Federal Court Orders Reconsideration of Nuclear Waste Facility Approval, Citing Inadequate Indigenous Consultation
By NNL Digital News , March 20, 2025, https://www.netnewsledger.com/2025/03/20/federal-court-orders-reconsideration-of-nuclear-waste-facility-approval-citing-inadequate-indigenous-consultation/#google_vignette
OTTAWA – A Federal Court decision has ordered the Canadian Nuclear Safety Commission (CNSC) to revisit its approval of a Near Surface Disposal Facility (NSDF) at the Chalk River Laboratories site, citing errors in its assessment of Indigenous consultation obligations.
The ruling, issued by the Honourable Madam Justice Blackhawk on February 19, 2025, in the case of Kebaowek First Nation v. Canadian Nuclear Laboratories, highlights the importance of adhering to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law.
The Case at a Glance
The Kebaowek First Nation challenged the CNSC’s decision to grant Canadian Nuclear Laboratories Ltd. (Canadian Nuclear) a license amendment to construct the NSDF, a proposed facility for the permanent storage and disposal of low-level nuclear waste. Kebaowek argued that the CNSC erred by:
- Failing to apply the UNDRIP and the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) to its decision-making process regarding the duty to consult and accommodate.
- Concluding that the Crown had fulfilled its duty to consult and accommodate Kebaowek.
- Determining that the NSDF is not likely to cause significant adverse environmental effects.
Court’s Findings
Madam Justice Blackhawk’s decision focused on the CNSC’s handling of Indigenous consultation. Key findings included:
- Jurisdiction to Apply UNDRIP/UNDA: The court found that the CNSC erred in determining it did not have the jurisdiction to consider the application of the UNDRIP and the UNDA to the duty to consult and accommodate.
- Duty to Consult and Accommodate: The court determined that the CNSC’s assessment of whether the Crown had fulfilled its duty to consult and accommodate Kebaowek was flawed due to the failure to consider the UNDRIP and its principle of “free, prior, and informed consent” (FPIC) as an interpretive lens.
- Flawed Consultation Process: The court stated that the consultation process was inadequate, and Canadian Nuclear failed to consult in a manner consistent with the UNDRIP and the FPIC standard.
Remedy and Next Steps
The Federal Court has ordered the matter to be remitted back to the CNSC for reconsideration. The CNSC, or a newly struck commission, is directed to:
- Address the jurisdictional question regarding the application of UNDRIP and the UNDA.
- Re-assess the Crown’s fulfillment of the duty to consult and accommodate, considering the UNDRIP and the FPIC standard.
Canadian Nuclear and CNSC staff are also directed to resume consultation with Kebaowek, aiming to implement the UNDRIP FPIC standard in a robust manner and work towards achieving an agreement. The court has set a target completion date of September 30, 2026, for this renewed consultation process.
Implications
This decision has significant implications for future development projects in Canada that may affect Indigenous rights and interests. It underscores the importance of:
- Properly interpreting and applying the UNDRIP and the UNDA.
- Conducting meaningful and robust consultation with Indigenous communities, consistent with the principles of FPIC.
The ruling emphasizes that consultation processes must be approached from an Indigenous perspective and take into account Indigenous laws, knowledge, and practices.
NetNewsLedger.com will continue to follow this developing story and provide updates.
SCOTUS Ruling Could Shape the Future of Nuclear Waste Storage.
Samuel Lawrence Foundation, 20 Mar 25
The U.S. Supreme Court is currently reviewing a case that could have major implications for how nuclear waste is stored across the country—including the 3.6 million pounds of radioactive waste at San Onofre. At the center of the case is whether the Nuclear Regulatory Commission (NRC) has the authority to license private interim storage facilities, such as the one proposed in Andrews County, Texas, which would hold high-level nuclear waste away from reactor sites. Texas has challenged this decision, arguing that the NRC is overstepping its legal bounds and that waste management should remain under federal oversight.
This case matters to us because San Onofre’s waste remains in thin-walled metal canisters near a rising ocean, with no long-term plan for safe containment. If the Supreme Court rules against private storage, it could limit future options for moving this waste to a safer location. Meanwhile, if the Court upholds the NRC’s authority, it could pave the way for private companies to take a larger role in nuclear waste management—raising serious questions about safety, oversight, and accountability. As we continue to fight for a real solution for San Onofre, this decision will play a critical role in shaping what’s possible. Stay tuned for more updates as this case unfolds.
Hold Southern California Edison (SCE) Accountable: From Wildfires to Nuclear Waste.
Samuel Lawrence Foundation, 20 Mar 25
On March 5, 2025, Los Angeles County filed a lawsuit against Southern California Edison (SCE) over the devastating Eaton Fire, which killed 17 people and destroyed over 9,000 structures. The lawsuit alleges that SCE’s failure to maintain its infrastructure led to the disaster—echoing a long history of negligence by the utility. From wildfires to nuclear waste, Edison has repeatedly put profit over public safety, avoiding accountability for the risks it imposes on millions of Californians. The parallels to nuclear waste stored at San Onofre are striking: just as SCE’s equipment failures have fueled deadly fires, their reckless handling of 3.6 million pounds of nuclear waste at San Onofre poses an existential threat to our coastal communities.
This lawsuit highlights the urgent need to hold SCE accountable—not just for wildfire destruction but for the dangerous waste sitting on our shoreline. Our fight continues to demand oversight, responsibility, transportability, and real solutions for San Onofre’s ticking time bomb before disaster strikes again. We are optimistic that LA County will see justice in this fight against Edison.
“We will not back down:” Court tells Greenpeace to pay billion dollar damages bill to oil and gas company
The case has been mired in controversy from the outset with many jurors holding unfavourable views of the protests and it was reported that more than half the jurors selected to hear the case had ties to the fossil fuel industry.
the US decision is a good indicator about what may be in store for Australia.
Royce Kurmelovs, Mar 20, 2025,
https://reneweconomy.com.au/we-will-not-back-down-court-tells-greenpeace-to-pay-billion-dollar-damages-bill-to-oil-and-gas-company/
A jury in the US has hit Greenpeace with $US660 million ($A1.04 billion) in damages for defamation and other claims for the green group’s part in a campaign led by First Nations people against an oil pipeline in 2016 and 2017.
The Standing Rock protests marked a major turning point in the movement against new oil and gas infrastructure, when the Standing Rock Sioux Tribe led a campaign against the construction of the Dakota Access pipeline.
Right wing organisations and groups mobilised in response to the protests that became a flashpoint in the broader fight over climate change, with sweeping anti-protest laws rolled out across the United States.
The case against Greenpeace is the latest reaction to the protest with Dallas-based oil and gas company, Energy Transfer Partners, alleging it lost $70 billion as a result of the campaign. It pursued Greenpeace in the courts alleging defamation and incitement of criminal behaviour against the project.
The lawsuit relied upon a US-specific statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), that was initially written to target the mob, but has since been used to prosecute international football federation FIFA for corrupt conduct and ExxonMobil for its role in attacking the science of climate change.
By seeking hundreds of millions in compensation against an organisation that played a minimal role in the protests, legal experts have described the litigation known as “strategic litigation against public participation”, or a “SLAPP Suit”. These are cases brought by large corporation to shut down public criticism or protest about a company’s activities.
