Chief Justice John Roberts (07:47):
[inaudible 00:07:47]. We will hear argument this morning in Case 23-1300, Nuclear Regulatory Commission versus Texas, and the consolidated case. Mr. Stewart.
Mr. Stewart (07:56):
Thank you, Mr. Chief Justice, and may it please the court.
(07:59)
First, the petitions for review should be dismissed because neither Texas nor Fasken was a party to the NRC licensing proceedings. Texas did not try to intervene in the agency adjudication. Fasken moved to intervene, but its request was denied and the DC Circuit affirmed the denial. And there is no sound basis for the Fifth Circuit's ultra vires exception to the Hobbs Acts party aggrieved requirement. If the court reaches the merits, it should reverse the Court of Appeals' judgment.
(08:27)
The Atomic Energy Act prohibits the unlicensed possession of spent nuclear fuel's constituent parts, while authorizing the commission to license private interim storage of those substances. The Nuclear Waste Policy Act left that scheme intact, and since 1980 the NRC's regulations have provided for both on site and off-site storage. That system allows a substantial role for private market responses to the country's nuclear waste storage issues, subject to commission oversight to ensure that storage is safe and consistent with statutory requirements.
(09:03)
I welcome the Court's questions.
Justice Clarence Thomas (09:05):
Mr. Stewart, what does it take to be a party in these proceedings?
Mr. Stewart (09:09):
In an adjudication, you would need to intervene, and the Commission's rule set out the process for intervention.
Justice Clarence Thomas (09:17):
So, when can an interested person intervene?
Mr. Stewart (09:23):
The Commission's rule set out two requirements. One is that basically a standing requirement, and that is essentially that you be an interested person, that your interest be affected by the outcome. And second, the Commission's rules require what's called an admissible contention. And the rules were changed in 1990, the changes were upheld by the DC Circuit, and basically the problem the commission had confronted was that it would get requests to intervene accompanied by very vague assertions.
Justice Clarence Thomas (09:51):
But, so aside from the substance, when can you intervene? When can an interested person intervene?
Mr. Stewart (09:59):
Essentially, the commission will issue notice that a licensing proceeding is underway or will soon be underway, and then it will give a certain amount of time for parts-
Justice Clarence Thomas (10:10):
How much? How much time?
Mr. Stewart (10:11):
I think it was 60 or 90 days to give notice of your intent to intervene, and then there were written submissions. The Atomic Safety and Licensing Board passed in the first instance on various requests to intervene, and then there was an appeal available to the full commission. And then Fasken sought judicial review of the Commission's denial of its request to intervene.
Justice Elena Kagan (10:35):
The regulation that you cited, how was that supported by the statutory language?
Mr. Stewart (10:40):
The DC Circuit in the case Union of Concerned Scientists that I referred to a moment ago, I think it's a 920 F Second, said that this was an aspect of agency's traditional broad authority to regulate their own procedures, and as I-
Justice Elena Kagan (10:57):
Because it seems to go beyond the statutory language itself. Is that correct? Do you agree with that?
Mr. Stewart (11:01):
I agree that the statutory language in itself would not impose this requirement, and the Commission's prior rules had not done so.
Justice Neil Gorsuch (11:08):
And in looking at the statutory language, Mr. Stewart, it says that any person who requests a hearing and their interests are affected, shall be admitted. That's a mandatory obligation, as I read it. And Fasken, their interest is affected and they requested a hearing. Those things are undisputed, right?
Mr. Stewart (11:28):
Yes.
Justice Neil Gorsuch (11:29):
So, help me with Justice Kagan's question.
Mr. Stewart (11:33):
I guess the two things I would say were first, when Fasken appealed to the DC Circuit from the denial of its request to intervene, it didn't make the argument that the Commission's rules were invalid or it had a statutory right-
Justice Neil Gorsuch (11:47):
Well, it said it had a statutory right to intervene. And I read the DC Circuit opinion, it didn't address that argument at all.
Mr. Stewart (11:55):
It has said that it has a right to intervene, but it was asserting that right under the Commission's own rules. And I guess the second thing I would say is, at most, the argument you're suggesting would imply that Fasken ought to have been allowed to intervene, it ought to have been made a party. But the fact is, it wasn't.
Justice Elena Kagan (12:13):
He could have thought it was futile, given the DC Circuit precedent on the question, yes?
Mr. Stewart (12:19):
Well, it could have thought… The arguments that Fasken made were actually that it was entitled to intervene under the Commission's own rules. It was not arguing that the rules imposed an invalid, extra statutory requirement. So, it had no reason to think that that was invalid, but-
Justice Neil Gorsuch (12:37):
Actually, I've got it before me and it says that they're entitled… NRC abused its discretion acted arbitrarily and capriciously in an excess of statutory jurisdiction by not admitting them. And it goes on to talk about the policies and regulations, but it cites the statute in its petition for review. And again, the DC Circuit didn't address it.
Mr. Stewart (12:58):
I guess the other thing I'd say is, they could have sought en banc review, they could have sought certiorari review, and what they are in essence doing-
Justice Neil Gorsuch (13:04):
Is your argument essentially one from issue preclusion then? Is that the nature of your argument, that that was litigated in another form and therefore that they're bound by it?
Mr. Stewart (13:13):
I think, yes, in the sense that-
Justice Neil Gorsuch (13:15):
Okay, if it is issue preclusion then, you didn't argue issue preclusion below.
Mr. Stewart (13:20):
Well, what we have argued-
Justice Neil Gorsuch (13:20):
And you haven't argued it here.
Mr. Stewart (13:21):
Well, we have not put the issue preclusion label on it. We did say in our reply brief, they can't collaterally attack the DC Circuit's decision upholding the denial of intervention. But we-
Justice Neil Gorsuch (13:33):
Isn't it your burden to show that issue preclusion applies?
Mr. Stewart (13:36):
Well, I mean, I think it would be our burden-
Justice Neil Gorsuch (13:39):
Isn't that normally the case that the parties seeking issue preclusion has to bear the burden of proving it?
Mr. Stewart (13:46):
I think what they have… Our focus has always been on the fact that they did not in fact become parties. And Fasken has never contested that.
Justice Neil Gorsuch (13:55):
Well, can you answer my question though? The party seeking issue preclusion bears the burden of proving it?
Mr. Stewart (14:00):
Yes, typically so.
Justice Ketanji Brown Jackson (14:01):
Mr. Stewart, can you explain this issue preclusion? What is your understanding of Justice Gorsuch's question? Because I'm not sure I see it as issue preclusion. So, help me to figure that out.
Mr. Stewart (14:12):
Well, I think if the question is… First, our position would be, the question should be, did Fasken in fact intervene in the proceedings and become a party? And it didn't. But even if the question is, should Fasken have been allowed to intervene? Was Fasken improperly denied a right to intervene that it had under the statute? The DC resolved that issue against it and it didn't seek direct review of that determination, either before the en banc DC Circuit or before this court.
Justice Ketanji Brown Jackson (14:44):
And I guess for us to consider that to be issue preclusion that has some bearing on this proceeding, we would be suggesting that a party could make some sort of a collateral challenge to their party status through this route. In other words, you're saying procedurally, the DC Circuit made a ruling about whether or not Fasken was entitled to intervene. They did not, they, Fasken, did not seek rehearing en banc, did not seek cert. But I suppose to the extent now that we are considering their party status, I guess, there's a suggestion that maybe they should be able to raise that issue in this proceeding.
Mr. Stewart (15:28):
Yes, and I think that's not the way it would work in district court litigation. For instance, if a party moved to intervene in a district court proceeding and was denied intervention, if it wanted to become a party, it would need to appeal from the denial of intervention. And if it appealed from the denial of intervention and lost again in the Court of Appeals, it couldn't simply take an appeal from the district court's ultimate merits ruling and ask the court on that appeal to hold that the prior decision denying it leave to intervene had been erroneous.
Justice Ketanji Brown Jackson (15:59):
Thank you.
Chief Justice John Roberts (15:59):
Counsel, we don't normally require parties to seek en banc review or seek cert before, and forfeit rights at the expense of not doing so. I would hate to say the rule is you've got to seek cert in every time you want this type of thing to be applied.
Mr. Stewart (16:16):
Well, I think what Fasken is essentially attempting to do here, at least in part, is to ask the court in this proceeding to rule on the question of whether it had a statutory right to intervene and whether it was wrongly denied a review. And if Fasken thinks that's the sort of issue that warrants this court's attention, then it should have sought [inaudible 00:16:38] directly.
Chief Justice John Roberts (16:39):
Well, I mean, maybe it doesn't think it warrants this court's attention because there's no split or the usual criteria that we have for cert, but I don't think it's part of an exhaustion requirement that you've got to seek en banc review and certiorari. That's pretty, I mean, I think that's unusual. Those remedies are strictly limited and may not at all be applicable to what is nonetheless a perfectly valid legal claim.
Mr. Stewart (17:01):
Well I think in general, if you have a court of appeals decision that comes out against you and you want the court in some future proceeding to kind of behave on the assumption that that decision was wrong, you really need to seek whatever form of review is available at that time, rather than ask the court in the subsequent proceeding to hold that the former court got it wrong.
Justice Sonia Sotomayor (17:24):
What happens in a normal-
Justice Samuel Alito (17:25):
Why should-
Justice Sonia Sotomayor (17:25):
I'm sorry.
Justice Samuel Alito (17:25):
Go ahead.
Justice Sonia Sotomayor (17:27):
What happens in a normal litigation? Let's assume it's not an agency. There's a motion to intervene by a party. Are they require to appeal?
Mr. Stewart (17:39):
Yes, if they want to become parties, if they are denied intervention and they want to have the rights and obligations that go with party status in the underlying litigation, they would need to appeal from the denial of intervention. And if they lost there, they couldn't take an appeal from the merits judgment in the case and essentially ask for a second bite at the apple, ask the court of appeals in the merits appeal to revisit the question of whether intervention should be granted.
Justice Samuel Alito (18:06):
[inaudible 00:18:07].
Justice Sonia Sotomayor (18:06):
We would never have any ending to litigation if parties who want to intervene could come in at any point in time, even after judgment, raising new issues, when they weren't parties below.
Mr. Stewart (18:19):
Yes.
Justice Samuel Alito (18:21):
Why shouldn't Fasken have been allowed to intervene? If this had been a civil proceeding, he certainly would've met the requirements for intervention, would it not?
