State of Texas v. NRC, No. 21-60743 (5th Cir. 2023)
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The Nuclear Regulatory Commission has asserted that it has authority under the Atomic Energy Act to license temporary, away from reactor storage facilities for spent nuclear fuel. Based on that claim of authority, the Commission issued a license for Interim Storage Partners, LLC, to operate a temporary storage facility on the Permian Basin.
Fasken Land and Minerals, Ltd., and Permian Basin Land and Royalty Owners (“PBLRO”) petitioned for review of the license. As did the State of Texas, arguing that the Atomic Energy Act doesn’t confer authority on the Commission to license such a facility.
The Fifth Circuit granted Texas’ petition for review and vacated the license, finding that 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.
The court issued a subsequent related opinion or order on March 14, 2024.
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Case: 21-60743 Document: 00516873781 Page: 1 Date Filed: 08/25/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ No. 21-60743 ____________ FILED August 25, 2023 Lyle W. Cayce Clerk State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of America, Respondents. ______________________________ Appeal from the Nuclear Regulatory Commission Agency No. 72-1050 ______________________________ Before Jones, Ho, and Wilson, Circuit Judges. James C. Ho, Circuit Judge: Nuclear power generation produces thousands of metric tons of nuclear waste each year. And such waste has been accumulating at nuclear power plants throughout the United States for decades. Congress has mandated that such waste be permanently stored in a geologic repository. But the development, licensing, and construction of that repository has stalled. Case: 21-60743 Document: 00516873781 Page: 2 Date Filed: 08/25/2023 No. 21-60743 To address this problem, the Nuclear Regulatory Commission has asserted that it has authority under the Atomic Energy Act to license temporary, away-from-reactor storage facilities for spent nuclear fuel. Based on that claim of authority, the Commission has issued a license for Interim Storage Partners, LLC, a private company, to operate a temporary storage facility on the Permian Basin, in Andrews County, Texas. Fasken Land and Minerals, Ltd., a for-profit organization working in oil and gas extraction, and Permian Basin Land and Royalty Owners (“PBLRO”), an association seeking to protect the interests of the Permian Basin, have petitioned for review of the license. 1 So has the State of Texas, which argues, inter alia, that the Atomic Energy Act doesn’t confer authority on the Commission to license such a facility. 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. I. This case is the latest development in a decades-long debate over nuclear power and waste regulation. Accordingly, we provide a brief overview of relevant historical and technical background before delving into the specifics of the licensing proceedings challenged here. _____________________ 1 For the remainder of this opinion, we use the term “Fasken” to refer to Fasken Land and Minerals, Ltd. and PBLRO collectively, unless addressing an issue where it’s necessary to distinguish them. 2 Case: 21-60743 Document: 00516873781 Page: 3 Date Filed: 08/25/2023 No. 21-60743 A. The United States began producing nuclear waste in the 1940s, first as a byproduct of nuclear weapons development and then as a byproduct of the commercial nuclear power industry. Blue Ribbon Commission on America’s Nuclear Future, Report to the Secretary of Energy 19 (Jan. 2012) https://www.en- ergy.gov/sites/prod/files/2013/04/f0/brc_finalreport_jan2012.pdf [hereinafter BRC Report]. The first nuclear reactor was demonstrated in 1942, and Congress authorized civilian application of atomic power through the Atomic Energy Act of 1946. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206 (1983). The Act granted regulatory authority over nuclear energy to the Atomic Energy Commission. See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 n.1 (D.C. Cir. 1984). But the Energy Reorganization Act of 1974 disbanded that agency and redistributed its authority, as relevant here, to the Nuclear Regulatory Commission. Id. After Congress passed the Atomic Energy Act, commercial production of nuclear energy boomed. Commercial nuclear energy is produced through a series of industrial processes, which include the mining and processing of nuclear fuel, the use of the fuel in a reactor, and the storage and ultimate disposal or reprocessing of that fuel. BRC Report at 9. Once nuclear fuel has been used in a reactor for about four to six years, it can no longer produce energy and is considered used or spent. Id. at 10. That spent fuel is removed from the reactor. Id. Spent nuclear fuel is “fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.” 42 U.S.C. § 10101(23). It’s “intensely radioactive” and “must be carefully stored.” Pac. Gas & Elec. Co., 461 U.S. at 195. The spent fuel is first placed in wet pool storage for cooling, where it 3 Case: 21-60743 Document: 00516873781 Page: 4 Date Filed: 08/25/2023 No. 21-60743 remains for at least five years, but may remain for decades. BRC Report at 11. Once the spent nuclear fuel has cooled sufficiently in wet storage, it’s generally transferred to dry cask storage. Id. At first, there was little concern regarding storage for spent fuel. See BRC Report at 19–20; Idaho v. DOE, 945 F.2d 295, 298–99 (9th Cir. 1991). There was a widespread belief within the commercial nuclear energy industry that spent fuel would be reprocessed. Idaho, 945 F.2d 295, 298–99 (9th Cir. 1991). But the private reprocessing industry collapsed in the 1970s, id., and growing concerns led President Ford to issue a directive deferring commercial reprocessing and recycling, which President Carter later extended. BRC Report at 20. Although President Reagan reversed that policy, “for a variety of reasons, including costs, commercial reprocessing has never resumed.” Id. After years of accumulating spent nuclear fuel in nuclear power plants throughout the country, see 42 U.S.C. § 10131(a)(3), Congress enacted the Nuclear Waste Policy Act in 1982. That Act sought to “devise a permanent solution to