Appeal to SCOTUS against Holtec’s NM CISF license!

Contact: 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]

Diane Curran, co-counsel for Beyond Nuclear, Harmon Curran, (240) 393-9285, [email protected]

BEYOND NUCLEAR APPEALS TO U.S. SUPREME COURT AGAINST NUCLEAR REGULATORY COMMISSION LICENSE FOR HOLTEC’S HIGHLY RADIOACTIVE WASTE DUMP

If Opened, New Mexico Facility, and Similar One Nearby in Texas, Would Launch Unprecedented Thousands of High-Risk Nuclear Waste Shipments through Many States

The case began in March 2018, when Holtec International applied to the U.S. Nuclear Regulatory Commission (NRC) to build and operate a CISF for up to 173,600 metric tons of spent nuclear reactor fuel, a quantity that exceeds the current nearly 100,000 metric tons in the U.S. by almost two-fold. Holtec sought to include a condition in the license that would allow the company to store federally-owned spent fuel at its private facility, an activity now prohibited by the Nuclear Waste Policy Act (NWPA). While acknowledging that the license condition currently violates the NWPA, the NRC and the D.C. Circuit of the U.S. Court of Appeals found that NRC could lawfully issue a license conditioned on speculated changes to the NWPA. The D.C. Circuit’s most recent adverse ruling against Beyond Nuclear was issued on August 5, 2025.

“Our SCOTUS appeal is critically important,” said Kevin Kamps, radioactive waste specialist at Beyond Nuclear. 

Although Holtec recently abandoned the New Mexico site in the face of the many roadblocks erected by the State of New Mexico to the dangerous waste dump, Kamps warned that the Holtec waste dump still poses a public health, safety, security, and environmental threat.

Noting that Holtec has not given up its NRC license, Kamps said, “The company’s surrender could merely be a ruse, a ploy in hopes that a new governor, and new state legislature, in New Mexico would give them a chance to still apply their NRC-approved license in the future. Holtec might also sell their license to another company, to again target New Mexico for the CISF. Holtec’s former New Mexico business partner, the Eddy-Lea [Counties] Energy Alliance (ELEA), could partner with a new company to try to push the CISF forward on the same site. Holtec could also attempt to transfer siting to another state, such as Arkansas, and apply the license there.”

In seeking Supreme Court review, Beyond Nuclear argues that the NRC’s decision to license Holtec and deny Beyond Nuclear’s hearing request violated the NWPA and the Administrative Procedure Act as well as the constitutional separation of powers doctrine. Beyond Nuclear also contends that the NRC cynically manipulated the hearing process to deny Beyond Nuclear its right to a “day in court” as guaranteed by Supreme Court precedents and fundamental legal principles that date back to the founding of our nation nearly 250 years ago.

A June 18, 2025 SCOTUS ruling, in the very closely related case NRC v. Texas, did not reach the merits or substance of these issues. Rather, SCOTUS’s 6-3 ruling (Justices Alito, Gorsuch, and Thomas dissenting) merely addressed procedural findings, namely that the State of Texas and Fasken Land and Minerals, Ltd., an oil and gas as well as ranching company, had not established “party aggrieved” status under the Hobbs Act, and therefore had no standing to object in federal court to NRC’s license approval for the Interim Storage Partners, LLC (ISP) CISF, located 0.3 miles from the New Mexico border in Andrews Country, Texas.

“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 in the Supreme Court appeal. “We look forward to demonstrating to the Supreme Court that the Nuclear Waste Policy Act unequivocally prohibits Holtec’s storage of federally-owned spent fuel. The NRC cannot ignore this statutory prohibition, and it cannot issue Holtec a license based simply on the hope that Congress amends the law in the future,” Goldstein added.

Echoing a passage in the cert. petition (at page 17), Goldstein added: “With its decision in Beyond Nuclear, the D.C. Circuit handed the NRC a blank check to ignore clear statutory mandates unhindered by judicial review. The Supreme Court should not permit the NRC to cash this check – instead, it should strike down the agency’s attempt to defy Congress, devastate basic principles of administrative law, and slam the courthouse door on those most impacted by its licensing decisions.”