Mr. Stewart (18:34):
Yes, yes.
Justice Samuel Alito (18:36):
He would meet Rule 24, right?
Mr. Stewart (18:38):
Yes.
Justice Samuel Alito (18:38):
So, why was he kept out of this?
Mr. Stewart (18:42):
Basically because the commission or the, yeah, first, the Atomic Safety and Licensing Board, and then the Commission found that Fasken had failed to raise a genuine issue of law or fact. And it's important to realize that the issues that Fasken was trying to raise as an intervener were very different from the one that is at issue now. Fasken was not arguing at that stage that the NRC lacked statutory authority to license off-site storage. It was making much more fact-specific environmental objection. Sorry, much more fact specific environmental objections to the project.
Justice Sonia Sotomayor (19:21):
Did the state raise the issue it's raising today in any of the proceedings below?
Mr. Stewart (19:27):
Not in the agency proceedings. It raised the statutory argument in the court of appeals, but not the-
Justice Sonia Sotomayor (19:33):
Not before the agency.
Mr. Stewart (19:36):
And the state didn't even attempt to intervene in the agency licensing proceeding.
Justice Sonia Sotomayor (19:40):
And they have an absolute right to intervene?
Mr. Stewart (19:42):
They don't have an absolute right to intervene, there are more, I would say, forgiving, or more hospitable standing requirements for the state. But the state still has to identify an admissible contention under the NRC's intervention rules.
Justice Ketanji Brown Jackson (19:58):
Would you say that one of the purposes of the party requirement in the Hobbs Act is to ensure that issues are raised before the agency?
Mr. Stewart (20:10):
I would say that is a purpose. I would also have to concede that the purpose is achieved imperfectly, because the Hobbs Act doesn't have what is sometimes referred to as an issue exhaustion requirement. That is, the Hobbs Act requires that you be a party, but at least under the terms of the statute, there is no requirement that as a party you raise the same issue that you want to raise in court.
Justice Neil Gorsuch (20:34):
Mr. Stewart, I understand your argument to be that the party aggrieved language in the Hobbs Act is narrower than the person adversely affected language in the APA. Is that right?
Mr. Stewart (20:45):
Yes.
Justice Neil Gorsuch (20:47):
Would anything prohibit Fasken or Texas from bringing an APA challenge in district court as persons aggrieved?
Mr. Stewart (20:56):
I think the exclusive review scheme of the Hobbs Act would do that, unless the court concluded for some reason that the Hobbs Act review scheme was inadequate and that the exclusivity of the court of appeals review scheme should be accepted for that, made an exception to for that reason.
Justice Neil Gorsuch (21:16):
Okay. The ultra vires argument perhaps could be brought there, you think?
Mr. Stewart (21:21):
I don't think ultra vires really maps on to what the court has looked to at least recently, because the ultra vires exception turns on, how bad is the agency error alleged to be or did it represent an exercise of authority that the agency doesn't have? Whether that is so or not doesn't really speak to the question, whether the Hobbs Act review mechanism would be adequate to address the sort of error.
(21:48)
If I may, I'd like to address the merits.
Justice Elena Kagan (21:51):
If I could ask you one more, Mr. Stewart.
Mr. Stewart (21:52):
Sure.
Justice Elena Kagan (21:53):
I mean, I take your points that the issue before us is not whether there was proper intervention here, whether the intervention should have been given. But still, isn't it a little bit odd to say that the agency whose action is being challenged in court has so much control by virtue of its regulatory, its regulations on intervention, to dictate who gets to challenge the action?
Mr. Stewart (22:20):
Well, I think the agencies will always have some control. So for instance, if you have to comply with agency rules and notice and comment proceedings in order to file suit in court, the agency may say, "Submit comments within 90 days, and submit them to the following email address." And if you try to submit comments but they're untimely or they go to someone else, that may affect the court's review authority.
(22:43)
The other thing I would say in this particular setting is, there was an alternative route available for judicial review of the current statutory claim that didn't require intervention in the licensing proceedings. Fasken or Texas could have filed a petition for rulemaking and it could have asked under the Commission's rules that the licensing proceeding be set, be held in abeyance. And that's not just a theoretical option, if the papers are on the merits are full of references to the DC circuit's decision in Bullcreek, which about 20 years ago upheld the Commission's statutory authority to license offsite storage of spent nuclear fuel. And that was the procedural route that the state of Utah took to get to the DC Circuit. It filed a petition for rulemaking, asking that the commission rules that authorize offset storage be modified because they were inconsistent with the statute. The Commission denied that petition and Utah filed a petition for review of that denial in the DC Circuit. And they didn't get the merits outcome they wanted, but they got plenary judicial review of the merits question, did the commission have the statutory authority that it claimed?
Justice Neil Gorsuch (23:54):
Mr. Stewart on the merits, I do have a question for you. So Yucca Mountain was supposed to be the permanent solution. Congress, so ordained, I think it said it had to be done by 1998. No president has complied with that in all the years since. We've spent something like $15 billion on it, it's a hole in the ground. And parties seem to think the Yucca Mountain project's dead.
(24:19)
And if that's true and there's no different permanent repository, how is this interim storage that the government is authorizing here in any meaningful sense, and especially when I think ISP's given a 40-year license. That doesn't sound very interim to me.
Mr. Stewart (24:38):
well-
Justice Neil Gorsuch (24:38):
And it's renewable too, apparently.
Mr. Stewart (24:40):
It is renewal, if they applied for a renewal of the license, there would be a new commission adjudication and to the extent-
Justice Neil Gorsuch (24:47):
40 years from now.
Mr. Stewart (24:48):
40 years from now, and to the extent there were changed circumstances that cast out on the propriety of this arrangement, the commission would be able to speak to that. I don't mean to seem glib, but the repository is intended to keep nuclear waste stored safely for-
Justice Neil Gorsuch (25:05):
Yeah, on a concrete platform in the Permian Basin, where we get our oil and gas from. So, hopefully we won't have radiated oil and gas.
Mr. Stewart (25:13):
And of course, that was an objection that the state and Fasken made, but that's not the question that is before the court today.
(25:20)
The other point I would make about who bears responsibility for the delay and what we should do about it, is that the people who absolutely don't bear responsibility for the delay are people like ISP, people, private enterprises who are trying to come up with interim solutions to the nuclear waste storage dilemma. And it's not that the Commission decided itself that this facility would be located in West Texas. ISP came up with a proposal, it filed a license application, and even if the license is upheld, ISP will actually be able to store spent nuclear fuel only if it can work out contracts with the people who control the waste now. And they work out what is for both parties an economically beneficial arrangement. And so, the Commission's role is to decide whether this is safe and consistent with the statute, but the respondents' position would place roadblocks in the way of people like ISP and people like those who currently control the nuclear waste trying to devise market-oriented solutions to the problem.
Chief Justice John Roberts (26:28):
Thank you Counsel. Justice Thomas?
Justice Clarence Thomas (26:32):
Mr. Stewart, I do think it's somewhat strange that the NRC gets to choose which parties are able to challenge it later on. But with that aside, what's your argument that the Nuclear Regulatory Commission has the authority to establish to store nuclear waste offsite
Justice Clarence Thomas (27:00):
… by a private party.
Mr. Stewart (27:01):
Well, there are, really, in a sense, five pertinent statutory provisions here. The relevant constituent parts of spent nuclear fuel are source material, special nuclear material, and by-product material. And for each of those constituents, there is a statutory provision that says the unlicensed receipt, use, or possession of this substance is illegal. But then for each of those, there's a cognate provision that says, but the commission can issue a license for private storage if certain criteria are satisfied and if the commission issues a license for private storage of each of the three constituent parts, it can do it in the same license. And that adds up to a license to possess spent nuclear fuel.
Justice Clarence Thomas (27:47):
Does it say permanent off-site by a private person who is not a nuclear power plant, for example, but simply storage?
Mr. Stewart (27:59):
It is not permanent, it is still interim. But yes, there are really three categories. There is at the site of an operating nuclear reactor. And then at the other extreme is a facility like ISP's, which would be at a location where no nuclear reactor has ever operated. And then there are also, we've counted eight facilities where the commission has licensed storage of spent nuclear fuel at locations where a nuclear reactor once operated, but where the reactor has been decommissioned. And in three of those instances, the NRC renewed the materials license after the facility's license for the reactor itself had expired. And so for relevant purposes, they seem to us similarly situated to the ISP facility. They are now standalone storage facilities even though they are at locations where reactors once operated.
Justice Clarence Thomas (28:54):
Well, that's in part because the facility's closed down and the material is left where the facility used to be. But is there any comparative for a large amount, I forget how many metric tons we're talking about here, is transported to a separate private facility for virtually permanent storage?
Mr. Stewart (29:24):
The GE Morris facility is a standalone facility that's been in operation since I think around 1980 or before. So I don't think the volumes are the same as the ones that ISP contemplates. But the two things I would say are first the volume of waste in the United States is not going to change depending on whether licenses like these are granted. Granting license to possess the spent nuclear fuel in a storage facility is not going to increase the volume of nuclear waste, it's just going to change where in the country it would be stored. And with respect to permanence versus temporary status, there's no reason to think that if the court rules against us and the waste has to stay at the site of the decommissioned reactors, it will stay there for any shorter period of time. It's still going to stay somewhere until a permanent repository is opened up.
(30:24)
And the third thing, and this goes to the point I was making before about market-based solutions and ISP's motivation, part of the suboptimal character of continued storage at the decommissioned sites is that you have a bunch of places around the country that now serve no other purpose but to store spent nuclear fuel when once they were operating reactors. And clearly, ISP and some of its potential contracting parties think that it would be better to centralize the fuel at one location so that the other locations could be returned to what's been referred to as greenfield status. They can be put to alternative uses.
Chief Justice Roberts (31:03):
Thank you. Justice Alito.
Justice Samuel Alito (31:07):
Excuse me. Is there more security around facilities that are owned by the federal government than around these private facilities?
Mr. Stewart (31:14):
I don't know the answer to that. Certainly, the commission, in determining whether the licensee has met the requirements, wants to verify that there will be what the commission views as adequate security arrangements.
Justice Samuel Alito (31:28):
Suppose this is allowed and 40 years go by and then there's an application to renew the license. Would it be permanent at that time or what if it's renewed and it's another 40 years?
