NUCLEAR REGULATORY COMMISSION ET AL. v. TEXAS ET AL.
No. 23-1300
SUPREME COURT OF THE UNITED STATES
June 18, 2025
Argued March 5, 2025
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 23-1300. Argued March 5, 2025-Decided June 18, 2025*
The Atomic Energy Act of 1954 generally prohibits the private possession of nuclear materials, including spent nuclear fuel, without a license. The Nuclear Regulatory Commission may license the possession of nuclear materials, subject to statutory and procedural requirements.
In September 2021, the Commission granted ISP a license to build and operate its proposed storage facility. Texas and Fasken sought review of the Commission‘s licensing decision in the Fifth Circuit. The Fifth Circuit vacated ISP‘s license.
Held: Because Texas and Fasken were not parties to the Commission‘s licensing proceeding, they are not entitled to obtain judicial review of the Commission‘s licensing decision. Pp. 7-23.
*Together with No. 23-1312, Interim Storage Partners, LLC v. Texas et al., also on certiorari to the same court.
Syllabus
(a) In the Hobbs Act, Congress specified that only a “party aggrieved” by a licensing order of the Commission may seek judicial review. Texas and Fasken argue they qualify as parties because they participated in the licensing proceeding by
(b) Fasken contends that it can maintain this suit because it satisfied the statutory criteria for intervention under the Atomic Energy Act and the Commission erroneously denied its intervention petition. Fasken also argues that the Commission‘s intervention regulations set a higher bar for intervention than the Atomic Energy Act contemplates. But Fasken could (and already did) obtain judicial review in the D. C. Circuit of the denial of its petition to intervene. See
(c) Texas and Fasken alternatively argue that they need not be parties to challenge ultra vires agency action. Because ultra vires review could easily circumvent judicial-review statutes, this Court‘s cases have strictly limited nonstatutory ultra vires review. Boire v. Greyhound Corp., 376 U. S. 473, 481. The Court‘s leading case on ultra vires review is Leedom v. Kyne, 358 U. S. 184, holding that nonstatutory review was available because the agency order “was an attempted exercise of power that had been specifically withheld” and violated a “specific prohibition” in the National Labor Relations Act. Id., at 188-189. “The Kyne exception is a narrow one” that does not apply simply because an agency arguably reached “a conclusion which does not comport with the law.” Boire, 376 U. S., at 481. Rather, it applies only when an agency acts entirely “in excess of its delegated powers and contrary to a specific prohibition” in a statute. Railway Clerks v. Association for Benefit of Noncontract Employees, 380 U. S. 650, 660.
For at least two reasons, Texas‘s and Fasken‘s ultra vires claims fall short. First, Texas and Fasken basically dress up a typical statutory-authority argument as an ultra vires claim. Second, ultra vires review is unavailable where a statutory review scheme provides aggrieved persons with an adequate opportunity for judicial review. See Board of Governors, FRS v. MCorp Financial, Inc., 502 U. S. 32, 43-44. Here, entities like Texas and Fasken seeking intervention are guaranteed judicial review of either the Commission‘s intervention denial or, if intervention is granted, the Commission‘s final licensing order. Additionally, no precedent supports bringing an ultra vires claim in a court of appeals rather
(d) Because Texas and Fasken have no right to judicial review of the licensing proceeding, the Court today does not decide whether the Commission possessed statutory authority to issue a license to ISP. Pp. 16-21.
78 F. 4th 827, reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
Nos. 23-1300 and 23-1312
NUCLEAR REGULATORY COMMISSION, ET AL., PETITIONERS
23-1300 v. TEXAS, ET AL.
INTERIM STORAGE PARTNERS, LLC, PETITIONER
23-1312 v. TEXAS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2025]
JUSTICE KAVANAUGH delivered the opinion of the Court.
More than 50 nuclear power plants in the United States produce electricity for American homes and businesses. But those plants also generate dangerous spent nuclear fuel, which is usually stored on site. Because some plants are shutting down or no longer operating, on-site storage is not a viable long-term solution. To address the storage problem, federal law has long designated the Yucca Mountain Nuclear Waste Repository in Nevada as the future permanent site for disposal of spent nuclear
To fill the void, some private businesses have sought to build and operate facilities to store spent nuclear fuel “off site“-that is, off the site of a nuclear power plant. To do so, however, they need to obtain licenses from the Nuclear Regulatory Commission.
Here, the Commission granted a renewable 40-year license to a private entity seeking to store spent nuclear fuel at an off-site facility in West Texas. The State of Texas and a private West Texas business known as Fasken Land and Minerals objected to the project and sued in the U. S. Court of Appeals for the Fifth Circuit. They argued that federal law does not authorize storage of spent nuclear fuel at private off-site facilities.
The threshold question here is whether Texas and Fasken may maintain this suit. The Court of Appeals said yes. We disagree. Under the Hobbs Act, only an aggrieved “party” may obtain judicial review of a Commission licensing decision. To qualify as a party to a licensing proceeding, the Atomic Energy Act requires that one either be a license applicant or have successfully intervened in the licensing proceeding. In this case, however, Texas and Fasken are not license applicants, and they did not successfully intervene in the licensing proceeding. So neither was a party eligible to obtain judicial review in the Fifth Circuit. For that reason, we reverse the judgment of the Court of Appeals and do not decide the underlying statutory dispute over whether the Nuclear Regulatory Commission possesses authority to license private off-site storage facilities.
I
A
In 1954, Congress passed and President Eisenhower signed the Atomic Energy Act. 68 Stat. 919,
A license application initiates an adjudicatory proceeding where the Commission determines whether the applicant has met the statutory and regulatory criteria.
The licensing proceeding culminates with a final order by the Commission that
B
For decades, the question of how best to store and dispose of spent nuclear fuel has sparked contentious American policy and political debates, and intermittent legislative and regulatory efforts. More than 50 commercial nuclear power plants in the United States now store spent nuclear fuel on site at the plants themselves. That waste must be carefully stored in pools or casks. Safe storage requires substantial space and resources.
