Blog post

Supreme Court climate ruling could impact nuclear waste case

Comment

WASHINGTON — The Supreme Court’s landmark decision on climate change could have implications for a range of other issues, including a case involving the storage of nuclear waste and a proposal requiring companies to disclose how climate risk affects their businesses. , according to advocates from across the political spectrum.

Two Republican attorneys general — including the West Virginia official who successfully challenged Environmental Protection Agency rules limiting greenhouse gas emissions from power plants — say the court’s decision supreme applies more broadly to the other actions of the executive power. And in at least one case, environmental groups seem to agree.

Texas Attorney General Ken Paxton said the June 30 court ruling, which limited how the country’s main air pollution law could be used to reduce carbon dioxide emissions, could be used to block a federal license issued to a private facility to store radioactive waste in his state.

West Virginia Attorney General Patrick Morrisey, who just won a victory in the climate case, said he would challenge a Securities and Exchange Commission proposal to hold companies accountable for their climate risks , including those related to the physical impact of storms, drought and higher temperatures caused by global warming.

The 6-3 court ruling said the EPA violated the “big issues” doctrine in regulating greenhouse gas emissions from power plants. The decision ruled that Congress must speak with precision when it wants to give an agency the power to regulate on a matter of major national importance.

Several conservative justices have criticized what they see as the unchecked power of federal agencies.

Some legal experts have suggested the Supreme Court ruling could also be cited in challenges to President Joe Biden’s announcement last week that the administration would provide $10,000 in student debt forgiveness to millions of students. Americans – and up to $10,000 more for those most in financial need.

Jay Duffy, an attorney for the environmental group Clean Air Task Force, said the decision in the West Virginia case “set the bar exceptionally high” for executive branch agencies to act on a variety of issues without triggering major issues doctrine.

This is problematic, Duffy wrote in a blog post, “because Congress typically writes laws in general terms so that they can be adapted to changing problems and solutions by technical experts working in agencies to deal with public health, safety and the environment”.

In the Texas case, Paxton argued in a court filing shortly after the High Court’s decision that the Nuclear Regulatory Commission did not receive specific direction from Congress when it authorized a private company to temporarily storing spent radioactive waste in West Texas, near the border with New Mexico.

The decision in West Virginia v. EPA “confirms that this case involves the major issues doctrine,” Paxton’s office said in a letter to the 5th U.S. Circuit Court of Appeals, which is hearing the state’s challenge in the nuclear case.

In a political twist, environmental groups that oppose the waste disposal plan also cited the case of West Virginia.

“No federal agency is above the law,” said Diane Curran, an attorney for Beyond Nuclear, an advocacy group that opposes nuclear power.

The group is arguing in a separate case in the DC Circuit Court of Appeals that a license issued to Texas-based Interim Storage Partners to store thousands of metric tons of spent nuclear fuel for up to 40 years is not valid because “she ignored unambiguous mandates from the Nuclear Waste Policy Act” to store nuclear waste at a now abandoned site at Yucca Mountain in Nevada.

“Only Congress can decide to abandon one of its key strategies to ensure the completion of a federal repository” for nuclear waste, Curran said.

Like Paxton and Morrisey, Curran said federal agencies appear to be going beyond their delegated authority from Congress.

“I think there are huge political issues here,” she said in an interview. “It’s troubling that the NRC is deferring to a political decision that belongs to Congress,” namely, where to store nuclear waste.

Wallace Taylor, a lawyer who represents the Sierra Club on nuclear issues, said he appreciated the irony that environmental groups sided with staunch conservatives such as Paxton and Morrisey in the nuclear dispute.

“My enemy is my friend” when interests coincide, he laughs.

“It’s definitely a major issue,” Taylor added, referring to the storage of nuclear waste. “Tens of thousands of tons of nuclear waste ‘must be disposed’ and there is no authority in the Nuclear Waste Policy Act to allow interim storage,” he said. “All they can allow is a permanent repository” at Yucca Mountain, a project that has been mothballed for more than a decade and faces strong bipartisan opposition.

The NRC, in a legal filing in the 5th Circuit case, said the Texas license is not an example of overreach because the agency has “longstanding” authority over the matter, including in the Atomic Energy Act of 1954.

“The materials license issued here reflects a conventional exercise of NRC’s longstanding and exclusive authority over a matter that is central to its expertise,” the agency wrote.

Congress has “clearly and expressly” granted the NRC authority to license offsite nuclear fuel storage facilities, including in the 1954 law, the agency added.

Edwin Lyman, director of nuclear energy safety at the Union of Concerned Scientists, said Paxton’s argument that the NRC lacks the power to license nuclear waste storage is dangerous. “While we are concerned about the consolidated safety and security of spent fuel storage, if @NRCgov were stripped of ALL authority to regulate #nuclear waste there would be utter chaos,” Lyman tweeted.

Meanwhile, in official comments filed with the SEC, 21 Republican attorneys general led by Morrisey say the securities agency is trying to transform itself from a financial watchdog “into a regulator of broader social ills”, including including climate change.

“The Woke Left is going full throttle on its mission to change every facet of American life, business and erode our democratic institutions to fit its liberal agenda,” Morrisey said. “The Biden administration wants to radically transform the SEC and other agencies run by unelected bureaucrats and make them climate change champions, regardless of what those agencies do.”

Biden, he added, “is creating a federal bureaucracy that fits his agenda.”