Mr. Stewart (31:43):
It would still-
Justice Samuel Alito (31:44):
It will never become permanent.
Mr. Stewart (31:46):
It would still not be permanent. And again, you would have the same dilemma if the waste is left at the decommissioned nuclear reactor sites. That is, at some point, the materials license will expire. The commission will have to decide whether a new license should be issued. Until a repository is made available, we're going to confront that dilemma at some locations within the country. It's just a question of where those locations will be. And the other point I would make about security at federal versus private, that the decommissioned reactor sites I'm referring to are also private sites. They would be governed by the same arrangements that would govern ISP.
Justice Samuel Alito (32:27):
Which statutory provision, I know you cite a number of them, which one do you think provides the strongest support for your argument?
Mr. Stewart (32:35):
Well, I think I would say two things. The first I would point the court to the licensing provisions in the Atomic Energy Act, which are 42 USC 2073(a), which deals with special nuclear material, 2093, which deals with source material. And 2111, which deals with by-product material. And the commission from 1980 has had published regulations that treat those as authority to license private storage of spent nuclear fuel. The other thing I would point the court to in the Policy Act is that the Policy Act was enacted in 1982, two years after the Commission's rules had been promulgated. Congress clearly expressed its approval of private storage, focusing on on-site storage, but it didn't create new licensing mechanisms for that to occur.
Justice Samuel Alito (33:27):
Thank you, Mr. Stewart. One final question. 2073(a) refers to special nuclear material not to spent nuclear waste. And special nuclear material has a specific narrow definition.
Mr. Stewart (33:42):
Yes, and there is also a provision, I think it's 2201(h) that says various authorizations can be combined in a single license. And the three constituent parts of spent nuclear fuel that require a license are special nuclear material, source material, and byproduct material. And so the commission has always believed that a license that covers each of those will be sufficient to cover spent nuclear fuel because there's nothing else that needs to be licensed. And then the other point I would make is, if that were not true, the commission would be equally unable to license on-site storage because these are the same provisions it relies on to license storage at the site of a nuclear reactor.
Chief Justice Roberts (34:27):
Justice Sotomayor.
Justice Sonia Sotomayor (34:34):
Counsel, the on-site storage requires security to watch this inert product to make sure that nobody breaks in. So what we're talking about is that there is a danger to the community by these inactive facilities holding on to the spent nuclear waste because the degree of the cost associated with the storage in terms of security is greater, isn't it?
Mr. Stewart (35:07):
Yes. And that was one of the justifications that ISP gave, that it was more economical to have security for one centralized facility than to have separate security for different facilities around the country.
Justice Sonia Sotomayor (35:20):
2201 basically authorizes the agency "to establish by rule regulation or order such standards and instructions to govern the possession and use of special nuclear material including all the byproduct materials as the commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property."
Mr. Stewart (35:48):
Yes. And so the commission-
Justice Sonia Sotomayor (35:49):
I look at that as the direct authorization to set forth the terms of possession and license, correct?
Mr. Stewart (35:55):
Yes. And I think the commission was on solid ground when it promulgated the rules in 1980, but when Congress stepped in two years later and enacted some new provisions, but without disturbing the pre-existing licensing scheme, that was an effective ratification.
Justice Sonia Sotomayor (36:11):
I am finding it curious that in a country that's celebrating its 250th year, that some of my colleagues think that 40 years can't be temporary. I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary. Correct?
Mr. Stewart (36:34):
Yes. And as I say, whether you want to think of it as temporary or permanent or quasi-permanent, it's going to be the same length of time regardless of whether the waste is at an ISP facility or at the site of a decommissioned reactor.
Justice Sonia Sotomayor (36:47):
And in a time in which the danger to the community continues to exist if we keep permitting storage in facilities that have had to shut down.
Mr. Stewart (37:01):
Yes. The commission believes that its criteria can make storage at these facilities safe, but at the same time, the perception that the risk is not zero is what has led people to want a permanent repository.
Justice Sonia Sotomayor (37:14):
Thank you.
Chief Justice Roberts (37:15):
Justice Kagan. Justice Gorsuch.
Justice Neil Gorsuch (37:18):
I guess I'm struggling with that. I understand your argument before Congress acted at NWPA, but afterwards, it specifically said that declined to authorize any storage facility located away from the site of any civilian nuclear reactor and not owned by the federal government. That was its judgment about the security that'd be required for this material.
Mr. Stewart (37:43):
Well, what it said was that nothing in the Policy Act itself authorized, encouraged, or required-
Justice Neil Gorsuch (37:49):
Exactly. Because it thought that these were the places that were going to be safest. That was Congress's judgment, whatever ours might be. And I would've thought that the more specific and more recent in times statute would govern over the general. Isn't that our usual interpretive understanding?
Mr. Stewart (38:08):
Certainly if the Policy Act had said off-site storage is prohibited or the commission may not license off-site storage, that would trump the pre-existing authorization in the Atomic Energy Act, but Congress was very careful not to write the statute that way. It basically said, with respect to off-site storage, we will leave the law as it found it. It said nothing in the Policy Act itself-
Justice Neil Gorsuch (38:30):
So your argument does hinge on the idea that Congress has later enacted a more specific statute, didn't trump the pre-existing statute.
Mr. Stewart (38:39):
It didn't trump it because there was no inconsistency, because saying-
Justice Neil Gorsuch (38:43):
And if we disagree with that-
Mr. Stewart (38:44):
If you read section 11-
Justice Neil Gorsuch (38:48):
10155.
Mr. Stewart (38:49):
10155(h), if you read it to be a prohibition on off-site storage of spent nuclear fuel, then yes, that would trump the Atomic Energy Act's authorization. But as I say, Congress was aware that the Commission had asserted this authority and regulations two years earlier and it wrote the language very carefully.
Justice Neil Gorsuch (39:08):
And it is judgment about safety, not ours, controls.
Mr. Stewart (39:11):
Yes.
Justice Neil Gorsuch (39:14):
But Congress didn't explicitly endorse the existing rules, correct, as relevant here?
Mr. Stewart (39:20):
It didn't endorse the practice of licensing off-site storage. It clearly endorsed the idea that on-site storage was not only permissible but was to be encouraged. And so there are findings to the effect that the owners and operators of nuclear power plants shall be encouraged to use their existing storage capacity and expand their storage capacity. Federal officials are supposed to encourage that as well. But what not only did Congress not bar off-site storage, it also didn't enact any new licensing provisions, or for that matter, any new prohibitions on unlicensed possession. And so Congress clearly contemplated that licensing would continue to be done under the pre-existing Atomic Energy Act provisions. And those provisions don't distinguish between on-site and off-site storage.
Justice Neil Gorsuch (40:10):
But it still seems a little odd, to pick up on Justice Gorsuch's questions, that Congress would write that provision in 10155(h) in that way without something clear because anyone reading that would think, okay, well on-site storage or federal off-site are the two options that Congress is clearly contemplating in that 1982 act.
Mr. Stewart (40:37):
The DC Circuit in Bull Creek did discuss the legislative history of this provision and part of the history was prior versions of the bill would have encouraged off-site storage and Congress wanted to make clear that it wasn't doing that. But I think even without looking to the history and just looking to the text, it's not conceivable that Congress would've chosen this language if its intent was to prohibit the Commission from doing something that it knew the Commission had just asserted the authority to do. It could have said nothing in this title, I.E. Title 42, which encompasses both the Atomic Energy Act and the Policy Act, shall be construed to authorize, require, or encourage. Instead it limited that language to the Policy Act itself. The clear intent, we think, was to leave the Commission's with its pre-existing authority over off-site storage, but not to expand it or affirmatively encourage it.
Justice Neil Gorsuch (41:35):
One more. The other side responds that the Atomic Energy Act itself does not expressly authorize private off-site storage. I just want to get your succinct answer to that argument.
Mr. Stewart (41:49):
It doesn't speak in so many words of off-site or on-site, but it would be equally apt to say that the Atomic Energy Act doesn't expressly authorize on-site storage. That is, it says people can be authorized to receive and possess the following substances for the following purposes, which include a residual, but it doesn't talk about, in one way or another, about the location where that may occur.
Justice Neil Gorsuch (42:14):
Thank you.
Chief Justice Roberts (42:15):
Justice Barrett. Justice Jackson.
Justice Ketanji Brown Jackson (42:17):
I don't hear you disputing that Congress in the Policy Act was expressing its perhaps preference for on-site storage, but I guess the question is how is that objective best accomplished? And it seems to me that Congress, in this statute, was doing so by incentivizing on-site storage, which appears to be a different thing than prohibiting off-site storage.
Mr. Stewart (42:48):
Yes, I think that's right. And one of the ways it incentivized on-site storage was the federal storage program ultimately never got off the ground. But during the period when it was potentially in effect, one requirement that you needed to satisfy in order to have access to federal storage was show that on-site storage was not available and there was no similar requirement with respect to off-site storage. So you could say in that respect, Congress put a thumb on the scale in the direction of on-site storage-
Justice Ketanji Brown Jackson (43:19):
Encouraging people to do on-site.
Mr. Stewart (43:20):
Yes.
Justice Ketanji Brown Jackson (43:21):
And I know sometimes the Court is interested in clear statements. So to the extent that the agency had previously exerted its licensing authority in this way, would one have expected Congress to have made clearly a prohibition statement if it was attempting to preclude off-site storage?
Mr. Stewart (43:46):
Yes.
Justice Ketanji Brown Jackson (43:47):
Thank you.
Chief Justice Roberts (43:48):
Thank you, counsel.
(43:55)
Mr. Fagg.
Mr. Fagg (43:57):
Thank you, Mr. Chief Justice. And may it please the Court, with respect to the Hobbs Act, if you seek intervention under the agency's rules and that's denied, that's a final order you get to appeal. So I guess I would resist the notion a little bit that there's no judicial review of that. You do have to appeal that within 60 days. Fasken did to the DC Circuit, like we talked about, that played out the way it did. Fasken did not appeal to the Fifth Circuit within 60 days, did not appeal until six or seven months later. And I think that's a real problem with looking at what Fasken did at the agency to try to justify the Fifth Circuit's exercise of jurisdiction here.
