Texas told the Supreme Court on Wednesday that permitting a temporary license for private aboveground storage of nuclear waste in the western part of the state would be like putting a “terrorist bull’s-eye” on top of an oil field.
Texas Solicitor General Aaron L. Nielson asked the justices not to allow the federal government to grant a license to a private company looking to store nuclear waste in West Texas near a current low-level radiological waste facility located in Andrews County.
Mr. Nielson said it would be like putting “a permanent terrorist bull’s-eye on the nation’s most productive oil field.”
The comment resonated with Justice Brett M. Kavanaugh, who said the “terrorist bull’s-eye” comment was “distinct language.”
“We have known of that at least since Sept. 11, 2001,” said Justice Kavanaugh, a Trump appointee.
Texas was at the court defending a 5th U.S. Circuit Court of Appeals ruling against the Nuclear Regulatory Commission’s grant of a private license to temporarily store the nuclear waste with Interim Storage Partners.
The company got the license about six years ago, but the project has been caught up in the courts. The company and the federal government both appealed to the high court.
If Texas loses the case, then nuclear waste could be transported hundreds of miles across the country to temporary storage sites.
Texas has protested the plans, saying they run afoul of federal law and that a temporary license cannot be granted to a private company in this manner.
Texas argues that Congress had authorized Yucca Mountain in Nevada as the designated site for nuclear waste storage and while that plan has stalled, there has not been another clear site identified. Mr. Nielson said it is up to Congress to make a new designation.
“Yucca Mountain was supposed to be the permanent solution,” said Justice Neil M. Gorsuch, a Trump appointee. “We spent something like $15 billion on it and it’s a hole in the ground.”
Justice Gorsuch also pushed back on the nature of the temporary license, noting it is granted for 40 years.
“That doesn’t sound very interim to me,” he said.
Deputy U.S. Solicitor General Malcolm L. Stewart said the waste has to stay somewhere until there is a permanent solution.
“The repository is intended to keep nuclear waste storage safely,” Mr. Stewart said, defending the Nuclear Regulatory Commission’s grant of the license to Interim Storage Partners. “Private enterprises are trying to come up with interim solutions to the nuclear waste storage dilemma.”
“Hopefully, we won’t have radiated oil and gas,” Justice Gorsuch said.
Justice Samuel A. Alito Jr. asked Brad Fagg, the lawyer representing Interim Storage Partners, about a permanent solution for the nation’s growing nuclear waste.
“Why was this location chosen?” said Justice Alito, a George W. Bush appointee. “Do you have a prediction of when there might be a permanent storage facility?”
“I would be kidding myself and the court if I said I had a date,” said Mr. Fagg.
The cases are Interim Storage Partners v. Texas and Nuclear Regulatory Commission v. Texas.
A decision is expected by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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