the problems of civilian radioactive waste disposal.” Id. It tasked the Department of Energy with establishing “a repository deep underground within a rock formation where the waste would be placed, permanently stored, and isolated from human contact.” Nat’l Ass’ of Regul. Util. Comm’rs v. DOE, 680 F.3d 819, 821 (D.C. Cir. 2012). Yucca Mountain in Nevada was chosen as the only suitable site for the repository. See 42 U.S.C. § 10172. The decision drew widespread opposition in Nevada. BRC Report at 22. Decades of delay ensued. Despite a Congressional mandate that the Department of Energy start accepting waste from the States by January 31, 1998, see 42 U.S.C. § 10222(a)(5)(B), “by the mid-1990s, the Department of Energy made clear that it could not meet the 1998 deadline, and it came and 4 Case: 21-60743 Document: 00516873781 Page: 5 Date Filed: 08/25/2023 No. 21-60743 went without the federal government accepting any waste.” Texas v. U.S., 891 F.3d 553, 555–56 (5th Cir. 2018). In 2008, the Department of Energy finally submitted its license application for the Yucca Mountain repository to the Commission. In re Aiken Cnty., 725 F.3d 742, 258 (D.C. Cir. 2013). But the Commission “shut down its review and consideration” of the application. Id. By its own admission, the Commission had no intention of reviewing the application, id., even though the Nuclear Waste Policy Act mandates a decision be made within three years of submission. See 42 U.S.C. § 10134(d). In light of the delays and controversy, the Obama Administration decided to halt the work on the Yucca Mountain repository. BRC Report at vi. The Obama Administration instead formed the Blue Ribbon Commission on America’s Nuclear Future, which concluded that a consent-based approach to siting nuclear waste storage facilities would be preferred to the Yucca Mountain policy. See id. at vii–x. Spent nuclear fuel continues to accumulate at reactor sites across the country. Some estimates suggest the U.S. inventory of spent nuclear fuel may exceed 200,000 metric tons by 2050. BRC Report at 14. The commercial nuclear power industry as a whole is estimated to generate between 2,000 and 2,400 metric tons of spent nuclear fuel each year. Id. And there are thousands of metric tons of spent fuel in various sites where commercial reactors no longer operate. Id. B. After the Blue Ribbon Commission embraced a consent-based approach for siting nuclear waste storage facilities, the governments of Texas and New Mexico expressed support for establishing facilities within the states. Then-Governors Rick Perry of Texas and Susana Martinez of New Mexico wrote letters supporting the establishment of facilities within their 5 Case: 21-60743 Document: 00516873781 Page: 6 Date Filed: 08/25/2023 No. 21-60743 respective states. And Andrews County—a rural community located near the Texas-New Mexico border—passed a resolution in support of siting a spent nuclear fuel facility there. Based in part on these expressions of support, Waste Control Specialists, LLC applied to the Commission for a license to operate a consolidated interim storage facility for high-level spent nuclear fuel in Andrews County. Andrews County is located within the Permian Basin, one of the country’s largest oil basins and a top global oil producer. The Commission began its environmental review of the proposed facility in accordance with the National Environmental Policy Act. See 42 U.S.C. § 4321 et seq. But the application anticipated that the Department of Energy would take title to the spent nuclear fuel. Some stakeholders challenged the legality of that provision as prohibited by the Nuclear Waste Policy Act. Waste Control Specialists then asked the Commission to suspend its review. Approximately a year later, Interim Storage Partners, LLC—a partnership between the original applicant, Waste Control Specialists, and another company—asked the Commission to resume its review of the now-revised license application. In its summary report on the scoping period, the Commission noted that it had received comments expressing concerns that the facility would become a de facto permanent disposal facility and that the license would be illegal under existing regulations. The Commission responded that such comments were outside the scope of the environmental impact statement. In December 2019, the Atomic Safety and Licensing Board—the independent adjudicatory division of the Commission—terminated an adjudicatory proceeding regarding the license application. Before the proceeding was terminated, Fasken timely filed five contentions alleging that the 6 Case: 21-60743 Document: 00516873781 Page: 7 Date Filed: 08/25/2023 No. 21-60743 Commission violated the National Environmental Policy Act and its own regulations. The Board denied each one. The following month, Fasken filed a motion to reopen the record along with a motion to amend a previously filed contention. The Board denied the motions. The Commission published a draft environmental impact statement in May 2020. The Commission received approximately 2,527 unique comments on the draft environmental impact statement, and many opposed the facility. One comment was a letter from Texas Governor Greg Abbott urging the Commission to deny the license application because of the lack of a permanent repository and the importance of the Permian Basin to the nation’s energy security and economy. The Texas Commission on Environmental Quality submitted a comment that the licensing lacks public consent and doesn’t properly account for the possibility that Texas would become the permanent solution of spent nuclear fuel disposal if the permanent repository isn’t developed by the expiration of the facility’s 40-year license term. Fasken also submitted various comments. Its comments noted the uniqueness of the Permian Basin, the danger of transporting spent nuclear fuel to the facility, the lack of community consent, and the possibility that the facility could become a de facto permanent facility. Based on the draft environmental impact statement, Fasken also filed a second motion to reopen the adjudicatory proceeding. The Board once again denied the request. The Commission issued the final environmental impact statement in July 2021. It recommended the license be issued, and noted that concerns regarding Yucca Mountain and the need for a permanent repository fell outside its scope. In an appendix, the Commission responded to timely comments, including those from Petitioners. The Commission responded to concerns that the facility would become a de facto permanent repository by noting the application was only for a temporary facility. 