(44:33)
With respect to merits in the Atomic Energy Act, the primary argument of the respondents here is that the words spent nuclear fuel are not separately defined. If they're right, then the Atomic Energy Act does not prohibit the possession of spent nuclear fuel. My client, ISP, never needed a license if they're right, they could have just built this facility. With all due respect, I would suggest that's not a credible interpretation of the Atomic Energy Act. With respect to the Nuclear Waste Policy Act and the references to encouraging of on-site storage, I think it's important to understand the context in which those statements appear. Those are all in subpart B of the Policy Act.
(45:17)
Subpart A, I would argue is the guts of the act. That's the permanent repository underground for hundreds of thousands of years. Subpart B was a very limited, now expired program involving access to 1900 MTUs of federal interim storage. And the context of that makes clear, it's self-contained. If you look at the legislative history, it also sheds light on the fact that in the sausage-making of that bill, there was a lot of back and forth about whether the industry would have to exercise and exhaust off-site storage before they could access this 1900 MTUs of federal storage. The industry didn't want that. Some legislators did want that. Some drafts required them to do that. But that context is how these references to a preference for on-site storage, which are only in Subpart B, came to be. And I would respectfully suggest, further confirmed that it's error to say that there are location restrictions. Certainly no location restrictions appear within the Atomic Energy Act.
Justice Clarence Thomas (46:24):
Well, could you give us a straightforward argument for the authorization for off-site storage at a private facility?
Mr. Fagg (46:37):
It's under the Atomic Energy Act. It's 2201(b). It's 2073, 2093.
Justice Clarence Thomas (46:45):
And so what would your argument be with those recitations?
Mr. Fagg (46:48):
They authorize the NRC to license the possession and storage of the constituent elements, spent nuclear fuel, without any location restriction. If you say on- site, you're reading a term into the Atomic Energy Act that is not there.
Justice Clarence Thomas (47:04):
So there's no language that you could use to say that spent fuel shall be or is permitted to be stored off-site. You're stitching together, it's seeming just constituent parts, not just spent fuel. And I'm just looking at asking whether or not there's anything you can rely on that speaks to spent fuel in the aggregate being able to be stored off-site at a private facility.
Mr. Fagg (47:37):
I do rely upon the three constituent elements adding up to spent fuel in the same way you have to rely upon the three constituent elements adding up to spent fuel to prohibit the possession of it. Because if you don't buy that proposition, you can't have one without the other. You can't say the Atomic Energy Act prohibits the possession of these three items, but it doesn't allow the licensing of these three items. It is either one or the other. And if the three constituent elements don't add up to spent nuclear fuel for licensing purposes, they can't add up to the prohibition on possession. And I go back to what I said earlier. My client never needed a license. We should have just built this thing. Why are we here?
Justice Sonia Sotomayor (48:14):
What you're saying, I think I understand, which is if you read the act, it doesn't say you have to possess it where it's created.
Mr. Fagg (48:24):
That that is certainly true.
Justice Sonia Sotomayor (48:24):
There's nothing there that says possess in any particular place.
Mr. Fagg (48:28):
I think that's true. And I think it's also important to keep in mind there was always going to be spent nuclear fuel, okay. Whether reprocessing played out the way people thought it was going to back in the '50s, '60s '70s, whether Yucca had gotten up and running just like it was supposed to, you were always going to have spent nuclear fuel discharged from a reactor stored for some period of time. Even if you're going to reprocess it, you got to ship it off to a reprocessing site and it still doesn't get rid of all of it. There's still something, it's not a hundred percent. Even with reprocessing, there's still residual spent nuclear fuel left. So the notion that the Atomic Energy Act wasn't intended by Congress to cover all of those different parts of what might happen or not happen to spent nuclear fuel, again, I would suggest is not a credible interpretation of the Atomic Energy Act.
(49:22)
With respect to sticking with the merits-
Justice Ketanji Brown Jackson (49:29):
Can I just ask you, is there any difference between your argument and the government's in this case?
Mr. Fagg (49:33):
Substantially, I'm not aware of a difference. I think we articulate things a little bit differently, but no.
Justice Ketanji Brown Jackson (49:39):
Thank you.
Mr. Fagg (49:44):
With respect to the Nuclear Waste Policy Act, I want to emphasize because I think it's a really important fact that the 10 CFR part 72 regulations that were formally, after notice and comment of rulemaking, acted on and on the books at the time of the Nuclear Waste Policy Act. And this wasn't a sort of secret, in-the-pocket exercise of authority, massive notice and comment over multiple years, a big, thick chunk of the Federal Register with all the comments including debates about on-site versus off-site storage. Is it a good idea, bad idea? Not a whisper of the notion that the Atomic Energy Act didn't cover storage of spent nuclear fuel on-site or off-site. All of that was enacted in 1980. All of that was demonstrably known by Congress when it undertook the Comprehensive Nuclear Waste Policy Act legislation ultimately at the end of 1982 and '83.
(50:46)
And so to just underscore the fact that in discerning Congress's intent here with these two statutes, I would say that the chronology and the facts confirm that the Nuclear Waste Policy Act, considered with the Atomic Energy Act, underscores and supports our position.
Justice Neil Gorsuch (51:02):
Meaning given what was known is what you're saying, I think, Congress would've explicitly prohibited private offsite had it wanted to do so. Is that what you're saying?
Mr. Fagg (51:13):
Yes. Yes. And again, if you go back to what I referred to earlier, the limited sort of provisions within Subpart B, the access to the Federal Interim Storage Program in 10155(h) that we've talked about, nothing in this chapter shall authorize or encourage. I would suggest, and again, commend the Bull Creek decision both at the agency level and the DC Circuit for addressing the real role of that language. It wouldn't make sense if it was not already allowed to say nothing in this statute shall authorize or encourage, right. Because if it's not allowed, it's not allowed. And that's the position of respondents in this case. And so I think read in context, read correctly within the Nuclear Policy Act and referring to the known documented history of the Atomic Energy Act, those provisions, again, support.
Justice Sonia Sotomayor (52:03):
What's the source I should go to get the history you referred to earlier about the various drafts that were being fought on about in Subpart B.
Mr. Fagg (52:13):
We cite a couple of them in our reply brief, and apologies, I don't have them handy here right now, but I would refer to our reply brief and I would, in particular, refer to the agency's decision below which we cite, again, in our reply brief that goes through exhaustively that legislative history and we cite it in a footnote in our reply brief and refer to the specific footnotes within that agency decision that refer back to the various debates. There were draft bills. It was a lot. It was a lot.
Justice Sonia Sotomayor (52:40):
All right. Thank you.
Justice Neil Gorsuch (52:41):
Mr. Fagg, what do you say to your friends on the other side's Argument that spent nuclear fuel is not simply the combination of source, special nuclear, and byproduct materials under the AEA that it requires other things like it must've been withdrawn from a nuclear reactor. It must have not have undergone reprocessing. And that's reflected both in the statute in the NWPA and also in the NRC's own regulations.
Mr. Fagg (53:11):
I think I would say, factually, it's just not the case that when you pull one of these spent nuclear fuel assemblies, which are 15 foot metal with all the uranium rods inside, that there's anything at all in there other than special nuclear material, source material, or byproduct material. There's metal sheaths and things that hold this all together. They become irradiated through the exposure and the process and that falls squarely within the definition of byproduct.
Justice Neil Gorsuch (53:39):
I appreciate that. But spent nuclear fuel is defined in the later statute as being withdrawn from a reactor, which doesn't necessarily pertain to the three constituent parts and it must not have undergone reprocessing. Those are two conditions at least that seem to me to differentiate the two. And
Speaker 1 (54:00):
I'm struggling for an answer.
Mr. Fagg (54:01):
May I respond?
Justice Samuel Alito (54:02):
Certainly.
Mr. Fagg (54:04):
The answer to that I guess I would say is well, which way does that cut? So when Congress added the definition of spent nuclear fuel in 1988, incorporating the five-year-old definition from the Nuclear Waste Policy Act, again, decades and decades of practice have been treating the three constituent elements as spent nuclear fuel for purposes of prohibiting possession and licensing. So I think again, just factually and looking at the statutory definitions of the three elements, a spent nuclear fuel assembly is those three and nothing else.
Speaker 2 (54:37):
Mrs. Thomas, Mrs. Alito?
Justice Samuel Alito (54:40):
If Congress wanted to authorize temporary off-site storage of spent nuclear waste, why did it use the term special nuclear material?
Mr. Fagg (54:52):
Well, special nuclear material is one of the three elements.
Justice Samuel Alito (54:56):
Yeah, I understand that, but why choose just that? Why not refer to the whole thing?
Mr. Fagg (55:02):
Well, in 1954 there wasn't yet a nuclear power plant, okay? When the Atomic Energy Act was passed, the first online commercial plant wasn't going to come on until about 1958 or so. So I think that the logical and probable reason of why Congress did this is to reduce it to the most pernicious if you will, elements of it, okay? So if you can't do it with special nuclear material, you can't do it with spent nuclear fuel, and so there's all kinds of additional things that may or may not have these elements in them, but an efficient and effective way to safeguard the public health and safety, to promote all the things that the Atomic Energy Act was to do it the way it did it, which is reduce it to the minimal elements if you will, and invest the agency with the authority under the provisions we've talked about to regulate those.
Justice Samuel Alito (55:58):
Would you agree that the state of Texas and those with an interest in the Permian Basin have a reasonable that it's reasonable for them to be concerned about the storage in this location?
Mr. Fagg (56:11):
I have no reason to doubt that they care. I had questioned why they didn't intervene like lots of states do and like the regulations specifically allow, I would also observe and it's in the record, Texas originally supported this project and then reversed itself and opposed it, but I don't doubt.
Justice Samuel Alito (56:31):
Well why was this location chosen?
Mr. Fagg (56:37):
There's reams of environmental aspects of this, and one of the things is looking at the potential alternatives and nobody close to a location chosen, including the nuclear plants in Oregon and New England want it there or like it there, but it was a place that was deemed ultimately after a lot of study to have been somewhere where could be safely stored.
Justice Samuel Alito (57:01):
Do you have a prediction about when there might be a permanent storage facility?
Mr. Fagg (57:06):
I've been in this stew for a lot of years and there are a lot of talks, there's a lot of energy, but as I sit here today, I think I'd be kidding myself and the court if I said I have a date, but it's still the law of the land as we sit here today.
