ML23345A022

Brief of Amicus Curiae Nuclear Energy Institute, Inc., in Support of Repondents

ML23345A022
Person / Time
Site:	HI-STORE
Issue date:	12/08/2023
From:	Brookins M, Clement P, Ginsberg E, Lawrence A, Rund J Clement & Murphy, PLLC, Nuclear Energy Institute
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit
References
23-60377, 75
Download: ML23345A022 (1)

Text

No. 23-60377 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FASKEN LAND AND MINERALS, LIMITED; PERMIAN BASIN LAND AND ROYALTY OWNERS, Petitioners,

v.

NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.

On Appeal from the Nuclear Regulatory Commission, Agency No. 72-1051 BRIEF FOR AMICUS CURIAE NUCLEAR ENERGY INSTITUTE, INC.

IN SUPPORT OF REPONDENTS ELLEN C. GINSBERG JONATHAN M. RUND NUCLEAR ENERGY INSTITUTE, INC.

1201 F Street, NW, Suite 1100 Washington, DC 20004 PAUL D. CLEMENT Counsel of Record ANDREW C. LAWRENCE*

MARIEL A. BROOKINS*

CLEMENT & MURPHY, PLLC 706 Duke Street Alexandria, VA 22314 (202) 742-8900 paul.clement@clementmurphy.com

• Supervised by principals of the firm who are members of the Virginia bar Counsel for Amicus Curiae Nuclear Energy Institute, Inc.

December 8, 2023 Case: 23-60377 Document: 75 Page: 1 Date Filed: 12/08/2023

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS The undersigned counsel for amicus curiae certifies that the following listed persons and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1, in addition to those listed in Respondents and Intervenors Certificate of Interested Persons, have an interest in the outcome of the case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Amicus Curiae: Nuclear Energy Institute, Inc.

Counsel for Amicus Curiae: Clement & Murphy PLLC, Paul D. Clement, Andrew C. Lawrence, and Mariel A. Brookins; Nuclear Energy Institute, Inc., Ellen C. Ginsberg, and Jonathan M. Rund.

s/Paul D. Clement Paul D. Clement Counsel for Amicus Curiae Nuclear Energy Institute, Inc.

Case: 23-60377 Document: 75 Page: 2 Date Filed: 12/08/2023

ii TABLE OF CONTENTS SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS......................... i TABLE OF AUTHORITIES.................................................................................... iii INTEREST OF AMICUS CURIAE......................................................................... 1 INTRODUCTION.................................................................................................... 2 ARGUMENT............................................................................................................ 4 I.

The Texas Panels Circuit-Split-Creating Hobbs Act Ruling Undermines The Nuclear Industrys Longstanding Reliance On Administrative Licensing Proceedings Before The Nuclear Regulatory Commission................................................................................. 4 II.

The Texas Panels Circuit-Split-Creating Holding That Away-From-Reactor Storage Facilities Are Unlawful Upsets The Nuclear Industrys Settled Expectations.................................................................... 10 CONCLUSION....................................................................................................... 18 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE Case: 23-60377 Document: 75 Page: 3 Date Filed: 12/08/2023

iii TABLE OF AUTHORITIES Cases Am. Trucking Assns, Inc. v. ICC, 673 F.2d 82 (5th Cir. 1982)................................................................................... 9 Baldwin v. United States, 140 S.Ct. 690 (2020)........................................................................................... 16 Baros v. Tex. Mexican Ry. Co.,

400 F.3d 228 (5th Cir. 2005)................................................................................ 9 Beethoven.com LLC v. Libr. of Cong.,

394 F.3d 939 (D.C. Cir. 2005).............................................................................. 6 Biden v. Nebraska, 143 S.Ct. 2355 (2023).................................................................................. 16, 17 Bittner v. United States, 598 U.S. 85 (2023).............................................................................................. 16 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)............................................................... 10, 13, 15 Dont Waste Mich. v. NRC, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023)....................................... 7, 13, 14, 15 Duke Power Co. v. Carolina Envt Study Grp., Inc.,

438 U.S. 59 (1978)............................................................................................4, 5 Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd.,

167 F.3d 111 (2d Cir. 1999)................................................................................. 9 Gage v. U.S. Atomic Energy Commn, 479 F.2d 1214 (D.C. Cir. 1973)............................................................................ 6 In re Chicago, Milwaukee, St. Paul & Pac. R. Co.,