7 Case: 21-60743 Document: 00516873781 Page: 8 Date Filed: 08/25/2023 No. 21-60743 The following September, the Texas Legislature passed H.B. 7. The statute makes it illegal to “dispose of or store high level radioactive waste” in Texas. Governor Abbott sent a letter to the Commission with a copy of H.B. 7. He reiterated that “the State of Texas has 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.” The next day, Fasken submitted an environmental analysis critiquing various aspects of the final environmental impact statement. A few days later, the Commission issued the license. Texas and Fasken have now petitioned this court for review of the license. Texas asks that the license be set aside. And Fasken asks that we suspend all further activities on the facility and remand to the Commission for a hard look analysis. While this case was pending before this court, Fasken and others who sought but were denied intervention in the agency adjudication had a petition for review pending before the D.C. Circuit appealing the denials of their intervention. See Don’t Waste Michigan v. NRC, 2023 WL 395030 (Jan. 25, 2023). The petition was denied in January 2023. Id. at *1. Interim Storage Partners, LLC intervened in this case to represent its interests. II. We begin with jurisdiction. The Commission challenges this court’s jurisdiction to hear the petitions for review for lack of both constitutional standing and statutory standing. We consider each argument in turn and find neither succeeds. A. As a preliminary matter, the Commission suggests that Petitioners forfeited constitutional standing by failing to argue it in their opening briefs. We disagree. 8 Case: 21-60743 Document: 00516873781 Page: 9 Date Filed: 08/25/2023 No. 21-60743 Neither Petitioner argued constitutional standing beyond their general jurisdictional statements. Generally, a petitioner is required “to present specific facts supporting standing through citations to the administrative record or affidavits or other evidence attached to its opening brief, unless standing is self-evident.” Sierra Club v. EPA, 793 F.3d 656, 662 (6th Cir. 2015) (emphasis added, quotation omitted). A petitioner may reasonably believe standing to be self-evident when “nothing in the record alerted [the] petitioners to the possibility that their standing would be challenged.” Am. Libr. Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). That’s the case here. From the earliest stages of this proceeding, the Commission has challenged jurisdiction on statutory standing grounds only. It twice moved to dismiss, but neither motion challenged constitutional standing. Accordingly, Petitioners could reasonably assume it was self-evident. Cf. Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 542 n.4 (5th Cir. 2019) (“overlook[ing] Petitioners’ decision to include only a cursory discussion of standing because . . . they had a good-faith (though mistaken) belief that standing would be both undisputed and easy to resolve”). And—once constitutional standing was challenged—both Petitioners provided well-developed legal arguments with citations to the record and evidence to show their standing. Petitioners haven’t forfeited constitutional standing. The “irreducible constitutional minimum” of standing requires that Petitioners “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The causation elements of the constitutional standing analysis are easily met: Petitioners’ alleged injuries directly result from the issuance of the license (traceability), and an order from this court could vacate the license (redressability). So only injury in fact is at issue. 9 Case: 21-60743 Document: 00516873781 Page: 10 Date Filed: 08/25/2023 No. 21-60743 The Commission argues that the licensing and eventual operation of the storage facility doesn’t injure either Texas or Fasken. We disagree. Because “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement,” we may proceed even if only one of the Petitioners has standing. Rumsfeld v. FAIR, 547 U.S. 47, 52 n.2 (2006). But here both Petitioners successfully assert an injury resulting from the license. Texas meets the injury-in-fact requirement because the license preempts state law. Texas has “a sovereign interest in the power to create and enforce a legal code.” Tex. Off. of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quotation omitted) (holding that Texas has standing to challenge the FCC’s assertion of authority over an aspect of telecommunications regulation that the State believed it controlled). And we have held that the preemption of an existing state law can constitute an injury. Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015). “A state has standing based on a conflict between federal and state law if the state statute at issue regulates behavior or provides for the administration of a state program, but not if it simply purports to immunize state citizens from federal law.” Id. (cleaned up). Here the issuance of the license and resulting operation of the facility directly conflicts with H.B. 7. The Texas Legislature has enacted legislation that prevents the storage of high-level radioactive waste, including spent nuclear fuel, within the State except at currently or formerly operating nuclear power reactors. The legislation also amends Texas statutes to add that “a person, including the compact waste disposal facility license holder, may not dispose of or store high level radioactive waste in this state.” Tex. Health & Safety Code § 401.072. Although a non-binding, declaratory state statute would not be enough to confer standing, here there’s an enforceability conflict between the license and operation of the facility, which authorizes storage of 10 Case: 21-60743 Document: 00516873781 Page: 11 Date Filed: 08/25/2023 No. 21-60743 high-level radioactive waste in Texas, and H.B. 7, which proscribes such storage. Cf. Virginia