Justice Samuel Alito (57:30):
Well, if it is decided that material can be stored offsite temporarily, and temporary means more than 40 years, maybe more than 80 years, maybe it means 250 years, maybe it means 500 years. Where is the incentive to go forward to do what Congress wanted to have done, which is to establish a permanent facility?
Mr. Fagg (57:57):
Well, the incentive is what it is, whether the fuel is at the facility, my client wants to build it or is scattered across 40 sites all across the country. So the incentives, and again, this is an industry that is harmed by DOE's failure, trying to mitigate it through my client's actions and to sort of punish the industry doubly for DOE's failure and then not allow them to save tens of millions of dollars and mitigate, I would suggest is not furthering the incentives that we want in terms of a critical part of a fifth of our nation's power.
Speaker 2 (58:41):
Justice Sotomayor, Justice Kagan, Justice Kavanaugh, Justice Jackson.
Justice Ketanji Brown Jackson (58:47):
Can I just ask you to speak quickly about the party issue, does it matter whether the intervention motion was wrongly denied at this stage, at this point?
Mr. Fagg (59:00):
In this case, I would say no because that was all litigated at the DC Circuit level. It wasn't timely challenged in the Fifth Circuit level. Again, I resist the notion that there's no judicial review. If you're denied and to echo something, Government Council said there's all kinds of ways you could say these rules are too restrictive, these rules are too much. You can challenge them in the proceeding, you could get a waiver to challenge them in a proceeding or you could do as in the Bull Creek proceedings, and as Mr. Stewart pointed out a petition for rulemaking. So that's kind of a long-winded way of saying it's not before this court in this case about whether Fasken's attempt to become a party was rightly or wrongly decided. The DC Circuit said it was rightly decided and here we are.
Justice Ketanji Brown Jackson (59:49):
Thank you.
Speaker 2 (59:50):
Thank you Counsel. Mr. Frederick?
Mr. Frederick (59:58):
Thank you Mr. Chief Justice and may it please the court, the 1982 Nuclear Waste Policy Act created a comprehensive program that addressed where and how to store spent nuclear fuel. That program does not include private offsite storage, which Congress specifically ruled out in section 101.55H. As the later enacted more specific act, the Policy Act controls and the NRC cannot administratively override it. The Atomic Energy Act itself authorizes only on-site storage, not offsite storage. Sections 21.33 and 21.34 allow the commission to impose conditions including safety requirements on utilization and production facilities licenses. Reactors are utilization facilities, so licenses cover on-site storage of spent fuel because that material is so hot, it takes years to cool and it can only be done safely on-site by removing the reactor core and moving it immediately into water.
(01:01:15)
And that's why more than about 50% of all spent nuclear fuel is in cooling pools around the country. Section 21.36, which is not cited in the briefs says the NRC, "May define the various activities at each such facility." And we think that clearly means regulating the safety characteristics of dealing with spent nuclear fuel when it comes immediately out of the reactor core. The Commission's efforts to derive authority from the AEA's material license provisions don't work because storage is not used. As the 1982 Policy Act defines it, storage is retention for subsequent use, processing or disposal. I welcome the Court's questions.
Justice Neil Gorsuch (01:02:09):
Why are you a party now?
Mr. Frederick (01:02:09):
We're a party now because under the plain language of the Atomic Energy Act, 2339A1A, we are affected by the proceeding, we shall be admitted as a party, and we requested a hearing and those are all indisputed facts.
Justice Neil Gorsuch (01:02:27):
So what do we do with the DC Circuit opinion?
Mr. Frederick (01:02:30):
I think what you say is that there were two purposes that Fasken wanted to advance as a party. One was to be able to intervene for the purposes of putting in expert testimony and other facts. We were denied that, Justice Thomas and we're not appealing that now, but the second purpose, which is satisfied by the plain language of the Atomic Energy Act is to be able to challenge that the NRC approve this license without statutory authority, and the NRC's intervention rules, which are set forth at 2.309 and 2.335 make it very clear that the NRC itself is going to serve as a gatekeeper and does not allow parties to come in and challenge their statutory authority in the licensing proceeding itself.
Justice Ketanji Brown Jackson (01:03:18):
But why isn't this a collateral attack on the intervention decision? I guess I don't understand.
Mr. Frederick (01:03:24):
Because as I said, Justice Jackson, the intervention which we sought was to be able to put in expert testimony and to participate in what was effectively a proceeding to gather evidence. Here we're bringing a pure legal facial challenge.
Justice Sonia Sotomayor (01:03:41):
Mr. Frederick, it makes no sense to me. What you're saying is instead of bringing that argument to the agency first, you get at any point in time that you want to, the right to intervene and argue that they don't have the power. Don't you think the normal course of agency proceeding, and we've already said that even though agencies sometimes can't decide constitutional questions, there's no question that the agency could have listened to the argument that it statutorily wasn't empowered to do so.
Mr. Frederick (01:04:19):
Except that their rules say you can't, and so it would've been utterly futile to go to the commission and say, "You're acting ultra vires is beyond your statutory authority because the regulations of the NRC say we are not going to accept that contention."
Justice Sonia Sotomayor (01:04:35):
And then you could have brought it to the Fifth Circuit.
Mr. Frederick (01:04:37):
Well, that's what we did. We did argue.
Justice Sonia Sotomayor (01:04:39):
Yeah, but you didn't argue it at the time when you didn't bring it. You didn't argue it at the time that you moved to intervene.
Mr. Frederick (01:04:48):
That's incorrect. We'd like to set the record straight.
Justice Ketanji Brown Jackson (01:04:51):
Go ahead.
Mr. Frederick (01:04:51):
That's not correct.
Justice Ketanji Brown Jackson (01:04:52):
Go ahead.
Mr. Frederick (01:04:53):
Yeah, we moved to dismiss, very first motion we filed, said this is not within your statutory authority. We moved to intervene for multiple purposes.
Justice Sonia Sotomayor (01:05:01):
And then you didn't take it up to the Fifth Circuit.
Mr. Frederick (01:05:04):
We argued to the Fifth Circuit.
Justice Sonia Sotomayor (01:05:06):
At the second.
Mr. Frederick (01:05:07):
Because that was the final order, your Honor. We challenged the final order as being outside the scope of the authority.
Justice Sonia Sotomayor (01:05:14):
But you didn't do it at the first motion.
Mr. Frederick (01:05:17):
No, because the first motion only went to could we intervene for purposes of bringing in evidence to the commission, and the point here is are you going to allow agencies to manipulate their rules so that they can decide who gets to challenge-
Justice Ketanji Brown Jackson (01:05:32):
I'm sorry, quite frankly, I'm worried about party manipulation. I'm trying to understand what basis you now have to say that we should be revisiting the DC Circuit's determination that you cannot intervene.
Mr. Frederick (01:05:47):
I'm not asking you to do that.
Justice Ketanji Brown Jackson (01:05:48):
Okay, so if we believe that the law is such that you to be a party, do you concede that you were not a party at the lower court proceeding?
Mr. Frederick (01:05:59):
No, we do not concede that.
Justice Ketanji Brown Jackson (01:06:02):
You do not. Okay, and the basis for your party participation is what?
Mr. Frederick (01:06:05):
The Atomic Energy Act says that if we are affected by the proceedings and we ask for a hearing, the NRC, "Shall admit us as a party."
Justice Elena Kagan (01:06:15):
Well that says Mr. Frederick why you have an argument that you should have been a party and maybe you do have a good argument that you should have been a party, but it's not to say that you were a party. In fact, you were not a party.
Mr. Frederick (01:06:28):
No, I think that we were not a party in the sense that we were permitted to do the full evidentiary exposition that we might've liked to have done, and I'm not arguing that that should be revisited, but we are a party under the plain language of the Atomic Energy Act, which says we shall be a party and we shall have an opportunity to say in a judicial review setting.
Justice Elena Kagan (01:06:52):
But then you're saying, I mean when I look at this, your only participation in the agency proceeding was to be excluded from it, but then you're saying, " Well, if I was excluded wrongly, I'm a party." I mean how could that be? I mean that that's very much against the way we think of this in a judicial context where we look at somebody and they've tried to intervene and maybe they've been wronged. Maybe the court was wrong to say that they can't intervene, but we don't say, "Oh, the court was wrong. They really should have been there." And so we're going to give them an opportunity to come in at some later point in time and attack the judgment. It just doesn't work that way.
Mr. Frederick (01:07:30):
Well, I would say this is not the normal agency proceeding. The Pacific Legal Foundation says that they have looked at the various agencies. This is the only agency that serves as a gatekeeper to its own proceedings. That's point one. Point two, there are different scopes of party participation. One is that you participate as a full party, bring depositions, bring other evidence. That is not what we are challenging here. What we are saying is that the plain language of the act gives us the right to say for the first time in court because the agency won't allow us to say it in the proceedings, you don't have the statutory authority for what you did.
Justice Ketanji Brown Jackson (01:08:09):
But Mr. Frederick, if we disagree with you, if we think that as a matter of law, what counts as being a party is having the level of participation that you called category one, do you concede that you did not have that in this case?
Mr. Frederick (01:08:23):
Well, we were foreclosed from having it.
Justice Ketanji Brown Jackson (01:08:25):
All right, so if we think that in order to be a party for the purpose of the Hobbs Act, you have to have that status. What difference does it make? What arguments you're making or whatever, you didn't have that status.
Mr. Frederick (01:08:38):
Because the Hobbs Act itself incorporates the atomic energy 2339 provision that I quoted to you about being a person affected by the license requesting a hearing that we be admitted. So the Hobbs Act party-
Justice Ketanji Brown Jackson (01:08:54):
Did you make that argument before the court in your intervention? Wasn't that the basis by which you went to the court and said, "I need to intervene. Look at the Hobbs Act provision that says these things."
Mr. Frederick (01:09:04):
No, what we did in the DC Circuit was we talked, and the DC Circuit by the way-
Justice Ketanji Brown Jackson (01:09:09):
I'm sorry, that's not the statutory basis for your claiming the right to intervene?
Mr. Frederick (01:09:13):
It is.
Justice Ketanji Brown Jackson (01:09:14):
It was, right? So you said to the court, "Look at the Hobbs Act. Here are these criteria, we need to be able to intervene." And the court disagreed.