799 F.2d 317 (7th Cir. 1986).............................................................................8, 9 In re Holtec Intl (Hi-Store Consol. Interim Storage Facility),

91 N.R.C. 167 (Apr. 23, 2020)........................................................................... 15 Case: 23-60377 Document: 75 Page: 4 Date Filed: 12/08/2023

iv Matson Navigation Co. v. DOT, 77 F.4th 1151 (D.C. Cir. 2023)............................................................................. 6 Natl Assn of Regul. Util. Commrs v. DOE, 680 F.3d 819 (D.C. Cir. 2012)............................................................................ 14 New Mexico ex rel. Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023).................................................................... passim NFIB v. OSHA, 595 U.S. 109 (2022)..................................................................................... 16, 17 Ohio Nuclear-Free Network v. NRC, 53 F.4th 236 (D.C. Cir. 2022)...........................................................................6, 8 Sierra Club v. NRC, 825 F.2d 1356 (9th Cir. 1987)............................................................................... 6 Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004).................................................................... 10, 14 Texas v. NRC, 78 F.4th 827 (5th Cir. 2023)........................................................................ passim United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011)............................................................................................ 12 Wales Transp., Inc. v. ICC, 728 F.2d 774 (5th Cir. 1984)................................................................................. 9 West Virginia v. EPA, 142 S.Ct. 2587 (2022).................................................................................. 15, 18 Statutes 42 U.S.C. §2073............................................................................................ 5, 10, 12 42 U.S.C. §2093............................................................................................ 5, 10, 12 42 U.S.C. §2111....................................................................................... 5, 10, 11, 12 28 U.S.C. §2343......................................................................................................... 7 28 U.S.C. §2344......................................................................................................... 6 Case: 23-60377 Document: 75 Page: 5 Date Filed: 12/08/2023

v 42 U.S.C. §2239(a).................................................................................................... 6 42 U.S.C. §2239(b)(1)................................................................................................ 6 Pub. L. No.79-585, 60 Stat. 755 (1946).................................................................... 4 Pub. L. No.83-703, 68 Stat. 919 (1954).................................................................... 4 Rules and Regulations Fed. R. App. P. 3......................................................................................................... 8 Fed. R. App. P. 4........................................................................................................ 8 10 C.F.R. §2.309(f)(1).............................................................................................. 10 10 C.F.R. Part 72..................................................................................................... 10 10 C.F.R. §170.20..................................................................................................... 5 Other Authorities Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017)............................................................ 16 Br. for Amicus Curiae Nuclear Energy Institute, Inc. in Support of Rehearing En Banc, Texas v. NRC, No. 21-60743 (5th Cir. filed Nov. 3, 2023).................................................................................. 1 IAEA, Redevelopment of Nuclear Facilities After Decommissioning (2006), https://rb.gy/8gp05................................................................................. 11 Lance N. Larson, Nuclear Waste Storage Sites in the United States, Cong. Res. Serv. (updated Apr. 13, 2020), https://rb.gy/byro5n........................ 11 NRC, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (Aug. 1979), https://rb.gy/u6k5v........................................................................ 10 NRC, Resource Estimates for Common Licensing and Oversight Activities in Storage and Transportation (last updated May 1, 2023), https://rb.gy/4it0m................................................... 5 Case: 23-60377 Document: 75 Page: 6 Date Filed: 12/08/2023

vi U.S. Dept of Energy, 5 Common Myths About Transporting Spent Nuclear Fuel (May 26, 2020), https://rb.gy/474jh5........................................... 18 Case: 23-60377 Document: 75 Page: 7 Date Filed: 12/08/2023

