An appeals court with a famously conservative bent narrowly rejected the Biden administration’s request to reconsider its August ruling that stripped the Nuclear Regulatory Commission of authority to license private nuclear waste storage facilities not located at a reactor site.
The full U.S. Court of Appeals for the 5th Circuit split 9-7 on the en banc petitions, with one of the court’s 17 active judges, Trump appointee Andrew Oldham, recusing himself. The court did not explain why.
The dispute centered around the Hobbs Administrative Orders Review Act (not to be confused with the criminal Hobbs Act prohibiting robbery and extortion), which requires challenges to certain NRC decisions be brought by an “aggrieved” party. A fossil fuel producer and nearby landowners attempted to intervene in the NRC’s licensing process but were denied by the agency and lost judicial appeals. Texas did not formally intervene in the NRC’s proceedings, though it did file comments.
Judge Edith Jones, a Reagan appointee who sat on the original panel, argued in a concurrence that limiting challenges to those the NRC allowed to intervene in a licensing procedure would mean “the NRC controls the courthouse door,” Jones wrote. “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.”
