After SCOTUS CISF Ruling, We’ll Pursue Appeal at D.C. Circuit Court!

NEWS FROM BEYOND NUCLEAR

For immediate release

Contact: Diane Curran, co-counsel for Beyond Nuclear, Harmon Curran, (202) 328-6918, [email protected]

Mindy Goldstein, co-counsel for Beyond Nuclear, Turner Environmental Law Clinic, (404) 727-3432, [email protected]

Kevin Kamps, radioactive waste specialist, Beyond Nuclear, (240) 462-3216, [email protected]

SCOTUS Justices Kavanaugh, Roberts, Sotomayor, Kagan, Barrett, and Jackson ruled in the majority; Justices Gorsuch, Alito, and Thomas dissented. Importantly, the majority did not reach the underlying issue before the Court – whether the NRC had authority to issue private storage licenses like ISP’s. Instead, it held that the State of Texas and Fasken Land and Minerals were not parties eligible for judicial review. Because of this ineligibility, the Court held that the ISP license could not be challenged.

The battle over ISP will continue outside the court. Texas Governor Greg Abbott signed into law a prohibition against ISP’s CISF in September 2021, just days before NRC approved the construction and operating license. The bill had passed both houses of the Texas state legislature nearly unanimously, with only three dissenting votes in one chamber. The law would not allow needed state permits to be issued for the ISP CISF.

But, for now, attention will shift to the impact of SCOTUS’s ruling on an even larger CISF, targeted by Holtec International at southeastern New Mexico, just 40-some miles to the west from ISP’s site. Holtec’s dump would store up to 173,600 metric tons of irradiated nuclear fuel and GTCC waste.

“In NRC v. Texas, the Supreme Court failed to resolve a critical issue – whether a private company can store waste owned by the federal government,” said Mindy Goldstein, co-counsel for Beyond Nuclear. “But, it repeatedly noted that this issue can, and should, be raised first in an NRC licensing proceeding and then resolved in the D.C. Circuit Court of Appeals.” Beyond Nuclear has followed the correct procedural path mapped by the Court in its pending litigation challenging the Holtec Facility.

“We have raised the right issues in the right court,” said Diane Curran, co-counsel for Beyond Nuclear. “We look forward to resuming our litigation in the D.C. Circuit, where we will demonstrate that the law unequivocally prohibits Holtec’s private storage of federally owned spent fuel.”

New Mexico governor Michelle Lujan Grisham has also opposed Holtec’s CISF since taking office in 2019. This included signing into law a prohibition of the CISF lacking the state’s consent on March 17, 2023, just weeks before NRC approved Holtec’s license. NM’s state law would also prevent the issuance of state permits needed for the dump’s opening.

Kevin Kamps, Beyond Nuclear’s radioactive waste specialist, said: “Even though SCOTUS has upheld the NRC license for ISP’s dump, we still hope to stop it, and Holtec’s dump as well, from going forward. After all, we were previously able to stop a very similar dump of Holtec’s and the nuclear power industry’s from going forward in Utah, on the Skull Valley Goshutes Indian Reservation, despite NRC having licensed it, and the federal courts having upheld that NRC license as well.”

ADDITIONAL BACKGROUND:

This SCOTUS ruling in NRC v. Texas overturns earlier rulings, in 2023 and 2024, by a unanimous three-judge panel, and en banc (a majority of the full circuit’s 15 judges), made by the 5th Circuit U.S. Court of Appeals in New Orleans. Deciding in favor of the State of Texas, as well as Fasken Land and Minerals, LLC, and the Permian Basin Land and Royalty Owners, the 5th Circuit ruled that the U.S. Nuclear Regulatory Commission (NRC) lacked the legal authority to license construction and operation of ISP’s CISF. The 5th Circuit rulings invalidated NRC’s license, approved in September 2021, which came just days after the State of Texas enacted a law prohibiting state permits required for ISP’s dump to proceed.

ISP itself is located just 0.3 miles from the NM state line, near or even directly above the Ogallala Aquifer, North America’s largest. It provides vital drinking and irrigation water to millions across eight High Plains states, from Texas to South Dakota. ISP is located immediately adjacent to Waste Control Specialists, LLC, a national “low-level” radioactive waste dump also threatening to contaminate the Ogallala.

