Judge James Ho is not a nuclear scientist, an expert in energy policy, an atomic engineer, or anyone else with any specialized knowledge whatsoever on how to store and dispose of nuclear waste.
Nevertheless, Ho and two of his far-right colleagues on the United States Court of Appeals for the Fifth Circuit just put themselves in charge of much of America’s nuclear safety regime — invalidating the power of actual nuclear policy regulators to decide how to deal with nuclear waste in the process.
The case is Texas v. Nuclear Regulatory Commission (NRC), and it involves the NRC’s decision to license a temporary storage facility for “high-level spent nuclear fuel” in Andrews County, Texas. Several plaintiffs, including Texas’s Republican government, disagreed with the decision to locate this facility in Texas, and they sued.
Nearly 20 years ago, two other federal appeals courts heard similar lawsuits challenging the NRC’s authority to select facilities for nuclear waste storage. In both of those suits, the courts rejected those challenges and sided with the NRC. It’s understandable why many Americans may not want spent nuclear material to be stored in their home state, but this material needs to go somewhere, and Congress explicitly gave the NRC the power to license facilities where it may be stored.
Three different provisions of federal law give the NRC the power to “issue licenses” permitting facilities to store different forms of nuclear materials. These provisions are broadly worded. One permits the NRC to license such facilities for any use “the Commission determines to be appropriate to carry out the purposes” of a broader atomic energy law. Another permits the agency to license such facilities for “any” use “approved by the Commission as an aid to science or industry.”
Nevertheless, Ho and his fellow Republican-appointed colleagues conclude that the NRC’s decision to license the Andrews County facility was illegal for at…
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