The case has been mired in controversy from the outset with many jurors holding unfavourable views of the protests and it was reported that more than half the jurors selected to hear the case had ties to the fossil fuel industry.
Greenpeace made multiple attempts to move the hearings to another venue over concerns it would not get a fair hearing but were denied.
Following the verdict, Greenpeace International Executive Director Mads Christensen linked the decision to a broader corrosion of the right to protest in the US under the Trump administration.
“We are witnessing a disastrous return to the reckless behaviour that fuelled the climate crisis, deepened environmental racism, and put fossil fuel profits over public health and a liveable planet,” Christensen said.
“The previous Trump administration spent four years dismantling protections for clean air, water, and Indigenous sovereignty, and now along with its allies wants to finish the job by silencing protest.”
“We will not back down. We will not be silenced.”
David Mejia-Canales, a senior human rights lawyer from the Human Rights Law Centre, said the US decision is a good indicator about what may be in store for Australia.
SLAPP suits are not new in Australia, but the US lawfirm representing oil company Santos in the recent Munkara decision that ruled against the Environmental Defenders Office used an approach similar to US-style RICO litigation.
Coalition leader Peter Dutton has already pledged to defund the Environmental Defenders Office after the ruling in Munkara found its lawyers had behaved improperly, but has recently proposed to formally introduce RICO-style laws into Australia if elected.
Mejia-Canales said it was early days on the opposition leader’s proposal that seemed “a bit of a thought bubble” but said that should these laws be introduced, they had “potential to be abused”.
“In a way, the Greenpeace decision in the US is peering a little bit into our own future,” he said. “What we are seeing happening in the US today might be happening here tomorrow.”
“If these RICO type laws get introduced in Australia, they’re not doing it for the greater good or the greater purpose, it’s to stop us critiquing these massive companies whose behaviour leads to a whole lot of criticism and we should be able to do that safely.”
The Human Rights Law Centre is working to draft a bill that would introduce a set of principles for Australian courts to follow when confronted by a SLAPP litigation.
Court upholds two legal challenges to the Chalk River Radioactive Megadump.
Gordon Edwards, 14 Mar 25
The radioactive megadump planned for Chalk River (an “engineered mound” intended to contain about one million tonnes of so-called “Low-level” radioactive waste in a permanent landfill-like toxic waste dump just one kilometre from the Ottawa River) was planned by Canadian Nuclear Laboratories (CNL) and approved by CNSC.
Three legal challenges against this decision were launched in the Federal Appeals Court. The first had to do with the inadequacy of the safety case and the lack of adequate monitoring of the contents of the megadump. The second had to do with the failure to consult the Indigenous Algonquin peoples as required by the “Duty to Consult” and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The third challenge had to do with the failure to consider alternative sites for such a toxic waste facility to provide adequate protection for endangered species.
Although the first challenge was not successful, the good news is that the second and third challenges were upheld by the court and CNSC and CNL will have to re-open the regulatory process to correct the inadequacies that have been noted. This does not mean that the existing megadumo has been forbidden but that more work must be done by both the proponent and the regulator to satisfactorily address these inadequacies.
The success of the third challenge was only announced yesterday.
The Federal Court overturned the Species at Risk permit for the nuclear waste facility planned for Chalk River, just 180 km up the Ottawa River from Ottawa.
The project proponent, CNL, said that the construction would harm, harass, or kill the endangered Blanding’s Turtle and 2 endangered bat species.
The Court found that CNL did not consider all reasonable alternative locations, and CNL admitted that it picked Chalk River even though it was less favourable for protecting species at risk than two other viable sites.
This violated s. 73(3)(a) of the Species at Risk Act, which says that “all” reasonable alternatives that would reduce the impact on species at risk must be considered and the best solution must be adopted.
There’s a lot to parse, but essentially, Justice Zinn agreed about the first 2 issues (not all reasonable locations were considered, and the best option was not chosen), but disagreed about the others (bat boxes, wildlife corridors, bird nests, the Monarch).
The win on the location issue is huge, of course. If they have to pick a new location, they have to start over from scratch and none of the other issues matter. See para 48 (of the decision) for some good reasoning by Zinn J:
“During both the hearing and public consultation with the Canadian Nuclear Safety Commission, CNL conceded that it would only consider non-AECL properties if no suitable AECL-owned site was identified. This admission confirms that CNL’s default approach was to confine its search to AECL lands unless compelled to broaden it. This methodology is directly at odds with the statutory mandate under paragraph 73(3)(a). The Minister failed to reconcile this self-imposed limitation with the statutory requirement for a comparative assessment of ecological impacts on protected species. I am of the view that, even if a non-AECL site posed greater logistical challenges, such as increased transportation distances, the Act would still require CNL to consider it if it offered reduced harm to at-risk species. Administrative or logistical difficulties do not absolve the project’s proponent of its duty to evaluate such alternatives under paragraph 73(3)(a), even if those factors later justify rejecting them.”
Unfortunately, this does not mean that ECCC will not approve the permit for Chalk River. The decision is being sent back for redetermination, as is normal in admin law cases. From Zinn’s interpretation of the statutory language, it’s hard to see how it could be approved for Chalk River, given CNL’s deficient siting process, but Zinn seemed to be aware of these massive implications and tried to avoid these repercussions. He goes out of his way to say that it could be possible for ECCC to approve the permit for Chalk River if 1) they give appropriate justification for only looking at AECL sites (para 50) and 2) interpreted “best option” differently than ECCC has in the past, to include non-species-at-risk factors, and justified this different interpretation (paras 57-61).
14 years on: Justice at Fukushima remains denied
12th March 2025,
https://www.nuclearpolicy.info/news/14-years-on-justice-at-fukushima-remains-denied/
Yesterday (11 March) marked the 14th anniversary of the Fukushima nuclear disaster. As Welsh and British anti-nuclear campaigners held events to mark the anniversary, our friends in the Japanese campaign group, Citizen’s Nuclear Information Centre published this interesting media release on the current position:
This year, 14 years after the Great East Japan Earthquake and the Fukushima Daiichi Nuclear Power Station accident, the Seventh Strategic Energy Plan, which sets the basic direction of the country’s energy policy, was approved by the Japanese Government.
The Plan includes a policy of the active use of nuclear power. The phrase “reduce dependency on the nuclear power as much as possible” which had been included, even if it were a mere formality, in Strategic Energy Plans published since March 2011 was deleted. This is a huge change of direction. The government has explained this by saying, “The policy has not changed, but the change has been made at the request of local governments where nuclear power plants are located and the nuclear industry.”
The draft plan in which this change was introduced generated over 40,000 public comments, but the Cabinet approved the draft almost as is, ignoring the voices of opposition from so many people.
The release of Advanced Liquid Processing System (ALPS) treated water, which contains radioactive materials that cannot be fully removed, from the Fukushima Daiichi Nuclear Power Station (FDNPS) into the ocean, began in 2023.
Discussion is now underway on the recycling of the “removed soil” generated from decontamination work that removed topsoil contaminated by the nuclear accident. Recycling allows soil with concentrations of up to 80 times higher than that considered necessary to be treated as radioactive material to be used nationwide under certain controlled conditions.
