United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED August 25, 2023 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 ______________________________

Before Jones, Ho, and Wilson, Circuit Judges. James C. Ho, Circuit Judge: Nuclear power generation produces thousands of metric tons of nu- clear waste each year. And such waste has been accumulating at nuclear power plants throughout the United States for decades. Congress has man- dated that such waste be permanently stored in a geologic repository. But the development, licensing, and construction of that repository has stalled. Case: 21-60743 Document: 00516873781 Page: 2 Date Filed: 08/25/2023

No. 21-60743

To address this problem, the Nuclear Regulatory Commission has as- serted that it has authority under the Atomic Energy Act to license tempo- rary, away-from-reactor storage facilities for spent nuclear fuel. Based on that claim of authority, the Commission has issued a license for Interim Stor- age Partners, LLC, a private company, to operate a temporary storage facility on the Permian Basin, in Andrews County, Texas. Fasken Land and Miner- als, Ltd., a for-profit organization working in oil and gas extraction, and Per- mian Basin Land and Royalty Owners (“PBLRO”), an association seeking to protect the interests of the Permian Basin, have petitioned for review of the license. 1 So has the State of Texas, which argues, inter alia, that the Atomic Energy Act doesn’t confer authority on the Commission to license such a facility. Texas is correct. The Atomic Energy Act does not confer on the Com- mission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the Nuclear Waste Pol- icy Act establishes a comprehensive statutory scheme for dealing with nu- clear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority. Accordingly, we grant the petition for review and vacate the license. I. This case is the latest development in a decades-long debate over nu- clear power and waste regulation. Accordingly, we provide a brief overview of relevant historical and technical background before delving into the specif- ics of the licensing proceedings challenged here.

_____________________ 1 For the remainder of this opinion, we use the term “Fasken” to refer to Fasken Land and Minerals, Ltd. and PBLRO collectively, unless addressing an issue where it’s necessary to distinguish them.

2 Case: 21-60743 Document: 00516873781 Page: 3 Date Filed: 08/25/2023