Kamps of Beyond Nuclear concluded: “Even though SCOTUS recently 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 INFORMATION

The two CISFs are just 40-some miles apart, across the New Mexico/Texas state line. NRC approved ISP’s construction and operation license in September 2021, just days after Texas enacted a law prohibiting state agencies from issuing permits needed for the ISP CISF to open.

NRC approved Holtec’s license in May 2023, just weeks after New Mexico passed a law, likewise barring state agencies from issuing required authorizations for the Holtec CISF to open.

ISP would store up to 40,000 metric tons (MT) of irradiated nuclear fuel, and highly radioactive Greater-Than-Class-C (GTCC) “low-level” radioactive waste. Holtec would store up to 173,600 MT of so-called “spent” nuclear fuel and GTCC. Nearly 100,000 MT of highly radioactive commercial waste exists in the U.S., currently stored on-site at the 136 atomic reactors (94 still operating, and 42 permanently closed) located in dozens of states, where it was generated in the first place, over the past seven decades.

As 90% of reactors and their highly radioactive wastes are located in the eastern half of the country, and 75% are east of the Mississippi River, opening CISFs in the Permian Basin in Texas and New Mexico would mean many thousands of highly radioactive waste shipments — by rail, road, and/or barge — would cross many states in the Lower 48. Due to the inherent risks of accidental crashes, fires, punctures, underwater submersions, leaks, etc., and even intentional attacks, that could release the containers’ hazardous and deadly radioactive cargo, critics have long dubbed such shipments “Mobile Chornobyls,” “Dirty Bombs on Wheels,” “Floating Fukushimas,” and “Three Mile Islands in Transit.” Even “incident-free” shipments have been dubbed “Mobile X-ray Machines That Can’t Be Turned Off,” due to hazardous emissions of gamma and neutron radiation, or external contamination of containers, during “routine” transport operations.

A map prepared by the Western Interstate Energy Board, as part of its comments submitted to NRC regarding the ISP Draft Environmental Impact Statement, shows the most likely rail routes from U.S. atomic reactors to the west Texas CISF. Given its proximity, routes to Holtec would be very similar to identical. Maps provided by ISP in its 2016 and 2018 License Applications’ Environmental Reports (ER) showed that nearly every mainline railway in the U.S. was under consideration for shipping highly radioactive wastes to the CISF. Holtec’s ER rail transport route map, assuming Yucca Mountain, Nevada (Western Shoshone Indian Nation land, as acknowledged by the United States government in the “peace and friendship” Treaty of Ruby Valley of 1863) 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. (An almost identical rail route map was included in ISP’s ERs, as well.) The City of Fort Worth, Texas, located on those import and export routes, in Friend of the Court (Amicus) briefs, has previously objected to such risk-taking, at both the U.S. Court of Appeals for the District of Columbia Circuit, as well as at SCOTUS.

Beyond Nuclear’s legal arguments against the ISP and Holtec CISFs have 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 prior adverse rulings in the Holtec case had been held in abeyance until SCOTUS’s June 18, 2025 ruling in NRC v. Texas. Although Beyond Nuclear moved to remove the abeyance status of its appeal to the D.C. Circuit Court of Appeals, that court refused to further hear the case. Petitioning to SCOTUS for a writ of cert. is Beyond Nuclear’s last option to get its day in court.

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 also appealed adverse decisions by NRC to the D.C. Circuit Court of Appeals, but were ultimately rejected. In early 2025, Don’t Waste Michigan, et al., also submitted an Amicus Brief to SCOTUS, in the lead up to March 2025 oral arguments in NRC v. Texas, that led to the June 2025 SCOTUS ruling.

For more information about Beyond Nuclear’s opposition to CISFs, see our series of eight, two-sided fact sheets, updated in June 2025, as well as a short educational video (published in September 2021), featuring the former Obama EPA director of Environmental Justice (EJ), Mustafa Santiago 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 earlier posts, from 2016 to 2022, at our previous, archived website.

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