Both the discharge of ALPS treated water into the ocean and the recycling of removed soil violate the principle of centralized management of radioactive materials and could expose large numbers of citizens to unnecessary risks of radiation exposure.
Radiation exposure, which has no benefit to the people who are exposed to the risks, is being promoted without consideration for the voices of opposition from the public in the name of the reconstruction of Fukushima, on the grounds that it is an “existing exposure situation” as defined by the ICRP (International Commission on Radiological Protection), and because the IAEA has confirmed the safety of the radiation exposure.
This month, the Supreme Court decided to dismiss the appeals of the prosecutor’s designated lawyer in the case of three TEPCO executives, except for one whose charge was dismissed due to his death. They were indicted on charges of professional negligence resulting in death or bodily injury but were found not guilty.
Initially, the Tokyo District Public Prosecutor’s Office had decided not to prosecute the case. However, the case was determined to be appropriate for prosecution by the Committee for the Inquest of Prosecution, selected by lot from among the people, and was thus contested in court. This verdict can be taken as a message that companies pursuing economic activities need not be held criminally responsible even if they bring about major accidents. The gap dividing civil and judicial values has become increasingly obvious in recent years.
The trial retrieval of fuel debris carried out last year highlighted the progress being made toward decommissioning. At the same time, although an image of the final state of the decommissioned FDNPS is indispensable when discussing the reconstruction of Fukushima, this final state is not yet clearly seen.
What is the final condition of the site that is aimed for?
Will it be possible to retrieve all the fuel debris?
Moreover, apart from the fuel debris, where will the various levels of radioactive wastes, estimated at around 7.84 million tons, generated from the demolition of buildings, from decontamination, and water treatment waste, be stored or disposed of?
Will there be regions that will accept it?
At the same time, it must be remembered that the work of decommissioning that has been continuing with no certain goal, requires sacrifice on the part of workers who are exposed to radiation.
Rather than prioritize requests from the “Nuclear Village” (faction promoting nuclear), what the government needs to do is provide real relief to those affected by the nuclear accident, face up to the voices of civil society, and proceed with realistic deliberations toward the decommissioning of the Fukushima Daiichi Nuclear Power Station.
Fukushima victims angered, saddened by TEPCO acquittals.
THE ASAHI SHIMBUN, March 7, 2025, by Susumu Okamoto, Noriyoshi Otsuki, Yuto Yoneda and Takashi Endo. https://www.asahi.com/ajw/articles/15659097?fbclid=IwY2xjawI5r7VleHRuA2FlbQIxMQABHWN3s0dp9P01VgNx6-uHR7J7t09vvNY9N_2gIceMP_VQvQV1fbE1ExO8Qw_aem_q068mi2UQmCXSqQO2wrDJQ
Victims of the Fukushima nuclear disaster expressed outrage and sadness after the Supreme Court upheld the acquittals of two former executives of Tokyo Electric Power Co., operator of the stricken nuclear plant.
But for Yoshinobu Ishii, the March 5 decision came as no surprise.
“I expected this because the rulings of the first and second trials were ‘not guilty,’” said Ishii, 80, from Kawauchi, Fukushima Prefecture.
Ishii’s mother, Ei, died at the age of 91 after being forced to flee from the nuclear accident in March 2011.
“My mother is not coming back, even if I blame someone (for her death),” said Ishii, resigned.
The two former vice presidents at TEPCO were charged with professional negligence resulting in death and injury concerning the company’s preparations for a tsunami that could hit its Fukushima No. 1 nuclear power plant.
However, the top court agreed with earlier rulings that said a tsunami of that scale could not have been foreseen and absolved them of criminal responsibility.
Ishii said he was concerned the ruling could further promote Japan’s return to using nuclear power generation for its energy needs.
EVACUATION PLAN ‘USELESS’
On the morning of March 11, 2011, Ishii’s wife, Aiko, 75, visited Ei at an affiliated facility near Futaba Hospital in Okuma, near the nuclear plant.
Ei, who had hurt her back, ate the grated apple and pickled radish that Aiko had brought, and then said her last words to her daughter-in-law: “Be careful on your way home. Come again tomorrow.”
The Great East Japan Earthquake struck that afternoon, unleashing a tsunami that caused the triple meltdown at the nuclear plant.
In the ensuing chaos, patients left behind in hospitals and related facilities were forced to take buses and other means on a harsh evacuation route exceeding 200 kilometers.
A week after the tsunami, the Ishii couple found Ei’s body wrapped in a white cloth in a high school gymnasium. Her death certificate read: “Cause of death: hypothermia” and “Date of death: around March 14.”
The former TEPCO executives were cleared of negligence charges concerning the deaths of 44 people, including hospital patients like Ei who died in evacuation.
Immediately after the nuclear accident, there was a growing movement to move away from nuclear power generation.
Now, however, nuclear reactors are increasingly being restarted around the nation.
“Japan is a country where many earthquakes occur, so ‘100 percent safety’ is impossible,” Ishii said. “That’s why the nuclear accident happened and why the evacuation plan was useless.”
FEELING HELPLESS
A group of victims in Fukushima Prefecture initiated the criminal procedures against the former TEPCO executives.
The group’s leader, Ruiko Muto, 71, ran a coffee shop in Tamura, Fukushima Prefecture, about 40 kilometers west of the Fukushima No. 1 nuclear power plant.
She had no choice but to close the shop after the accident.
“I wanted to make it clear through a criminal trial who should take responsibility to prevent a repeat of the same mistakes,” she said.
She had sat in the galleries of court rooms since the first hearing of the trial at the Tokyo District Court in 2017.
When she learned on March 6 that the Supreme Court had effectively finalized the not guilty verdicts, she felt frustrated and shed tears.
She fears the acquittals will intensify a sense of helplessness among those affected in Fukushima Prefecture.
“Victims of damage caused by the nuclear accident tend not to speak out,” Muto said.
FOCUS NOW ON CIVIL CASE
Yuichi Kaido, a lawyer representing plaintiffs in both the criminal case and a civil lawsuit against former TEPCO managers, criticized the Supreme Court’s decision at a news conference on March 6.
“Its logic was too rough,” Kaido said.
But he said some good came out of the trial and appeals process, which took more than seven years to complete.
Many TEPCO employees and other related parties testified as witnesses.
“The testimonies at the trial have become invaluable evidence when discussing the nuclear accident,” Kaido said.
In the civil lawsuit, the Tokyo District Court ordered the former TEPCO managers to pay more than 13 trillion yen ($88 billion) in damages over the nuclear accident.
The defendants appealed the ruling, and the Tokyo High Court is expected to hand down its ruling in June.
“It is important to ensure the district court’s ruling is upheld,” Kaido said.
DISAPPOINTMENT
In the criminal case, prosecutors initially decided not to charge the former TEPCO executives.
But a citizens inquest panel twice ruled that they should be prosecuted, and mandatory indictments were applied.
(A third former TEPCO executive was charged, but his trial was terminated after his death in October last year.)
The four designated lawyers who acted as prosecutors in the trial held a news conference after the top court’s decision.
“The Supreme Court did not respond to our arguments,” Shozaburo Ishida said. “I wish they had made a more rigorous decision.”