In 1980, acting pursuant to the 1954 Atomic Energy Act, the Nuclear Regulatory Commission promulgated regulations governing the licensing of private spent fuel storage facilities. 45 Fed. Reg. 74693 (1980); see
Soon thereafter, Congress passed and President Reagan signed the Nuclear Waste Policy Act of 1982, 96 Stat. 2201,
The U. S. Court of Appeals for the D. C. Circuit subsequently upheld the Commission‘s 1980 regulations for the licensing of private off-site storage facilities. See Bullcreek v. NRC, 359 F. 3d 536, 537-538, 541-543 (2004). The D. C. Circuit reasoned that the 1980 regulations were authorized by and consistent with the 1954 Atomic Energy Act, and that the 1982 Act did not deny or repeal the Commission‘s authority to license private off-site storage facilities or otherwise disturb the 1980 regulations. Ibid. Under licenses granted by the Commission, spent nuclear fuel is currently being stored at about 10 privately owned storage sites in the United States where there are no active nuclear reactors. Brief for United States 6.
Meanwhile, in 1987, Congress amended the 1982 Act to specify Yucca Mountain in Nevada as the permanent repository site for spent nuclear fuel. See 101 Stat. 1330-227 to 1330-228 (codified at
C
In 2018, Interim Storage Partners, a business known as ISP, applied for a license
The Commission denied Fasken‘s petition to intervene. The Commission‘s regulations require would-be intervenors to, among other things, proffer a sufficient “contention,” which means “sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.”
Fasken then sought review in the D. C. Circuit, challenging the Commission‘s denial of intervention. Fasken did not argue that the regulations were inconsistent with the statute. Rather, it contended that, under the regulations, it had a right to intervene. The D. C. Circuit decided that Fasken was not entitled to intervene. Don‘t Waste Mich. v. NRC, 2023 WL 395030 (Jan. 25, 2023). Fasken did not seek en banc review of the denial of intervention, nor did it petition for certiorari in this Court.
In May 2020, the Commission issued a draft environmental impact statement, or EIS, as required by the National Environmental Policy Act, 83 Stat. 852, as amended,
In September 2021, the Commission granted ISP a license to build and operate its proposed off-site facility for storage of spent nuclear fuel. Id., at 284-287. Texas and Fasken then sued in the Fifth Circuit, arguing that the Commission lacked statutory authority to license storage of spent nuclear fuel at a private off-site facility.
The Fifth Circuit vacated ISP‘s license. 78 F. 4th 827, 831 (2023). First, notwithstanding that the Hobbs Act limits jurisdiction to a “party” aggrieved and that neither Fasken nor Texas successfully intervened as a “party” under the Atomic Energy Act, the court ruled that it could reach the merits. The Fifth Circuit reasoned that Texas and Fasken could challenge ultra vires agency action-that is, action entirely outside the Commission‘s authority-regardless of whether they qualified as parties aggrieved under the Hobbs Act. Id., at 839-840. Second, on the merits, the Fifth Circuit held that the Commission lacked statutory authority to license a private off-site facility for storage of spent nuclear fuel. Id., at 840. In so ruling, the Fifth Circuit disagreed with the D. C. Circuit‘s 2004 Bullcreek decision, which had held to the contrary. 78 F. 4th, at 841-842.
II
The Hobbs Act generally allows any “party aggrieved” by a licensing order of the Nuclear Regulatory Commission to obtain judicial review in a federal court of appeals.
The Commission argues that, to become a party to a Commission licensing proceeding for purposes of the Hobbs and Atomic Energy Acts, a person or entity must either be the license applicant or successfully intervene in the proceeding. Because Texas and Fasken are not the license applicants and did not successfully intervene, the Commission contends that Texas and Fasken are not parties and cannot maintain this suit.
Texas and Fasken disagree and advance three alternative arguments for why they can pursue this case.
First, according to Texas and Fasken, they were parties because both of them submitted comments to the Commission. Fasken also separately argues that it was a party because it sought to intervene in the licensing proceeding, even though it did not successfully intervene.
Second, Fasken contends that the Commission erroneously denied Fasken‘s intervention petition. Specifically, Fasken contends that the Commission‘s regulations governing intervention are inconsistent with the text of the Atomic Energy Act and set too high a bar for intervention. Fasken says that the D. C. Circuit‘s decision affirming the Commission‘s denial of Fasken‘s intervention petition does not preclude Fasken from relitigating the intervention issue in this litigation.
Third, Texas and Fasken claim that their statutory claims are reviewable even if they were not parties to the Commission‘s licensing proceeding. Agreeing with the Fifth Circuit, they argue that the Commission acted ultra vires by issuing a license to ISP, so a court may invalidate the license even if no statutory avenue for judicial review like the Administrative Procedure Act or the Hobbs Act is available.
We disagree with each of Texas‘s and Fasken‘s arguments. They were not parties to the Commission‘s licensing proceeding and therefore cannot obtain judicial review of the Commission‘s licensing decision.
A
First, Texas and Fasken contend that simply submitting comments or attempting to intervene in the Commission‘s licensing proceeding suffices to qualify as a party under the Hobbs Act. Not so.
Under the Hobbs Act, only a “party” aggrieved by the licensing proceeding may seek judicial review. Importantly, a “party” aggrieved is not synonymous with a “person” aggrieved. In the Administrative Procedure Act of 1946, Congress created a general cause of action for any “person ... aggrieved” by agency action.
The question then is how one becomes a party in a Commission licensing proceeding. Texas and Fasken emphasize ordinary dictionary definitions of “party,” such as “participator.” E.g., 11 Oxford English Dictionary 281-282 (2d ed. 1989); see Random House Dictionary of the English Language 1052-1053 (1966) (“participant“). According to Texas and Fasken, they “participated” and became parties by filing comments or attempting to intervene.