INTEREST OF AMICUS CURIAE The Nuclear Energy Institute (NEI) is the trade association for the commercial nuclear energy industry. NEI has hundreds of members involved in all aspects of the industry, including companies licensed to operate commercial nuclear power plants and store commercial spent nuclear fuel in the United States. One of NEIs core functions is to represent its members interests in litigation that raises issues of critical concern to the industry. This is such a case, as it concerns whether the industry can continue to rely on administrative licensing proceedings before the Nuclear Regulatory Commission (NRC) and whether away-from-reactor facilities that store spent nuclear fuel are lawful. Those are the same issues addressed in Texas

v. NRC, 78 F.4th 827 (5th Cir. 2023), pets. for rehearing en banc filed (Oct. 24, 2023). Because the Texas panel answered them in a way that severely undermines long-settled legal principles upon which the industry has relied, NEI filed an amicus brief in support of rehearing en banc in Texas. See Br. for Amicus Curiae Nuclear Energy Institute, Inc. in Support of Rehearing En Banc, No. 21-60743 (5th Cir. filed Nov. 3, 2023). NEI files this amicus brief to continue to urge the Court to revisit the Texas decisionand ultimately reject the petition for review here.1 1 All parties have consented to the filing of this brief. Amicus curiae states that no party or counsel for a party other than amicus, its members, or its counsel authored this brief in whole or in part or made a monetary contribution intended to fund the preparation or submission of this brief.

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2 INTRODUCTION This case presents two core issues: (1) whether the Hobbs Act allows persons not admitted as parties in NRC licensing proceedings to nevertheless challenge NRC licensing orders in court and (2) whether NRC licenses for away-from-reactor storage facilities are lawful. Those issues are the same issues that a panel of this Court addressed in Texas v. NRCa case that the full Court is currently considering whether to accept for en banc review. The Court should do exactly thatand ultimately dismiss or deny the petitions for review both there and hereas the Texas decision is not only profoundly wrong but profoundly consequential for the commercial nuclear energy industry.

The Texas panels Hobbs Act holding may seem merely procedural, but it would have an extraordinarily significant and deleterious impact on the industry.

Nuclear-related projects are extremely capital-intensive, and in contrast to other industries where most regulations are prohibitory, NEI members cannot undertake nuclear-related activity without first obtaining a license from the NRC. Those licensing proceedings are lengthy and costly, making it especially important that industry members have the assurance that substantial investments of time and resources are not laid to waste by late-breaking objectors who wish to challenge the legality of NRC licenses despite never surfacing as parties in the NRCs administrative licensing proceedings. While other circuits have correctly interpreted Case: 23-60377 Document: 75 Page: 9 Date Filed: 12/08/2023

3 the Hobbs Act to preclude non-parties from springing such surprises, the Texas panel green-lighted this kind of sandbagging. None of its divergent reasoning withstands scrutiny.

The Texas panels conclusion that away-from-reactor facilities that store spent nuclear fuel are unlawful is equally disruptive and out-of-step with precedent. The NRC and other circuits have agreed for decades that such facilities are fully consistent with the Atomic Energy Act (AEA). That consensus, in turn, has spurred industry members to invest in those facilities, which offer enormous efficiency gains and opportunities for economic growth. But the panel decision here casts a pall over those facilities based on a novel and flawed reading of the AEA. The Texas panels alternative theoriesbased on the Nuclear Waste Policy Act (NWPA) and the major questions doctrineare no more persuasive. The NWPA has nothing to do with the temporary storage of spent nuclear fuel by private entities, but rather addresses storage and disposal by the federal government. And the major questions doctrine is designed to preclude agencies from belatedly leveraging obscure statutory provisions to assert novel, controversial, and economically burdensome powers beyond their core competencies. The NRCs issuance of licenses for away-from-reactor storage facilities involves the exact opposite dynamic: The NRC determined nearly half-a-century ago that the AEAs plain text authorizes licenses for away-from-reactor storage facilities and has never deviated from that position; Case: 23-60377 Document: 75 Page: 10 Date Filed: 12/08/2023

4 the regulation of spent nuclear fuel is obviously within the NRCs wheelhouse; the facilities at issue would reduce rather than increase costs; and no controversy has existed about the legality of storing spent nuclear fuel at decommissioned sites with no ongoing reactor operations, and away-from-reactor storage facilities are not significantly different.

In short, the Texas panel got two exceptionally important questions exceptionally wrong, and its decision will have far-reaching consequences for the nuclear industry as long as the decision remains standing. While NEI recognizes that the panel in this case must abide by the Texas decision, the bottom line is that the Court should revisit that decision as soon as possible.

ARGUMENT I.

The Texas Panels Circuit-Split-Creating Hobbs Act Ruling Undermines The Nuclear Industrys Longstanding Reliance On Administrative Licensing Proceedings Before The Nuclear Regulatory Commission.