Mr. Frederick (01:09:22):
I think you're misreading what happened in the DC Circuit, your Honor, with respect. We didn't have an opportunity to challenge the final order in the DC Circuit. That could only be done after the final order was made. So what we did challenge was the limited application of the commission's intervention rules to say they had not been applied correctly, that's a much more limited question.
Justice Sonia Sotomayor (01:09:43):
Mr. Frederick, it makes little sense. The rule at issue that you wanted to intervene in was a rule that was citing a storage area that you now say they didn't have the authority to do. So if you were an aggrieved person under the act, you could have gone to the DC Circuit on your first round of appeal and said just that. I can intervene because I have an argument that they've exceeded their statutory authority.
Mr. Frederick (01:10:15):
And the DC Circuit 20 years before had rejected that argument. There was no Circuit.
Justice Sonia Sotomayor (01:10:20):
No, so then you could have searched here and you don't have to, but the Hobbs Act requires you to be a party aggrieved, not a person.
Mr. Frederick (01:10:29):
Let me just say Justice Sotomayor that if the court adopts that line of reasoning, the NRC is effectively immune from judicial review because they set the rules for determining what can be a, "Admissible contention, which has to meet surpass the summary judgment standard."
Justice Elena Kagan (01:10:46):
Well I take that point, Mr. Frederick and it might very well be that this DC Circuit decision is wrong. I mean it looks to me as though it goes beyond the statute. So I'm pretty sympathetic to that view and yet I'm still sort of hung up on the idea that in this proceeding at this moment in time, that's not before us, only whether you were a party is before us, and any way I sort of think about it, you weren't a party.
Mr. Frederick (01:11:15):
Well, I would ask you to reread the language of 2339 of the Atomic Energy Act, which says we are a party and if you're going to apply normal textual canons of strict construction, you would say we are a party.
Justice Elena Kagan (01:11:27):
I think that language says you should have been included as a party. I think that language gives you a good reason for saying that the regulation is invalid and a good reason for saying that the DC Circuit is wrong, but I don't think that language gives you a good reason for just making X not X. You weren't there.
Mr. Frederick (01:11:52):
Your Honor, I don't think that the Fifth Circuit's ruling that we were a party that should be allowed to challenge the statutory authority of the agency would deny us party status now, and I do want to emphasize the time point. As Justice Alito pointed out, this license can have this storage for up to 80 years and under the reasoning of that line, no one would ever be able to say, "Well, you know that nuclear stuff in the West Texas area was done illegally because no one had the appropriate party status because the intervention rules of the NRC said you don't get to intervene."
(01:12:32)
That would be a very crazy way to think about limitations on agency authority that exceed what the statute allows and I think that if you consider the other side's argument, on-site storage has to be done for safety reasons. The nuclear material that is burned, it is very hot. It has to stay on-site and that's why the facilities license provisions are the easiest way to understand the practical reality that for 70 years, this material has stayed on-site when Congress considered in the policy act what to do with it-
Justice Ketanji Brown Jackson (01:13:07):
Mr. Frederick, you've said over and over that it's hot and it's hard and all of that, but I would assume that in 70 years, technology changes that things happen and people figure out ways to store and move, what do we do with that?
Mr. Frederick (01:13:24):
Well, the technology hasn't speeded up the cooling process of material that is radioactive.
Justice Ketanji Brown Jackson (01:13:29):
Oh I understand, but we have ISP here saying that they can receive this material.
Mr. Frederick (01:13:36):
This material, Justice Jackson is so hot when it comes out of the core. No human being can get anywhere close to it, which is why the design of the facility that is done by the commission is to have the spent rods taken down into pools of water.
Justice Ketanji Brown Jackson (01:13:51):
I understand. I guess I'm not fully understanding why it matters that the material is so hot and that it's difficult to do in a situation like this in which the commission has apparently licensed. That's what you're challenging, this transfer. So someone thinks it can be done because they've given a license to do it
Mr. Frederick (01:14:13):
And it hadn't been done before this situation. No facility's ever been constructed. The Morris facility that Mr. Stewart adverts to.
Justice Ketanji Brown Jackson (01:14:22):
But why doesn't that fit into the statutory authorization for the commission to make the determination about whether or not this can be done consistent with safety, etc.
Mr. Frederick (01:14:32):
Because the policy act says in five provisions, the NRC shall maximize onsite storage, it shall increase technology for onsite storage. If it has to go offsite, go to a federal facility.
Justice Ketanji Brown Jackson (01:14:46):
And does it say it cannot?
Mr. Frederick (01:14:48):
Yes.
Justice Ketanji Brown Jackson (01:14:49):
It cannot authorize offsite storage.
Mr. Frederick (01:14:51):
10155H says and it shall not do private offsite storage.
Justice Ketanji Brown Jackson (01:14:56):
101.
Mr. Frederick (01:14:56):
55H.
Justice Ketanji Brown Jackson (01:14:56):
55H.
Mr. Frederick (01:15:01):
Yes, and I think Justice Jackson, what's very clear from these provisions is that the NRC is seeking to use a rule-making to override a statute.
Speaker 2 (01:15:11):
Thank you counsel. Justice Thomas. Justice Alito.
Justice Sonia Sotomayor (01:15:17):
Perhaps in reply I'll get an answer to this so you can, I had understood that the cooling pools that many of them are offsite.
Mr. Frederick (01:15:26):
No, that's not correct.
Justice Sonia Sotomayor (01:15:27):
Right, then I misunderstood.
Mr. Frederick (01:15:29):
And I can point you to the-
Justice Sonia Sotomayor (01:15:30):
I thought Mr. [inaudible 01:15:33] has said that.
Mr. Frederick (01:15:32):
Right, but there was a Blue Ribbon Commission report that the President's Blue Ribbon Commission put together that goes through all of this material. It goes through the nuclear process, the history of the storage site. It was published I think in 2012 or 2013. It answers many of the questions about the practicalities of the nuclear process.
Justice Sonia Sotomayor (01:15:51):
Thank you.
Speaker 2 (01:15:51):
Justice Kagan. Justice Gorsuch,
Justice Neil Gorsuch (01:15:54):
A couple of quick questions Mr. Frederick. First, with respect to your ultra vires argument, it sure sounds to me a lot like an APA challenge beyond statutory authority that would normally be brought in district court in the first instance. Help me with that.
Mr. Frederick (01:16:10):
Well, what I would say is that we have not found a case on all fours with the one that we have where the ultra vires argument was brought directly to the Court of Appeals. But what I would say is that the jurisdiction, the exclusive jurisdiction provision of the Hobbs Act 23 42 4,
Justice Neil Gorsuch (01:16:28):
I understand if you get in the Hobbs Act, you're in the Hobbs Act, but assume we're not in the Hobbs Act.
Mr. Frederick (01:16:32):
Right, but what I'm saying is that 2342 says all final orders, the exclusive jurisdiction shall be in the Courts of Appeals, and so our reading of that is that answers the question of where you can bring the argument. It doesn't say how or what the argument is.
Justice Neil Gorsuch (01:16:49):
Gotcha, I follow you and then with respect to the struggle over the DC Circuit order, I didn't see anything in the opinion addressing the statutory question, and I didn't see anybody below arguing that normally for issue preclusion to have an effect that you have to have a ruling on the question at hand.
Mr. Frederick (01:17:13):
Correct.
Justice Neil Gorsuch (01:17:13):
And somebody has the burden to show that it applies, and I didn't see either ruling on this question in the DC Circuit.
Mr. Frederick (01:17:21):
That's correct.
Justice Neil Gorsuch (01:17:21):
I didn't see the government suggest or ISP suggesting that you were precluded as a matter of collateral estoppel.
Mr. Frederick (01:17:30):
That's correct. They've not made that oral waiver argument and that's why it's important to understand the difference between an intervener party and just a party to be able to say, "Under the plain language of the act, you violated the act. You've gone beyond the act in approving this license."
Speaker 2 (01:17:48):
Mrs. Kavanaugh.
Speaker 1 (01:17:48):
One of the arguments on the other side is the commissions interpreted the statutory scheme the same way for five decades and that consistent long-standing interpretation has itself significant weight as we interpret the statute. You want to respond to that?
Mr. Frederick (01:18:04):
Yes, thank you for asking that question. Justice Kavanaugh. If you look at the federal Register for the 1980 rules, there are two paragraphs on the question of does the agency have the authority to do off-site storage? One paragraph says many commenters think it's a bad idea to do it anywhere but on-site. The second paragraph says some commentators think that it's okay to do it off-site. So we think we should have the authority to choose. They don't cite any pervasions of the Atomic Energy Act. They don't ground that policy in any particular statutory language. It was the commission's decision to do this simply on the basis of what they thought was a good idea, and then two years later when Congress comprehensively addressed the subject in the Policy Act, the agency should have gone back and redone its rules. It didn't do that, and that's why Mr. Stewart has to make a rather convoluted statutory argument deriving from these provisions in the Atomic Energy Act.
Speaker 1 (01:19:05):
Well, is it really that convoluted? It's basically that the act was understood to authorize this, that the commission recognized that authority, that Congress in 1982 had a chance to, was well aware of this issue and did not expressly preclude this, and then that's been the way it's been for 50 years.
Mr. Frederick (01:19:22):
Well, it is not how it has been. The only example they have is a former reprocessing facility. That is a production facility as defined in the Atomic Energy Act, that's the Morris Plant. When reprocessing failed, they had to do something with the spent nuclear fuel that had been sent to the Morris Plant. And so what they did was a kind of a Jerry-rigged approach and said, "It's here. We don't want to move it. Let's just keep it here and we'll store it on site." And that has become the exemplar of their long-standing interpretation for offsite storage. It is really a stretch and makes no relation to the statutory text at all.
Speaker 1 (01:20:02):
One of the reasons long-standing interpretations matter of course is that private parties rely on those, and the Amicus brief for example, the Nuclear Energy Institute makes clear that a lot of investment has happened based on what appeared to be a settled understanding of the authority. You want to respond to that?
Mr. Frederick (01:20:22):
Yeah, there's been no actual construction of an offsite facility ever. There have only been three approvals. One, the Bull Creek example was never built. So that license was approved, no facility. The only two other ones are before this court. That's Holtec in New Mexico, ISP in Texas.
Speaker 1 (01:20:42):
And then last question, petitioner's counsel said if your statutory argument is correct, they never needed a license to begin with. You want to respond to that?