But the text of the Atomic Energy Act indicates that one must be the license applicant or successfully intervene in order to obtain party status in a Commission licensing proceeding. That Act provides: “In any proceeding under this chapter, for the granting ... of any license ... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.”
Texas responds that the text of the Hobbs Act does not distinguish between rulemaking and adjudicative proceedings. So as Texas sees it, the same participation that confers party status in an agency rulemaking-namely, filing a comment-should suffice to qualify for party status in an agency adjudication such as a Commission licensing proceeding. We disagree with that “lowest common denominator” approach to party status. Tr. of Oral Arg. 85. The Hobbs Act applies to a variety of agency actions, and what suffices for party status in one category of proceeding may be inadequate in another. Here, the text of the Atomic Energy Act makes clear that a person or entity must be granted intervention in order to become a “party” to a Commission licensing proceeding, even if something less than intervention may suffice in other proceedings such as rulemakings (or perhaps certain less-formal agency adjudications) that are also governed by the Hobbs Act.
Because the Atomic Energy Act confines party status to
license applicants and intervenors, we also reject Texas‘s argument, advanced for the first time at oral argument, that the Commission in effect offered party status to those who submitted comments on the draft EIS. Id., at 86-88. By way of comparison, participation by amici in a court proceeding does not make the amici parties, even if the court invited such participation. See United States ex rel. Eisenstein v. City of New York, 556 U. S. 928, 933 (2009). So too in Commission licensing proceedings under the Atomic Energy Act. Where judicial review of an
To be clear, Texas and Fasken could (and did) submit information and views to the Commission that the Commission could analyze in its decisionmaking process-not unlike an amicus brief in a court proceeding. But that level of participation does not equate to party status in this statutory scheme.
In light of the statutory text and context, those who were not license applicants or granted intervention in the Commission‘s licensing proceeding do not qualify as parties who can obtain judicial review under the Hobbs Act.
B
Second, Fasken asserts (as does the dissent) that, in any event, Fasken satisfied the statutory criteria for intervention under the Atomic Energy Act and thus should have been granted intervention by the Commission. And Fasken contends that the D. C. Circuit‘s decision upholding the Commission‘s denial of intervention in earlier litigation does not preclude it from now relitigating that issue in the Fifth Circuit and this Court. We disagree.
The Atomic Energy Act generally provides that the Commission “shall admit” any person who requests a hearing and “whose interest may be affected by the proceeding.”
According to Fasken (and the dissent), the Commission‘s regulations set a higher bar for intervention than the Atomic Energy Act contemplates. In 1990, the D. C. Circuit rejected that argument. See ibid. In any event, that question is not before us in this case. Fasken could (and already did) obtain judicial review in the D. C. Circuit of the denial of its petition to intervene. See
Fasken cannot now use a new Hobbs Act suit to collaterally attack the D. C. Circuit‘s prior ruling on intervention. An analogy to judicial proceedings is instructive. In the judicial context, “intervention is the requisite method for a nonparty to become a party to a lawsuit.” Eisenstein, 556 U. S., at 933. And “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U. S. 301, 304 (1988) (per curiam).
Therefore, a nonparty who wishes to appeal from a district court decision ordinarily must seek to intervene in the district court proceeding. If the district court denies that intervention motion, the nonparty may appeal the denial of intervention.
So too in Commission proceedings. If a request to intervene fails before the Commission, the would-be intervenor may seek judicial review of that decision-as Fasken did in the D. C. Circuit. But a person who has not successfully intervened before the Commission may not, as a nonparty, bring a Hobbs Act suit contesting the merits of orders issued in the underlying Commission proceeding.
Texas and Fasken complain that the Commission is unilaterally denying access to judicial review by limiting intervention. That charge rings hollow. Texas did not even seek to intervene in the Commission‘s licensing proceeding. As for Fasken, the Commission‘s gatekeeping decision denying it intervention was subject to judicial review in the D. C. Circuit. After losing there, Fasken chose not to seek en banc review or further review in this Court.
In short, the Hobbs Act affords judicial review to those who were parties before the Commission. Here, obtaining party status required Texas or Fasken to successfully intervene in the Commission proceeding. Because neither Texas nor Fasken successfully intervened, they may not obtain judicial review of the Commission‘s licensing decision under the Hobbs Act.
C
Third, Texas and Fasken alternatively argue that they need not be parties in order to bring claims of ultra vires agency action. That argument was the basis of the Fifth Circuit‘s decision. (Notably, the dissent today does not adopt that argument.)
Before enactment of the APA, those challenging agency action often lacked a statutory cause of action. Yet courts sometimes entertained “a bill in equity to attack administrative action when no statutory review was available.” 3 K. Hickman & R. Pierce, Administrative Law §20.7, p. 2600 (7th ed. 2024). In particular, courts recognized a right to equitable relief where an agency‘s action was ultra vires-that is, “unauthorized by any law and ... in violation of the rights of the individual.” American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 110 (1902).
According to Texas and Fasken, judicial-review statutes like the Hobbs Act and the APA did not displace preexisting nonstatutory ultra vires review. And they say that they may assert ultra vires claims here. They contend that the Commission‘s issuance of a license to ISP was ultra vires because the Commission‘s licensing authority, in their view, does not extend to private off-site facilities for the storage of spent nuclear fuel.
This Court‘s leading case on post-APA ultra vires review is Leedom v. Kyne, 358 U. S. 184 (1958). That case arose from an improper agency certification of a collective bargaining unit-an interlocutory order not subject to review under the judicial-review provisions of the APA or the National Labor Relations Act. See id., at 185, 187. This Court held that nonstatutory review was available because the agency order at issue “was an attempted exercise of power that had been specifically withheld,” and the agency‘s order violated a “specific prohibition” in the Act. Id., at 188-189.
