What the Court got wrong in NRC v. Texas
Last week, by a 6–3 vote, the Supreme Court ruled in favor of the federal government agency in Nuclear Regulatory Commission v. Texas.
This controversy centered on a license granted by the Nuclear Regulatory Commission (NRC) to a private company for the storage of “spent nuclear fuel” (known colloquially as “nuclear waste”) in Andrews County, Texas. The State brought a challenge before the Fifth Circuit, arguing the NRC lacked legal authority to issue the license. That court sided with Texas and struck down the license. Then the NRC sought review by the Supreme Court, which agreed to take on the case.
Thus, in NRC v. Texas, the Supreme Court was presented with a meaty legal question with profound policy implications—namely, what is the NRC’s authority to license storage of “spent nuclear fuel” after the failure of the Yucca Mountain repository? The Court, however, dodged this weighty matter.
Instead of reaching the merits of the case, the Court held that the NRC’s challengers had no right to sue to begin with. In legalese, this is known as a “jurisdictional” ruling.
The Court reasoned as follows: Under the relevant law, only a “party aggrieved” can challenge the NRC in court. In NRC v. Texas, the Court interpreted “party aggrieved” to include only those who formally participated in the underlying licensing proceeding. Although Texas had participated informally via letters and comments, the state did not formally intervene in the NRC’s licensing proceeding. And because Texas did not gain formal entry into the licensing proceeding, the Court held that the State had no right to sue the NRC.
By closing the courts’ doors to anyone who didn’t formally participate in the NRC’s proceeding, the Supreme Court made a big mistake. The problem is that the NRC tightly controls access to its proceedings. For example, in the proceeding that gave rise to NRC v. Texas, 11 parties tried to intervene, and the agency denied them all. As a result, no one had the right to challenge the NRC’s action, which involved a novel and expansive interpretation of the agency’s own authority. Simply put, the Court permitted the NRC to shield its policy from judicial scrutiny.
By allowing the NRC to effectively regulate access to the courts, the Court’s “jurisdictional” ruling threatens to obviate the meaty legal question I describe above—namely, whether the NRC has the authority it claims. A court can’t vet an agency’s purported power if the court doesn’t ask. And until a court asks, the NRC’s authority cannot be certain. It’s a legal morass.
In an amicus brief, PLF warned the Court about the dangers of accepting the government’s self-serving interpretation of “party aggrieved.” Although the majority did not heed our advice (alas), we were heard by the justices: As my colleague Anastasia Boden mentioned in her invaluable newsletter, SCOTUS Scoop (sign up here!), our brief was discussed during oral argument. And Justice Neil Gorsuch’s dissent—in which he was joined by Justices Clarence Thomas and Samuel Alito—cited our brief.
To be clear, our amicus brief addressed only the jurisdiction question. We took no position on the meaty legal issue involving the extent of the NRC’s authority to permit the storage of spent nuclear fuel in the wake of the failure of Yucca Mountain. Although we took no position on the merits, we think the Court should have considered them.
I’d be remiss if I failed to mention how depressingly common it is for regulatory agencies to resort to procedural tricks to evade legal challenges. To wit, it’s happening in one of our current cases, Jake’s Fireworks v. Consumer Product Safety Commission. There, the agency (CPSC) is trying to strongarm our client with enforcement letters that warn of dire consequences if certain products are sold. But when we try to sue, the agency argues that we have no right to be in court, because the warning letters are not “final” action. The upshot is that Jake’s Fireworks is caught in a legal Catch-22: They can’t go on with business as normal unless they comply with the CSPC’s threats, but they can’t challenge them in court.
For those interested in the broader policy issues embedded in NRC v. Texas, I discuss those in a recent Federalist Society webinar.
