Opinion of the Court
Brett M. Kavanaugh
(Slip Opinion) OCTOBER TERM, 2024 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 .
SUPREME COURT OF THE UNITED STATES
Syllabus
NUCLEAR REGULATORY COMMISSION ET AL. v.
TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 23–1300. Argued March 5, 2025—Decided June 18, 2025*
The Atomic Energy Act of 1954 generally prohibits the private possession
of nuclear materials, including spent nuclear fuel, without a license.
The Nuclear Regulatory Commission may license the possession of nu-
clear materials, subject to statutory and procedural requirements. 42
U. S. C. §§2073 (a), 2092–2093(a), 2111(a), 2231, 2239. Here, Interim
Storage Partners (ISP) applied for a license to build a facility in West
Texas to store spent nuclear fuel. During ISP’s licensing proceeding,
a Texas government agency submitted comments, including comments
on a draft environmental impact statement (EIS) prepared by the
Commission for the proposed facility. Fasken Land and Minerals, a
private West Texas business, similarly submitted comments, and it
also sought to intervene in the licensing proceeding. The Commission
denied Fasken’s petition to intervene. Fasken then unsuccessfully
challenged that denial of intervention before the full Commission and
the D. C. Circuit.
In September 2021, the Commission granted ISP a license to build
and operate its proposed storage facility. Texas and Fasken sought
review of the Commission’s licensing decision in the Fifth Circuit. The
Fifth Circuit vacated ISP’s license.
Held: Because Texas and Fasken were not parties to the Commission’s
licensing proceeding, they are not entitled to obtain judicial review of
the Commission’s licensing decision. Pp. 7–23.
——————
*Together with No. 23–1312, Interim Storage Partners, LLC v. Texas
et al., also on certiorari to the same court.
2 NRC v. TEXAS
Syllabus
(a) In the Hobbs Act, Congress specified that only a “party ag-
grieved” by a licensing order of the Commission may seek judicial re-
view. Texas and Fasken argue they qualify as parties because they
participated in the licensing proceeding by submitting comments on
the draft EIS and, in Fasken’s case, by attempting to intervene. But
the text of the Atomic Energy Act indicates that one must be the li-
cense applicant or successfully intervene in order to obtain party sta-
tus in a Commission licensing proceeding. The Act provides: “[T]he
Commission shall grant a hearing upon the request of any person
whose interest may be affected by the proceeding, and shall admit any
such person as a party to such proceeding.” 42 U. S. C. §2239 (a)(1)(A).
That text means that a “person” becomes a “party” only after that per-
son requests to participate in a hearing before the Commission—that
is, requests to intervene—and is actually “admit[ted] . . . to such pro-
ceeding” by the Commission. Ibid. And if the Commission fails to “ad-
mit” someone “as a party,” that person is not a party. Pp. 7–11.
(b) Fasken contends that it can maintain this suit because it satis-
fied the statutory criteria for intervention under the Atomic Energy
Act and the Commission erroneously denied its intervention petition.
Fasken also argues that the Commission’s intervention regulations set
a higher bar for intervention than the Atomic Energy Act contem-
plates. But Fasken could (and already did) obtain judicial review in
the D. C. Circuit of the denial of its petition to intervene. See
§2239(b)(1). In the D. C. Circuit, Fasken did not question the legality
of the Commission’s intervention regulations. Fasken simply chal-
lenged how the Commission applied its regulations in this case. But
the D. C. Circuit rejected Fasken’s arguments and upheld the Com-
mission’s denial of Fasken’s petition to intervene. And Fasken did not
seek en banc review in the D. C. Circuit or certiorari in this Court. The
decision on intervention is final. Fasken cannot now use a new Hobbs
Act suit to collaterally attack the D. C. Circuit’s prior ruling on inter-
vention. Pp. 11–13.
(c) Texas and Fasken alternatively argue that they need not be par-
ties to challenge ultra vires agency action. Because ultra vires review
could easily circumvent judicial-review statutes, this Court’s cases
have strictly limited nonstatutory ultra vires review. Boire v. Grey-
hound Corp., 376 U. S. 473, 481 . The Court’s leading case on ultra
vires review is Leedom v. Kyne, 358 U. S. 184 , holding that nonstatu-
tory review was available because the agency order “was an attempted
exercise of power that had been specifically withheld” and violated a
“specific prohibition” in the National Labor Relations Act. Id., at 188–
189. “The Kyne exception is a narrow one” that does not apply simply
because an agency arguably reached “a conclusion which does not com-
port with the law.” Boire, 376 U. S., at 481 . Rather, it applies only
Cite as: 605 U. S. ____ (2025) 3
Syllabus
when an agency acts entirely “in excess of its delegated powers and
contrary to a specific prohibition” in a statute. Railway Clerks v. As-
sociation for Benefit of Noncontract Employees, 380 U. S. 650, 660 .