Because ultra vires review could become an easy end-run around the limitations of the Hobbs Act and other judicial-review statutes, this Court‘s subsequent cases have strictly limited nonstatutory ultra vires review to the “painstakingly
Ultra vires review is also unavailable if, as is usually the case, a statutory review scheme provides aggrieved persons “with a meaningful and adequate opportunity for judicial review,” or if a statutory review scheme forecloses all other forms of judicial review. Board of Governors, FRS v. MCorp Financial, Inc., 502 U. S. 32, 43 (1991); see id., at 44.
Given all that, “a Leedom v. Kyne claim is essentially a Hail Mary pass-and in court as in football, the attempt rarely succeeds.” Nyunt v. Chairman, Broadcasting Bd. of Governors, 589 F. 3d 445, 449 (CADC 2009).
For at least two reasons, Texas‘s and Fasken‘s ultra vires claims under Leedom v. Kyne fall far short here.
First, Texas and Fasken basically dress up a typical statutory-authority argument as an ultra vires claim. That is a fairly common maneuver when a litigant tries to squeeze its arguments into the Leedom v. Kyne box-and is in large part why those claims rarely succeed. Here, Texas and Fasken contend that the Commission‘s general authority to license storage of spent nuclear fuel does not extend to the licensing of private off-site storage. In 2004, the D. C. Circuit rejected that statutory argument. See Bullcreek v. NRC, 359 F. 3d 536, 537-538, 541-543. Even if one were to disagree with the D. C. Circuit‘s conclusion, the statutory argument falls well shy of a meritorious Leedom v. Kyne claim. See 358 U. S., at 189.
Second, and alternatively, ultra vires review is not available because Texas and Fasken had an alternative path to judicial review. Entities like Texas and Fasken who seek to intervene are guaranteed judicial review of either the Commission‘s denial of intervention or, if intervention has been granted, the Commission‘s final order arising from the licensing proceeding.
Also, Texas and Fasken‘s theory of ultra vires review would lead to major anomalies. For example, the Fifth Circuit purported to exercise original-rather than appellate-jurisdiction over these ultra vires claims. But as counsel for Fasken acknowledged at oral argument, no precedent supports bringing an ultra vires claim in a court of appeals in the first instance, rather than in a district court. Tr. of Oral Arg. 76.
In addition, Fasken argues (and Texas does not dispute) that the Hobbs Act‘s 60-day time limit for seeking judicial review would apply even under its ultra vires theory. Brief for Respondent Fasken 45. But Fasken does not explain how it makes sense for an ultra vires claim to be limited by the 60-day requirement yet not by the “party aggrieved” requirement in the very same sentence of the Hobbs Act.
We need not further prolong the discussion. Texas and Fasken may not maintain a nonstatutory ultra vires claim.
D
1
The dissent primarily focuses not on the threshold Hobbs Act reviewability issue on
Because Texas and Fasken have no right to judicial review of the licensing proceeding, the Court today need not and does not decide that statutory interpretation question. But we do briefly note, in response to the dissent‘s narrative, that history and precedent offer significant support for the Commission‘s longstanding interpretation. Contrary to the dissent, the Commission for about 50 years has read the Atomic Energy Act of 1954 to authorize storage of spent nuclear fuel at private off-site facilities. And this Court in 1983 and several Courts of Appeals have similarly interpreted the Atomic Energy Act of 1954 to authorize licenses for the storage of spent nuclear fuel. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm‘n, 461 U. S. 190, 207, 217 (1983); Bullcreek, 359 F. 3d, at 538 (collecting cases and stating that “it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of spent nuclear fuel).2
To spell it out some more: In 1980, the Commission adopted regulations that interpreted the 1954 Atomic Energy Act to authorize storage at private off-site facilities. Those regulations established licensing procedures for private on-site and off-site facilities. See
Energy Act.
In the ensuing 45 years, the Commission‘s regulations have continued to authorize storage of spent nuclear fuel, including at private off-site facilities. And both before and after the Commission‘s 1980 regulations, the Commission has in fact licensed those facilities. For example, one such facility, the GE Morris facility in Morris, Illinois, received a license in 1971 and obtained a renewed license following the 1980 regulations. See In re General Elec. Co., 22 N. R. C. 851, 853-854 (1985). Today, there are about 10 privately owned storage sites where there are no active nuclear reactors.
Importantly, in 1982 when enacting the heavily negotiated Nuclear Waste Policy Act, Congress was of course fully aware of the 1954 Atomic Energy Act and the Commission‘s 1980 regulations authorizing private off-site storage of spent nuclear
In that 1982 Act, Congress did not disturb the Commission‘s 1980 regulations or its practice of licensing temporary private off-site facilities under the Atomic Energy Act. In
When a license for a private off-site storage facility was later challenged in the D. C. Circuit, that court upheld the license and the Commission‘s 1980 regulations, finding them to be consistent with the 1954 Atomic Energy Act and the 1982 Act. Bullcreek, 359 F. 3d, at 537-538, 541-543. The D. C. Circuit reasoned that courts, including the Supreme Court, had “long . . . recognized” that the Atomic Energy Act “confers on the NRC authority to license and regulate the storage and disposal of such fuel,” including at private off-site facilities. Id., at 538. Then, after considering the text and structure of the 1982 Act, the D. C. Circuit further concluded that the 1982 Act‘s “text demonstrates that Congress did not intend to repeal or supersede the NRC‘s authority under the AEA to license and regulate private use of private away-from-reactor spent fuel storage facilities.” Id., at 542.
The dissent today first argues, however, that the Commission never had authority under the 1954 Atomic Energy Act to license on-site or off-site storage facilities. See post, at 10-13. But this Court has already rejected that interpretation of the Act. See PG&E, 461 U. S., at 207, 217; see also Bullcreek, 359 F. 3d, at 538.