Mr. Frederick (01:20:53):
Yeah, what I started with on the facility's license is that in order to ensure the safe operation
Mr. Frederick (01:21:00):
… of the facility. Under 2133, 2134, and 2136, the Commission has always asserted the authority to make sure safe operations occur on site, but that's part of the facility's license, which means you don't move it off the facility, which is the whole argument that they're trying to make here by saying it's lawful to take what is a materials license and contort what authority that they were really asserting under the facility's license provision.
Speaker 4 (01:21:33):
Thank you.
Speaker 2 (01:21:34):
Mrs. Barrett? Justice Jackson?
Justice Ketanji Brown Jackson (01:21:37):
Do you concede that the party-agreed language is jurisdictional?
Mr. Frederick (01:21:43):
I think that if it's jurisdictional it can't be waived and so-
Justice Ketanji Brown Jackson (01:21:47):
Oh, I understand. I'm just asking you, is it a jurisdictional provision?
Mr. Frederick (01:21:50):
I'm not sure. I think courts of appeals have treated the 60-day provision as jurisdictional for appeal. I'm not sure that they've treated who constitutes a party as being jurisdictional. But what I would say to that, Justice Jackson, is that in all of those Hobbs Act conditions, you should look at the organic statute for the commission first because the FCC has two different appellate mechanisms. One is a Hobbs Act provision. The other is not a Hobbs Act provision.
Justice Ketanji Brown Jackson (01:22:17):
All right. Well, I'm just trying to understand the argument that I think you're now making, which is that there's a difference between being an intervener party for the purpose of any party aggrieved and being a party who wants to make the particular claim of ultra vires. You say you're the latter, but you admit you're not the former.
Mr. Frederick (01:22:37):
Well, I think we were the former. I think the language-
Justice Ketanji Brown Jackson (01:22:40):
Well, you didn't get intervener status.
Mr. Frederick (01:22:43):
I'm not challenging that, Justice Jackson, but I'm not saying we're not aggrieved. We clearly are aggrieved and we are aggrieved under any-
Justice Ketanji Brown Jackson (01:22:49):
I didn't ask you whether you were aggrieved. I'm trying to figure out whether you're a party. And the distinction that you've now made is the difference between parties who were interveners and parties who would like to claim ultra vires. I don't see any statutory basis for that distinction, but I'm just trying to even understand where it comes from.
Mr. Frederick (01:23:09):
What I'm saying, Justice Jackson, is there are two routes for us to assert our party status. Okay? One is under the Atomic Energy Act, which we clearly satisfy. The other is under the Commission's rules for intervention, which the commission ruled against us on. I acknowledge we lost the second one and it's not before this court, but that doesn't mean we don't satisfy the statutory requirements that would be-
Justice Ketanji Brown Jackson (01:23:35):
Thank you. I understand your argument.
Speaker 5 (01:23:37):
Thank you, Counsel
Speaker 2 (01:23:46):
Mr. Nielson?
Mr. Nielson (01:23:47):
Mr. Chief Justice, and may it please the court, I hope to make several additional points, but I want to start with three quick ones. First, Justice Kavanaugh was right in PDR Network that the Hobbs Act covers a wide variety of orders. Under Clark v. Martinez, where one provision has multiple applications, the court applies a lowest common denominator interpretation to all of them. Even in the DC Circuit, if you file comments, that's enough to challenge a rule and a declaratory ruling and adjudication.
(01:24:18)
Second, Congress added to the AEA the NWPA's definition of spent nuclear fuel. The court needs to interpret today's AEA and address petitioner's obvious superfluity. And finally, if anyone thinks this is temporary, I have a bridge to sell you. There's no way that we're going to move 140,000 tons of nuclear waste in 60 years. What the commission has just done is put a permanent terrorist bullseye on the most productive oil field in America. I welcome the court's questions.
Speaker 3 (01:24:52):
You did not intervene, so why are you a party now?
Mr. Nielson (01:24:56):
Correct, Your Honor. So effectively we did intervene, but I would say this goes back to understanding of the Hobbs Act. The Hobbs Act does not just apply to this agency, it applies to a whole bunch of agencies and a whole bunch of different types of orders. So if you file a comment in an FCC rulemaking, you're good. Or even in the DC Circuit, if you file a declaratory ruling, which is a form of adjudication, you discussed this in Mckesson, that's also it's enough to file a comment. So that's what Texas did here and I think it's important to understand kind of what happened.
Justice Elena Kagan (01:25:30):
But, General, I mean, this was an adjudicatory proceeding, so the way people understand who parties are in an adjudicative proceeding, it's not enough to send in a letter.
Mr. Nielson (01:25:42):
Well, a couple of responses. One, so is a declaratory ruling, and in the DC Circuit declaratory rulings, it's enough to send a comment. So their distinction doesn't work on its own terms. And I would point the court there to Petition Appendix 18(a). That is where the Fifth Circuit discusses the DC Circuit precedent on that point. But second, this is a very strange type of adjudication. By statute, Congress has said that if they're going to do this type of license, they need to open up to NEPA, which is a notice and comment process, in the middle of the adjudication. This is not a normal adjudication.
Justice Elena Kagan (01:26:16):
Do you think it's enough for anybody to send in a letter or does it have to be the governor of the state?
Mr. Nielson (01:26:20):
I think it certainly helps that it was a governor of a state.
Justice Elena Kagan (01:26:23):
Well, I don't see really how it does help under the statute. I mean, it's nice that he was the governor of the state, but I don't see how you can make a legal argument on that basis. If somebody is a party by virtue of sending in a letter under this statutory scheme, anybody is a party by virtue of sending in a letter.
Mr. Nielson (01:26:40):
So again, we think that if you file a comment, it wasn't just a letter, it's comments. It's part of the notice-and-comment process. But if they solicit you, which is what happened here, I'd point the court to the record on this one. This was JA-292. They asked us. They solicited our comments. And then we responded to that. Even under their best case, this water transport case from the DC Circuit that they rely on, if the agency solicits your participation and you respond to that, that counts in the DC Circuit's, their case, again, that's their best case. So this isn't an ordinary enforcement action or something like that. Even then I don't think their argument holds up.
Justice Elena Kagan (01:27:21):
I mean, the question, General, is what does "party" mean? And it seems to me "party" means somebody who has participated in an agency proceeding with the degree of formality required for that proceeding. So if you're in a role-making, being a party may very well mean I submitted a comment in a notice-and-comment process, but that's not the degree of formality that's associated with a proceeding of this kind. And you didn't intervene. You didn't even try to intervene, unlike Mr. Frederick's client, I don't see how we can say that you were a party.
Mr. Nielson (01:28:01):
Well, I mean, the word "party", it's the same word in the Hobbs Act that applies to all of these things. So we have to say that the word "party" is a chameleon.
Justice Elena Kagan (01:28:09):
It's not a chameleon. It's like different proceedings might understand who parties are differently. I mean, that's not anything weird. There are three separate processes and the way you participate in those three separate processes are different because different rules apply because the processes are understood. Parties in adjudications are different from parties in rule-makings.
Mr. Nielson (01:28:38):
Okay. So I guess a couple of responses. One, I don't agree under the Hobbs Act that you're going to distinguish. It's one word that has to apply to both, but say I'm wrong about that.
Justice Elena Kagan (01:28:47):
It is one word. It means have you participated with the degree of formality that's necessary for the kind of proceeding it is? And if you are, you're a party. It's one definition.
Mr. Nielson (01:28:58):
Okay, so say I'm wrong about it. So I'm agreeing with you for purposes of this answer. I would still say what we're talking about here is a lot closer to a hybrid between a rule-making and an adjudication than a pure adjudication. This is a licensing which Congress said by statute they have to take our comments. And then we filed those comments in response. And the argument that we are making today was presented to the agency by Sierra Club and the agency said, "No, we're not going to even consider that. We're not going to take that contention." So we're in the position here where they've asked for our comments, we've responded to their comments, the arguments we want to make they've already said they're not going to hear. It seems very strange to say that the State of Texas is not a party. We're obviously aggrieved and by their own regulations they asked for our participation and we participated.
Justice Sonia Sotomayor (01:29:46):
Are you defending the Fifth Circuit's ultra vires holding? You're saying even if you weren't a party aggrieved, we could hear your appeal under the theory of ultra vires? I didn't see you or Fasken spending a whole lot of ink on that in your briefs.
Mr. Nielson (01:30:03):
Well, I mean, I think the more straightforward point is that we are a party under the Hobbs Act or if not, if Fasken's really a party and then this is all academic for us.
Justice Sonia Sotomayor (01:30:12):
So you're not. Thank you.
Mr. Nielson (01:30:13):
But no, I certainly am. I certainly am, and here's why. If I am wrong about the Hobbs Act, then we really are in a situation where we don't have meaningful judicial review. If they can really cut us out by saying, "We're not going to take your contingents because we think you're wrong on the merits," and that's somehow okay, then we are in the world of ultra vires review. I don't think we're there. That's why our front-line answer is just look to the Hobbs Act [inaudible 01:30:37].
Justice Ketanji Brown Jackson (01:30:36):
Could you move to intervene? Was there something precluding the state of Texas from moving to intervene in this case?
Mr. Nielson (01:30:43):
Well, other than, Your Honor, they asked for our participation.
Justice Ketanji Brown Jackson (01:30:45):
No, I understand. I understand what you actually did. I'm just saying you say there's no meaningful judicial review and I'm just wondering if there is an avenue for you to become a party with the requisite degree of formality, say, by requesting intervention, was there a reason why you couldn't have done that?
Mr. Nielson (01:31:01):
Yeah, so I would go back to what Mr. Stewart said earlier, which is even for states, you have to have an admissible contention. And the argument that we were making was the exact same argument Sierra Club made and they said, "That's not an admissible contention." I would point the court to 10 CFR 2.335, which is their procedure if they want to screen out these types of things, which essentially says if you think you're operating outside of, if we are operating outside of, the law, well, then you have to file a petition for rulemaking. That is not meaningful judicial review. That is not how judicial review works.
Speaker 1 (01:31:33):
General, I take your point that if this were rulemaking, you'd be a party. I get that. I also understand the instinct that adjudications are sometimes different, though I know this court has held that objecting shareholders in a class action suit are parties for purposes of appeal, even though they haven't intervened. Where should we look to understand what the Hobbs Act meant by the term "party"?
