July 3, 2025
Nuclear Regulatory Commission v. Texas, 605 U.S. ____ (2025) (Kavanaugh, J.)
Response by R. Budd Haemer
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Supreme Court Confirms Limits of Federal Court Jurisdiction Regarding Nuclear Waste in NRC v. Texas
Wisdom passed down to young advocates preparing for their first oral appellate argument often includes the caution that good advocacy does not assure victory, but bad advocacy can sometimes bring defeat. Perhaps that old saw was in full view by the recent Supreme Court decision in NRC v. Texas, 145 S. Ct. 1762 (2025). The June 18 decision upheld a 2021 Nuclear Regulatory Commission (“NRC”) license issued to Interim Storage Partners (“ISP”) that allows storing spent nuclear fuel (“SNF”) at an Away-From-Reactor Independent Spent Fuel Storage Facility in west Texas. The U.S. Supreme Court held that the State of Texas and Fasken Land and Minerals Ltd. failed to become parties in the NRC administrative proceedings and therefore were not entitled to judicial review.
At oral argument, Justice Kavanaugh had only one question and it was directed to the advocate for Texas.
JUSTICE KAVANAUGH: Can you explain that, if it was a terrorist bulls-eye?
NIELSON: Yeah, I would like to correct it. So I would urge the Court to go back and look at [Joint Appendix] JA 1 through 3, the very first pages of the JA. This is Governor Perry’s letter. I don’t read that letter as saying, oh, yeah, this is a great idea. He is saying: The federal government has failed its obligations and has not done what Congress said. You’re not going to have an answer for this for decades. And now Texas is in the spot of, what are we supposed to do? They’re going to build it across the border in New Mexico. Texas needs to have some sort of ability to have some say in this. That is how I would urge the Court. Read pages 1 through 3 of the JA. That is not a ringing endorsement by Governor Perry. He was just going to say this is the best of the bad options. Governor Abbott comes in before this license and he says: No, essentially, over my dead body are you going to do this, citing the terrorist concerns that we are identifying. Also, look at the brief from — the congressional brief, which does this as well.
JUSTICE KAVANAUGH: Thank you.
Transcript of Oral Argument at 103–04, NRC, 145 S. Ct. 1762 (No. 23-1300).
In asking this softball question, Justice Kavanaugh was apparently probing for good cause to justify Texas being late to attempt to invoke the jurisdiction of the federal courts over the NRC licensing decision. Rather than accepting the premise of the question, the Texas Solicitor General argued that Texas had not changed its position but also offered no alternate explanation as to what changed that would make the agency action so egregious to justify good cause for Texas being late. Being a party before the NRC is a prerequisite under the Hobbs Act to appeal an NRC decision. 28 U.S.C. § 2342(4). Given only actions of Texas, not the NRC, to explain why Texas had not tried to become a party to the NRC licensing proceeding, Justice Kavanaugh went on to write the Court’s majority opinion that held the Hobbs Act says what it says, and there’s nothing special about nuclear or nuclear waste that requires special rules for it. If an entity, even a State, wants to make a federal case out of a matter, it must be admitted by the NRC as a party. “In light of the statutory text and context, those who were not license applicants or granted intervention in the Commission’s licensing proceeding do not qualify as parties who can obtain judicial review under the Hobbs Act.” NRC, 145 S. Ct. at 1774.
The Fifth Circuit Court of Appeals reached the merits of the licensing dispute, holding there was an implicit ultra vires exception to Hobbs Act jurisdiction. Texas v. NRC, 78 F.4th 827, 837–40 (5th Cir. 2023); 95 F.4th 935, 939–41 (5th Cir. 2024) (Jones, J., concurring in the denial of rehearing en banc). The Supreme Court agreed that there had been one case where the agency action had been so egregious as to justify a nonstatutory exception to the Hobbs Act (the Kyne exception). The majority concluded that this case was not at all similar, which the dissent did not seem to challenge. See NRC, 145 S. Ct. at 1775–77.
After exploring the standards for an ultra vires exception and apparently reaching a nine-to-zero consensus that the Kyne exception is very narrow and not applicable here, the majority and dissent spilt six to three over whether Texas and Fasken were parties.