Supreme Court wrestles with nation’s frustrating search for nuclear waste storage
Justice Sonia Sotomayor, looking ahead to the United States’ 250th anniversary next year, said, “I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”
By ASSOCIATED PRESS, 6 March 2025 ,
https://www.dailymail.co.uk/wires/ap/article-14464455/The-Supreme-Court-confronts-national-headache-What-growing-pile-nuclear-waste.html
WASHINGTON (AP) – The Supreme Court on Wednesday wrestled with whether to restart plans to temporarily store nuclear waste at sites in rural Texas and New Mexico even as some justices worried about safety issues and the lack of progress toward a permanent solution.
The justices heard arguments in a case that reflects the complicated politics of the nation´s so far futile quest for a permanent underground storage facility. A plan to build a national storage facility northwest of Las Vegas at Yucca Mountain has been mothballed because of staunch opposition from most Nevada residents and officials.
The court took up a challenge by the Nuclear Regulatory Commission and a private company with a license for the Texas facility to an appellate ruling that found the commission had no authority to grant the license. The outcome of the case will affect plans for a similar facility in New Mexico roughly 40 miles (65 kilometers) away.
The licenses would allow the companies to operate the facilities for 40 years, with the possibility of a 40-year renewal.
“That doesn’t sound very interim to me,” Justice Neil Gorsuch said, while also questioning the advisability of storing spent nuclear fuel “on a concrete platform in the Permian Basis, where we get all our oil and gas from.”
Justices Samuel Alito and Clarence Thomas joined Gorsuch in asking questions suggesting they were the most likely to uphold the ruling from the 5th U.S. Circuit Court of Appeals.
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.
Justice Sonia Sotomayor, looking ahead to the United States’ 250th anniversary next year, said, “I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”
Justice Department lawyer Malcolm Stewart agreed, noting that the spent fuel has to be kept somewhere, whether at operating and decommissioned plants or elsewhere.
Security also is cheaper with the waste in one or two locations, Stewart said, relying on arguments made by Interim Storage Partners LLC, the company with the Texas license.
Sotomayor, along with Justices Ketanji Brown Jackson, Elena Kagan and Brett Kavanaugh, seemed most inclined to reverse the 5th circuit. Chief Justice John Roberts and Justice Amy Coney Barrett said little or nothing to reveal where they stand.
The NRC’s appeal was filed by the Biden administration and maintained by the new 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 justices will consider whether, as the NRC and Interim Storage Partners argues, the states and a private energy company forfeited their right to object to the licensing decisions because they declined to join in the commission´s proceedings.
Two other federal appeals courts, in Denver and Washington, that weighed the same issue ruled for the agency. Only the 5th Circuit allowed the cases to proceed.
The second issue is whether federal law allows the commission to license temporary storage sites. Opponents are relying on a 2022 Supreme Court decision that held that Congress must act with specificity when it wants to give an agency the authority to regulate on an issue of major national significance. In ruling for Texas, the 5th Circuit agreed that what to do with the nation´s nuclear waste is the sort of “major question” that Congress must speak to directly.
But the Justice Department has argued that the commission has long-standing authority to deal with nuclear waste reaching back to the 1954 Atomic Energy Act.
The NRC granted the Texas license to Interim Storage for a facility that could take up to 5,000 metric tons of spent nuclear fuel rods from power plants and 231 million 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.
Alito, who said the interim sites could remove the incentive to find a permanent solution, asked Brad Fagg, a lawyer for Interim Storage Partners, for a prediction of when a permanent site would open.
“I’ve been in this stew for a lot of years,” Fagg said. “I would be kidding myself and this court if I said I had a date.”
A decision is expected by late June.
9-year lawsuit fails to stop Ikata nuclear plant operations
By KAI NEMOTO/ Staff Writer, March 5, 2025, https://www.asahi.com/ajw/articles/15655918
HIROSHIMA—The district court here rejected a request on March 5 by plaintiffs to stop operations at the Ikata nuclear power plant in Ehime Prefecture on the main island of Shikoku.
The Hiroshima District Court ended a nine-year lawsuit brought by 337 plaintiffs, including some who survived the Aug. 6, 1945, atomic bombing of Hiroshima, by rejecting the injunction request.
Although Hiroshima is located about 100 kilometers north of the Ikata plant, operated by Shikoku Electric Power Co., the plaintiffs argued that a serious accident would send radioactive materials spewing into the air and waters of the Seto Inland Sea that lies between Hiroshima and Ehime prefectures.
The main points of contention in the lawsuit filed in March 2016 were the safety of the Ikata plant against earthquakes and volcanic eruptions in Kyushu.
During the course of the trial, atomic bomb survivors testified about what they went through after Hiroshima was leveled 80 years ago.
The Ikata nuclear plant began operations in 1977, but only the No. 3 reactor is currently operating. The other two reactors are in the process of being decommissioned.
Similar lawsuits to stop operations have been filed in other district courts in the region, but in March 2024 the Oita District Court rejected the request by plaintiffs, who appealed to the Fukuoka High Court.
Nuclear waste at Chalk River: opponents defeated in court.
By Nelly Albérola, Radio-Canada, ICI Ottawa-Gatineau, March 6, 2025
https://ici.radio-canada.ca/nouvelle/2145786/rejet-decision-nucleaire-chalk-river-dechet [en français]
The Federal Court has dismissed an application for judicial review by citizens’ groups and scientists opposed to the Chalk River radioactive waste disposal site in Deep River, Ontario.
The ruling has gone almost unnoticed. In the wake of the Kebaowek First Nation’s victory over Canadian Nuclear Laboratories (CNL), the Federal Court has handed down another decision concerning the proposed Chalk River nuclear waste disposal site.
Please note: This victory will require the CCNS to have meaningful consultations with the Algonquins on whose traditional lands the radioactive waste dump is intended to be built. Neither the Algonquins nor the citizens of Ontario or Quebec were ever consulted about the choice of site for the dump, located one kilometre from the Ottawa River which borders Quebec and flows into the St. Lawrence River at Montreal. – G. Edwards
On February 20, the federal judge dismissed the application for judicial review brought before the court by three citizens’ groups: Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and the Ralliement contre la pollution radioactive.
A justified decision, according to the court
These groups include a number of retired scientists. They consider the decision of the
Canadian Nuclear Safety Commission (CNSC) to be unreasonable. authorize, in January 2024, the construction of a near-surface disposal facility (NSDF) for about one million tons of “low-level” radioactive waste.
“When read as a whole and taking into account the experience and technical expertise of the Commission, the decision is justified, intelligible and transparent. Consequently, the present application will be rejected,” reads the Federal Court’s decision.
“We’re certainly disappointed,” says Ginette Charbonneau, spokesperson for the Ralliement contre la pollution radioactive. “We’ve been working for six years and more to tighten up this project, to make it better.”
“Our chances of success were virtually nil,” admits another spokesman for the Ralliement, Gilles Provost. “The judge couldn’t change the Commission’s decision, but had to judge whether the decision was unreasonable: that’s an extremely heavy burden of proof.”
A view shared by the three groups’ lawyer, Nicholas Pope. “In the end, the court did not say that the decision was correct, only that it did not meet the high standard of unreasonableness,” he points out in a written response.