Since the dawn of the atomic era, the federal government has exercised near-total control over nuclear energy in the United States. The AEA of 1946the Nations first nuclear-related statutecontemplated that the development of nuclear power would be a Government monopoly. Duke Power Co. v. Carolina Envt Study Grp., Inc., 438 U.S. 59, 63 (1978); see Pub. L. No.79-585, 60 Stat. 755.

Congress passed the AEA of 1954, see Pub. L. No.83-703, 68 Stat. 919, to make clear that the national interest would be best served if the Government encouraged Case: 23-60377 Document: 75 Page: 11 Date Filed: 12/08/2023

5 the private sector to become involved in the development of atomic energy for peaceful purposes, but private-sector involvement remained subject to pervasive federal regulation and licensing. Duke Power, 438 U.S. at 63. Thus, unlike typical industries where the default assumption is that private enterprises have liberty to operate until the government restricts them via regulation, the default assumption in the nuclear industry is nearly the opposite. See, e.g., 42 U.S.C. §§2073, 2093, 2111 (requiring licenses to possess various nuclear materials).

Industry members thus have always understood that wholly unregulated nuclear-related activity is a non-starter and that obtaining licenses from the NRC is a necessary prerequisite of doing business. Given that obligation, industry members are forced to expend significant resources participating in the NRCs administrative licensing proceedings. As this case illustrates, those proceedings are costly and lengthy, sometimes spanning years as applicants work with interested parties and the NRC to resolve varying objections to nuclear-related projects. See 10 C.F.R.

§170.20 (NRC staff charge applicants $300/hour to review applications); NRC, Resource Estimates for Common Licensing and Oversight Activities in Storage and Transportation (last updated May 1, 2023), https://rb.gy/4it0m (estimating that NRC staff may bill 21,220 hours0.00255 days <br />0.0611 hours <br />3.637566e-4 weeks <br />8.371e-5 months <br /> to license new storage facilities). Precisely because running that gauntlet and obtaining a license for an extraordinarily capital-intensive Case: 23-60377 Document: 75 Page: 12 Date Filed: 12/08/2023

6 nuclear project is no mean feat, industry members can ill-afford surprises after receiving licenses at the end of the NRCs administrative process.

Although the Hobbs Act allows for judicial review of any NRC final order entered in any proceeding under the AEA for the granting, suspending, revoking, or amending of any license, 42 U.S.C. §2239(b)(1), (a), it provides that courts have jurisdiction only in circumstances where a party aggrieved by the final order seeks judicial review, 28 U.S.C. §2344. As numerous courts have recognized, the Hobbs Acts use of the term party (as opposed to a more expansive term like person, cf. 5 U.S.C. §702) is telling: It means that only those who participat[e] in the appropriate and available administrative procedurei.e., as parties to the proceedingsmay invoke a courts jurisdiction. Gage v. U.S. Atomic Energy Commn, 479 F.2d 1214, 1217-18 (D.C. Cir. 1973); see Matson Navigation Co. v.

DOT, 77 F.4th 1151, 1156-57 (D.C. Cir. 2023) (Rao, J.); Beethoven.com LLC v.

Libr. of Cong., 394 F.3d 939, 945-46 (D.C. Cir. 2005) (Sentelle, J.); Sierra Club v.

NRC, 825 F.2d 1356, 1360-61 (9th Cir. 1987). Accordingly, when intervention in agency adjudication or rulemaking is prerequisite to participation therein, standing to seek judicial review of the outcome will be denied to those who did not seekor who sought but were deniedleave to intervene. Ohio Nuclear-Free Network v.

NRC, 53 F.4th 236, 239 (D.C. Cir. 2022); see New Mexico ex rel. Balderas v. NRC, Case: 23-60377 Document: 75 Page: 13 Date Filed: 12/08/2023

7 59 F.4th 1112, 1116-19 (10th Cir. 2023) (similar). That rule thus limits the universe of potential judicial challengers and allows the industry to plan ahead.

Thus, in other circuitsincluding the D.C. Circuit, the only other circuit in which petitioners here (collectively, Fasken) could have brought their challenge, see 28 U.S.C. §2343this case would not leave the starting gate. That is because Fasken undisputedly failed to obtain leave to intervene as a party in the administrative proceedings in which the NRC granted the license at issue and never asserted the arguments that it now presses in this Court. See Fasken.Br.12-15. And

[b]ecause [Fasken] was denied leave to intervene in the NRCs licensing proceeding, it does not qualify as a party aggrieved by the order issuing the license. Dont Waste Mich. v. NRC, 2023 WL 395030, at *3 (D.C. Cir. Jan. 25, 2023).