And the dissent‘s theory that the Atomic Energy Act does not authorize storage of spent nuclear fuel anywhere would have extraordinary consequences. As was pointed out at oral argument, if that interpretation were correct, then it also would necessarily mean that private off-site facilities actually do not need a license to store spent nuclear fuel in the first place. (That is because, if spent nuclear fuel is not covered by the 1954 Act, then it follows that the Act does not prohibit its possession or use.) If that were the case, petitioner ISP could build the West Texas facility without even bothering to seek a license from the Commission. Although ISP might benefit somewhat from such a novel reading, it forthrightly stated at oral argument that “that‘s not a credible interpretation of the Atomic Energy Act.” Tr. of Oral Arg. 43.3
Regardless of the scope of the 1954 Atomic Energy Act, the dissent next says that the 1982 Act restricted storage of spent nuclear fuel to on-site and federal facilities. But as the D. C. Circuit explained in Bullcreek, the 1982 Act carefully
In short, the 1982 Act did not withdraw or displace the Commission‘s authority under the Atomic Energy Act (and the 1980 regulations) to authorize private off-site storage. On the contrary, the 1982 Act preserved pre-existing law on that issue. Simply put, the dissent seems to underread the 1954 Atomic Energy Act and to overread the 1982 Act.
Given all of that, it is perhaps no surprise that neither Fasken‘s intervention petition to the Commission nor Texas‘s comments to the Commission questioned the Commission‘s statutory authority to license private off-site storage of spent nuclear fuel. They raised other issues, but they did not question the Commission‘s statutory authority to issue a license for private off-site storage.
To be clear, because Texas and Fasken‘s claims are not judicially reviewable, we need not and do not decide the ultimate question of statutory authority that the dissent focuses on. So that there is no confusion, however, we underscore that in resting on the threshold reviewability issue, we are not somehow assuming or buying into a premise that the Commission is wrong on the underlying merits. The dissent‘s description of an agency that is flagrantly violating its governing statutes seems to be in substantial tension with about 50 years of consistent congressional action, agency practice, and judicial interpretation.
2
When it turns to the Hobbs Act reviewability question on which our decision rests, the dissent‘s analysis is unpersuasive, in our respectful view.
Under the Hobbs Act, as we have explained and the dissent acknowledges, Texas and Fasken may obtain judicial review of the licensing decision only if they were parties to the Commission‘s licensing proceeding. See post, at 18. The Atomic Energy Act—in particular,
The dissent claims that
Importantly, if a person or entity believes that the Commission wrongly denied it intervention, then it may obtain judicial review of the intervention decision. Here, Fasken obtained such judicial review in the D. C. Circuit, but lost. It cannot get a second bite at the apple on intervention in this litigation.
The dissent responds that the Commission‘s intervention regulations misinterpret
The dissent exudes a sense that Texas and Fasken have been treated unfairly. But the dissent wants to give Texas and Fasken a second or third bite at the apple on the intervention issue. To review: Texas and Fasken had ample opportunity to present their views on the proposed storage site to the Commission. They did so. And they had the opportunity to try to intervene before the Commission and become a party—and after being denied, to raise their arguments for intervention on appeal to the D. C. Circuit, and if unsuccessful there, to this Court. They did not prevail (or did not try) in those forums. And having not secured intervention, they were not parties to the licensing proceeding under
*
Texas and Fasken were not parties to the Commission‘s licensing proceeding and
It is so ordered.
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 23-1300 and 23-1312
NUCLEAR REGULATORY COMMISSION, ET AL., PETITIONERS
23-1300 v. TEXAS, ET AL.
INTERIM STORAGE PARTNERS, LLC, PETITIONER
23-1312 v. TEXAS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2025]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, dissenting.
By law, spent nuclear fuel may be stored on an interim basis in only two places: at a nuclear reactor or a federally owned facility. Disregarding those instructions, the Nuclear Regulatory Commission (NRC) issued an interim storage license to a private company, Interim Storage Partners, LLC (ISP), allowing it to store thousands of tons of spent nuclear fuel on its private property in Texas, hundreds of miles from the nearest reactor. The agency‘s decision was unlawful.
Still, the Court says, there is nothing we can do about it. Why? Because neither of the respondents before us is a “party aggrieved” by the agency‘s decision. Yes, the respondents are the State of Texas and Fasken Land and Minerals, Ltd., a landowner with property near the proposed facility. And, yes, they are “aggrieved” by the NRC‘s decision. Radioactive waste poses risks to the State, its citizens, its lands, air, and waters, and it poses dangers as well to a neighbor and its employees. But, the Court insists, the agency never admitted Texas or Fasken as “parties” in a hearing it held before issuing ISP‘s license—and that‘s the rub. Maybe the agency‘s internal rules governing who can participate in its hearing are highly restrictive. Maybe those rules are themselves unlawful. But, the Court reasons, its hands are tied: The agency did not admit Texas or Fasken as parties in its hearing, and that is that.
I cannot agree. Both Texas and Fasken participated actively in other aspects of the NRC‘s licensing proceeding. No more is required for them to qualify as “parties aggrieved” by the NRC‘s licensing decision. Both are entitled to their day in court—and both are entitled to prevail.
I
A
At the dawn of the atomic age, few worried about where to store spent nuclear fuel. The “prevailing expectation” was that it would be reprocessed and reused. Brief for Federal Petitioners 3 (citing Idaho v. Department of Energy, 945 F. 2d 295, 298 (CA9 1991)). Perhaps for that reason, Congress‘s first piece of major legislation regulating the nuclear power industry, the Atomic Energy Act of 1954 (AEA), 68 Stat. 919, did not address the storage of spent nuclear fuel. In fact, the AEA didn‘t mention spent nuclear fuel at all. The statute spoke about nearly everything else—from the construction of commercial nuclear reactors to their ownership and operation—but not spent nuclear fuel or its storage. Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm‘n, 461 U. S. 190, 206-207 (1983).
