Fight over West Texas nuclear waste plan to hit U.S. Supreme Court

Subscribe to The Y’all — a weekly dispatch about the people, places and policies defining Texas, produced by Texas Tribune journalists living in communities across the state.

---

The U.S. Supreme Court has agreed to take up a yearslong dispute over a plan to ship highly radioactive nuclear waste to rural West Texas, a case that could have sweeping implications for how the nation deals with a growing stockpile of waste generated by nuclear power plants.

A company called Interim Storage Partners has long pursued the plan to move “high-level” nuclear waste from power plants across the nation to an existing nuclear waste storage facility in Andrews County, on the Texas-New Mexico border.

Last year, in a Texas-led lawsuit, a federal court blocked the plan and threw out Interim Storage Partners’s federal license to handle the waste. A federal appeals court upheld the decision earlier this year, but the company and the Nuclear Regulatory Commission urged the Supreme Court to reconsider the ruling.

The high court agreed to take up the case on Friday, Oct. 4., allotting one hour for oral arguments at a later date. The court also consolidated a related challenge from the waste company into the Texas case.

For years, this dispute has been percolating in lower courts, the Texas Legislature and among potentially impacted rural communities. Texas lawmakers passed a law that effectively banned the nuclear waste plan in 2021, cheered on by Gov. Greg Abbott and an unlikely alliance of oil, ranching and environmental interests.

Still, the waste company and the federal government – most recently under the Biden administration – have fought to keep the plan alive.

“We are confident we have a strong position for the Solicitor General to argue before the court,” NRC spokesperson David McIntyre said.

The fundamental question now before the Supreme Court is whether federal regulators have the authority to approve plans for privately operated, high-level nuclear waste storage sites that are located far away from where the waste is generated. A ruling in the Texas case would almost certainly have implications for a nearly identical proposal just over the state line in New Mexico that’s also still being fought over in a lower federal court.

While multiple federal courts have now ruled federal law does not allow for the licensing of such facilities, supporters of the Texas and New Mexico plans – including the nuclear energy industry – insist the courts are wrong.

“The Atomic Energy Act provides a comprehensive framework for regulating nuclear generation and the related fuel cycle, granting the NRC broad authority over both at-reactor and away-from-reactor used fuel storage,” Ellen Ginsberg, an advocate and attorney with the trade group Nuclear Energy Institute, said in a statement.

Ginsberg said a Supreme Court ruling in favor of Texas “would further delay progress in advancing a safe, environmentally sustainable, and well-managed used fuel management system.”

The West Texas company Fasken Oil and Ranch is among the entities that have fought the nuclear waste plan for years. Monica Perales, an attorney for the firm, said the plan’s opponents remain confident in their legal arguments.

“Oil and gas interests are concerned because it’s a threat to our industry, to the people who work in the industry, it’s a threat to the Permian Basin, and we’re the most productive oil and gas region in the United States,” she told Marfa Public Radio.

The question of what to do with nuclear waste from power plants – among the most dangerous types of such waste – has vexed U.S. administrations from both political parties for decades.

As NPR has reported, Congress attempted to solve the quandary in the 1980s, but political roadblocks to finding a permanent home for toxic waste soon developed.

The proposed waste facilities in Texas and New Mexico are essentially aimed at being stopgap measures to provide a “temporary” home for the waste – though that could amount to decades – while the U.S. continues its search for a permanent disposal solution.