Murky administrative law, say opponents
Beyond their disappointment, the groups deplore the fact that the court took into account only the CNSC’s opinion, without considering the observations of other professionals who are nevertheless recognized in the nuclear industry.
“We rely heavily on scientific experts such as James R. Walker. Unfortunately, both the CNSC and the judge rejected his arguments,” laments Ole Hendrickson, a researcher and member of the Concerned Citizens group. “I was surprised that the judge said that the Commission can choose whatever it wants, rather than paying attention to all the arguments.”
For the president of the Canadian Coalition for Nuclear Responsibility, Gordon Edwards, the legal system is simply not well equipped to deal with these situations.
“Administrative law is murky: magistrates are in a difficult position when they have to judge these cases,” says the former nuclear consultant for governmental and non-governmental agencies. “The law gives the CNSC the power to make decisions on nuclear matters. The judge therefore does not feel empowered to overturn the decision of the agency that has been given the authority to make that decision.”
An unprecedented project
The physicist reminds us that the permanent installation of a nuclear waste disposal site is unprecedented in Canadian history.
“We’ll never take it away again. This is where it will go and stay forever,” he insists.
“That’s why it’s so important to do it right, to make sure that all the safety measures have been taken and that they can be sustained over time,” he adds.
“The waste is going to stay in the landfill until it’s disintegrated. And that can take anywhere from a few years to millions of years, so you see the problem,” worries physicist by training Ginette Charbonneau. “You can [wear] a mask and say that legally, everything’s okay, but when you’re talking about radioactive waste, that’s not good enough.”
Supreme Court steps into debate over where to store nuclear waste
CBS, By Melissa Quin, March 5, 2025
Washington — The Supreme Court on Wednesday jumped into the decades-long dispute over what to do with thousands of metric tons of nuclear waste, as it considered a plan to store it above one of the world’s most productive oil fields, the Permian Basin in Texas.
The U.S. Nuclear Regulatory Commission and the company Interim Storage Partners are facing off against the state of Texas and Fasken Land and Minerals Ltd., which owns land in the Permian Basin, in the fight over what to do with the spent fuel generated at nuclear reactor sites. The waste can remain radioactive and pose health risks for thousands of years, according to the U.S. Energy Information Administration.
How to address the problem of nuclear waste has been complicated by politics since the advent of nuclear power last century. In 1982, Congress enacted a federal law that required the government to establish a permanent facility to house spent fuel, later determined to be Yucca Mountain in Nevada. But the site has yet to be established amid pushback from the state, and funding from Congress dried up years ago. The project was halted during the Obama administration.
The issue of where to store the growing amount of spent fuel remains. Roughly 91,000 metric tons of nuclear waste from commercial power plants are currently in private storage, both at or away from nuclear reactor sites, according to the U.S. government. And with nearly 20% of the nation’s electricity supplied by nuclear energy, plants are generating an additional 2,000 metric tons of spent fuel each year, the Energy Department estimates.
The Supreme Court agreed to take up the case in October and is considering two issues. The first is whether Texas and the landowners could challenge the commission’s decision to issue the license to Interim Storage Partners. The second is whether federal law allows the Nuclear Regulatory Commission to license private companies to temporarily house spent fuel away from nuclear-reactor sites.
Oral arguments
During arguments at the court on Wednesday, three liberal justices appeared the most skeptical of the argument from Texas that it could seek review of the commission’s licensing decision in a federal appeals court……………………………
The legal fight
The legal battle before the justices Wednesday involves a license the Nuclear Regulatory Commission issued in September 2021 to a company called Interim Storage Partners allowing it to house 5,000 metric tons — and up to 40,000 metric tons — of spent fuel in dry-cask, above-ground storage for up to 40 years. ………………………………………………………………………………………….
https://www.cbsnews.com/news/supreme-court-nuclear-waste-disposal-yucca-mountain/
Beyond Nuclear files two relicensing legal actions
February 27, 2025, https://beyondnuclear.org/beyond-nuclear-files-two-legal-relicensing-actions/
In February 2025, Beyond Nuclear and the Sierra Club (“petitioners”) filed two legal actions challenging extreme relicensing decisions by the Nuclear Regulatory Commission (NRC) to qualify and extend US reactor operating licenses beyond 60 years to 80 years. The petitioners have argued that these license renewals are based on faulty analyses of the environmental impacts for extreme reactor operations that are irrational, unreasonable, incomplete, unsupported, arbitrary and capricious. Beyond Nuclear contends that the NRC has failed to satisfy requirements under the National Environmental Policy Act (NEPA) for both its generic and site-specific relicensing applications.
On February 20, 2025, Beyond Nuclear and Sierra Club (“petitioners”) filed a 76-page legal brief in the US Court of Appeals for the District of Columbia in response to the NRC issuance of its new rule and Final Generic Environmental Impact Statement for License Renewal (GEIS). The lawsuit draws attention to the federal agency ignoring the petitioners’ comments submitted earlier in 2024 on the Draft GEIS compiled. The petitioners’ substantial comments are supported by expert witness testimony of a retired NRC senior risk analyst and nuclear engineer focused on the materials facts that the new rule and rewrite of the GEIS, effective September 15, 2024, does not meet the legal standard for “adequate protection” of the public health and safety during the extended reactor operations from the destructive impacts of age-related degradation of critical reactor safety systems, structures and components (SSC). These SSCs include the large and irreplaceable steel reactor pressure vessels, reactor internal components, the massive concrete containment buildings and foundations. Other critical safety systems also include the miles and miles of the by and large inaccessible, uninspected buried control, instrumentation and power electrical cables and similarly extensive and inaccessible safety-related buried pipe systems.
The petitioners further challenge that the new rule and final GEIS do not meet the legal standard of “adequate protection” from the projected impacts of climate change on the increase of severe reactor accident risk and frequency as well as radiological accident consequences during the projected license renewal period.
In both the cases of age-related degradation of safety-related SSC operations and climate change impacts of severe accident risk and consequences, the NRC GEIS further fails to acknowledge an extensive list of identified “knowledge gaps” and even broader uncertainties that erode the reliability of projecting operational risk, accident frequency and consequences into the license renewal period.
The petitioners are specifically challenging the NRC GEIS finding that the environmental impacts of a nuclear reactor accident “during the initial (40 to 60 years) and subsequent (60 to 80 years) license renewal term” would be insignificant or “SMALL” and, as a result, the NRC does not need to evaluate less impactful alternatives to extended reactor operations.
The petitioners are asking the federal court to vacate the NRC rule and Final GEIS. They further request that the Court order the NRC to more thoroughly investigate the adverse impacts, gaps and uncertainties of operational aging degradation of reactor safety margins. Furthermore, given that the NRC GEIS further claims that the adverse impact of climate change on reactor operations is “out of scope” of the agency’s environmental reviews for license extension, the petitioners assert that the court should require the NRC to take a “hard look” at the impact of climate change (sea level rise, increasingly severe storms, hurricanes, flooding, wild fires, etc) on severe nuclear accident risk and environmental consequences.