By the 1970s, things looked very different. Spent nuclear fuel was piling up, and there was nowhere to put it. The reprocessing industry had “collapsed.” Idaho, 945 F. 2d, at 298. Those developments presented the Nation with an acute problem. Spent nuclear fuel is “radioactive, explosive, and highly volatile,” and it can remain so for thousands of years. Brief for State of Idaho as Amicus Curiae 7. It can poison people and animals, render land and water unusable, and, should it fall into the wrong hands, it can be weaponized. See id., at 8.
Eventually, the Department of Energy selected Yucca Mountain in Nevada to serve as the permanent repository for spent nuclear fuel. And, in 1987, Congress amended the NWPA to endorse that choice, directing that Yucca Mountain should begin operations no later than January 31, 1998. See 101 Stat. 1330-227 to 1330-228,
That leaves the question what to do. Spent fuel must be stored somewhere. And, until recently, that somewhere has usually been where Congress directed—at reactors or federally owned facilities. Now, however, the NRC and ISP seek to experiment with a different solution.
In 2016, ISP‘s predecessor applied for a license to build and maintain an aboveground storage facility for at least 5,000 metric tons of spent nuclear fuel in Andrews County, Texas. App. 12. By way of reference, that is more than the amount of spent fuel currently stored at any other site in the country. Brief for Respondent Fasken 9. And ISP‘s plans include the possibility of storing much more on its land—up to 40,000 metric tons of spent fuel in all. 78 F. 4th 827, 843 (CA5 2023).
ISP‘s proposed site lies in the Permian Basin, an area about 250 miles wide and 300 miles long in western Texas and eastern New Mexico. App. 64-65. That area is “the largest producing oilfield in the world.” Id., at 118. It also includes aquifers that provide water to “dozens of counties in Texas and New Mexico.” Brief for Respondent Fasken 8. While storing so much spent fuel on private land controlled by a private company poses serious risks, transporting the waste there will be tricky, too. The company‘s property lies more than 300 miles from the nearest nuclear power plant, and more than 1,000 miles from most other reactors. Id., at 9.
Despite those risks, and despite the NWPA‘s mandate that spent nuclear fuel must be stored at reactors or federally owned sites, the NRC launched an administrative proceeding to consider ISP‘s request. And, at the end of it all, the agency issued a license to ISP authorizing it to store spent fuel at its site for 40 years. In doing so, the agency left open the possibility it might choose to extend that term even further. App. to Pet. for Cert. 53a-59a; App. 175.
B
Slogging through the steps the agency took between receiving ISP‘s application in 2016 and rendering a final decision approving the license in 2021 makes for less than easy reading. But those steps matter because of the way the Court chooses to dispose of this case, so bear with me.
But that “safety review” was just one piece of the puzzle. As the agency saw it, it also had to complete other tasks before issuing a license. Two are especially relevant here. One is what the agency called an “environmental review.” See, e.g.,
Start with the environmental review. The NRC said it could not issue a license without certifying that it had completed an environmental impact statement (EIS) that assessed “the potential environmental impacts of the proposed” license and weighed alternatives, including the possibility of “no-action.”
After the agency published its draft EIS for public comment, Texas answered the call. Writing on behalf of the State, Governor Greg Abbott warned that storing spent fuel on “a concrete pad” in an oilfield containing more than 40% of America‘s proven oil reserves would be “dangerous.” App. 118. He expressed concern that an accident or an act of terrorism could harm “the entire country.” Id., at 122. For all these reasons and more, he asked the NRC to “deny ISP‘s license application.” Id., at 121-122. The Texas Commission on Environmental Quality also provided comments expressing concern that, by authorizing private “interim” storage for 40 years (and perhaps longer) without addressing what should happen next, the NRC was effectively ignoring Congress‘s directive that Yucca Mountain should become the Nation‘s permanent repository for spent nuclear fuel. Id., at 206.
Fasken offered comments, too. Fasken owns hundreds of thousands of acres in the Permian Basin, where it grazes cattle and operates oil and gas wells. Brief for Respondent Fasken 9. In its comments, the company highlighted what, in its view, constituted “systemic regulatory failures in multiple areas of the” draft EIS. App. 126; see id., at 123-168. Fasken also warned of threats “to the environment of West Texas and the Permian Basin” presented by ISP‘s plans. Id., at 186.
When it published its final EIS, the agency explained that it was doing so “as part of the NRC‘s process to decide whether to issue a license to ISP.”
Turn now to the other task the agency said it had to complete: the
Fasken sought to take advantage of this opportunity as well. In response to the Federal Register notice, it submitted two filings: A motion to dismiss and a petition for hearing. See In re Interim Storage Partners, LLC, 90 N. R. C. 31, 43-44 (2019). But instead of granting Fasken a hearing, the agency invoked its own internal rules to keep the company out of that process. As the agency saw it, Fasken had failed to meet its standards for “intervention” and had failed to advance any “admissible contention” under its rules. Id., at 38, 52-54, 109-118; see also
Eventually, Fasken went to court to challenge the agency‘s various decisions preventing it from obtaining a hearing under
More than five years after the NRC began the work required to pass on ISP‘s application—including its safety review, environmental review, and the
That package included a preamble in which the agency recited the various findings necessary to issue the license. App. 284; cf. id., at 277. Among those findings was a conclusion that “issuance of this license is in accord with
After the agency issued its decision, Texas and Fasken petitioned the Fifth Circuit for review, arguing that the NRC lacked legal authority to license ISP‘s facility. That court agreed with Texas and Fasken and vacated the NRC‘s decision. 78 F. 4th, at 844. The agency and ISP then sought review of the Fifth Circuit‘s decision, and we agreed to take the cases. 603 U. S. ____ (2024).
II
With that background in mind, turn first to the question whether the NRC may license a private company to store spent nuclear fuel, not at a reactor or on federal land, but on its own private property. This “interim” license runs for 40 years—subject to renewal. Can the agency lawfully issue such a license?