v. Sebelius, 656 F.3d 253, 270 (4th Cir. 2011) (a state statute that is merely a “non-binding declaration [and] does not create any genuine conflict . . . creates no sovereign interest capable of producing injury-infact”). That’s enough for Texas to assert an injury. Fasken also has standing based on its proximity to radioactive materials. To establish injury in an environmental case, there’s a “geographicnexus requirement.” Biological Diversity, 937 F.3d at 538. “The Supreme Court has ruled that geographic remoteness forecloses a finding of injury when no further facts have been brought forward showing that the impact in those distant places will in some fashion be reflected where the plaintiffs are.” Id. (cleaned up). See also id. at 540 (“when a person visits an area for aesthetic purposes, pollution interfering with his aesthetic enjoyment may cause an injury in fact,” if “the aesthetic experience was actually offensive to the plaintiff”). Fasken has provided evidence of its members’ geographic proximity to the facility. Some of Fasken’s members own land within four miles of the facility, draw water from wells beneath the facility, drive within a mile of the facility, use rail lines the facility would use, and travel on highways within a few hundred feet of the rail lines that transport spent nuclear fuel to the facility. In the context of radioactive materials, such proximity is sufficient to establish injury. See Duke Power Co. v. Caroline Env’t Study Grp., Inc., 438 U.S. 59, 74 (1978) (“[T]he emission of non-natural radiation into appellees’ environment would also seem a direct and present injury.”). See also Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004) (finding a petitioner living 18 miles from Yucca Mountain had standing); Kelley v. Selin, 42 F.3d 1501, 1509 (6th Cir. 1995) (finding petitioners who “own[] land in close proximity to . . . the proposed site for spent fuel storage” had “alleged sufficient injury to establish standing”). 11 Case: 21-60743 Document: 00516873781 Page: 12 Date Filed: 08/25/2023 No. 21-60743 PBLRO also has associational standing. “Associational standing is a three-part test: (1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted, nor the relief requested requires participation of individual members.” Biological Diversity, 937 F.3d at 536 (quoting Texas Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006)). Each of those elements is met. First, some of its members have an injury because they live, work, or regularly drive close the facility. And as we’ve already noted, see supra, the causation elements are met. Next, “the germaneness requirement is undemanding and requires mere pertinence between the litigation at issue and the organization’s purpose.” Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 n.2 (5th Cir. 2010) (quotations omitted). This factor is easily met because PBLRO was created specifically to oppose the facility. Last, there’s no reason to believe that PBLRO is unable to represent its members’ interests without their individual participation. See id. at 551– 53 (noting this prong usually isn’t met when the relief sought is damages for individual members or the claim requires fact-intensive-individual inquiry). B. Petitioners seeking to challenge a final order from the Commission also need standing under the Administrative Orders Review Act, generally known as the Hobbs Act. See Reytblatt v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997) (“[T]he Hobbs Act requires (1) ‘party’ status (i.e., that petitioners participated in the proceeding before the agency), and (2) aggrievement (i.e., that they meet the requirements of constitutional and prudential standing).”) (citation omitted). The Hobbs Act vests “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or determine the validity of . . . final orders of the” 12 Case: 21-60743 Document: 00516873781 Page: 13 Date Filed: 08/25/2023 No. 21-60743 Commission on the federal courts of appeals. 28 U.S.C. § 2342. (The Act actually refers to the Atomic Energy Commission. But the Energy Reorganization Act of 1974 abolished that agency and transferred its licensing and related regulatory functions to the Nuclear Regulatory Commission. See 42 U.S.C. § 5841(a), (f).) Under the Act, “[a]ny party aggrieved by the final order may . . . file a petition to review the order in the court of appeals wherein venue lies.” 28 U.S.C. § 2344. Courts “have consistently held that the phrase ‘party aggrieved’ requires that petitioners have been parties to the underlying agency proceedings, not simply parties to the present suit.” ACA Int’l v. FCC, 885 F.3d 687, 711 (D.C. Cir. 2018). See also Am. Trucking Ass’ns v. ICC, 673 F.2d 82, 84 (5th Cir. 1982) (per curiam) (“The word ‘party’ is used in a definite sense in the [Hobbs Act], and limits the right to appeal to those who actually participated in the agency proceeding.”). The Commission argues that neither Texas nor Fasken has standing under the Hobbs Act because neither is a “party aggrieved.” “To be an aggrieved party, one must have participated in the agency proceeding under review.” Wales Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984). Here, both Petitioners participated in the agency proceeding—Texas commented on its opposition of the issuance of the license and Fasken attempted to intervene and filed contentions. But according to the Commission, neither form of participation is sufficient to confer party status under the Hobbs Act. The Commission argues that Texas doesn’t have party status because “participating in the appropriate and available administrative procedures is the statutorily prescribed prerequisite to invocation of the Court’s 13 Case: 21-60743 Document: 00516873781 Page: 14 Date Filed: 08/25/2023 No. 21-60743 jurisdiction,” and submitting comments doesn’t accord with the degree of formality of the proceedings in this license adjudication. 2 The Commission takes a different approach with Fasken. It argues that, as a party denied intervention, Fasken may only challenge the order denying it intervention. From the Commission’s perspective, if a putative intervenor has failed to obtain party status, it can’t later seek review of the final judgment on the merits. The plain text of the Hobbs Act merely requires that a petitioner seeking review of an agency action be a “party aggrieved.” 