The Permian Basin is one of the world's largest oilfields, accounting for nearly forty percent of all U.S. oil production. It also nearly became home to about 200 tons of radioactive waste. During 2018, Interim Storage Partners, L.L.C. (ISP) submitted a forty-year license application to the Nuclear Regulatory Commission (NRC) to operate a consolidated interim storage facility in Andrews County, Texas. ISP's application was met with sharp resistance. As the NRC conducted an environmental review of ISP's proposal, Texas Governor Greg Abbott submitted a comment expressing concern that the facility would become a de facto permanent solution for spent nuclear fuel storage if the federal government's plan for a permanent nuclear waste repository never materialized. Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Organization (together, Fasken) submitted similar comments that highlighted safety risks that the facility potentially posed to the Permian Basin and surrounding communities.
The NRC then published its final environmental impact statement and recommended that ISP's license application be approved. Two months later, the Texas legislature passed H.B. 7, which banned the storage of high-level radioactive waste in Texas, with overwhelming bipartisan support. Nevertheless, NRC issued a license to ISP. The State of Texas and Fasken petitioned the United States Court of Appeals for the Fifth Circuit to review the license, arguing that the Atomic Energy Act (AEA) does not authorize the NRC to issue such a license. The Fifth Circuit agreed and vacated the license. The Fifth Circuit held that the AEA does not give the NRC the specific authority to license private, away-from-reactor storage facilities for spent nuclear fuel. It further concluded that the Nuclear Waste Policy Act (NWPA) does not permit the issuance of such a license either.
After conducting a thorough textual analysis of the AEA and NWPA, the Fifth Circuit concluded that neither statute explicitly empowered the NRC to regulate private, away-from-reactor spent nuclear fuel storage. Because the AEA and NWPA were unambiguous on this issue, the court only mentioned in passing how it would have resolved the case under the major questions doctrine, which applies in cases of statutory ambiguity. The court neglected to acknowledge that, had it applied the Chevron doctrine instead, Congress's statutory silence on the issue would have triggered a further analysis of the AEA and NWPA. Due to its hasty application of the major questions doctrine and failure to support its decision not to apply the Chevron doctrine, the Fifth Circuit missed an opportunity to further define the scope of the relatively novel major questions doctrine.
Part II of this Note explores the NRC's materials licensing authority under the AEA, provides an overview of the NWPA's regulatory scheme for nuclear waste storage, and introduces the Chevron doctrine and major questions doctrine. Part III examines the Fifth Circuit's textual analysis of the AEA and NWPA and its brief application of the major questions doctrine in the noted case. Part IV discusses how the court missed its chance to guide future applications of the major questions doctrine's scope by not explaining its decision to disregard the Chevron doctrine in its analysis. Part V briefly concludes.
About the Author
Bailey Chauvin, J.D. Candidate 2025, Tulane University Law School; B.A. 2021, Louisiana State University.
Citation
98 Tul. L. Rev. 789