The Texas decision upends this decades-old understanding and severely undermines the industrys ability to rely on NRC administrative licensing proceedings, as it allows objectors to bypass the licensing proceedings entirely and belatedly challenge NRC licenses in court. Although the Texas panel thought that the Hobbs Act and precedent require this destabilizing result, law and logic point in the opposite direction.

The Texas panel first posited that the Hobbs Acts plain texti.e., the party aggrieved languageoffers no indication that intervention in the NRCs Case: 23-60377 Document: 75 Page: 14 Date Filed: 12/08/2023

8 administrative proceedings is ever necessary to challenge an NRC order, but rather indicates that participating in some way (such as by shooting off comments to the NRC) suffices. 78 F.4th at 838. But the term party in the legal context is regularly understood to require formal participation in legal proceedings. For example, when the Federal Rules of Appellate Procedure refer to a party who may appeal a district court judgment, see Fed. Rs. App. P. 3-4, no one thinks that a person who just mailed comments to the court qualifies. To the contrary, as Judge Easterbrook explained in another Hobbs Act case, [i]f a non-party tried to appeal from a judgment of a district court, courts would dismiss the appeal out of hand.

In re Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 335 (7th Cir. 1986).

Consistent with that understanding, the D.C. Circuit and the Tenth Circuit have held in similar contexts that those who fail to properly intervene[] in the underlying NRC proceeding are not part[ies] aggrieved either. Ohio Nuclear-Free Network, 53 F.4th at 239; see Balderas, 59 F.4th at 1116-19.

The Texas panel ultimately declined to rest its decision on its plain-text theory (thus creating a circuit split via dictum) because it opted to apply an ultra vires exception to the party-aggrieved status requirement. 78 F.4th at 839. But as the Texas panel recognized, see id. at 839 n.3, that did not avoid a circuit split because, as other panels of the Court have previously explained, other circuits have squarely rejected this exception, Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 238 Case: 23-60377 Document: 75 Page: 15 Date Filed: 12/08/2023

9 n.24 (5th Cir. 2005); see Balderas, 59 F.4th at 1123-34 (collecting cases).

Understandably so: The exception has no grounding whatsoever in statutory text, but rather emanates from dubious dicta in a 40-year-old footnote in a case involving the Interstate Commerce Commission (ICC). See Am. Trucking Assns, Inc. v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982).2 The Texas panel nonetheless felt bound by that dicta because another panel subsequently applied it (again in a footnote in an ICC-related case). 78 F.4th at 839 n.3 (citing Wales Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984)). But even assuming that Wales Transportation elevated American Truckings dicta to binding precedent in all cases involving Hobbs Act agencies,3 there is every reason for this Court to correct that mistake. After all, there is no basis for courts to exercise jurisdiction just because that would be a good idea. In re Chicago, 799 F.2d at 335. And the ultra vires exception is not even a good idea. Instead, that exception leaves industry members in the worst of all worlds: required to endure arduous administrative licensing proceedings and 2 The Court in American Trucking relied on ICC-related cases from 1968, 1923, and 1919 when discussing the supposed ultra vires exception to the Hobbs Act. See 673 F.2d at 85 n.4. That reasoning is perplexing, as the Hobbs Act did not apply to the ICC until 1975. Thus, [t]o the extent that non-parties were once permitted to appeal ICC decisions, that avenue was closed by the clear language of the Hobbs Act when it became applicable to the ICC in 1975. Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd., 167 F.3d 111, 113 (2d Cir. 1999).

3 The mischief that dicta can cause underscores the need to address the Texas panels dicta regarding the Hobbs Acts plain text.

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10 required to endure burdensome litigation initiated by those who never participated as parties in them (even though they could have pressed ultra vires arguments had they done so, see Balderas, 59 F.4th at 1123; 10 C.F.R. §2.309(f)(1)(i)).

II.

The Texas Panels Circuit-Split-Creating Holding That Away-From-Reactor Storage Facilities Are Unlawful Upsets The Nuclear Industrys Settled Expectations.

