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

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WASHINGTON — 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 ruling does not mean nuclear waste will end up in West Texas. Texas legislators have sent a bill to Gov. Greg Abbott that reiterates the state's stance that nuclear waste may only be stored at the location where a reactor is operating. And Interim Storage Partners, which applied for a federal license to build a spent nuclear fuel storage site in West Texas, said in a statement that it does not plan to continue developing the project "without the consent of the State of Texas."

"With the state and nation increasingly acknowledging and exploring the value of nuclear energy generation and other significant uses of nuclear technology, ISP remains hopeful that state and federal leaders will work together to apply proven technical solutions to address the nation’s nuclear fuel management challenges," the statement said.

Abbott has said Texas would evaluate the reliability and safety of nuclear power to "dramatically expand" nuclear power resources here, where electricity demand is rising. But a spokesperson for Abbott on Wednesday night told the Odessa American that building the West Texas waste site would go against state law.

"Gov. Abbott will not allow illegal dumping of ultra-hazardous spent nuclear fuel near the world’s largest producing oilfield," spokesman Andrew Mahaleris told the newspaper.

Reed Clay, president of the Texas Nuclear Alliance, which advocates for building out nuclear technology in the state, said in a statement that the Supreme Court's decision "likely doesn't change much of anything" because of the state's existing policy for storing high-level nuclear waste.

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.

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. Nuclear waste can remain radioactive for hundreds of thousands of years.

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.

Lujan Grisham said she was deeply disappointed by the court’s ruling, reiterating that Holtec International, awarded the license for the New Mexico facility, wasn’t welcome in the state. She vowed to do everything possible to prevent the company, based in Jupiter, Florida, from storing what she called “dangerous” waste in New Mexico.

“Congress has repeatedly failed to secure a permanent location for disposing of nuclear waste, and now the federal government is trying to force de-facto permanent storage facilities onto New Mexico and Texas,” she said. “It is a dangerous and irresponsible approach.”

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.

Associated Press writer Susan Montoya Bryan contributed to this report from Albuquerque, N.M.

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