ML25317A624
| ML25317A624 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 11/13/2025 |
| From: | Cayce L, Combel C US Federal Judiciary, Court of Appeals, 5th Circuit |
| To: | NRC/OGC |
| References | |
| 21-60743, 294-1 | |
| Download: ML25317A624 (1) | |
Text
United States Court of Appeals for the Fifth Circuit No. 21-60743 State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of America, Respondents.
Petition for Review of an Order of the Nuclear Regulatory Commission Agency No. 72-1050 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam:
Texas state officials concluded that a proposed renewable Nuclear Regulatory Commission (NRC) license allowing a private entity to store nuclear waste in the Permian Basin would not only violate federal law, but United States Court of Appeals Fifth Circuit FILED September 22, 2025 Lyle W. Cayce Clerk
No. 21-60743 2
also wreak environmental havoc in West Texas and endanger the nationCs energy security. Governor Greg Abbott warned that an accident or act of terrorism could affect the entire countryCs energy supply. See, e.g., NRC v.
Texas, 145 S. Ct. 1762, 1783 (2025) (Gorsuch, J., dissenting). A number of officials and private parties also expressed concerns about environmental contamination and harm to endangered species. See, e.g., id. at 1771 (majority opinion); id. at 1783 (Gorsuch, J., dissenting). So the State of Texas challenged the NRCCs issuance of the license.
Our court faithfully applied circuit precedent allowing states to bring suits under the Hobbs Act when an agency acts ultra vires. See Texas v. NRC, 78 F.4th 827, 839 (5th Cir. 2023) (citing American Trucking AssBn, Inc. v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982)). See also Texas v. NRC, 95 F.4th 935, 944 (5th Cir. 2024) (Higginson, J., dissenting from denial of rehearing en banc)
(acknowledging Dour courtCs ultra vires exceptionE and urging rehearing en banc to reconsider that exception).
The Supreme Court reversed our judgment. It held that ultra vires review is unavailable if a Dstatutory review scheme provides aggrieved persons with a meaningful and adequate opportunity for judicial reviewE or where an Dalternative path to judicial reviewE exists. NRC, 145 S. Ct. at 1776 (citation omitted). The Court concluded that we lack jurisdiction to consider the petition for review in this case.
Accordingly, we dismiss the petition for review, as required by the Supreme Court.
United States Court of Appeals for the Fifth Circuit No. 21-60743 State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of
- America, Respondents.
Petition for Review of an Order of the Nuclear Regulatory Commission Agency No. 72-1050 JUDGMENT ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Jones, Ho, and Wilson, Circuit Judges.
This cause was considered on the petition of State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin United States Court of Appeals Fifth Circuit FILED September 22, 2025 Lyle W. Cayce Clerk
No. 21-60743 2
Land and Royalty Owners for review of an order of the Nuclear Regulatory Commission and was argued by counsel.
IT IS ORDERED and ADJUDGED that the petition for review is DISMISSED.
IT IS FURTHER ORDERED that petitioners pay to respondents 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.
Certified as a true copy and issued as the mandate on Attest:
Clerk, U.S. Court of Appeals, Fifth Circuit
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 November 13, 2025 Ms. Kristine L. Svinicki U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852-2738 No. 21-60743 State of Texas v. NRC Agency No. 72-1050
Dear Ms. Svinicki,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court s opinion.
Sincerely, LYLE W. CAYCE, Clerk By: _________________________
Christy M. Combel, Deputy Clerk 504-310-7651 cc:
Mr. Andrew Paul Averbach Mr. Ryan Baasch Mr. Benjamin L. Bernell Ms. Mariel A. Brookins Mr. Paul D. Clement Mr. Arnold Bradley Fagg Mr. Justin Heminger Mr. Allan L. Kanner Mr. Andrew Lawrence Mr. Ryan Kennedy Lighty Mr. Timothy P. Matthews Mr. Benjamin Wallace Mendelson Ms. Annemieke Monique Tennis