The Texas panels conclusion that away-from-reactor storage facilities are unlawful is similarly disruptive. For decades, the nuclear industry has operated on the understanding that such facilities are lawful. The NRC began issuing licenses for such facilities in the 1970s. See NRC, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel 8-2 (Aug. 1979), https://rb.gy/u6k5v. The NRC promulgated regulations formalizing those licensing procedures in 1980. See 10 C.F.R. Part 72. The only circuits to address the issue before the Texas panelthe D.C. Circuit and the Tenth Circuit subsequently confirmed the NRCs authority. See Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004); Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004). And the reason for this unanimity is obvious, as the AEA has stated since the 1950s that the NRC may issue licenses for the possession of each component of spent nuclear fuel. See 42 U.S.C. §§2073, 2093, 2111.

All this has spurred private industry to invest in away-from-reactor storage facilities, which offer significant operational and financial efficiencies. See also id.

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11

§2011(b) (noting AEAs policy of strengthen[ing] free competition in private enterprise). Historically, dozens of different nuclear reactor sites have stored their own spent nuclear fuel, even if they have no ongoing reactor operations. Lance N. Larson, Nuclear Waste Storage Sites in the United States 1-2, Cong. Res. Serv.

(updated Apr. 13, 2020), https://rb.gy/byro5n. As a result, at numerous locations nationwide, entities are expending vast resources for the sole purpose of storing relatively small amounts of spent nuclear fuel. By contrast, away-from-reactor storage facilitieswhich can store spent nuclear fuel from multiple nuclear reactor sitesallow for the consolidation of security, monitoring, inspection, and other operational activities. Consolidation creates enormous efficiencies and reduces overall fuel-management costs. The Texas case itself proves the point: The NRC found that the facility at issue there would save at least $636 million compared to storing spent fuel at existing locations. See C.I.125 at 8-11, No. 21-60743 (5th Cir.).

And those remarkable figures do not even account for the economic opportunities associated with redeveloping the land that decommissioned reactor sites occupy.

See, e.g., IAEA, Redevelopment of Nuclear Facilities After Decommissioning 57-66 (2006), https://rb.gy/8gp05.

The Texas decision, however, calls into question the legality of every existing and future away-from-reactor storage facilityall based on a novel reading of the statutory text, which Fasken wholeheartedly embraces here. See Fasken.Br.20-23.

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12 Indeed, the Texas panel conceded that the AEA authorizes the NRC to issue licenses to possess the constituent components of spent nuclear fuel for certain enumerated purposes, such as research and development, and separately empowers the NRC to issue those same licenses for other purposes that the NRC deems appropriate.

78 F.4th at 840-41 (discussing 42 U.S.C. §§2073, 2093, 2111). The Texas panel nonetheless declaredthrough a bare citation to United States v. Jicarilla Apache Nation, 564 U.S. 162, 185 (2011)that those separate grants of authority do not allow the NRC to issue licenses for away-from-reactor storage facilities and that the NRCs authority is constrained by the research and development provisions. 78 F.4th at 840-41.

That reasoning is fatally flawed. The cited passage from Jicarilla explained only that, where a statute imposed on the United States specific disclosure obligations vis--vis Indian trusts, a catchall provision stating that trust obligations are not limited to those enumerated could not mean that the United States has a general common-law duty to disclose all information related to the administration of Indian trusts, as that would render the enumerated obligations superfluous. 564 U.S. at 185 (emphasis added). Setting aside that the relevant AEA provisions here do not impose any obligations on the NRC, reading those provisions to allow the NRC to issue licenses for away-from-reactor storage facilities does not render any other statutory provision superfluous. In fact, the Case: 23-60377 Document: 75 Page: 19 Date Filed: 12/08/2023

13 Texas panels reading produces superfluity: If the NRC could issue licenses only for research-and-development purposes, the provisions authorizing the NRC to issue licenses for other purposes would do no work.

