NRC v. Texas, Docket No. 23-1300

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Here’s the twist in the law: if you never joined the conversation when a federal agency made its decision, you can’t show up later in court to complain. In this case, the Nuclear Regulatory Commission approved a plan to store spent nuclear fuel in West Texas. The state of Texas and a landowner group weren’t in the room when that license was granted, so the Supreme Court said they have no right to challenge it now. By reversing the lower court, the Justices kept the license in place but left a big question open—did the agency even have the power to issue that permit in the first place? Stay with us—there’s more coming up that dives into why this door was left ajar.

Summary of the Case

In 2016 Interim Storage Partners (ISP) applied to the Nuclear Regulatory Commission (NRC) for a 40-year license to build and operate an off-site spent nuclear-fuel storage facility in Andrews County, Texas. During the ensuing administrative proceeding the NRC undertook (1) a full safety review, (2) a draft and final environmental impact statement under the National Environmental Policy Act, and (3) a hearing on license "intervention." The State of Texas and a nearby landowner, Fasken Land and Minerals, submitted extensive comments on the draft environmental impact statement and repeatedly sought—and were denied—party status in the NRC hearing. In September 2021 the NRC granted ISP's license. Texas and Fasken then sued in the Fifth Circuit, claiming the agency lacked statutory authority to license private, off-site storage. The Fifth Circuit held Texas and Fasken could challenge the order as "parties aggrieved" and invalidated the license. The NRC and ISP sought review from the Supreme Court.

Opinion of the Court

Justice Kavanaugh, writing for a 6-justice majority, held that under the relevant laws, only a license applicant or someone who has successfully intervened and become "a party" to the NRC's licensing proceeding may obtain judicial review of the final order. Texas never applied for the license, and Fasken's petition to intervene was denied and that denial upheld by the D.C. Circuit. Merely commenting on an environmental impact statement or unsuccessfully seeking intervention does not suffice to become a "party" entitled to sue. Nor may Fasken relitigate its challenge to the intervention ruling—the D.C. Circuit's decision is final. The Fifth Circuit's theory that courts can review clearly unauthorized agency actions likewise fails where a statutory review scheme provides an adequate alternative. Accordingly, the petitions must be dismissed for want of party status; the Court therefore does not decide whether the NRC exceeded its statutory authority.

Dissenting Opinions

Justice Gorsuch, joined by Justices Thomas and Alito, would reach the merits and hold the NRC's license unlawful. He emphasizes that the Nuclear Waste Policy Act of 1982 permits interim storage only "at the site of each civilian nuclear reactor" or at "facilities owned by the Federal Government," forbidding private, off-site storage. He argues neither the Atomic Energy Act of 1954 nor its regulations may override that express Congressional command. He further contends Texas and Fasken were parties aggrieved because they actively participated in the NRC's environmental review—statutorily required and incorporated into the license—and so qualify for judicial review.

Who Can Challenge Nuclear Waste Storage Decisions? The Legal Standing Dilemma

The legal framework for nuclear waste storage has evolved over time. The Atomic Energy Act of 1954 did not address spent-fuel storage, as it anticipated reprocessing rather than storage. Congress first tackled storage in the Nuclear Waste Policy Act of 1982, which directs that interim storage occur only at reactors or on federal land and states that nothing in the Act should be construed to encourage or authorize private off-site storage.

NRC's regulations from 1980 predated this Act and contemplated "away-from-reactor" facilities, but regulations cannot override clear statutory directives. The various licensing provisions in existing law authorize specific uses—research, industrial, medical—not long-term passive storage. General provisions in older laws must be read in context and cannot override a later, more specific statute.

The case also highlights an important distinction in who can challenge agency decisions. The standard of being a "party aggrieved" differs from simply being a "person aggrieved," as it requires formal party status in the agency proceeding—whether by intervention or otherwise. Courts can review clearly unauthorized agency actions only in narrow circumstances, and this exception is unavailable when the law already provides adequate judicial review procedures.