Mr. Nielson (01:32:06):
Sure. I mean one, I would say let's look at the dictionary. Both parties point the court to the Black's law Dictionary. Look at the big text, not the little text underneath that they rely on. Look at the big frontline text that he uses, the 1951 Black's Law Dictionary, I would say there, but I'd also say whatever you say "party" means for Hobbs Act purposes, it has to be big enough to include rulemaking because it's the very same word.
Speaker 1 (01:32:31):
And we've never said that you have to intervene to be a party and that was not the case at common law.
Mr. Nielson (01:32:37):
Correct, Your Honor. And I would also, again, this is back on the 10th Circuit days. You wrote a decision in Ray Wolseley where the court, I thought it was a wonderful opinion, and the court explained-
Speaker 1 (01:32:51):
I wish I could remember it.
Mr. Nielson (01:32:54):
The court explained the Clark v. Martinez point, which it says is tied to the rule of law itself. You can't have a word that means different things in different applications. If it's the same word, it means the same thing. You have to have the lowest common denominator to capture them all.
(01:33:07)
But if I may, I'd like to turn to the merits, though I'm happy to keep discussing jurisdiction. I think that for me, the most kind of straightforward way to understand the problem with their argument is Congress amended the statute. Congress amended the statute and took the definition of spent nuclear fuel from the Nuclear Waste Policy Act and placed it in the AEA. So there are provisions of the AEA that make no sense at all under their interpretation. I point the court to 42 USC 2210i, which lists all of these terms in the same sentence.
(01:33:47)
So if spent nuclear fuel is just the same thing as the other three constituent parts, that sentence is nonsense. That cannot possibly be the correct reading of the statute. I would also point to the court, if I may, to where did Congress say they didn't want this? One is 10155(h), which we've been talking about, which is inexplicable under their theory, but also 10131(a)(3), where Congress said in its findings, paraphrasing here, "We are unhappy with what has happened before." You don't see that very often from Congress, but Congress said we are displeased with what has happened before. And then you go on to 1015(h), which says keep it on site.
Justice Ketanji Brown Jackson (01:34:25):
Mr. Nielson, if spent nuclear fuel is not the same as the three constituent parts, why did ISP need a license at all?
Mr. Nielson (01:34:34):
Yeah, I think this is where … a couple answers. One, I agree with Mr. Frederick that the answer is the licensing of the facility. You have to have a safe facility, so you have to have some way to keep the very, very, very hot nuclear waste safe. But the other is physics. If you have a license to take some sort of product or material onto a facility and you have a license to use that facility, but you have no license to take it off the facility, per Newton, it stays where it is.
Justice Ketanji Brown Jackson (01:35:05):
No, I'm asking about the statutory possession requirement. I thought you had to have a license to possess this kind of material and it's this constituent parts and everybody has believed that that equals spent nuclear fuel. If you're saying that spent nuclear fuel is something different, then isn't it outside of all of this licensing?
Mr. Nielson (01:35:28):
No, Your Honor. And I point the court back to Pacific Gas and also the first line of ISP's brief and the first line of Paul Clement's brief. The way you start with nuclear power going back to 1946 is right after Hiroshima, there's a federal monopoly on all of this. No private ownership of any of this stuff. Congress then in 1954 opens up for the first time and says, "We're going to allow some private ownership or possession of these things," and said, "These are the three types of things that we are going to allow." They did not allow spend nuclear fuel. So if you start with the baseline of there's a federal monopoly and no one could do any of this and then you have three exceptions, you can't have a fourth exception.
Speaker 1 (01:36:13):
What about the idea that the 1954 Act arguably authorizes this when you get to 1980, the commission says it does. 1982, Congress is very aware of this issue and certainly aware of the commission, where the commission is on this, and yet does not preclude it. And that's remained the settled understanding ever since. The basic same argument I asked Mr. Frederick, but that seems kind of unusual step by Congress. They might not have had the votes to prohibit it in 1982 might be one interpretation, big picture interpretation of what happened there. You just want to respond to all that?
Mr. Nielson (01:36:57):
Sure. So one, again, I would point the court to 10155( h) and 10131(a)(3).
Speaker 1 (01:37:02):
Yeah. If 10155(h) does not prohibit.
Mr. Nielson (01:37:05):
Okay, but it is inexplicable under their view. But I would also point the court to the congressional brief where they explain the early statements of the agency after the passage of the policy act, which I don't think are consistent with what we're hearing now. There's also the time. What strikes me is if we've always had this power, then why wasn't it until after the agency gave up on Yucca Mountain that suddenly you started getting these applications? It's very bizarre. It seems to me that if there's always been this power and everybody understood this power exists, it wasn't until the agency said, "Oh, actually we're not going to do Yucca Mountain." That suddenly said, "Oh, let's go back to this power that's already existed."
Justice Sonia Sotomayor (01:37:43):
Because it was told it had to try everything else. It was told in the 1982 act that it wanted to encourage on-site, the federal government to take it, et cetera. So it couldn't run to do something that Congress said, "Try everything else."
Mr. Nielson (01:38:03):
Yeah, and the fallback-
Justice Sonia Sotomayor (01:38:04):
We've run out of everything else.
Mr. Nielson (01:38:07):
I disagree with that, Your Honor, but the fallback that Congress said was federal facilities. Federal facilities. And this goes back to the point that I think Justice Alito was making. What are the incentives for Congress here? If New Mexico and Texas are left holding the bag, every other state will be happy. They will be pleased because this waste will stay in Texas forever. The only way we're going to get a national solution to this problem is by Congress to get everybody there and figure it out. They tried to do that with Yucca Mountain and it didn't work, but the answer isn't, "Well, I guess we're just going to put it on Texas now." No. Congress needs to go back and fix the law. If the law is broken, it's on Congress. Congress should fix it. It's not this court's job and it's not the agency's job.
Speaker 2 (01:38:49):
Thank you.
Mr. Nielson (01:38:49):
My time's expired.
Speaker 2 (01:38:50):
Justice Thomas? Justice Alito? Justice Sotomayor?
Justice Sonia Sotomayor (01:38:55):
When are we in the business of giving Congress incentives?
Mr. Nielson (01:38:59):
No. Congress gave the agency incentives. Congress said, "Do this, agency-"
Justice Sonia Sotomayor (01:39:03):
All right. Thank you, Counsel.
Speaker 2 (01:39:04):
Justice Gorsuch?
Speaker 1 (01:39:08):
In your opening you used the phrase "terrorist bullseye", which is obviously distinct language. We've known of that at least since September 11th, 2001. Yet Texas supported this project as I understand it, correct me if I'm wrong, for several years in the mid-2010. Can you explain that if it was a terrorist bullseye?
Mr. Nielson (01:39:32):
Yeah, I would like to correct it. So I urge the court to go back and look at JA one through three, the very first pages of the JA. This is Governor Perry's letter. I don't read that letter as saying, oh yeah, this is a great idea. He is saying the federal government has failed its obligations and has not done what Congress said. You're not going to have an answer for this for decades. And now Texas is in the spot of what are we supposed to do? They're going to build it across the border in New Mexico. Texas needs to have some sort of ability to have some say in this. That is how I would urge the court.
(01:40:01)
Read pages one through three of the JA. That is not a ringing endorsement by Governor Perry. He was just going to say this is the best of the bad options. Governor Abbott comes in before this license and he says, no, essentially, over my dead body, are you going to do this, citing the terrorist concerns that we are identifying. Also look at the brief from the congressional brief, which does this as well.
Speaker 1 (01:40:22):
Thank you.
Speaker 2 (01:40:24):
Justice Barrett? Justice Jackson? Thank you, Counsel. Mr. Stewart.
Mr. Stewart (01:40:31):
Thank you Mr. Chief Justice, just a few quick points. First, Mr. Frederick referred to 42 USC 2239(a), which deals with the commission adjudications, but that provision doesn't say if a person satisfies certain requirements, that person becomes a party or is a party. What it says is under certain circumstances, the commission, quote, "Shall admit any such person as a party to such proceedings." It's a directive to the commission and it's indisputable here that the commission didn't admit either Texas or ISP as a party, I'm sorry, Fasken or Texas as a party. Fasken's argument is simply that it should have been admitted.
(01:41:09)
Second, Mr. Frederick said that when spent nuclear fuel comes out of the reactor, it's too hot to handle or too hot to move. And there is an initial period of at least five years when it has to be placed in a pool. And I'm told that it's rare though, not unprecedented, that the pool is moved. But after that time, even when the waste is stored at the site of a nuclear reactor, it's often moved into cask storage. It's in the same containers where it would be stored at ISP's facility.
(01:41:37)
Third, Mr. Frederick referred to the 1980 Federal Register notice. There was a two paragraph discussion, I think it's heading number 18, off-site versus on-site storage. But it was all about policy. Some commenters said on-site storage is better as a policy matter. Some commenters said off-site storage is better as a policy matter. No commenter at that time questioned the Commission's statutory authority to choose one or the other or both. And the commission chose both.
(01:42:07)
The next thing I'd refer to is there was a reference to the facilities license that Justice Kavanaugh, I think you asked how would the ISP facility be illegal if your view of the materials licensing provisions is correct, and the answer was they would still need a facilities license. That's not correct. The facilities licensing provisions apply only to production or utilization facilities. If you operate a nuclear reactor, you need both a facilities license to operate the reactor and a materials license to possess the relevant stuff.
(01:42:40)
But ISP's proposed facility is not either a production or utilization facility. All it needs is the materials license. And it's true that in determining whether to grant the materials license, the commission will examine the nature of the facility. Is it safe? Is it secure? But that doesn't convert it into a facility's license.
(01:42:59)
And Justice Kavanaugh, you laid out the sequence of events that led to the current understanding or the until recent understanding that off-site storage is permissible. And I'd add only one. And that's the DC Circuit's decision in Bullcreek, which was a little over 20 years ago. And that was when the question whether the Policy Act had superseded the Atomic Energy Act's licensing provisions and precluded off-site storage. It was teed up then. And the DC circuit decided that, no, the Commission's off-site licensing authority remained intact. And we've been another 20 years since then. Thank you.
Speaker 2 (01:43:35):
Thank you, counsel. The case is submitted.
Speaker 6 (01:43:39):
The Honorable Court is now adjourned until Friday the 21st of March at 10:00 o'clock.