28 U.S.C. § 2344. The _____________________ 2 In the alternative, the Commission argues that “even if this Court were to determine that dismissal of [Texas’s] Petition for Review is not required as a matter of jurisdiction, the same result is nonetheless required as a matter of non-jurisdictional, mandatory exhaustion.” Not so. The Commission relies on Fleming v. USDA, which held that “even nonjurisdictional exhaustion requirements . . . forbid judges from excusing nonexhaustion” and that “if the government raises [such an] exhaustion requirement, the court must enforce it.” 987 F.3d 1093, 1099 (D.C. Cir. 2021). But neither the Hobbs Act nor the Atomic Energy Act impose a mandatory exhaustion requirement. The Commission’s argument implicitly equates the exhaustion requirements in the Horse Protection Act and the Prison Litigation Reform Act—both of which are discussed in Fleming—to the Hobbs Act and Atomic Energy Act. These statutes aren’t comparable. Both the Horse Protection Act and the Prison Litigation Reform Act have explicit exhaustion requirements. See 7 U.S.C. § 6912(e) (“[A] person shall exhaust all administrative appeal procedures established by the Secretary [of Agriculture] or required by law before the person may bring an action in a court of competent jurisdiction.”); 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such an administrative remedies as are available are exhausted.”). But neither the Hobbs Act nor the Atomic Energy Act do. See 28 U.S.C. § 2344 (no exhaustion requirement); 42 U.S.C. § 2239(b) (same). It’s also worth noting that caselaw suggests that so long as the petitioner is a “party aggrieved” and the basis for the challenge was brought before the agency by some party— even if not the by the petitioner—that’s enough for the case to move forward. See Reytblatt, 105 F.3d at 720–21; Cellnet Commc’n, Inc. v. FCC, 965 F.2d 1106, 1109 (D.C. Cir. 1992). It’d make little sense to interpret the Hobbs Act as imposing an exhaustion requirement while allowing a petitioner to bring a claim it did not itself bring before the agency. 14 Case: 21-60743 Document: 00516873781 Page: 15 Date Filed: 08/25/2023 No. 21-60743 text makes no distinction between different kinds of agency proceedings. See Gage v. AEC, 479 F.2d 1214, 1218 (D.C. Cir. 1973). Nor does it suggest that a petitioner who went through the procedures to intervene in an adjudication can’t be a party aggrieved. In fact, it’s clear that the function of the “party aggrieved” status requirement is to ensure that the agency had the opportunity to consider the issue that petitioners are concerned with. See, e.g., id. at 1219 (“The ‘party’ status requirement operates to preclude direct appellate court review without a record which at least resulted from the factfinder’s focus on the alternative regulatory provisions which petitioners propose.”) (emphases omitted). In sum, the plain text of the Hobbs Act requires only that a petitioner have participated—in some way—in the agency proceedings, which Texas did through comments and Fasken did by seeking intervention and filing contentions. But caselaw suggests that’s not enough. Precedent from other circuits suggests that neither Texas nor Fasken are parties aggrieved for Hobbs Act purposes. The D.C. Circuit has read the Hobbs Act to contemplate participation in “the appropriate and available administrative procedures.” Id. at 1217. And it has interpreted this to mean that the “degree of participation necessary to achieve party status varies according to the formality with which the proceeding was conducted.” Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C. Cir. 1987). But see ACA Int’l, 885 F.3d at 711–712 (noting that in at least some limited circumstances commenting may be enough in certain non-rulemaking proceedings). The D.C. Circuit and at least one other circuit apply this heightened participation requirement. See Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir. 2022); Alabama Power Co. v. ICC, 852 F.2d 1361, 1368 (D.C. Cir. 1988). See also State ex rel. Balderas v. NRC, 59 F.4th 1112, 1117 (10th Cir. 2023). The D.C. Circuit has also said that, when an agency requires intervention, those who sought but were denied intervention lack standing to seek judicial 15 Case: 21-60743 Document: 00516873781 Page: 16 Date Filed: 08/25/2023 No. 21-60743 review. Water Transp. Ass’n, 819 F.2d at 1192. See also NRDC v. NRC, 823 F.3d 641, 643 (D.C. Cir. 2016) (“To challenge the Commission’s grant of a license renewal . . . a party must have successfully intervened in the proceeding by submitting adequate contentions under [the Commission’s regulations].”). The D.C. Circuit embraces readings of the Hobbs Act that impose an extra-textual gloss by requiring a degree of participation not contemplated in the plain text of the statute. We think the fairest reading of the Hobbs Act doesn’t impose such additional requirements. But we ultimately don’t need to resolve that tension, because the Fifth Circuit recognizes an exception to the Hobbs Act party-aggrieved status requirement that’s dispositive of this issue here. This circuit recognizes an ultra vires exception to the party-aggrieved status requirement. In American Trucking Associations, Inc. v. ICC, this court noted “two rare instances” where a “person may appeal an agency action even if not a party to the original agency proceeding”—(1) where “the agency action is attacked as exceeding [its] power” and (2) where the person “challenges the constitutionality of the statute conferring authority on the agency.” 673 F.2d at 85 n.4 (quotation omitted). 3 _____________________ 3 The Commission’s various arguments that this exception isn’t applicable are unavailing. It’s true that we’ve recognized the exception is “exceedingly narrow.” Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922 (5th Cir. 1993). And it’s also true that other circuits have refused to adopt it. See Balderas, 59 F.4th at 1123–24; Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457 F.3d 1238, 1250 (11th Cir. 2006); Erie-Niagara Rail Steering Comm. v. STB, 167 F.3d 111, 112–13 (2d Cir. 1999); In re Chicago, Milwakee, St. Paul & Pac. R.R., 799 F.2d 317, 334–35 (7th Cir. 1986). But the exception remains good law in this circuit. Neither the Commission nor the court have identified any case overturning the exception. And to the extent that the Commission claims the exception was mere dicta in American Trucking, that argument fails because we’ve since applied the 16 Case: 21-60743 Document: 00516873781 Page: 17 Date Filed: 08/25/2023 No. 21-60743 This exception only allows us to reach those portions of the Petitioners’ challenges that argue the Commission acted beyond its statutory authority. See Wales Transp., 728 F.2d at 776 n.1 (allowing petitioner to proceed despite not having participated in the agency proceeding on only those claims that challenged the agency’s authority under the statute). Accordingly, we must consider which, if any, of the Petitioners’ challenges fall within that category. Texas makes three merits arguments: (1) the Commission lacks the statutory authority to license the facility; (2) the license issuance violated the Administrative Procedure Act; and (3) the Commission violated the National Environmental Policy Act by failing to assess the risks of a potential terrorist attack. The first argument falls within the exception. It attacks the Commission for licensing a facility without the authority to do so under the Atomic Energy Act, and in conflict with the Nuclear Waste Policy Act. Fasken makes four merits arguments: (1) the Commission violated the National Environmental Policy Act and Administrative Procedure Act by allowing a licensing condition that violates the Nuclear Waste Policy Act; (2) the Commission’s assumptions about when the permanent repository will be operational are arbitrary and capricious; (3) the Commission adopted an unreasonably narrow purpose statement; and (4) the Commission violated the National Environmental Policy Act and Administrative Procedure Act by _____________________ exception in Wales Transportation, Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984). Under our circuit’s rule of orderliness, we are bound to follow American Trucking and Wales Transportation because they haven’t been overturned by the en banc court. The Commission is also wrong in suggesting the exception is limited to challenges of ICC orders. While it’s true that both American Trucking and Wales Transportation involved challenges to ICC orders, neither case limits the exception’s application to the ICC. See Am. Trucking, 673 F.2d at 85 n.4 (referring to agency proceedings, not ICC proceedings); Wales Transp., 728 F.2d at 776 n.1 (same). 17 Case: 21-60743 Document: 00516873781 Page: 18 Date Filed: 08/25/2023 No. 21-60743 accepting the applicant’s unreasonable site selection. The first of these challenges falls within the exception. Fasken’s argument centers on the contention that the Commission acted beyond its statutory authority by issuing a license with a condition expressly prohibited by the Nuclear Waste Policy Act. III. The Commission has no statutory authority to issue the license. The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act. This understanding aligns with the historical context surrounding the development of these statutes. A. Under the Atomic Energy Act, the Commission retains jurisdiction over nuclear plant licensing and regulation. See 42 U.S.C. § 5842. It has authority to regulate the construction and operation of nuclear power plants. See 42 U.S.C. §§ 2011–2297h-13. See also Union of Concerned Scientists, 735 F.2d at 1438–39 (summarizing the two-step licensing procedure for nuclear power plant operation). The Act also confers on the Commission the authority to issue licenses for the possession of “special nuclear material,” see 42 U.S.C. § 2073, “source material,” see id. § 2093, and “byproduct material,” see id. § 2111. See also 42 U.S.C. §§ 2014(aa), (z), (e) (defining each term, respectively). Special nuclear material, source material, and byproduct material are constituent materials of spent nuclear fuel. See Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004). The Commission argues that, because it has authority to issue licenses for the possession of these constituent materials, that means it has broad authority to license storage facilities for spent nuclear fuel. 18 Case: 21-60743 Document: 00516873781 Page: 19 Date Filed: 08/25/2023 No. 21-60743 But this ignores the fact that the Act authorizes the Commission to issue such licenses only for certain enumerated purposes—none of which encompass storage or disposal of material as radioactive as spent nuclear fuel. Sections 2073 and 2093 specify that licenses may be issued for various types of research and development, see 42 U.S.C. §§ 2073(a)(1)–(a)(2), 2093(a)(1)–(a)(2). It also permits such other uses that the Commission either “determines to be appropriate to carry out the purposes of th[e] chapter,” id. § 2073(a)(4), or “approves . . . as an aid to science and industry,” id. § 2093(a)(4). Principles of statutory interpretation require these grants be read in light of the other, more specific purposes listed—namely for certain types of research and development. Cf. U.S. v. Jicarilla Apache Nation, 564 U.S. 162, 185 (2011) (“When Congress provides specific statutory obligations, we will not read a ‘catchall’ provision to impose general obligations that would include those specifically enumerated.”). Both these sections also allow the agency to issue licenses “for use under a license issued pursuant to section 2133 of th[e] title.” Id. 42 U.S.C. §§ 2073(a)(3), 2093(a)(3) (same). Section 2133 details the Commission’s authority to issue licenses for “utilization or production facilities for industrial or commercial purposes.” Id. § 2133(a). Utilization and production have specific definitions under the statute. See id. §§ 2014 (cc) (defining utilization facilities); 2014(v) (defining production facilities). And the definitions of utilization and production facilities are about nuclear reactors and fuel fabrication or enrichment facilities—not storage or disposal, as the Commission admits in its briefing. See id. Neither § 2073 nor § 2093 confers a broad grant of authority to issue licenses for any type of possession of special nuclear material or source material. The same is true for § 