Proponents for nuke waste dumps in TX & NM file briefs with SCOTUS

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[Photo: Protestors against ISP’s CISF speak out at NRC’s environmental scoping hearings in Andrews County, TX in February, 2017. Photo courtesy of SEED Coalition and No Nuclear Waste Aqui.]

Federal appeals for and against high-level radioactive waste dumps targeting Texas and New Mexico are now before the Supreme Court of the United States (SCOTUS).

Beyond Nuclear has been battling against both Interim Storage Partners (ISP) consolidated interim storage facility for highly radioactive irradiated nuclear fuel in Andrews County, Texas, as well as Holtec International’s CISF in southeastern New Mexico, for the better part of a decade, even before their license applications were submitted to the U.S. Nuclear Regulatory Commission (NRC) in 2016 and 2017.

Our resistance began with the NRC licensing and environmental review proceedings, over the course of many long years. It continued at the U.S. Court of Appeals for the District of Columbia Circuit, over the course of many additional long years. And now it continues still, at SCOTUS.

Numerous allies have joined us in resisting both dumps, including in appeals to the federal courts, and now at SCOTUS. These include the Sierra Club, as well as a national grassroots environmental coalition. However, our environmental coalition’s federal appeals at the U.S. Court of Appeals for the D.C. Circuit have been consistently ruled against, in both the ISP, TX, as well as the Holtec, NM cases.

We also have some strange bedfellow allies, including a more than century old, family owned oil, natural gas, and ranching company (Fasken), its industry allies in the Permian Basin of Texas and New Mexico, as well as the State of Texas. These parties won victories, in 2023 and 2024, against both dumps, at the 5th Circuit U.S. Court of Appeals, located in New Orleans, Louisiana.

The State of New Mexico also opposed both dumps, at the 10th Circuit U.S. Court of Appeals, located in Denver, Colorado. However, the State of New Mexico was also consistently ruled against, in both cases.

On June 12, 2024, PETITIONS FOR WRITS OF CERTIORARI were submitted by NRC, the U.S. Department of Justice (DOJ), and both dump companies (ISP and Holtec), to SCOTUS. That is, these proponents for both dumps asked SCOTUS to overturn the 5th Circuit’s rulings, and reinstate NRC’s license approvals for both dumps, which the 5th Circuit rulings had vacated, or nullified.

On October 4, 2024, CERTIORARI was granted by SCOTUS — that is, SCOTUS agreed to review the cases.

Per the schedule set by SCOTUS, on December 2, 2024, BRIEF FOR PETITIONER INTERIM STORAGE PARTNERS, LLC, as well as BRIEF FOR THE FEDERAL PETITIONERS (NRC, DOJ, and the U.S. Solicitor General), were submitted to SCOTUS. The Petitioners are all in favor of SCOTUS overturning the 5th Circuit U.S. Court of Appeals’ rulings, which vacated the NRC licenses for both ISP’s, as well as Holtec’s, CISFs. The 5th Circuit, based in New Orleans, Louisiana, and has jurisdiction over Texas, where ISP’s dump is targeted. The 5th Circuit also vacated (nullified) Holtec’s CISF license from NRC, even though Holtec’s dump would be located in New Mexico (technically, under the purview of the 10th Circuit Court of Appeals in Denver).

A Joint Appendix was also submitted to SCOTUS on December 2, 2024.

A week later, on December 9, 2024, Friend of the Court Briefs, in support of Petitioners (and thus in support of the dumps) were due to SCOTUS. One was submitted by Holtec International (which proposes its own CISF in NM), and another by the Nuclear Energy Institute, the nuclear industry’s PR and lobbying HQ in D.C.

On January 15, 2025, Respondents’ (including Fasken Land and Minerals, Ltd., Permian Basin Land and Royalty Owners, and the State of Texas) Briefs are due to SCOTUS. These parties are opposed to the dumps. They will argue in defense of preserving their victory, namely, the 5th Circuit U.S. Court of Appeals’ rulings against the dumps.

On January 22, 2025, Amicus Briefs in support of the Respondents are due. Beyond Nuclear, a party in closely related cases before the U.S. Court of Appeals for the District of Columbia Circuit, plans to submit a Friend of the Court Brief to SCOTUS. So too does the Sierra Club (representing chapters in Texas and New Mexico), as well as a national grassroots environmental coalition.

SCOTUS has scheduled oral arguments for March 5, 2025.

SCOTUS will rule on this case by the end of June, 2025.

If either dump opens, it would lead to unprecedented numbers of shipments of high-level radioactive waste across many U.S. states. Although shipments would mostly be by rail, Heavy Haul Trucks on the roads, and barges on surface waters, would likely also be used at dozens of nuclear power plants across the country, in order to move the irradiated nuclear fuel from atomic reactor sites lacking direct rail access, to the nearest railheads.

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