____________ FILED March 14, 2024 No. 21-60743 Lyle W. Cayce ____________ Clerk State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners,

Petitioners,

versus Nuclear Regulatory Commission; United States of America,

Respondents. ______________________________

Appeal from the Nuclear Regulatory Commission Agency No. 72-1050 ______________________________

ON PETITION FOR REHEARING EN BANC Before Jones, Ho, and Wilson, Circuit Judges. Per Curiam: The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35, 36 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED. No. 21-60743

In the en banc poll, seven judges voted in favor of rehearing en banc (Stewart, Southwick, Graves, Higginson, Willett, Douglas, and Ramirez), and nine voted against rehearing en banc (Richman, Jones, Smith, Elrod, Haynes, Ho, Duncan, Engelhardt, and Wilson). Judge Oldham is recused and did not participate in the poll.

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No. 21-60743, State of Texas v. Nuclear Regulatory Comm’n Edith H. Jones, Circuit Judge, joined by Smith, Elrod, Ho, Engelhardt, and Wilson, Circuit Judges, concurring in the denial of rehearing en banc: The panel previously identified two bases of authority to review the NRC’s proposed action to redirect the storage of nuclear energy waste away from Yucca Mountain, in conflict with federal law: these petitioners are parties aggrieved, and the NRC has acted ultra vires. The dissent challenges both grounds of jurisdiction. We continue to adhere to our position that the judiciary has not only the authority but the duty to review the NRC’s actions, which may threaten significant environmental damage in the Permian Basin, one of the largest fossil fuel deposits in the world. 1. “Party Aggrieved” Who has the ability to secure judicial review of this particular licensing decision? There’s no question of Article III standing for the petitioners. Also, there’s no question that Fasken (shorthand for petitioning mineral operators and landowners neighboring the proposed storage site) is “aggrieved.” Nor that the state of Texas, which submitted comments and later passed a law prohibiting such storage, is “aggrieved.” The argument is made that under Section 2344 of the Hobbs Act, “parties aggrieved” who may seek judicial review means only those whom the agency permitted to intervene in the licensing proceeding. But here, Fasken’s multiple attempts formally to intervene were repeatedly rebuffed by the agency. See Texas v. NRC 78 F.4th 827, 834. If this argument is accepted, in other words, the NRC controls the courthouse door through its authority to determine who may be “parties” to licensing proceedings. And the state of Texas, which didn’t formally attempt to intervene but made its position plainly known to NRC, has no access to judicial review at all.

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The question of our jurisdiction is therefore bound up with fundamental principles governing review of agency decisions. Specifically, the courts default in our duty to “say what the law is” (i.e., Marbury v Madison