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Thursday December 8th, 2022 3:28PM

Supreme Court climate ruling could impact nuclear waste case

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

Two Republican attorneys general — including the West Virginia official who successfully challenged Environmental Protection Agency rules restricting greenhouse gas emissions by power plants — say the Supreme Court ruling applies more broadly to other executive branch actions. And in at least one case, environmental groups appear to agree.

Texas Attorney General Ken Paxton says the court's June 30 ruling, which limited how the nation's main anti-air pollution law can be used to reduce carbon dioxide emissions, can 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, fresh off a win in the climate case, says he will challenge a proposal by the Securities and Exchange Commission to require companies to report on their climate risks, including those related to the physical impact of storms, drought and higher temperatures caused by global warming.

The court's 6-3 ruling said EPA violated the “major questions” doctrine in regulating greenhouse gas emissions by power plants. The decision held that Congress must speak with specificity when it wants to give an agency authority to regulate on an issue of major national significance.

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

Some legal experts suggested the Supreme Court ruling also might be cited in challenges to President Joe Biden's announcement last week that the administration would provide $10,000 in student debt cancellation for millions of Americans — and up to $10,000 more for those with the greatest financial need.

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

That's problematic, Duffy wrote in a blog post, “because Congress generally writes laws in broad terms such that they can be adapted to changing problems and solutions by the technical experts working at agencies to address public health, safety and the environment.’’

In the Texas case, Paxton contended in a court filing soon after the high court ruling that the Nuclear Regulatory Commission lacked specific direction from Congress when it licensed a private company to temporarily store spent, radioactive waste in west Texas near the border with New Mexico.

The ruling in West Virginia v. EPA “confirms that this case implicates the major questions 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-storage plan also invoked the West Virginia case.

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

The group argues in a separate case before the D.C. 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 invalid because "it ignored the unambiguous mandates of the Nuclear Waste Policy Act” to store nuclear waste at a now-abandoned site at Nevada's Yucca Mountain.

“Only Congress can decide whether to abandon one of its primary strategies for ensuring 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 authority delegated by Congress.

“I do think there are policy issues here that are enormous,'' she said in an interview. "It's disturbing that the NRC put its oar in on a policy 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 appreciates the irony that environmental groups are siding with staunch conservatives such as Paxton and Morrisey in the nuclear dispute.

“My enemy is my friend” when interests coincide, he said with a chuckle.

“It's certainly a major question,'' Taylor added, referring to nuclear waste storage. “Tens of thousands of tons of nuclear waste” must be disposed of “and there's no authority in the Nuclear Waste Policy Act to license interim storage,'' he said. “All they can license 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 on the issue, including in the 1954 Atomic Energy Act.

"The materials license issued here reflects a conventional exercise of NRC's longstanding and exclusive authority over a matter that lies at the core of its expertise,'' the agency wrote.

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

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

In formal comments filed with the SEC, meanwhile, 21 Republican attorneys general led by Morrisey argue that the securities agency is trying to transform itself from a financial overseer “into the regulator of broader social ills,” including climate change

“The woke left is going full throttle in their mission to change every facet of American life, businesses and erode our democratic institutions to suit their liberal agenda,” Morrisey said. “The Biden administration wants to radically transform the SEC and other agencies run by unelected bureaucrats and make them champions of climate change, regardless of what those agencies’ functions are.''

Biden, he added, “is creating a federal bureaucracy to suit his agenda.”

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