ML24141A140
| ML24141A140 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 05/20/2024 |
| From: | Cayce L, Pertuit S US Federal Judiciary, Court of Appeals, 5th Circuit |
| To: | Kristine Svinicki NRC/Chairman, NRC/OGC |
| References | |
| Case: 23-60377 Document: 98-1 | |
| Download: ML24141A140 (1) | |
Text
United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK LYLE W. CAYCE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE, Suite 115 NEW ORLEANS, LA 70130 May 20, 2024 Ms. Kristine L. Svinicki U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852-2738 No. 23-60377 Fasken Land and Minerals v. NRC Agency No. 72-1051
Dear Ms. Svinicki,
Enclosed is a copy of the judgment issued as the mandate and a copy of the courts opinion.
Sincerely, LYLE W. CAYCE, Clerk By: _________________________
Shea E. Pertuit, Deputy Clerk 504-310-7666 cc:
Mr. Andrew Paul Averbach Mr. Benjamin L. Bernell Mr. Paul D. Clement Mr. Merrick Garland, U.S. Attorney General Mr. Justin Heminger Mr. Allan L. Kanner Ms. Annemieke Monique Tennis Case: 23-60377 Document: 98-1 Page: 1 Date Filed: 05/20/2024
United States Court of Appeals for the Fifth Circuit No. 23-60377 Summary Calendar Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of
- America, Respondents.
Appeal from the Nuclear Regulatory Commission Agency No. 72-1051 Before Jones, Elrod, and Wilson, Circuit Judges.
J U D G M E N T This cause was considered on the petition of Fasken Land and Minerals, Limited and Permian Basin Land and Royalty Owners for review of a final order of the Nuclear Regulatory Commission and the briefs on file.
IT IS ORDERED and ADJUDGED that the petition for review is GRANTED.
United States Court of Appeals Fifth Circuit FILED March 27, 2024 Lyle W. Cayce Clerk Case: 23-60377 Document: 98-2 Page: 1 Date Filed: 05/20/2024 Certified as a true copy and issued as the mandate on Attest:
Clerk, U.S. Court of Appeals, Fifth Circuit May 20, 2024
No. 23-60377 2
IT IS FURTHER ORDERED that respondents pay to petitioners the costs on appeal to be taxed by the Clerk of this Court.
The judgment or mandate of this court shall issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. See Fed. R. App. P. 41(b). The court may shorten or extend the time by order. See 5th Cir. R. 41 I.O.P.
Case: 23-60377 Document: 98-2 Page: 2 Date Filed: 05/20/2024
United States Court of Appeals for the Fifth Circuit No. 23-60377 Summary Calendar Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of America, Respondents.
Appeal from the Nuclear Regulatory Commission Agency No. 72-1051 Before Jones, Elrod, and Wilson, Circuit Judges.
Per Curiam:*
In September 2021 the Nuclear Regulatory Commission (NRC) issued a license to Interim Storage Partners, LLC, to establish a facility to store nuclear waste temporarily in Andrews County, Texas. See Texas v.
Nuclear Regul. Commn, 78 F.4th 827, 833-35 (5th Cir. 2023) [hereinafter Texas v. NRC], rehg en banc denied, 2024 WL 1108700 (5th Cir. Mar. 14,
- This opinion is not designated for publication. See 5th Cir. R. 47.5.
United States Court of Appeals Fifth Circuit FILED March 27, 2024 Lyle W. Cayce Clerk Case: 23-60377 Document: 98-3 Page: 1 Date Filed: 05/20/2024
No. 23-60377 2
2024). Texas, Fasken Land and Minerals, Ltd., (Fasken), and Permian Basin Land and Royalty Owners (PBLRO) petitioned this court to set aside that license. Id. at 834-35. In that appeal, a panel of this court first held that Fasken and PBLRO had standing under the Constitution and the Hobbs Act to challenge the NRCs actions. Id. at 835-40. It then held that the NRC lacked statutory authority to issue the license. Id. at 840-44. Accordingly, this court granted the petitions for review and vacated the license. Id. at 844.
The NRC filed a petition for rehearing en banc on October 24, 2023, which this court denied on March 14, 2024. See Texas v. Nuclear Regul. Commn, No. 21-60743, --- F.4th ----, 2024 WL 1108700 (5th Cir. Mar. 14, 2024).
Shortly before the panel issued its opinion in Texas v. NRC, Fasken and PBLRO filed the petition for review at issue in this case. They challenge a different license issued by the NRC in May 2023 to Holtec International to establish a facility to store nuclear waste in Lea County, New Mexico. The parties, correctly, agree that Texas v. NRC involved a materially identical license in a materially identical procedural posture and that absent the
[c]ourt granting rehearing en banc in Texas [v. NRC]..., the panels consideration of this case will be controlled by [Texas v. NRC]. Because this courts holding in Texas v. NRC dictates the outcome here, we GRANT Faskens and PBLROs petition for review and VACATE the Holtec license. The NRCs motion to transfer the petition for review to the United States Court of Appeals for the District of Columbia Circuit is DENIED AS MOOT.
Case: 23-60377 Document: 98-3 Page: 2 Date Filed: 05/20/2024