In a 6-3 decision, the Supreme Court held that the State of Texas and Fasken Land and Minerals Ltd., a private Texas-based company involved in oil and gas extraction and production, lack standing to challenge the Nuclear Regulatory Commission’s (NRC) decision to license a private nuclear waste storage facility in West Texas. Writing for the majority in Nuclear Regulatory Commission v. Texas, Justice Kavanaugh concluded that neither Texas nor Fasken qualified as “aggrieved parties” under the Hobbs Act. Justice Gorsuch dissented, joined by Justices Alito and Thomas.
As summarized in Dykema’s March 2025 issue, in 1980, the NRC issued regulations permitting private storage of nuclear waste—either on-site at nuclear plants or off-site—under renewable 40-year licenses. The Nuclear Waste Policy Act of 1982 (NWPA) later designated Yucca Mountain as the national repository for nuclear waste, but that project was eventually suspended. The federal government then reverted to licensing private storage facilities.
In 2018, Interim Storage Partners (ISP) applied for a license to build the largest nuclear waste storage facility in the U.S., located in the Permian Basin. Fasken, operating in the region, attempted to intervene in the licensing proceedings but was denied. Despite environmental and safety concerns raised by Fasken and Texas, the NRC granted ISP’s license in 2021. Texas and Fasken then challenged the decision in the Fifth Circuit, which vacated the license, finding that the NRC lacked statutory authority—though it acknowledged uncertainty over whether Texas and Fasken were proper parties under the Hobbs Act. The NRC and ISP sought review, and the Supreme Court granted certiorari.
The Supreme Court’s Decision
The Court reversed on justiciability grounds, holding that neither Texas nor Fasken met the Hobbs Act’s definition of “aggrieved parties.” Under the Atomic Energy Act (AEA), only license applicants or successful intervenors qualify as parties to an NRC proceeding. Because Texas and Fasken failed to intervene successfully, the Court held they lacked statutory standing to challenge the license itself. At most, they could have sought review of the denial of intervention.
The Court also rejected the ultra vires claim, where a claimant asserts that a governmental body has acted beyond the scope of its legal authority, deeming it a thinly veiled statutory-authority argument that did not meet the stringent standards required for non-statutory ultra vires review.
Dicta on the Merits
Although the case was decided on justiciability grounds, the majority briefly addressed the merits. The Court emphasized that decades of statutory interpretation and agency practice support the NRC’s authority under the AEA to license private off-site nuclear waste storage. The majority criticized the dissent’s interpretation, noting that it would paradoxically imply that ISP—and similar applicants—would not need a license at all. Even ISP conceded at oral argument that such a result was implausible.
The Dissent
Justice Gorsuch’s dissent painted a markedly different picture. He argued that the AEA does not authorize off-site private nuclear waste storage and that, even if it did, the NWPA expressly prohibits such activity. He rejected the majority’s justiciability holding, asserting that participation in the NRC’s public-comment process should suffice to establish party status under the Hobbs Act. The dissent further argued that nothing in the AEA forecloses alternative paths to judicial review.
Takeaways
- Clarified Standing Requirements: To challenge an NRC licensing decision under the Hobbs Act, a petitioner must either be a license applicant or a successful intervenor in the NRC proceedings.
- Heightened Environmental Stakes: With the NRC’s licensing power reaffirmed, stakeholders may intensify scrutiny over environmental and public safety concerns related to private waste storage.
For more information, please contact Chantel Febus, James Azadian, Mark Magyar, or Monika Harris. A special thanks to Summer Associate Mitchell Brost for assisting with this post.