth Prelogar wrote in the Justice Department’s brief.
Acting Solicitor General Sarah Harris of the Trump administration has not changed positions in the dispute.
Interim Storage Partners, with its interest in the license, said the 5th U.S. Circuit Court of Appeals’ decision in favor of Texas should be overturned.
As nuclear waste is piling up, there is still no federal plan on how to handle the spent nuclear fuel, which is being held in 35 states as of 2023, according to the Scientific American, which suggests these may become de facto permanent storage sites.
The cases, Interim Storage Partners v. Texas and Nuclear Regulatory Commission v. Texas, will be argued Wednesday. A decision is expected by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.