The Texas panel also seemed to think that it could discount the contrary views expressed by the D.C. Circuit in Bullcreek and the Tenth Circuit in Skull Valley because those courts purportedly assumed that the AEA conferred authority on the NRC to license away-from-reactor storage facilities but did not squarely hold as much. See 78 F.4th at 840. Not so. The D.C. Circuits decision in Bullcreek is quite clear in holding that the NRC may licens[e] away-from-reactor spent nuclear fuel storage facilities for private nuclear generators [p]ursuant to its AEA authority. 359 F.3d at 536, 538 (emphasis added); see also id. at 539 (The NRCs authority to license private generators to store spent nuclear fuel[] originated with the AEA[.]). The D.C. Circuit also just reaffirmed Bullcreeks holding earlier this year (in a case involving Fasken, no less). See Dont Waste Mich., 2023 WL 395030, at *1 (Under the Atomic Energy Act, the NRC is permit[ted] to license and regulate the storage of spent nuclear fuel. (brackets omitted) (quoting Bullcreek, 359 F.3d at 538)). And the Tenth Circuit had no trouble identifying the D.C.

Circuits holding and expressly adopting it as its own in Skull Valley (and reaffirming its agreement with Bullcreek in yet another decision earlier this year).

See, e.g., Balderas, 59 F.4th at 1122 (quoting Bullcreek for the proposition that the Case: 23-60377 Document: 75 Page: 20 Date Filed: 12/08/2023

14 Atomic Energy Act authorizes licensing and regulation of private use of private away-from-reactor spent fuel storage facilities (emphases omitted)); Skull Valley, 376 F.3d at 1232 (explaining that Bullcreek concluded that the Atomic Energy Act of 1954 authorizes the NRC to license privately-owned, away-from-reactor storage facilities).

Apart from the AEA, the Texas panel also offered two other theories to justify its destabilizing holding (both of which Fasken embraces here), but each is equally unavailing. See Fasken.Br.24-38. First, the Texas panel suggested that the NWPA doesnt permit away-from-reactor storage facilities. 78 F.4th at 844. But that is beside the point, as the NWPA governs the establishment of a federal repository for permanent storagei.e., disposalnot temporary storage by private parties, which is the province of the AEA. Balderas, 59 F.4th at 1115, 1121 (emphases added); see also Dont Waste Mich., 2023 WL 395030, at *1 (explaining that

[s]torage and disposal are different concepts and that Congress addressed plans to permanently dispose of spent nuclear fuel in the NWPA); Natl Assn of Regul. Util. Commrs v. DOE, 680 F.3d 819, 821 (D.C. Cir. 2012) (The [NWPA]

made the federal government responsible for permanently disposing of spent nuclear fuel[.]). The NWPA may have had relevance to the issue here if Congress repealed the NRCs preexisting authority in the AEA to license private, away-from-reactor storage facilities. But the NWPA does not repeal or supersede the NRCs authority Case: 23-60377 Document: 75 Page: 21 Date Filed: 12/08/2023

15 under the Atomic Energy Act to license private away-from-reactor storage facilities, rendering the NWPAs failure to independently authorize storage at private facilities immaterial. Bullcreek, 359 F.3d at 537-39.4 Second, the Texas panel also declared that, even if the statutes were ambiguous, the major questions doctrine would foreclose the NRCs ability to license away-from-reactor storage facilities. 78 F.4th at 844. That reasoning is even more misguided. The raison dtre of the major questions doctrine is to prevent an agency from invoking ancillary and vague provisions in a long-extant statute to assert an unheralded power representing a transformative expansion in [its]

regulatory authority into an area of vast economic and political significance.

West Virginia v. EPA, 142 S.Ct. 2587, 2610 (2022). But the issue presented in Texas and this case involves well-nigh the opposite situation.

4 Pressing an argument not resolved in Texas, Fasken also contends that the license here is unlawful because the NRC approved an application that purportedly authorizes Holtec International to store spent nuclear fuel owned by the Department of Energy (DOE), in contravention of the NWPA. See Fasken.Br.27-30. But the NRC did no such thing. To the contrary, the NRC made clear beyond cavil that it approved the license application on the understanding that Holtec would store privately owned spent nuclear fuelan arrangement that Fasken itself concedes is entirely legal, Fasken.Br.28while allowing Holtec to store DOE-owned spent fuel only if Congress eventually enacts legislation authorizing such activity. See In re Holtec Intl (Hi-Store Consol. Interim Storage Facility), 91 N.R.C. 167, 173-76 (Apr. 23, 2020). There is plainly nothing unlawful about respecting Congress policy decisions, as the D.C. Circuit held when rejecting a variant of this argument. See Dont Waste Mich., 2023 WL 395030, at *2.

