After SCOTUS CISF Ruling, We’ll Pursue Appeal at D.C. Circuit Court!
| [Image credit: No Nuclear Waste Aqui, Karen Hadden/SEED Coalition, and Diane D’Arrigo/NIRS; Andrews, Texas, Feb. 2017, NRC environmental scoping public comment meetings on WCS/ISP’s CISF scheme.]
{June 21, 2025 Update: The following news outlets, among others, have reported on this story: Source New Mexico; AP; Courthouse News Service; Reuters; The Texas Tribune; ScienceNews; CBS News; KOSA TV-7 (CBS in Odessa, TX); Texas Standard; WORT community radio in Madison, WI. NEWS FROM BEYOND NUCLEAR 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] |
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| WASHINGTON, D.C., JUNE 18, 2025–In a 6 to 3 decision regarding NRC v. Texas, the Supreme Court of the United States (SCOTUS) has ruled in favor of the U.S. Nuclear Regulatory Commission’s (NRC) approval of the construction and operating license for the Interim Storage Partners (ISP) consolidated interim storage facility (CISF) in Andrews Country, Texas, 0.3 miles from the New Mexico state line. ISP’s CISF targets Andrews County in west Texas for up to 40,000 metric tons of irradiated nuclear fuel, and highly radioactive Greater-Than-Class-C (GTCC) “low-level” radioactive waste, from commercial atomic reactors across the country. There is around 95,000 metric tons of highly radioactive waste stored at 94 operating, and 42 closed, atomic reactors located in dozens of states.
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 9-7 majority vote of the full circuit’s 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, 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 and 2018 License Applications’ Environmental Reports showed that nearly every mainline railway in the U.S. was under consideration for shipping highly radioactive wastes to the CISF; another ISP rail transport route map, 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 import and export routes, in Friend of the Court briefs, 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 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 earlier posts, from 2016 to 2022, at our previous, archived website. ### |
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| Beyond Nuclear is a 501(c)(3) nonprofit membership organization. Beyond Nuclear aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to safeguard our future. Beyond Nuclear advocates for an energy future that is sustainable, benign and democratic. The Beyond Nuclear team works with diverse partners and allies to provide the public, government officials, and the media with the critical information necessary to move humanity toward a world beyond nuclear. Beyond Nuclear: 7304 Carroll Avenue, #182, Takoma Park, MD 20912. [email protected]. www.beyondnuclear.org. |
Please note that environmental allies have also released the following in response to the SCOTUS ruling:
For Immediate Release
Media contact: Alex Frank, 703-276-3264, [email protected]
Additional national and state contacts below
SCOTUS Evades Illegality of Nuclear Waste Dumps; Reinstates Dangerous Storage Scheme with Decades of Massive Radioactive Transport across U.S.
6-3 decision rules that a federal agency can exclude a state and company from impacting decisions that affect them if they don’t jump through extensive agency hoops (without the agency’s OK)
Court says parties did not participate enough in the NRC licensing process to be allowed to challenge the decision and that parties must “successfully intervene,” which requires the agency’s approval.
The licenses for supposedly “interim” storage sites for deadly radioactive waste, would affect communities in most of the lower 48 states–triggering transport by rail, barge and massive trucks throughout the U.S. for decades
WASHINGTON (June 18, 2025) – The Supreme Court ruled, in a split decision today, not to address or decide on whether the Nuclear Regulatory Commission (NRC) has the authority to license privately owned, Consolidated ‘Interim’ Storage (CIS) sites. Instead, the Supreme Court ruled that the State of Texas (Texas) and Fasken Land and Minerals, LLC (Fasken) did not “jump through enough hoops” (paraphrasing the dissent pg 16) within the NRC licensing process to be eligible to challenge the licenses.
The dissenting opinion states, “Without any persuasive argument on the merits, the NRC urges the Court to dismiss Texas’s and Fasken’s claims on jurisdictional grounds. Ultimately, the Court … paves the way for the agency to issue its misbegotten license. As the Court sees it, Texas and Fasken cannot challenge the NRC’s decision in court because they failed to jump through the right hoops before the agency.” Justice Gorsuch in his dissent added, “radioactive waste poses risks to the state, its citizens, its lands, air, and waters, and it poses dangers as well to a neighbor and its employees.”
“We are disappointed. As a result of the Supreme Court decision new, allegedly-temporary nuclear waste dumps can proceed that are not designed to store waste forever, but will end up keeping it forever,” said Wally Taylor, attorney for Sierra Club who provided oral arguments on behalf of the organizations in the federal DC Circuit.