A
The answer is not hard to come by. The NWPA authorizes only two places where spent nuclear fuel may be stored on an “interim” basis—at reactor sites or on federal property. See
Given Congress‘s emphatic instructions, how did the NRC come to the view that it possesses authority to do what the NWPA forbids? It‘s a convoluted story. Before the NWPA‘s adoption in 1982, the agency observes, the AEA represented Congress‘s primary legislation in the field of civilian nuclear power. And, the agency says, it issued regulations pursuant to that statute in 1980 contemplating licenses like ISP‘s. See
That argument is unpersuasive. Agencies are creatures of statute, and they have no authority to dispense licenses except as Congress provides. See West Virginia v. EPA, 597 U. S. 697, 723 (2022). And nothing in the AEA authorizes the NRC to license the storage of spent nuclear fuel at private, offsite facilities like ISP‘s. Just recall: At the time of the AEA‘s enactment in 1954, most assumed that spent nuclear fuel would be reprocessed and reused, not stored for millennia. See Part I-A, supra. Reflecting that assumption, the AEA did not even mention spent nuclear fuel, let alone address its storage. Ibid. Congress first provided for the storage of spent nuclear fuel only in 1982, with the adoption of the NWPA. And that statute forbids, not authorizes, licenses like ISP‘s.
In the past, the NRC itself has acknowledged as much. In 1978, the agency‘s chairman recognized that the AEA did “not explicitly authorize the regulation of radioactive waste facilities.” NRC, Regulation of Federal Radioactive Waste Activities, p. G-9 (NUREG-0527, Sept. 1979); see also Brief for Respondent Fasken 3. And in the same 1980 regulations the NRC
B
To be sure, the NRC (now) has a theory why the AEA authorizes it to issue regulations regarding the storage of spent nuclear fuel and grant licenses like ISP‘s. The agency points to three provisions of the AEA that allow it to issue licenses to entities seeking to “possess . . . special nuclear material,”
The agency‘s theory may get marks for creativity, but it fails for at least three independent reasons.
First, it‘s hard to see how the power to license the use of “special,” “source,” and “byproduct” material amounts to a power to license the storage of spent nuclear fuel. In briefing before us, even the agency admits that spent fuel “is a substance different from any one of its constituent parts,” Reply Brief for Federal Petitioners 13, n. 2. And Congress itself has defined those terms very differently. Under the NWPA, spent nuclear fuel must “ha[ve] been withdrawn from a nuclear reactor following irradiation” and must not have undergone “reprocessing.”
Elsewhere, too, Congress has distinguished spent nuclear fuel from special, source, and byproduct materials. While the AEA as enacted in 1954 said nothing about “spent nuclear fuel,” in 1988 Congress amended that law to incorporate the NWPA‘s definition of the term. See 102 Stat. 1069. So, today, the AEA authorizes the NRC to ensure that certain “byproduct materials, source materials, special nuclear materials, [and] spent nuclear fuel transferred in the United States are done so in a specific manner.”
If more evidence were needed, the 1980 regulations on which the NRC now seeks to rely would provide it. There, the agency explained its view that “[s]pent fuel includes the special nuclear material, byproduct material, source material, and other radioactive materials associated with fuel assemblies.”
The agency admits that the AEA does not expressly authorize it to issue licenses for storage. See Brief for Federal Petitioners 32-34. But, it replies, the statute does so implicitly. For support, the agency points to the fact that the provisions discussing “special,” “source,” and “byproduct” material each contain a “catchall.” Ibid. So, for example,
Third, even assuming (against all the evidence) that the AEA once might have implicitly authorized the NRC to grant licenses like the one at issue here, it cannot be fairly read to do so after Congress adopted the NWPA in 1982. If the AEA spoke at all to the storage of spent nuclear fuel, it did so elliptically and without offering any specifics about what sort of storage might be appropriate. The NWPA, by contrast, speaks directly to spent nuclear fuel and the question of its storage. In doing so, that law makes plain that only two kinds of “interim” storage sites are permissible. And knowing that much is enough to know that the NWPA must govern, for it is a “familiar” rule of statutory construction “that a specific statute controls over a general one.” Bulova Watch Co. v. United States, 365 U. S. 753, 758 (1961) (internal quotation marks omitted); accord, Morton v. Mancari, 417 U. S. 535, 550-551 (1974); contra, ante, at 20, n. 3 (mistakenly suggesting in dicta that the NWPA “simply grant[ed]” the NRC “additional” authority).
Really, any other conclusion would make a mockery of Congress‘s work in the NWPA and risk rendering it a dead letter. What was the point of legislation specifying two and only two appropriate sites for the interim storage of spent fuel if the NRC possesses the power to authorize interim
storage wherever it thinks best? And what was the point of Congress later amending the
In short, Texas and Fasken are right. The law does not permit the NRC to license private companies to store spent nuclear fuel at private, away-from-reactor facilities. The
C
Despite insisting that we lack jurisdiction to reach the merits of Texas‘s and Fasken‘s claim, the Court proceeds to devote a healthy section of its opinion to the merits anyway. See Part II-D-1, ante. That is surely a curious choice, for anything the Court might say about the merits of a case over which it lacks jurisdiction is pure dicta. Cf. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95 (1998). Maybe worse, the Court‘s dicta is simply wrong. The Court argues that the NRC‘s decision to issue a license to ISP is justified by “history and precedent.” Ante, at 17. Yet neither the Court‘s (revisionist) history nor its (irrelevant) precedent can imbue the NRC with novel authority that appears nowhere in any statute.
Take precedent first. According to the Court, we and others have “interpreted the
History doesn‘t get the Court any further. As the Court sees it, the NRC must have the power to issue licenses to facilities like ISP‘s because it has done so in the past. But no agency can exercise power without lawful authority, and repeating a wrong does not make it right. Notice, too, what the Court has to say about the agency‘s past practices: “[T]here are about 10 privately owned storage sites where there are no active nuclear reactors.” Ante, at 18. That careful phrasing obscures that none of those facilities is anything like ISP‘s. Eight facilities seemingly included in the Court‘s count are not “offsite” storage sites at all, but “privately owned nuclear reactor sites that have ceased . . . reactor operations.” Brief for Federal Petitioners 6. Meanwhile, the GE Morris facility was initially built to serve as a reprocessing facility and only became a storage facility by default after reprocessing collapsed. See Brief for Don‘t Waste Michigan et al. as Amici Curiae 12.