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16 Most obviously, the NRC has interpreted the AEA to authorize the issuance of licenses for away-from-reactor storage facilities for nearly half-a-century. Even for those who are not fans of deference to administrative agencies, that is the sort of consistent and longstanding interpretation[] that warrants respect, Baldwin v.

United States, 140 S.Ct. 690, 693 (2020) (Thomas, J., dissenting from the denial of certiorari), and that easily distinguishes Texas and this case from those in which the Supreme Court has applied the major questions doctrine, see, e.g., Biden v.

Nebraska, 143 S.Ct. 2355, 2372 (2023) (The Secretary has never previously claimed powers of this magnitude[.]); NFIB v. OSHA, 595 U.S. 109, 119 (2022)

(It is telling that OSHA, in its half century of existence, has never before adopted a regulation of this kind[.]); see also Bittner v. United States, 598 U.S. 85, 97 (2023) ([T]his Court has long said that courts may consider the consistency of an agencys views when we weigh the persuasiveness of any interpretation it proffers in court.); Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 964-65 (2017) (referencing historical practice that the executive branchs construction of an ambiguous statute would be respected where that construction reflected an interpretation that was described as either contemporary with the statutes enactment, or longstanding or customary, or both).

Nor is that all. The AEA provisions that the NRC has invoked are hardly ancillary or vague when it comes to the possession of spent nuclear fuel. That much Case: 23-60377 Document: 75 Page: 23 Date Filed: 12/08/2023

17 is confirmed by the Texas panel and Fasken, both of which concede that the AEA gives the NRC express and unambiguous authority to issue licenses for the possession of the constituents that make up spent nuclear fuel.5 Fasken.Br.5; see Texas, 78 F.4th at 840-41. Furthermore, as the very name of the NRC indicates, it is hard to imagine something more squarely within the NRCs sphere of expertise than the regulation of spent nuclear fuel, NFIB, 595 U.S. at 118indeed, even Fasken describes the issue here as within the NRCs core competencies, Fasken.Br.35. On top of that, far from claim[ing] the authority to exercise control over a significant portion of the American economy, Nebraska, 143 S.Ct. at 2373, the NRC is claiming the authority to license storage facilities that would significantly reduce costs as compared to storing spent nuclear fuel at existing reactor sites, see p.11, supra. And while Fasken may adamantly oppose away-from-reactor storage facilities, Fasken.Br.15, it does not dispute that allowing storage at decommissioned sites that have no ongoing reactor operations is perfectly ordinary and lawful.

Applying common sense, Nebraska, 143 S.Ct. at 2384 (Barrett, J., concurring),

would suggest that the facilities at issue in Texas and in this casewhich likewise 5 Given the clarity of the statute, the major questions doctrine would not foreclose the NRCs ability to license away-from-reactor storage facilities even assuming (contrary to law) that the doctrine applied, as the doctrine does not even require[]

an unequivocal declaration from Congress authorizing the precise agency action under review. Nebraska, 143 S.Ct. at 2378 (Barrett, J., concurring).

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18 have no ongoing reactor operations and simply make already-occurring storage more efficient and economical6are poor candidates to trigger the extraordinary application of the major questions doctrine, West Virginia, 142 S.Ct. at 2608.

CONCLUSION For the reasons set forth above, this Court should dismiss or deny the petition for review.

Respectfully submitted, ELLEN C. GINSBERG JONATHAN M. RUND NUCLEAR ENERGY INSTITUTE, INC.

1201 F Street, NW, Suite 1100 Washington, DC 20004 s/Paul D. Clement PAUL D. CLEMENT Counsel of Record ANDREW C. LAWRENCE*

MARIEL A. BROOKINS*

CLEMENT & MURPHY, PLLC 706 Duke Street Alexandria, VA 22314 (202) 742-8900 paul.clement@clementmurphy.com

• Supervised by principals of the firm who are members of the Virginia bar Counsel for Amicus Curiae Nuclear Energy Institute, Inc.

December 8, 2023 6 Of course, storage at away-from-reactor facilities involves transportation of spent nuclear fuel, but [m]ore than 2,500 SNF shipments have been transported around the country without any radiological incidents over the past 55 years. U.S.

Dept of Energy, 5 Common Myths About Transporting Spent Nuclear Fuel (May 26, 2020), https://rb.gy/474jh5.

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