“The supposedly ‘interim’ sites would most likely become permanent and unnecessarily trigger decades of dangerous nuclear waste moving through communities and states,” said Dave Kraft of the National Radioactive Waste Coalition, and Nuclear Energy Information Service in Chicago.
With the NRC as the gatekeeper, it is questionable whether any party will be able to challenge the NRC on important health and safety issues at any level,” said Karen Hadden of Texas Nuclear Watchdogs. “The proposed plans to consolidate the nation’s nuclear reactor waste put the public in danger, both with transportation and at the storage site. Opponents will continue to fight efforts to dump on Texas and New Mexico.”
“The State of Texas does not consent to being the nation’s nuclear waste storage site,” said former State Representative Lon Burnam. “In 2021 all but three legislators voted to ban storage of high-level radioactive waste in Texas.” Despite clear opposition from the Texas Governor and Legislature, the NRC issued the license to Interim Storage Partners in September 2021.
“If this dangerous waste comes to Texas or New Mexico, it will likely never leave, creating de facto permanent dumps, at sites not designed for long term disposal. The waste must be isolated from living things for a million years, but it may never move to a permanent repository if storage containers corrode or leak,” said Tom “Smitty” Smith, former director of Public Citizen’s Texas Office.
“A single rail car would carry as much plutonium as was in the bomb dropped on Nagasaki. Shipments would continue for 40 years or more. Waste that remains deadly for millennia would move from nuclear reactor sites across the country, creating accident and contamination risks along the way. Exposure to radiation is known to cause cancers, genetic damage, birth defects and deaths,” said Diane D’Arrigo of Nuclear Information and Resource Service.
“In the Dallas/Ft. Worth area, trains carrying dangerous high-level radioactive waste would travel past numerous downtown buildings and the Texas State Fair Grounds. An accident could have huge health impacts,” said Susybelle Gosslee, a long-time opponent of radioactive waste transport and storage.
“We don’t want the nation’s nuclear reactor waste here. It would be a recipe for disaster. The proposed Texas and New Mexico sites are in the oil-producing Permian Basin area. The Texas/ New Mexico border region is prone to wildfires. flooding, and increasing sinkhole and earthquake activity,” said Rose Gardner of Eunice, NM. Rose lives 5 miles from the WCS low-level radioactive waste site in Andrews County, Texas, where high-level radioactive waste storage is proposed and 30 miles from the proposed New Mexico site in Eddy and Lea counties.
“Through widespread opposition from Indigenous nations and the public and a subsequent 2023 state law, New Mexico stands firm that we don’t want to be made a national sacrifice zone! We don’t want more radioactive waste stored or transported here, and we will continue to fight any attempts to do so,” said Diné anti-nuclear activist Leona Morgan.
The Supreme Court indirectly reinstated a nuclear waste license that many still argue is illegal. The court did not address the merits of the case, the legality of Consolidated “Interim” Storage (CIS) licenses. Instead they determined that the State of Texas (Texas) and Fasken Land and Minerals, LLC (Fasken), were not eligible to challenge it. The majority ruled that the Nuclear Regulatory Commission (NRC)’s rejection of Texas and Fasken as intervenors means they cannot challenge the licenses. Thus the Interim Storage Partners license could be restored, dismissing the 5th Circuit decision to overturn it.
Interim Storage Partners (ISP) in Texas received a license to store 40,000 tons of high-level radioactive waste above ground in Andrews County, Texas. Holtec in New Mexico wants to bring in up to 173,600 metric tons to store partly below grade in New Mexico at a site between Carlsbad and Hobbs.
This decision impacts Texas, New Mexico and most of the lower 48 states if the sites open, against Texas and New Mexico state laws, because it will result in at least 40 years of moving intensely, long-lasting, deadly radioactive waste from nuclear power sites across the country to locations that are purportedly temporary and from which the waste would move again once a permanent repository is located and opened.
Over the past decade, states, companies, organizations and individuals have opposed the Nuclear Regulatory Commission (NRC) licenses for Consolidated ‘Interim’ Storage (CIS), supposedly ‘temporary’ centralized sites for the most intensely radioactive, long-lasting radioactive waste which is generated by every nuclear power reactor. Opposition has been clear from the proposal stage, through the NRC licensing process and into the federal appeals courts. Both Texas and New Mexico passed laws against the sites. Texas, Fasken, and public interest groups contend that federal law, including the Nuclear Waste Policy Act, does not authorize or allow the NRC to license such facilities–they are illegal. The court did not directly address this key objection, ruling that Texas and Fasken were not “parties” to the NRC’s licensing proceeding, and have no right to challenge the legality of NRC’s licensing of CIS facilities.
