High Court Weighs Whether NRC May License Private Off-Site Storage of Spent Nuclear Fuel

The Supreme Court considered whether the Nuclear Regulatory Commission has statutory authority to license private, off-site interim storage of spent nuclear fuel and whether the Nuclear Waste Policy Act (NWPA) limits that authority.

Counsel for the NRC told the justices the Atomic Energy Act authorizes the agency to license possession and storage of the three constituent materials that make up spent nuclear fuel—source material, special nuclear material and byproduct material—and that the commission historically has used those provisions, together with implementing rules (notably 10 CFR part 72), to license both on-site and off-site storage since 1980. Petitioners urging reversal argued that the NWPA, enacted in 1982, shows Congress intended to encourage on-site storage and to exclude private off-site facilities from the federal program.

Why it matters: the court's decision will determine whether private companies can obtain NRC permission to centralize and store reactor waste at standalone, privately owned facilities and whether states can limit that move by relying on NWPA language and congressional purpose.

Key points from argument and factual clarifications: - Statutory text and structure: advocates for NRC relied on multiple Atomic Energy Act provisions (cited at argument using section numbers from Title 42) that ban unlicensed possession but also authorize the commission to issue licenses for possession; counsel argued the licensing provisions do not contain a geographic limitation and that Congress left the existing licensing regime intact when it enacted the NWPA. - NWPA and section 10155(h): challengers pointed to language in the NWPA (discussed at argument as section 10155(h)) that counseled against authorizing storage "away from the site of any civilian nuclear reactor and not owned by the federal government," asserting that choice reflects a congressional judgment favoring on-site or federal storage. - Administrative practice and chronology: petitioners and several justices noted that the NRC promulgated 10 CFR part 72 in 1980 after notice-and-comment rulemaking and that Congress enacted the NWPA two years later with knowledge of the NRC's rules; supporters of NRC argued that congressional silence on a categorical bar to off-site storage supports the agency's continued licensing practice. Counsel cited the DC Circuit's Bull Creek decision as an earlier rejection of the contention that NWPA superseded Atomic Energy Act licensing. - Security, permanence and renewals: justices pressed counsel on whether a 40-year license term (referred to repeatedly at argument) that is renewable (licenses discussed at argument ranged up to 40 years and could be renewed, producing hypothetical 80-year or longer outcomes) could be treated as "interim." Counsel for challengers and some justices voiced concern that multi-decade renewals could amount to de facto permanence and create security risks in locations such as the Permian Basin. Counsel for NRC and supporters responded that renewal and subsequent adjudication would allow regulatory review of changed circumstances. - Practical constraints: several participants observed that state and local objections cite proximity to oil-and-gas infrastructure and potential security exposure; counsel for proponents of private storage said private contracts and market incentives drive consolidation proposals and that volume of waste would not increase if storage were licensed at different locations.

What the court did not decide: after extensive questioning on statutory text, congressional purpose, and prior administrative practice, the justices submitted the case for decision. No ruling was announced at argument.

Next steps: the court's forthcoming opinion will govern the NRC's ability to license private off-site storage facilities and likely shape congressional or regulatory responses if the ruling narrows agency authority or validates agency practice.