If constructed and operated, the ISP and Holtec CISFs would launch an unprecedented number — more than 10,000 — of shipments of highly radioactive waste on rails, roads, and/or waterways. As 75% of reactors and on-site stored radioactive wastes are east of the Mississippi River, and 90% are in the eastern half of the U.S., shipping distances and consequent risks of transport incidents or disasters would be exacerbated by opening CISFs in the Southwest’s Permian Basin.

In fact, the CISFs would automatically double such “Mobile Chornobyl,” “Floating Fukushima,” “Dirty Bomb on Wheels,” and “Mobile X-ray Machine That Can’t Be Turned Off” risks, as the wastes would have to be moved yet again, this time to a permanent geologic repository. The only such site under consideration for a repository since the “Screw Nevada Bill” of 1987, Yucca Mountain, on Western Shoshone land around 100 miles northwest of Las Vegas, was effectively cancelled by the Obama administration in 2010, after decades of resistance by the Western Shoshone, State of Nevada, and a thousand environmental groups nationwide.

Ironically enough, NRC, which is supposed to be the neutral, unbiased, objective judge of the Yucca Mountain repository licensing proceeding, approved both CISF licenses, with the assumption by ISP and Holtec that Yucca will one day be the permanent repository. But the NRC licensing proceeding for Yucca has not yet even been held.

A map prepared by the Western Interstate Energy Board, as part of its comments submitted to NRC regarding the ISP Draft Environmental Impact Statement, show the most likely rail routes from U.S. atomic reactors to the west Texas CISF. Maps provided by ISP in its 2016 License Application Environmental Report showed that nearly every mainline railway in the U.S. was under consideration for shipping highly radioactive wastes to the CISF; another, assuming Yucca Mountain, Nevada as the eventual permanent repository, revealed that many Texas and Oklahoma communities would be impacted “coming and going,” by wastes imported from the east, and then again as wastes were exported from the CISF to Yucca Mountain. The City of Fort Worth, Texas, on those routes, in Friend of the Court briefs, objected to such risk-taking, at both the Court of Appeals, as well as at SCOTUS.

Beyond Nuclear’s legal arguments against the ISP and Holtec CISFs focused on violations of the Nuclear Waste Policy Act of 1982, as Amended, as well as the Administrative Procedure Act. Beyond Nuclear has actively opposed these CISFs from the get-go, including a warning to NRC regarding the dumps’ illegality sent in October, 2016, as well as deep engagement in NRC’s environmental reviews and licensing proceedings beginning in 2017. After exhausting all administrative remedies, on behalf of its members and supporters living and working in close proximity to both proposed CISFs, Beyond Nuclear appealed to the U.S. Court of Appeals for the District of Columbia Circuit, several years ago. Beyond Nuclear’s legal counsel submitted a Friend of the Court brief to SCOTUS earlier this year. Beyond Nuclear’s appeal of the D.C. Circuit Court’s adverse ruling in the Holtec case had been held in abeyance until this SCOTUS ruling; Beyond Nuclear’s appeal to the D.C. Circuit Court of Appeals can now proceed.

Beyond Nuclear has worked closely with a national environmental coalition, opposing these CISFs for the past decade. Sierra Club chapters in Texas and New Mexico, were represented by attorney Wally Taylor of Cedar Rapids, Iowa. A grassroots environmental coalition, represented by attorney Terry Lodge of Toledo, Ohio, included: Don’t Waste Michigan; Citizens’ Environmental Coalition (of New York); Citizens for Alternatives to Chemical Contamination (of Michigan); Demand Nuclear Abolition (of New Mexico, previously called Nuclear Issues Study Group); Nuclear Energy Information Service (of Illinois); San Luis Obispo Mothers for Peace (of California), and Sustainable Energy and Economic Development (SEED) Coalition (of Texas). Sierra Club and Don’t Waste Michigan, et al., focused on the CISFs’ many violations of the National Environmental Policy Act. They appealed adverse decisions by NRC to the D.C. Circuit Court of Appeals. Don’t Waste Michigan, et al., also submitted a Friend of the Court brief to SCOTUS.

For more information about Beyond Nuclear’s opposition to CISFs, see our series of eight, two-sided fact sheets published in September, 2021, as well as a short educational video, featuring the Obama EPA’s director of Environmental Justice (EJ), Mustafa Ali, and grassroots EJ voices opposed to the CISFs. Also see Beyond Nuclear’s related website posts (March 2022 to the present), as well as posts from 2016 to 2022 at our previous, archived website.

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