The majority stated that neither Texas nor Fasken were parties. Id. at 1772–74. The NRC regulations were upheld 35 years ago by the D.C. Circuit Court of Appeals. Id. at 1774. In accordance with the NRC regulations, Fasken and several other entities petitioned to intervene in a hearing on the ISP license. The Atomic Safety and Licensing Board denied the intervenors’ petitions and, as no matters were raised by the NRC staff or ISP, dismissed the hearing at the pleading stage. Fasken appealed the denial of its petition to intervene, and the D.C. Circuit denied the appeal. Id. at 1771. The majority found that Fasken’s failure to raise its denial of party status by the NRC meant that Fasken had effectively waived the issue. See id. at 1774–75. In contrast, the dissent found that Fasken had done enough to become a party. See id. at 1790–93 (Gorsuch, J., dissenting). Noting that the lower court decisions upholding the NRC rules and denying Fasken party status were not binding on the Supreme Court, the dissent criticized allowing the NRC to be the gatekeeper of party status as “letting the fox guard the henhouse.” Id. at 1792. With the ADVANCE Act of 2024, Pub. L. 118-67, 138 Stat. 1448, and recent Executive Order 14300, 90 Fed. Reg. 22,597, pushing for improvements in NRC efficiency, we may see this issue revisited in the future.
With regard to Texas, the majority repeatedly noted that Texas had not tried to become a party in accordance with the NRC regulations. As mentioned in the oral argument, the standards for a State to become a party in an NRC proceeding are lowered. Transcript of Oral Argument at 93–94, NRC, 145 S. Ct. 1762 (No. 23-1300). Unlike a private entity like Fasken, who must show standing to challenge the license, a State need only appear, identify that the license is for a facility in its territory, and articulate an interest. 10 C.F.R. § 2.309(h). Such an interest can be an “issue of law.” 10 C.F.R. § 2.309(f)(1)(i). Consistent with the principles of exhaustion of administrative remedies, Texas could have brought the legal issue that it brought in the Fifth Circuit before the NRC, thereby avoiding the unprecedented action of bringing an ultra vires issue first in an appellate court. See NRC, 145 S. Ct. at 1776. Also, any party, including a State, can intervene late in an NRC proceeding for good cause. 10 C.F.R. § 2.309(c). Given this relatively low bar for obtaining party status, the majority found no reason to consider Texas a party. In contrast, the dissent would have granted Texas party status considering Texas provided comments on the environmental impact statement issued pursuant to the National Environmental Policy Act (“NEPA”). NRC, 145 S. Ct. at 1783–84 (Gorsuch, J., dissenting). The dissent is unlikely to carry much persuasive power, as this term the Supreme Court has cabined the role of NEPA analysis in impacting the agency’s decision under its authorizing statute. See, e.g., Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 145 S. Ct. 1497 (2025).
With the holding that the federal courts lacked jurisdiction, both the majority and dissent went on to opine on the merits. The court splits six-to-three over dicta providing advice to future litigants on the merits. See NRC, 145 S. Ct. at 1776–79; id. at 1788–89 (Gorsuch, J., dissenting).
The dissent would also find that the Atomic Energy Act does not authorizes the NRC to license SNF, suggesting the “cobbled-together terms addressing other matters” provides the NRC no authority to license three of the constitute elements of SNF. Id. at 1788 (Gorsuch, J., dissenting). Therefore, the dissent would find the authority is only driven by the Nuclear Waste Policy Act in 1982. The majority notes this position is not a “credible interpretation of the Atomic Energy Act.” Id. at 1778 (majority opinion). A future case may consider the merits of NRC authority to license Away-From-Reactor Independent Spent Fuel Storage Facilities that were not addressed in this case. At that time the persuasiveness of the majority and dissent dicta will be weighed. Until then, the majority opinion upholding forty years of NRC practice would seem to be more persuasive and hold sway.
R. Budd Haemer is a Professorial Lecturer in Law at The George Washington University Law School where he teaches Atomic Energy law. He has over four decades of experience in the nuclear industry, both as part of the U.S. Government and in the U.S. commercial industry.
Recommended Citation
R. Budd Haemer, NRC v. Texas, Geo. Wash. L. Rev. On the Docket (July 3, 2025), https://www.gwlr.org/nrc-v-texas
