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America’s Trumpiest court just put itself in charge of nuclear safety

This decision is radioactive, even by the very low standards of the United States Court of Appeals for the Fifth Circuit.

Steam rises out of two large smokestacks.
Power lines pass over the town of Goldsboro, Pennsylvania as steam rises out of the nuclear plant on Three Mile Island.
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Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Judge James Ho is not a nuclear scientist, an expert in energy policy, an atomic engineer, or anyone else with any specialized knowledge whatsoever on how to store and dispose of nuclear waste.

Nevertheless, Ho and two of his far-right colleagues on the United States Court of Appeals for the Fifth Circuit just put themselves in charge of much of America’s nuclear safety regime — invalidating the power of actual nuclear policy regulators to decide how to deal with nuclear waste in the process.

The case is Texas v. Nuclear Regulatory Commission (NRC), and it involves the NRC’s decision to license a temporary storage facility for “high-level spent nuclear fuel” in Andrews County, Texas. Several plaintiffs, including Texas’s Republican government, disagreed with the decision to locate this facility in Texas, and they sued.

Nearly 20 years ago, two other federal appeals courts heard similar lawsuits challenging the NRC’s authority to select facilities for nuclear waste storage. In both of those suits, the courts rejected those challenges and sided with the NRC. It’s understandable why many Americans may not want spent nuclear material to be stored in their home state, but this material needs to go somewhere, and Congress explicitly gave the NRC the power to license facilities where it may be stored.

Three different provisions of federal law give the NRC the power to “issue licenses” permitting facilities to store different forms of nuclear materials. These provisions are broadly worded. One permits the NRC to license such facilities for any use “the Commission determines to be appropriate to carry out the purposes” of a broader atomic energy law. Another permits the agency to license such facilities for “any” use “approved by the Commission as an aid to science or industry.”

Nevertheless, Ho and his fellow Republican-appointed colleagues conclude that the NRC’s decision to license the Andrews County facility was illegal for at least three different reasons. The premise of Ho’s opinion, in other words, is that he has somehow uncovered multiple flaws in a longstanding legal regime that have all somehow escaped the notice of the rest of the federal judiciary for nearly 20 years.

Realistically, the Supreme Court is likely to hear this case and reverse Ho’s decision. Much of the Fifth Circuit appears to be intentionally trying to sow chaos throughout the federal government, without any regard to consequences. But most of the justices have thus far shown little sympathy for this crusade.

Nevertheless, the high court is controlled by six very conservative Republicans. So while they are likely to reverse Ho, there is no guarantee.

Ho’s opinion is surprisingly short and thinly reasoned

Ordinarily, if a judge parts ways with a longstanding consensus within the federal judiciary, and does so in a technical area of the law involving matters that require considerable scientific expertise, that judge would write a fairly long and comprehensive opinion laying out why he thinks his colleagues got such an important question wrong for so many years.

Judge Ho’s Texas opinion, by contrast, devotes just eight pages of legal analysis to his various arguments against allowing expert nuclear regulators to determine what to do with nuclear waste. And in some cases he spends just a few sentences explaining his various arguments.

Some of those arguments, moreover, are ridiculous on their face. At one point, for example, Ho points to a provision of federal law that gives the NRC authority over radium-226, a radioactive material that had several common uses in the 20th century, and that also gives NRC authority over materials that the NRC determines “would pose a threat similar to the threat posed by ... radium-226 to the public health and safety.”

Ho, however, argues that this statutory provision does not extend to many of the materials that will be stored at the Andrews County facility because radium-226 has a half-life of about 1,600 years, while some forms of nuclear waste have a longer half-life of 24,000 years. According to Ho, “there’s no plausible argument that spent nuclear fuel, which contains radioactive isotopes with half-lives much longer than radium-226, is the type radioactive material contemplated” in the law defining the scope of the NRC’s authority.

(The term “half-life” refers to the amount of time it takes for the intensity of the radiation emitted by radioactive materials to diminish by one-half.)

First of all, the statute that Ho refers to here states explicitly that the NRC, “in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency,” shall determine which radioactive materials propose a similar threat to radium-226. So Ho’s decision effectively overrules the judgment of expert nuclear regulators in at least four different federal agencies. And it does so despite the fact that Congress gave those agencies, and not James Ho, the power to make this determination.

Second, the statute says that NRC shall make this determination based on the impact of a particular material on “public health and safety.” It does not even mention half-life, which is not relevant unless you are concerned about the impact on public health at some date thousands of years in the future.

Ho’s judgment, moreover, is that Congress intended to draw very sharp distinctions based on whether a particular kind of nuclear material would become less dangerous over a period of thousands of years, or tens of thousands of years. The idea that lawmakers make decisions based on what will happen in the year 3600 — not to mention the year 26,000 — is so implausible that it warrants no further discussion.

Elsewhere in his opinion, Ho points to a different federal statute, known as the Nuclear Waste Policy Act, which “prioritizes construction” of a permanent facility to store nuclear waste — a facility that does not yet exist — and that contains other provisions governing temporary storage of nuclear waste.

But nothing in the Nuclear Waste Policy Act repeals the preexisting statutes allowing the NRC to issue licenses to facilities like the Andrews County facility.

Ho makes other arguments as well. At the end of his opinion, for example, Ho spends two paragraphs arguing that the Andrews County license violates the “major questions doctrine,” a vague legal doctrine that was recently invented by the Supreme Court, and that the GOP-controlled court has used to invalidate several policies pushed by the Biden administration. In some cases, the Court has used this recently created doctrine to strike down programs that are unambiguously authorized by an Act of Congress.

Though Ho’s discussion of the major questions doctrine takes up about half a page of his opinion, it is probably the strongest argument he makes against the NRC. But it is a relatively strong argument, not because Ho makes some devastating legal claim in those two brief paragraphs, but because the major questions doctrine is so new and so ill-defined that it can be read to allow judges to veto any policy that garners any meaningful opposition.

At the very least, Ho should have provided more than two paragraphs of analysis explaining why this vague and novel doctrine allows him to blow up two decades’ worth of established law.

So what happens now?

It is all but certain that the Supreme Court will hear this case. The Supreme Court pays special attention to cases involving “circuit splits” — that is, cases involving legal questions that have divided federal appeals courts. And Ho’s decision in Texas is at odds with decisions out of at least two other circuits.

It’s also fairly likely that the Supreme Court will reverse Ho. Again, nuclear waste has to be stored somewhere, and it is unclear where all of it is supposed to go if the NRC is stripped of its longstanding authority to authorize storage facilities. As Ho notes, “some estimates suggest the U.S. inventory of spent nuclear fuel may exceed 200,000 metric tons by 2050.”

Ho’s decision, moreover, is part of a deeper pattern within the Fifth Circuit, the most right-wing federal appeals court in the country. In recent months, the Fifth Circuit declared an entire federal agency, the Consumer Financial Protection Bureau, unconstitutional. It devastated the Securities and Exchange Commission’s power to enforce laws preventing companies from defrauding investors. And it unlawfully stripped the Food and Drug Administration of its final authority over which drugs are sufficiently safe and effective to be prescribed in the United States. All of these decisions are likely to be reversed by the Supreme Court.

The Fifth Circuit, in other words, appears to be in the middle of an open-ended effort to diminish US state capacity, regardless of whether there is any valid legal basis for doing so. That’s a very destructive thing for a federal court to do. But, at least so far, even our current, very conservative Supreme Court has shown little patience for this crusade.

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