Texas and Fasken won in the 5th circuit, which overturned two NRC licenses for so-called ‘interim’ facilities in Texas (Interim Storage Partners) and New Mexico (Holtec International). The Supreme Court danced around the argument that licenses are illegal and rather determined that Texas and Fasken did not participate enough in the licensing process to be eligible to challenge for the Interim Storage Partners (ISP) Consolidated ‘Interim’ Storage facility for irradiated (‘spent’) nuclear power waste. In fact, the NRC, at an early stage, rejected Fasken’s efforts to intervene, and both Texas and Fasken filed comments in the environmental review NRC conducted in its licensing proceeding.
All nuclear power reactors unavoidably create waste as they make nuclear electricity. If the re-licensed consolidated “interim” storage (CIS) sites in Texas and New Mexico open, this decision will impact those states AND most of the lower 48 states as the intensely radioactive shipments would move continuously for at least four decades on rails, roads and waterways from nuclear power reactors. Once there, it could stay for the 40 year license period but it could also remain at those sites indefinitely, despite the plan to move it all again to a permanent site, which has yet to be determined.
The merits of the case were not addressed but by default, the licenses are being reinstated.
The Nuclear Waste Policy Act (NWPA) does not allow privately owned offsite, supposedly temporary facilities. As Justice Gorsuch points out in his dissenting opinion, the NWPA only allows irradiated (“spent”) nuclear fuel to be stored in two types of locations: at a commercial nuclear reactor site; or at a federally owned interim storage site for up to 1,900 tonnes of irradiated fuel. (There are over 90,000 tonnes of irradiated fuel at commercial reactor sites today.) If these private CIS sites open, deadly high-level radioactive waste from nuclear power can be moved to and stored for decades in West Texas or New Mexico, or consolidated at other supposedly temporary locations.
Strong opposition to high-level radioactive waste storage came from Texas Governor Greg Abbott, the Texas Legislature, major Texas cities and counties, Andrews County, state, local and national organizations, oil companies, ranchers, and environmentalists. The state legislature voted in 2021 to ban high level waste storage or disposal and prohibit needed state permits for such a facility.
In New Mexico, the governor opposed the dump, the legislature passed a law prohibiting state permits for such a facility, and local governments passed resolutions against it.
The Fifth Circuit Court of Appeals ruled that the NRC has no authority to license consolidated interim storage sites for irradiated (“spent”) fuel and overturned the ISP license. They subsequently overturned the Holtec license for an even larger facility in New Mexico. In separate but similar cases filed previously by public interest organizations (Beyond Nuclear, Sierra Club, Don’t Waste Michigan, San Luis Obispo Mothers for Peace, SEED Coalition, Citizens Environmental Coalition and Leona Morgan) and Fasken, the U.S. Court of Appeals for the District of Columbia Circuit ruled differently than the Fifth, rejecting the challenges to the licenses. Beyond Nuclear is appealing that decision. On March 5, 2025, the U.S. Supreme Court heard the case in which the State of Texas and Fasken Land and Minerals Ltd. opposed the NRC and Interim Storage Partners.
A Texas law passed in 2021 banned storage or disposal of imported high level radioactive waste and prohibited state permits for such a site. Similarly, New Mexico passed a law in March 2023 that prohibits related state permits.
Related Supreme Court documents can be found at https://www.scotusblog.com/cases/case-files/nuclear-regulatory-commission-v-texas/
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Additional Contacts:
National
Diane D’Arrigo Nuclear Information & Resource Service (NIRS) 202-841-8588,
David Kraft, Nuclear Energy Information Service, National Radioactive Waste Coalition, 773-342-7650
Wallace Taylor, Esq. Sierra Club attorney against CIS, [email protected]
Texas and New Mexico
Karen Hadden Texas Nuclear Watchdogs 512-797-8481
Lon Burnam former Texas State Representative 817-721-5846
Tom Smitty Smith, former Public Citizen director 512-797-8468
Susybelle L. Gosslee, concerned citizen 214-732-8610
Leona Morgan – Diné anti-nuclear activist 505-879-8547,
Rose Gardner – Eunice, New Mexico, Alliance for Environmental Strategies, 575-390-9634
Pat Cardona – Southwest Alliance for a Safe Future 505-469-3230
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