CISFs@SCOTUS: Arguments Over “Nuking” Permian

[The Supreme Court of the United States (SCOTUS) as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan.  Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States.]

The Supreme Court of the U.S. took just over an hour and a half yesterday, regarding a million years of risk*: hearing oral arguments from the U.S. Department of Justice (representing the U.S. Nuclear Regulatory Commission), Interim Storage Partners, LLC (ISP), State of Texas, and Fasken Land and Minerals/Permian Basin Land and Royalty Owners and Operators Association, regarding ISP’s proposed consolidated interim storage facility (CISF) for highly radioactive waste in Andrews County, TX, 0.3 miles from the New Mexico border.

The audio recording from the March 5th oral arguments, as well as the session’s transcript, are posted at the SCOTUS website, here.

In 2023-24, the U.S. Court of Appeals for the 5th Circuit in New Orleans ruled against ISP, and Holtec’s CISF 40 miles west, in southeast NM.

NRC and DOJ, as well as ISP and Holtec, appealed those rulings, ultimately to SCOTUS.

Environmental opponents of the dumps fought in the NRC licensing proceedings, and U.S. Court of Appeals for the District of Columbia Circuit, but lost.

The State of New Mexico fought the dumps at the 9th Circuit Court of Appeals in Denver, but lost.

Citing the split in circuit court rulings, SCOTUS agreed to take up the case on October 4, 2024. Several months ago, SCOTUS scheduled oral arguments on March 5, 2025. The various parties have met SCOTUS deadlines late last year, and early this year.

This included Amicus Briefs from various parties, either for or against the dumps. Beyond Nuclear and Don’t Waste Michigan, et al. (a national grassroots environmental coalition) filed Amicus Briefs against the dumps, as did ten states.

Beyond Nuclear’s legal counsel since 2016, against these CISFs, has been Diane Curran of Washington, D.C., and Mindy Goldstein of Atlanta, GA.

Terry Lodge of Toledo, OH has served as legal counsel for Don’t Waste Michigan, et al. from the get-go as well. Wally Taylor of Cedar Rapids, IA served as legal counsel for the Texas and New Mexico chapters of the Sierra Club in the NRC licensing proceeding, as well as before the D.C. Circuit. He has since joined Lodge to represent Don’t Waste MI, et al., before SCOTUS, as on the Amicus Brief.

SCOTUS will rule by the end of June.

Here are links to media coverage, and other analyses, of the oral arguments, and SCOTUS review, of these CISFs:

Midland Reporter-Telegram (March 8, 2025);

WFAA, TV 8, ABC in Fort Worth, TX (March 6, 2025);

The Holland & Knight law firm provided an analysis (March 6, 2025);

Courthouse News Service (March 5, 2025);

Associated Press (March 5, 2025);

The Hill (March 5, 2025);

USA Today (March 5, 2025);

CBS News (March 5, 2025);

CNN (March 5, 2025);

ABC News (March 5, 2025);

NBC News (March 5, 2025);

Thomson/Reuters (March 5, 2025);

Los Angeles Daily News (March 5, 2025);

Bloomberg Law (March 4, 2025);

Vox (Feb. 26, 2025);

Bulletin of the Atomic Scientists (Feb. 20, 2025).

The authors are two graduate students, and a professor, at the U. of MI’s nuclear engineering dept., so their article is written largely from a pro-nuclear power, industry perspective.

It also leaves a lot out, such as: Yucca Mountain, Nevada is on Western Shoshone Indian land; the fact that our environmental coalition was also party to the CISF licensing proceedings, and federal appeals court battles, against the CISFs; the nuclear power industry gets close to a billion dollars per year in damages for DOE partial breach of contract for not taking title to commercial spent nuclear fuel beginning on Jan. 31, 1998; and the entire Environmental Justice aspect of CISFs, which is a huge omission.

It also gets some things fwrong. For one example, Balderas v. NRC was heard at the 10th Circuit, not the D.C., federal appeals court. And, SCOTUS agreed to hear this case in Oct. 2024, not December.

Also, reactor communities did not consent to long-term, or de facto permanent, on-site storage of highly radioactive irradiated nuclear fuel. For example, at Palisades in Michigan, opponents such as Maynard Kaufman, the founding father of the Michigan Organic Farm and Food Alliance, and others, resisted the atomic reactor even before ground was broken in 1967. Their warnings were simply ignored. Kaufman joined with Beyond Nuclear (not for the first time!) in Feb. 2021, providing legal standing from his renewable energy powered organic farm in Bangor, MI — within Palisades’ 10-mile Emergency Planning Zone — to oppose Holtec’s takeover of the nuclear power plant site. He passed on later that year.

 

*In 2002, an environmental coalition — NIRS, Public Citizen, Citizens Action Coalition of Indiana, Nevada Nuclear Waste Task Force, and Citizen Alert of Las Vegas — filed a lawsuit at the U.S. Court of Appeals for the District of Columbia Circuit, against EPA, for attempting to cut off regulations after just 10,000 years, at the proposed Yucca Mountain, Nevada permanent repository for highly radioactive waste.

Geoff Fettus at NRDC served as the coalition’s legal counsel. In 2004, the three-judge panel ruled in favor of the environmental coalition, ordering EPA back to the drawing board on its Yucca regulations.

Four years later, EPA published its new regulations. EPA acknowledged a million years of hazardous persistence with highly radioactive waste.

While a hundred times better than its previous regulations, EPA still refused to acknowledge the full hazardous persistence of irradiated nuclear fuel and high-level radioactive waste. For example, the artificial radioactive isotope (like plutonium, it does not exist in nature on Planet Earth, except perhaps in trace amounts), Iodine-129, generated by atomic reactors (or nuclear weapon detonations), has a half-life of 15.7 million years. That equates to a hazardous persistence of 157 to 314 million years, 10 to 20 half-lives.