Supreme Court clears the way for temporary nuclear waste storage in Texas and New Mexico

WASHINGTON (AP) — The Supreme Court on Wednesday restarted plans to temporarily store nuclear waste at sites in rural Texas and New Mexico, even as the nation is at an impasse over a permanent solution.

The justices, by a 6-3 vote, reversed a federal appeals court ruling that invalidated the license granted by the Nuclear Regulatory Commission to a private company for the facility in southwest Texas. The outcome should also reinvigorate plans for a similar facility in New Mexico roughly 40 miles (65 kilometers) away.

The federal appeals court in New Orleans had ruled in favor of the opponents of the facilities.

The licenses would allow the companies to operate the facilities for 40 years, with the possibility of a 40-year renewal.

The court’s decision is not a final ruling in favor of the licenses, but it removes a major roadblock. Justice Brett Kavanaugh’s majority opinion focused on technical procedural rules in concluding that Texas and a major landowner in southwest Texas forfeited their right to challenge the NRC licensing decision in federal court.

The justices did not rule on a more substantive issue: whether federal law allows the commission to license temporary storage sites. But Kavanaugh wrote that “history and precedent offer significant support for the commission’s longstanding interpretation” that it can do so.

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Justice Neil Gorsuch wrote in dissent that the NRC’s “decision was unlawful” because spent nuclear fuel can be temporarily stored in only two places under federal law, at a nuclear reactor or at a federally owned facility. Justices Samuel Alito and Clarence Thomas signed on to the dissenting opinion.

Roughly 100,000 tons (90,000 metric tons) of spent fuel, some of it dating from the 1980s, is piling up at current and former nuclear plant sites nationwide and growing by more than 2,000 tons (1,800 metric tons) a year. The waste was meant to be kept there temporarily before being deposited deep underground.

The NRC has said that the temporary storage sites are needed because existing nuclear plants are running out of room. The presence of the spent fuel also complicates plans to decommission some plants, the Justice Department said in court papers.

Plans for a permanent underground storage facility at Yucca Mountain, northwest of Las Vegas, are stalled because of staunch opposition from most Nevada residents and officials.

The NRC’s appeal was filed by the Biden administration and maintained by the Trump administration. Texas Gov. Greg Abbott, a Republican, and New Mexico Gov. Michelle Lujan Grisham, a Democrat, are leading bipartisan opposition to the facilities in their states.

The NRC granted the Texas license to Interim Storage Partners, based in Andrews, Texas, for a facility that could take up to 5,500 tons (5,000 metric tons) of spent nuclear fuel rods from power plants and 231 million tons (210 million metric tons) of other radioactive waste. The facility would be built next to an existing dump site in Andrews County for low-level waste such as protective clothing and other material that has been exposed to radioactivity. The Andrews County site is about 350 miles (560 kilometers) west of Dallas, near the Texas-New Mexico state line.

The New Mexico facility would be in Lea County, in the southeastern part of the state near Carlsbad. The NRC gave a license for the site to Holtec International, based in Jupiter, Florida.

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