As Nuclear Industry Rebounds, Urgency Mounts for Spent Nuclear Fuel Case Before the U.S. Supreme Court

In 2023, the Fifth Circuit ruled that the Atomic Energy Act (AEA) does not authorize the NRC to approve such facilities. According to Law360, the case could give the Supreme Court a chance to resolve a circuit split, as both the D.C. Circuit and Tenth Circuit have held that the Atomic Energy Act does give the NRC the authority to license interim storage facilities.

The case has taken on additional urgency with a resurgent nuclear industry and billions of dollars of congressionally approved funding available for new and advanced reactors.

Pillsbury Nuclear Energy partner Anne Leidich told Law360 that it is crucial that the Supreme Court clarifies the scope of the NRC’s authority under the AEA.

“The NRC’s authority to issue licenses for spent fuel storage is well established, and the Fifth Circuit’s interpretation upends years of settled precedent and causes uncertainty about the exact extent of NRC authority over nuclear materials—an area where NRC authority should be definite,” she said.

Additionally, because the Fifth Circuit also found that the NRC would not be entitled to deference under the major questions doctrine, Leidich added: “This is also an opportunity for the Supreme Court to clarify that the major questions doctrine is not applicable to cases where the agency has acted consistently for many years in accordance with its statutory authority.”

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