One other aspect of the Court‘s merits analysis warrants mention. In the Court‘s view, if the
To the contrary, the
III
Without any persuasive argument on the merits, the NRC urges the Court to dismiss Texas‘s and Fasken‘s claims on jurisdictional grounds. Ultimately, the Court does just that and thus paves the way for the agency to issue its misbegotten license. As the Court sees it, Texas and Fasken cannot challenge the NRC‘s decision in court because they failed to jump through the right hoops before the agency.
The Court‘s reasoning follows this path: Texas and Fasken seek judicial review under the
In reaching that conclusion, the Court does not (and cannot) question that Texas and Fasken have much at stake. ISP‘s plan to store radioactive waste in the Permian Basin threatens harm to their citizens and employees, poses risks to their lands, air, and waters, and will diminish the value of Fasken‘s property. See Part I-B, supra. Even the NRC has acknowledged that Fasken‘s interests might be affected by ISP‘s license, 90 N.R.C., at 51-52, and the agency does not dispute that the same holds true for Texas. Doubtless, Texas and Fasken are “aggrieved.”
Still, the Court reasons, neither Texas nor Fasken are “parties” aggrieved by the NRC‘s decision to issue ISP‘s license. Ante, at 8. The agency may have solicited
A
I see things differently. Lower courts have often assumed the phrase “party aggrieved” in the
Doing so raises a few questions. First, what was the “final order” in this action? Plainly, the NRC‘s licensing decision. Second, what were the “proceedings before the agency preliminary to issuance of [that] order?” Simmons, 716 F.2d, at 42. As we have seen, the NRC‘s licensing proceeding comprised several parts—including the safety review, environmental review, and a
To my mind, that answer resolves this case. Focus on the agency‘s environmental review. Remember, that review was an essential component of its licensing proceeding. See Part I-B, supra. The NRC itself admits that it could not sign off on ISP‘s license without completing an environmental impact statement weighing alternatives to ISP‘s proposal, including the possibility of denying it. Ibid. Reflecting as much, the agency‘s final license “package” included a preamble in which the agency recorded various findings, including a finding that it had completed a final EIS. Ibid. The package also included a “concise public record of decision” outlining the findings of the agency‘s final EIS, incorporating that document by reference, and reporting its conclusion that ISP‘s license application should be granted. Supra, at 8 (citing
Texas and Fasken were parties to that component of the agency‘s licensing proceeding. After preparing a draft EIS, the agency solicited comments from the public. Part I-B, supra. Both Texas and Fasken offered extensive comments, raising warnings about the impact of ISP‘s intended project on land, water, oil and gas reserves—and people. Ibid. The agency accepted those comments and undertook to address them in its final EIS. Ibid.
That is enough to make Texas and Fasken “parties” to “any proceedings before the agency preliminary to issuance of” the challenged order. Simmons, 716 F.2d, at 42. In “administrative proceedings” contemplating “notice-and-comment,” lower courts have long said that “commenting” qualifies an individual as a “party” for purposes of the
B
For its part, the Court seems to consider Texas‘s and Fasken‘s participation in the agency‘s environmental review irrelevant. As I understand it, the Court thinks that, to “qualify as a party,” Texas and Fasken also had to “successfully intervene” in the agency‘s
I fail to see why. By the terms of one statute and set of regulations, the agency may have had to offer a public hearing. But by the terms of other statutes and regulations, the agency also had to conduct, among other things, an environmental review and a safety review. Each of these steps, the agency insists, was necessary before it could reach a decision on ISP‘s license application. See Part I-B, supra; see also, e.g., 81 Fed. Reg. 79532. And all of the agency‘s various tracks of review culminated in a single decision. Indeed, the agency incorporated the conclusions of each into its final license “package.” Part I-B, supra. And without doubt, Texas and Fasken participated as parties in the environmental-review portion of the agency‘s licensing proceeding. Ibid. The
That conclusion is confirmed by the terms of
More than that, the statute‘s terms preclude any interpretation conflating a hearing before the agency with the licensing proceeding itself. The statute provides that the “hearing” occurs “[i]n any proceeding . . . for the granting . . . of any license“—that is to say, in an overall licensing proceeding. The statute does not say that the hearing is the licensing proceeding. Surely, too, that is as it must be. Under
A corollary to the presumption favoring judicial review only serves to bolster that conclusion. “[A]bsent clear statement,” this Court does not read legislation “to place in executive hands authority to remove cases from the Judiciary‘s domain.” Kucana v. Holder, 558 U.S. 233, 237 (2010). The reason for that rule is obvious. Allowing agencies to decide who can challenge their work in court is like letting the fox guard the henhouse: Given the opportunity, agencies are likely to ensure nothing survives.
This case illustrates the risk. Section 2239 promises that the NRC “shall grant a hearing upon the request” of anyone who “may be affected” by a proposed license and “shall admit any such person as a party to such proceeding.” By any measure, Fasken satisfied the law‘s terms. It sought to participate, and the agency concluded that it qualified as a “person whose interest may be affected.” See 90 N.R.C., at 47, 52. From that, it followed that the NRC had to “admit” Fasken as “a party.”
Despite that mandate, the agency (again) charted its own course. It developed restrictive internal rules regulating who may “intervene” in its hearing and what “contentions” it considers “admissible.” See supra, at 7 (citing
By that series of steps, the agency effectively seeks to control who may challenge its decisions in court—and ensure that the answer is no one. Perhaps, as the Court observes, Fasken could have challenged the agency‘s internal regulations restricting who may participate in a
*
The