On February 24, 2025, petitioners Beyond Nuclear and Sierra Club additionally filed an appeal to the NRC Office of the Commissioners regarding an Atomic Safety Licensing Board order on a 60 to 80 year license renewal application of Duke Energy’s Oconee Units 1, 2 & 3 nuclear power station in Seneca, South Carolina for operations out to 2053 and 2054. The licensing board order now under appeal to the NRC Commissioners denies their request for a hearing, dismisses all of the petitioners’ contentions and terminates the relicensing proceeding.
Oconee nuclear station operates beneath and downstream of two large hydroelectric dams; the Jocassee Dam, a 385 feet high earthen rock-filled dam, ten miles upstream of the Oconee reactors roughly 300 feet below the top of the Lake Jocassee water level of more than 1 million acre feet of water and; the Keowee Dam, a 175 feet earthen dam that immediately abuts the nuclear power station that is sited roughly five feet below the top level of Lake Keowee and an additional 990,000 acre feet of water.
The three reactors were originally designed, constructed as a “dry site” where dam failure was considered an “incredible” event. Only precipitation directly onto the reactor site was analyzed for its flooding impact risk and dismissed. The only dam failure evaluated was for a “sunny day failure” or a structural failure unrelated to severe flooding. The “initial” 40 to 60 years license renewal application was approved without any challenge or consideration of a flood induced dam failure resulting in severe nuclear accident consequences that were analyzed in an environmental review or the NRC Environmental Impact Statement.
The NRC site-specific Environmental Impact Statement for Oconee has concluded that determining the projected impact of climate change on the reliable operation of Oconee safety systems including climate change induced extreme flooding events is “out of scope” of an environmental review.
Both of the petitioners’ legal actions as filed February 20 and 25, 2025 stem from previous Commission Orders issued three years ago on February 24, 2022. These NRC orders were won on appeal in the first round of Subsequent License Renewal Applications filed by the intervenors that resulted in the NRC rescinding the original subsequent license renewals for the Turkey Point Units 3 & 4 and Peach Bottom 2 & 3 nuclear power plants, as well as suspend other active subsequent license renewal proceedings pending a rewrite of the GEIS as reported by the Associated Press . These same NRC Orders required the NRC staff to rewrite a new rule and Generic Environmental Impact Statement because the previous 2013 GEIS as written only applied to the license renewal period for the “initial” 20 year license extension of 40 to 60 years, not the “subsequent” license renewal of 60 to 80 years.
The Supreme Court faces the absurdly difficult problem of where to put nuclear waste
And so it now falls to the Supreme Court to decide whether this latest attempt to find a place to store some of the most undesirable trash on the planet must falter on the shores of NIMBYism.
America’s worst NIMBY problem comes to the Supreme Court.
by Ian Millhiser, Vox , 26th Feb 2025,
https://www.vox.com/scotus/399304/supreme-court-nuclear-waste-texas-nrc-nimby
On March 5, the Supreme Court will hear a case that may involve one of the most toxic examples of NIMBYism in American history. The issue at the heart of Nuclear Regulatory Commission v. Texas arises out of a predictable problem: Absolutely no one wants radioactive waste anywhere near where they live or work, but that waste has to go somewhere.
Texas, as the case name suggests, involves an effort by the federal government to store nuclear waste in Texas, and at the same time, solve a problem it’s struggled with for nearly 40 years.
To fully understand what’s before the Supreme Court in Texas, we need to go back to 1982, when Congress passed a law that was supposed to establish a permanent repository for all of the radioactive waste produced by America’s nuclear power plants. This waste remains dangerous for thousands or even tens of thousands of years after it is produced, so it made sense to find a spot far from human civilization where it can be buried.
But then NIMBY — that’s “not in my backyard” — politics set in.
The US Department of Energy identified several possible sites for the waste, and eventually culled those sites down to three — one in Texas, one in Washington state, and Yucca Mountain in Nevada. But, in 1987, before these officials could complete the selection process, Congress stepped in and chose the Nevada site for them.
According to a Slate article on the eventual collapse of the Yucca Mountain plan, this choice is easy to explain when you look at who ran Congress at the time. The House speaker was Jim Wright, a representative from Texas. The House majority leader was Tom Foley, from Washington. So Nevada, which had the weakest congressional delegation at the time, lost out.
Indeed, according to Rod McCullum of the Nuclear Energy Institute, “the 1987 Amendment is now commonly referred to as the ‘screw Nevada’ bill.”
By the time President Barack Obama took office, however, the balance of power in Congress had changed. Sen. Harry Reid, of Nevada, was the majority leader. He set out, with the Obama administration’s support, to kill the Yucca Mountain project. Congress, at Obama’s urging, zeroed out funding for Yucca Mountain. Then, just in case the project wasn’t already dead enough, a 2013 court decision ordered the government to stop collecting taxes that would have funded the permanent storage facility until it could figure out where that facility would be located.
And that brings us to the present date, and to the issue before the Supreme Court in the Texas case. Without a permanent storage facility on the horizon, the federal Nuclear Regulatory Commission turned to an older statute which has been understood to allow it to authorize temporary storage facilities for nuclear waste since the 1970s, licensing a private facility to handle storage in Andrews County, Texas.
Texas eventually sued to block this facility, as did a nearby landowner. Their case wound up before a three-judge panel of the United States Court of Appeals for the Fifth Circuit. Two of these judges are from Texas. It’s not hard to guess what happened next.
And so it now falls to the Supreme Court to decide whether this latest attempt to find a place to store some of the most undesirable trash on the planet must falter on the shores of NIMBYism.
Indeed, the 1954 law’s language allowing the NRC to license possession of these three kinds of material is quite broad. The NRC may license possession of special nuclear material for reasons that it “determines to be appropriate to carry out the purposes” of the law. It may license possession of source material for any “use approved by the Commission as an aid to science or industry.” And it may license possession of byproduct material for “industrial uses” or for “such other useful applications as may be developed.”
Though both Texas and the landowner claim that this language should not be read to permit the kind of license at issue in the Texas case, they are swimming against at least a half-century of precedent. The landowner’s brief concedes that the NRC first claimed the authority to license facilities under the 1954 law in 1975 (it claims that this fact cuts against the government’s case, because the NRC waited two decades to claim this power, but the fact remains that this question has been settled for 50 years). The landowner’s brief also concedes that the NRC finalized regulations governing licenses for such facilities in 1980.
That said, the landowner’s brief does make a plausible — if not, exactly, airtight — argument that the 1982 law overrides the 1954 law’s provisions concerning private storage facilities. (Texas’s brief, by contrast, is heavy on overwrought rhetoric claiming that nuclear waste must be stored at Yucca Mountain, and light on the kind of statutory analysis that a responsible judge would rely upon in deciding this case.)
Among other things, the landowner’s legal team points to three provisions of the 1982 law which say that the NRC shall “encourage” storage of nuclear waste “at the site of each civilian nuclear power reactor,” and take other steps to promote such onsite storage. They also point to a provision calling for a federal storage facility. And, they highlight a provision stating that the 1982 law should not be read to “encourage” or “authorize” private storage facilities away from a reactor.
As the landowner’s legal team writes, allowing the Texas facility to exist would “discourage” creating new storage capacity at reactor sites, the opposite of what the 1982 law was supposed to accomplish.
