Court rulings stacking up in U.S. nuclear storage fight

Eyes are on the federal appeals courts as a slew of recent rulings are impacting the fervid fight over proposed nuclear storage facilities in the oil-rich Permian Basin, with another expected in the coming months.

A recent court ruling highlighted the disagreements between federal interests that approved licenses to run these storage sites and the spectrum of opposition from New Mexico, Texas and a coalition of national anti-nuclear, environmental groups and private oil, gas and mining interests in those states.

With a recent ruling, that dispute may have to be resolved by the U.S. Supreme Court.

On March 14, the Fifth Circuit Court of Appeals, based in Louisiana, ruled in a 9-7 judgment that it will not further review an earlier decision to revoke a license for a nuclear waste facility operation slated for Andrews, Texas.

Texas and private mining companies appealed the license issued by the U.S. Nuclear Regulatory Commission, saying the federal government overreached.

The judgment supports the three-judge panel ruling in August 2023 that the federal government did not have the authority to issue a license to Interim Storage Partners for a private nuclear storage for the future facility that is miles away from Eunice, New Mexico.

Then on Wednesday, another three-judge panel ordered the federal government to vacate the license issued for the Holtec International site in Lea County, New Mexico.

The panel sided with groups representing oil, gas and mining interests who argued that the Holtec License was “materially identical” to the Andrews County, Texas facility license the court ordered to rescind.

This series of rulings directly contradicts other rulings in federal appeals courts over a proposed storage site approved in Utah, which was never built.

The federal government has 90 days to appeal the decision against the Texas facility to the U.S. Supreme Court.

A spokesperson for the Nuclear Regulatory Commission did not return calls for comment Tuesday.

How a Louisiana appeals ruling could impact nuclear waste storage in New Mexico

The Nuclear Regulatory Commission issued a license in May 2022  for nuclear technology company Holtec International to build and operate the Consolidated Interim Storage Facility  between Hobbs and Carlsbad. That license is also being challenged in a different case before the D.C. federal appeals court.

Both facilities are proposed by the companies to be stopgaps to address the metric tons of radioactive waste accumulating across the country from former and current power plants.

Opponents say the storage solutions are not intended to be temporary, and pose risks to the communities the waste passes through and will be lodged in.

In recent years, Texas and New Mexico legislatures passed laws banning the storage of high-level nuclear waste, setting up a showdown over state sovereignty and the federal government’s position as the authority over the nuclear industry.

On March 5, the D.C. Circuit Court of Appeals heard oral arguments to discuss the federal government’s license for Holtec International to store its high-level nuclear waste in southeastern New Mexico.

The opposition against Holtec’s plans are a coalition of environmental, anti-nuclear, mining and oil and gas organizations. This unusual group came together to argue the federal government overreached when it issued its license to the New Jersey-based company.

Those parties and the federal government have both cited the Fifth Circuit decision in court records, said Kevin Kamps, with nonprofit Beyond Nuclear, which has opposed both facilities in courts.

“There’s this interplay between the two cases in the two circuits, so that’s very real,” Kamps said. 

Holtec International is watching the Fifth Circuit proceedings, spokesperson Patrick O’Brien said, and is disappointed by the recent decision to stall another company’s nuclear waste storage facility plans in Texas.

“We were disappointed in the decision, particularly since the panel’s opinion and the concurring decision were inconsistent with many other decisions from other federal appeals courts,” O’Brien said. It’s unclear when the D.C. court will issue a in the Holtec International licensing case.  

The Supreme Court could be more likely to intervene if the decision on the New Mexico case in the D.C. court clashes with the Fifth Circuit judgment on the facility in Texas, said Don Hancock, Nuclear Waste Safety program director and administrator at the nonprofit Southwest Research and Information Center.

“Depending on what the D.C. Circuit does, you could potentially have a current controversy, a fundamental conflict, not only between the circuits but potentially in terms of whether licenses are granted or not,” Hancock said.