2111. That section authorizes the Commission “to issue general or specific licenses to applicants seeking to use byproduct 19 Case: 21-60743 Document: 00516873781 Page: 20 Date Filed: 08/25/2023 No. 21-60743 material for research or development purposes, for medical therapy, industrial uses, agricultural uses, or such other useful applications as may be developed.” Id. § 2111(a). It also specifies conditions under which certain types of byproduct material may be disposed. Id. § 2111(b). And the types of byproduct material covered by § 2111(b) emit radiation for significantly less time than spent nuclear fuel. That section cross-references the definition of byproduct materials in § 2014(e)(3)–(4), which refers to radium-226 and other material that “would pose a threat similar to the threat posed by . . . radium-226 to the public health and safety.” That’s important because some of the isotopes in spent nuclear fuel have much longer half-lives than radium-226. The “intensity of radiation from radioactive materials decreases over time” and the “time required for the intensity to decrease by one-half is referred to as the ‘half-life.’” NRC, Frequently Asked Questions (FAQs) Regarding Radium-226 § A.1, https://scp.nrc.gov/narmtoolbox/ra- dium%20faq102008.pdf. Radium-226 has a half-life of 1600 years. Id. Spent nuclear fuel, on the other hand, is composed of a variety of radioactive isotopes of elements produced in the nuclear fission process. NRC, Radioactive Waste Backgrounder 1, https://www.nrc.gov/docs/ML0501/ML050110277.pdf. Some of these isotopes—strontium-90 and cesium-137—have half-lives of about 30 years. But others “take much longer to decay.” Id. One of these isotopes is plutonium239, which “has a half-life of 24,000 years”—fifteen times that of radium226. Id. There’s no plausible argument that spent nuclear fuel, which contains radioactive isotopes with half-lives much longer than radium-226, is the type radioactive material contemplated in the disposal provision in § 2111(b). So these provisions do not support the Commission’s claim of authority. In response, the Commission and Interim Storage Partners, LLC point to two cases from sister circuits. Both are unpersuasive. 20 Case: 21-60743 Document: 00516873781 Page: 21 Date Filed: 08/25/2023 No. 21-60743 In Bullcreek v. NRC, the D.C. Circuit denied petitions for review of the Commission’s Rulemaking Order and held that the Nuclear Waste Policy Act did “not repeal or supersede the [Commission]’s authority under the Atomic Energy Act to license private away-from-reactor storage facilities.” 359 F.3d at 537–38. The D.C. Circuit essentially assumed that the Atomic Energy Act had granted the Commission authority to license away-from-reactor storage facilities, despite explicitly recognizing that the Act “does not specifically refer to the storage or disposal of spent nuclear fuel.” Id. at 538. Rather than focus on the text of the statute, it merely noted that “it has long been recognized that the [Atomic Energy Act] confers on the [Commission] authority to license and regulate the storage and disposal of such fuel.” Id. But none of the cases the D.C. Circuit cited provide a textual analysis of the Atomic Energy Act and whether it allows away-from-reactor spent nuclear fuel storage. Each of those cases dealt with separate questions of preemption and the role of states in this scheme. See generally Pac. Gas. & Elec. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983); Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103 (3d Cir. 1985); Illinois v. Gen. Elec. Co., 683 F.2d 206 (7th Cir. 1982). They are irrelevant to the question before us. So the D.C. Circuit provided no textual basis for its assumption that the statute authorized the Commission to issue such licenses. See id. (discussing the Atomic Energy Act). Bullcreek may be correct that the Nuclear Waste Policy Act didn’t repeal portions of the Atomic Energy Act since “repeals by implication are not favored,” but it doesn’t actually address what authority the Commission had under the Atomic Energy Act. Morton v. Mancari, 417 U.S. 535, 549 (1974). The other case the Commission cites—Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)—is just as unhelpful. It merely relies on Bullcreek to “not revisit the issues surrounding the 21 Case: 21-60743 Document: 00516873781 Page: 22 Date Filed: 08/25/2023 No. 21-60743 [Commission]’s authority to license away-from-reactor [spent nuclear fuel] storage facilities.” Skull Valley, 376 F.3d at 1232. It too assumes the Commission’s authority without analyzing the statute. B. Moreover, the Commission’s argument cannot be reconciled with the Nuclear Waste Policy Act. Spent nuclear fuel wasn’t a concern in the 1940s and 1950s when the Atomic Energy Act was passed and amended. “Prior to the late 1970’s, private utilities operating nuclear reactors were largely unconcerned with the storage of spent nuclear fuel.” Idaho, 945 F.2d at 298. “It was accepted that spent fuel would be reprocessed.” Id. “In the mid-70’s, however, the private reprocessing industry collapsed for both economic and regulatory reasons.” Id. “As a consequence, the nuclear industry was confronted with an unanticipated accumulation of spent nuclear fuel, inadequate private facilities for the storage of the spent fuel, and no long term plans for managing nuclear waste.” Id. See also BRC Report at 20 (noting these problems and describing passage of the Act as “mark[ing] the beginning of a new chapter in U.S. efforts to deal with the nuclear waste issue”). This led Congress to pass the Nuclear Waste Policy Act in 1982. The Nuclear Waste Policy Act provides a comprehensive scheme to address the accumulation of nuclear waste. Congress recognized that “Federal efforts during the [prior] 30 years to devise a permanent solution to the problems of civilian radioactive waste disposal ha[d] not been adequate” and that “State and public participation in the planning and development of repositories is essential in order to promote public confidence in the safety of disposal of such waste and spent fuel.” 42 U.S.C. § 10131(a)(3), (6). “The Act made the federal government responsible for permanently disposing of spent nuclear fuel and high-level radioactive waste produced by civilian 