It’s safe to say that, when Congress wrote the 1982 law, they imagined a world where nuclear waste would be stored either at reactor sites or at a federal facility, and not at a private facility like the one at issue in Texas. But the 1982 law also does not explicitly repeal the 1954 law’s provisions governing the three kinds of nuclear material. So the government has a very strong argument that it can still rely on those provisions to license the facility in Texas.
There is a possibility that the Supreme Court will simply make this case go away
There’s a real possibility that the Supreme Court will get rid of this case on procedural grounds, effectively handing a victory to the government.
Briefly, the federal law that both Texas and the landowner relied upon to bring their case to the Fifth Circuit permits “any party aggrieved by the final order” of the NRC to challenge that decision in a federal appeals court. The government argues that, to qualify as a “party,” Texas or the landowner must have participated “as a litigant” in the NRC’s internal proceeding governing the Andrews County license.
While both the state and the landowner took some steps to make their views known to the NRC during that proceeding, neither ever officially became litigants. Thus, the government argues, they do not count as a “party” to that proceeding which can appeal the NRC’s decision, and the Court should toss the case out. The key thing to know about this legal argument is that it may be enough to prevent the justices from reaching the merits of this particular case.
If the Court does reach the merits, however, it faces a difficult decision. Allowing the Andrews County project to move forward will undoubtedly trigger the same kind of political backlash that has accompanied every other attempt to pick a site to store nuclear waste. But, if this project is not allowed, it’s far from clear where the waste would go.
SCOTUS goes nuclear: Justices’ decision could seal spent fuel storage options for decades.
Ultimately, the Supreme Court will not be hearing technical, economic, or social arguments in this case; the matters of interest are purely legal. These legal interpretations, however, will have profound implications for how commercial spent nuclear fuel is handled until plans for permanent repositories are developed.
Bulleting of Atomic Scientists, By Riley Fisher, Muhammad Abdussami, Aditi Verma | February 20, 2025
US nuclear waste policy is at a critical turning point. Mired in decades of disappointments and shortcomings, the monkey on nuclear power’s back is just weeks away from being freed—or being strapped in place. The issue at hand: whether the Nuclear Regulatory Commission (NRC) had the legal authority to grant a permit for the construction and operation of a privately-owned temporary spent nuclear fuel storage facility in Texas.
On March 5, 2025, representatives from the NRC and the state of Texas will convene in Washington, D.C., to argue this issue in front of the United States Supreme Court. The NRC v. Texas case will end a battle of nearly three and a half years over the legality of privately-owned interim nuclear waste storage in the United States. However, while the Supreme Court’s ruling will settle the battle, it will resolve only one aspect of the US nuclear waste management problem.
A ruling favoring the NRC would help the nuclear waste problem in the short term but might harm the long-term management situation, allowing the consolidation of spent nuclear fuel at interim storage facilities—a state of affairs that could place new constraints on the permanent solution of geological disposal. Conversely, a ruling against the NRC would hurt the waste problem short-term by halting interim storage plans—including those of Interim Storage Partners in Texas and Holtec International in New Mexico—but it would leave future permanent storage options unconstrained.
Temporary storage. For more than 40 years, temporary, consolidated nuclear waste storage has been a hot-button issue. The Nuclear Waste Policy Act of 1982 tasked the president and the Energy Department with identifying, constructing, and operating nuclear waste storage facilities in underground repositories. With this act, Congress intended to create a program that permanently stowed away the hazardous waste produced by nuclear power operations.
The original provisions of the Nuclear Waste Policy Act gave the president four years to start the construction of a geologic repository site following congressional approval. During this process, nuclear power plants were still operating and producing spent nuclear fuel, and Congress clarified that plant operators were primarily responsible for waste management while the executive branch did their repository siting and construction work. Under exceptional circumstances, however, the federal government was allowed to provide a limited amount of “interim” storage before the waste was transferred to a permanent facility. The federal interim storage program would temporarily consolidate spent fuel away from reactor sites that have limited capacity.
But when efforts for a permanent repository at Yucca Mountain in Nevada stalled, the role of consolidated interim storage was put in a precarious position. Spent fuel continued to accumulate at nuclear power plants across the country, the federal government could not provide more temporary storage because it would violate the Nuclear Waste Policy Act, and the NRC did not have explicit authority to license an external body to create temporary storage. This tension is the impetus for NRC v. Texas case now at the Supreme Court.
There are a variety of arguments both for and against temporary storage of commercial spent nuclear fuel in the United States. Proponents cite that reactor host communities should not be subjected to living near radioactive waste for more time than they initially consented; interim storage, they say, would increase safety and economic efficiency through consolidation. Critics, in contrast, argue that a community near an interim facility risks the same fate of non-consent in the event of further delay in creating a permanent waste repository and that the safety risks from additional transportation and shuffling outweigh the benefits of consolidation.
Ultimately, the Supreme Court will not be hearing technical, economic, or social arguments in this case; the matters of interest are purely legal. These legal interpretations, however, will have profound implications for how commercial spent nuclear fuel is handled until plans for permanent repositories are developed.
Lower court’s contradictory ruling. Two main questions will be argued in NRC v. Texas. The first is a matter of administrative process and pertains to whether Texas had the legal right to challenge the NRC in the first place. Texas first challenged the commission under the 1950 Hobbs Act (which is not the Hobbs Act used in criminal prosecutions of organized crime), an administrative law statute that gives “aggrieved parties” the right to challenge federal agency actions. The NRC claims Texas did not follow proper procedure to be considered an aggrieved party and, therefore, did not have authority to challenge the license.
The second question is a matter of the function and authority of the NRC and is rooted in the language of the Atomic Energy Act of 1954. Texas argues that the NRC only has authority to grant temporary spent nuclear fuel storage licenses on the site of the reactor from which the waste originated. Therefore, Texas claims, the commission had no right to grant the license for a temporary storage facility in the state. The NRC, however, cites multiple previous court decisions that uphold this authorization. These federal-state disputes make a case like this ripe for Supreme Court intervention.
Like most other Supreme Court cases, NRC v. Texas is an appeal of a previously decided case in a lower court: Texas v. NRC. …………………………………………………………………………………………………………
NRC’s appeal. The Supreme Court may decide in a variety of ways concerning Texas’ authority under the Hobbs Act and the NRC’s authority under the Atomic Energy Act and the Nuclear Waste Policy Act. While clarification as to whether Texas was a proper “party aggrieved” is certainly important, it is likely the Supreme Court will take the opportunity to define the scope of the NRC’s abilities regardless of the interpretation of the Hobbs Act. Even if the Supreme Court finds that Texas was not a proper “party aggrieved,” the Court will still have the ability to hold the issued license void despite improper administrative procedures taken by Texas.
………………………………………………………. Because there is no explicit authorization in either act, the Supreme Court will likely rule that the NRC lacks clear congressional approval. If this is the case, then the Supreme Court will have to decide whether private, off-reactor spent fuel storage is a matter of major national significance— also known as a “major question.” While the Supreme Court has yet to hear arguments on this specific issue, there are reasonable explanations for either ruling.
……………………………………Some legal experts argue that private off-reactor waste is not a major question. Because on-site storage is exorbitantly expensive, a consolidated interim facility operated by a private entity will likely alleviate taxpayers’ burden. The West Virginia case was decided partially on its nationwide economic implications, but such implications are not present in this case. Another argument is that the NRC issued its regulations for private off-reactor storage two years before the Nuclear Waste Policy Act was passed. The fact that Congress did not revoke this authority from the NRC when passing the act could be interpreted as implicit approval. If the Supreme Court agrees with this perspective, it will likely allow Interim Storage Partners’ license to stand, even if the NRC did not have the explicit authority to issue that license.
Other arguments exist for this issue being a major question……………………………………
No perfect ruling. Either ruling will no doubt have vast consequences on the US nuclear waste management problem. A ruling in favor of the NRC would provide support for the nuclear industry’s ability to manage spent fuel, particularly during the continuous delays in permanent repository development. This result could also encourage private investment in nuclear energy by providing clearer pathways for managing waste, potentially revitalizing confidence in the industry’s long-term viability. However, a decision in NRC’s favor would not resolve all concerns with nuclear waste management. Many communities oppose the siting of temporary storage facilities, citing safety risks and the lack of a permanent solution. Resistance will continue to grow at local and state levels if these broader concerns go unaddressed. Congress will need to continue developing directives that strengthen and complement private solutions to waste management. A ruling in favor of the NRC would undoubtedly be a win for the nuclear industry, the federal government, and reactor host communities, as short-term pressures caused by on-site waste storage can finally be addressed. In the long term, this ruling will do little to permanently solve the waste problem and may place the nuclear industry into a false sense of security amidst concerns of interim facilities becoming de facto repositories.
If the Supreme Court rules against the NRC, it will create substantial uncertainty for the nuclear industry by rejecting the NRC’s authority to license private off-site storage facilities. Other corporations that currently plan to construct such facilities, such as Holtec International in New Mexico, will risk the revocation of their licenses. Decommissioned reactors with on-site storage may face danger to their storage license renewals, which will force active reactor sites to take in external waste while still generating their own. Situations like these can heighten safety and security risks, as many sites lack the infrastructure or oversight necessary for long-term storage and management.
However, a ruling against the NRC may bring increased attention to the issue and compel Congress to act decisively. ……………………………………… . A ruling against the NRC will likely be to the immediate detriment of the nuclear industry, the federal government, and reactor host communities. These pressures, however, may urge lawmakers to develop a new, permanent solution once and for all.
In the context of the nuclear waste problem, a ruling in favor of the NRC will be a short-term benefit but bring long-term risks. A ruling against the NRC will be a short-term detriment but may spur renewed action for long-term solutions. Regardless of the Supreme Court’s decision, Congress must dictate a permanent solution, which will be less likely to occur if short-term pressures are alleviated by ruling in favor of the NRC. In the absence of immediate Congressional intervention, the nuclear industry and the Energy Department must still work closely and in good faith with host communities. Anything else will result in complete failure of fair and democratic planning—as has been observed time and time again.
Editor’s note: Arguments on the NRC v. Texas case will be held before the Supreme Court on March 5, 2025. Summaries, audio files, and opinions will be accessible here after the hearing. The Supreme Court will issue its opinion before recess in late June 2025. Proceedings and orders will be made available as they come here. https://thebulletin.org/2025/02/scotus-goes-nuclear-justices-decision-could-seal-spent-fuel-storage-options-for-decades/
Allied Groups Reach Historic Settlement on New Nuclear Bomb Part Production
Gender and Radiation Impact project celebrates the historic victory of radiation impacted communities across the nation standing together in clear conscience in a legal challenge that has successfully required the National Nuclear Security Administration (NNSA) to obey the National Environmental Policy Act and include the public in big decisions it is making! NNSA is owner of the US nuclear arsenal, which it intends to greatly expand, which would have our taxes cover trillions of dollars paid to defense contractors.
South Carolina Environmental Law Project
Gullah/Geechee Sea Island Coalition
Nuclear Watch New Mexico
Savannah River Site Watch
Tri-Valley CAREs January 18, 2025
Ben Cunningham, Esquire, SCELP,
Tom Clements, Savannah River Site Watch,
Jay Coghlan, Nuclear Watch New Mexico,
Scott Yundt, Tri-Valley CAREs
AIKEN, S.C. — Nonprofit public interest groups have reached an historic settlement agreement with the Department of Energy’s semi-autonomous nuclear weapons agency, the National Nuclear Security Administration (NNSA). This is the successful result of a lawsuit against NNSA over its failure to complete a programmatic environmental impact statement on the expanded production of plutonium “pit” bomb cores, as required by the National Environmental Policy Act (NEPA). This agreement and a joint motion to dismiss have been submitted to Judge Mary Lewis Geiger of the Federal District of South Carolina. Should the Court enter the dismissal and retain jurisdiction to enforce the settlement, the agreement will go into effect.
…………………….. In September 2024, Judge Lewis ruled that DOE and NNSA had violated NEPA by failing to properly consider alternatives before proceeding with their plan to produce plutonium pits, a critical component of nuclear weapons, at the Los Alamos National Laboratory (LANL) in New Mexico and, for the first time ever, at the Savannah River Site (SRS) in South Carolina. The Court found that the plan’s purpose had fundamentally changed from NNSA’s earlier analyses which had not considered simultaneous pit production at two sites. Judge Lewis directed the Defendants and Plaintiffs to prepare a joint proposal for an appropriate remedy which fostered additional negotiations
In sum, the just released settlement agreement requires the National Nuclear Security Administration to:
• Complete a nation-wide programmatic environmental impact statement (PEIS) on expanded plutonium “pit” bomb core production within 2.5 years.
• Hold two successive rounds of public hearings, first on the scope of the PEIS and then on the draft PEIS before it is finalized. Hearings will be held in Livermore, CA; Santa Fe or Los Alamos, NM; Kansas City, MO; Aiken, SC; and Washington, DC (dates to be determined).
• Citizens will have 45 days to submit scoping comments and 90 days to comment on the draft PEIS. The last PEIS in 2008 generated more than 100,000 public comments.
• Until it issues a formal Record of Decision on the final PEIS, NNSA is enjoined from:
– Installing classified equipment at the Savannah River Plutonium Processing Facility’s Main Processing Facility;
– Introducing any nuclear materials into the Main Processing Facility; and
– Starting construction on a related Waste Characterization Lab, Construction Maintenance Building and Vehicle Entry Building.
………………………………………. Of added significance, the PEIS will have to assess the impacts of disposal of large quantities of radioactive plutonium wastes from pit production at the Waste Isolation Pilot Plant (WIPP) in southern New Mexico, located 2,000 feet underground in a salt deposit. Disposal of “transuranic” (TRU) wastes will challenge the congressionally mandated volume cap for WIPP, which the National Academy of Sciences has projected will be substantially exceeded. Nevertheless, NNSA expects to be able to dump TRU wastes at WIPP until at least 2050, fundamentally changing its mission from cleanup to direct support of expanded nuclear weapons production…………………………
The Settlement Agreement with plaintiffs’ and defendants’ declarations is available at https://nukewatch.org/settlement-agreement-and-exhibits (20.9 MB) more https://nukewatch.org/wp-content/uploads/2025/01/Settlement-Reached-in-Historic-NEPA-Lawsuit-Over-Plutonium-Pit-Bomb-Core-Production.pdf
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