22 Case: 21-60743 Document: 00516873781 Page: 23 Date Filed: 08/25/2023 No. 21-60743 nuclear power generation and defense activities.” Nat’l Ass’n of Regul. Util. Comm’rs v. DOE, 680 F.3d 819, 821 (D.C. Cir. 2012). See also 42 U.S.C. § 10131(a)(4) (“[T]he Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment.”). The Act also tasked the Department of Energy with establishing “a repository deep underground within a rock formation where the waste would be placed, permanently stored, and isolated from human contact.” Nat’l Ass’n of Regul. Util Comm’rs, 680 F.3d at 821. See also 42 U.S.C. §§ 100133– 34 (tasking the Energy Secretary with site characterization and public hearing duties related to the Yucca Mountain site selection). Yucca Mountain was chosen as the only suitable site for the repository when the Act was amended in 1987. See 42 U.S.C. § 10172 (selection of Yucca Mountain site). But the project stalled, even though the Nuclear Waste Policy Act “is obviously designed to prevent the Department [of Energy] from delaying the construction of Yucca Mountain as the permanent facility while using temporary facilities.” Nat’l Ass’n of Regul. Util. Comm’rs v. DOE, 736 F.3d 517, 519 (D.C. Cir. 2013) (citing 42 U.S.C. § 10168(d)(1)). In addition to the establishment of the permanent repository, see 42 U.S.C. §§ 10131–10145, the Nuclear Waste Policy Act also established other measures to deal with spent nuclear fuel. 4 _____________________ 4 All these measures are subject to the proviso in 42 U.S.C. § 10155(h), which states that “nothing in this chapter shall be construed to encourage, authorize, or require the private or Federal use, purchase, lease, or other acquisition of any storage facility located away from the site of any civilian nuclear power reactor and not owned by the Federal Government on” the date of enactment. 23 Case: 21-60743 Document: 00516873781 Page: 24 Date Filed: 08/25/2023 No. 21-60743 One is temporary storage. See id. §§ 10151–10157. The Act places “primary responsibility for providing interim storage of spent nuclear fuel” on “the persons owning and operating civilian nuclear power reactors.” Id. § 10151(a)(1). It tasks the Commission and the Secretary of Energy to “take such actions as . . . necessary to encourage and expedite the effective use of available storage, and the necessary additional storage, at the site of each civilian nuclear power reactor.” Id. § 10152 (emphasis added). See also id. § 10153 (“The establishment of such procedures shall not preclude the licensing . . . of any technology for the storage of civilian spent nuclear fuel at the site of any civilian nuclear power reactor.”) (emphasis added). It further tasks the Secretary of Energy with “provid[ing] . . . capacity for the storage of spent nuclear fuel from civilian nuclear power reactors.” Id. § 10155(a)(1). Moreover, the Act provides that “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. § 10151(a)(3). Moreover, the Act provides that “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. § 10151(a)(3). Here, the license permits storage of at least 5,000 and as much as 40,000 metric tons of nuclear waste. The other measure is monitored retrievable storage. See id. § 10161– 10169. See also id. § 10101(34) (defining “monitored retrievable storage facility”). Under the statute, “[t]he Secretary [of Energy] is authorized to site, construct, and operate one monitored retrievable storage facility subject to the conditions described [in the relevant sections of statute].” Id. § 10162(b). 24 Case: 21-60743 Document: 00516873781 Page: 25 Date Filed: 08/25/2023 No. 21-60743 And one of those conditions is that “[a]ny license issued by the Commission for a monitored retrievable storage facility under [the statute] shall provide that . . . construction of such facility may not begin until the Commission has issued a license for the construction of a repository [i.e., Yucca Mountain].” Id. § 10168(d)(1). Reading these provisions together makes clear that the Nuclear Waste Policy Act creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation. The scheme prioritizes construction of the permanent repository and limits temporary storage to private at-the-reactor storage or at federal sites. It plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility. In sum, the Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And the Nuclear Waste Policy Act doesn’t permit it. Accordingly, we hold that the Commission doesn’t have authority to issue the license challenged here. When read alongside each other, we find these statutes unambiguous. And even if the statutes were ambiguous, the Commission’s interpretation wouldn’t be entitled to deference. Last year, the Supreme Court directed that, “[w]here the statute at issue is one that confers authority upon an administrative agency, that inquiry must be shaped, at least in some measure, by the nature of the question presented—whether Congress in fact meant to confer the power the agency has asserted” and whether there are “reason[s] to hesitate before concluding that Congress meant to confer such authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2607–08 (2022) (quotations omitted) (adopting the major questions doctrine). 25 Case: 21-60743 Document: 00516873781 Page: 26 Date Filed: 08/25/2023 No. 21-60743 Disposal of nuclear waste is an issue of great “economic and political significance.” Id. at 2608. What to do with the nation’s ever-growing accumulation of nuclear waste is a major question that—as the history of the Yucca Mountain repository shows—has been hotly politically contested for over a half century. Congress itself has acknowledged that “high-level radioactive waste and spent nuclear fuel have become major subjects of public concern.” 42 U.S.C. § 10131(a)(7) (findings section of the Nuclear Waste Policy Act). “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” West Virginia, 142 S. Ct. at 2616 (emphasis added). Here, there’s no such clear delegation under the Atomic Energy Act. And the Nuclear Waste Policy Act belies the Commission’s arguments to the contrary. *** We grant the petitions for review, vacate the license, and deny the Commission’s motions to dismiss. 26
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