For at least two reasons, Texas’s and Fasken’s ultra vires claims fall
short. First, Texas and Fasken basically dress up a typical statutory-
authority argument as an ultra vires claim. Second, ultra vires review
is unavailable where a statutory review scheme provides aggrieved
persons with an adequate opportunity for judicial review. See Board
of Governors, FRS v. MCorp Financial, Inc., 502 U. S. 32 , 43–44. Here,
entities like Texas and Fasken seeking intervention are guaranteed
judicial review of either the Commission’s intervention denial or, if in-
tervention is granted, the Commission’s final licensing order. Addi-
tionally, no precedent supports bringing an ultra vires claim in a court
of appeals rather than first in a district court. Pp. 13–16.
(d) Because Texas and Fasken have no right to judicial review of the
licensing proceeding, the Court today does not decide whether the
Commission possessed statutory authority to issue a license to ISP.
Pp. 16–21.
78 F. 4th 827 , reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. GOR-
SUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined.
Cite as: 605 U. S. ____ (2025) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 23–1300 and 23–1312
_________________
NUCLEAR REGULATORY COMMISSION, ET AL.,
PETITIONERS
23–1300 v.
TEXAS, ET AL.
INTERIM STORAGE PARTNERS, LLC, PETITIONER
23–1312 v.
TEXAS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2025]
JUSTICE KAVANAUGH delivered the opinion of the Court.
More than 50 nuclear power plants in the United States
produce electricity for American homes and businesses.
But those plants also generate dangerous spent nuclear
fuel, which is usually stored on site. Because some plants
are shutting down or no longer operating, on-site storage is
not a viable long-term solution. To address the storage
problem, federal law has long designated the Yucca
Mountain Nuclear Waste Repository in Nevada as the
future permanent site for disposal of spent nuclear fuel.
But the Nevada project has caused significant political
controversy and has stalled.
To fill the void, some private businesses have sought to
build and operate facilities to store spent nuclear fuel “off
site”—that is, off the site of a nuclear power plant. To do
so, however, they need to obtain licenses from the Nuclear
2 NRC v. TEXAS
Opinion of the Court
Regulatory Commission.
Here, the Commission granted a renewable 40-year
license to a private entity seeking to store spent nuclear fuel
at an off-site facility in West Texas. The State of Texas and
a private West Texas business known as Fasken Land and
Minerals objected to the project and sued in the U. S. Court
of Appeals for the Fifth Circuit. They argued that federal
law does not authorize storage of spent nuclear fuel at
private off-site facilities.
The threshold question here is whether Texas and
Fasken may maintain this suit. The Court of Appeals said
yes. We disagree. Under the Hobbs Act, only an aggrieved
“party” may obtain judicial review of a Commission
licensing decision. To qualify as a party to a licensing
proceeding, the Atomic Energy Act requires that one either
be a license applicant or have successfully intervened in the
licensing proceeding. In this case, however, Texas and
Fasken are not license applicants, and they did not
successfully intervene in the licensing proceeding. So
neither was a party eligible to obtain judicial review in the
Fifth Circuit. For that reason, we reverse the judgment of
the Court of Appeals and do not decide the underlying
statutory dispute over whether the Nuclear Regulatory
Commission possesses authority to license private off-site
storage facilities.
I
A
In 1954, Congress passed and President Eisenhower
signed the Atomic Energy Act. 68 Stat. 919 , 42 U. S. C.
§2011 et seq. The Act allowed for private commercial
nuclear power plants. Today, more than 50 nuclear power
plants—along with coal, natural gas, and renewable energy
sources—produce electricity for American homes and
businesses. In all, nuclear power plants generate almost 20
percent of the electricity in America.
Cite as: 605 U. S. ____ (2025) 3
Opinion of the Court
Nuclear power plants also create radioactive waste—as
relevant here, spent nuclear fuel. To lawfully store that
waste, nuclear power plants and storage facilities must
obtain a license from the Nuclear Regulatory Commission.
§§2073(a), 2092–2093(a), 2111(a).
A license application initiates an adjudicatory proceeding
where the Commission determines whether the applicant
has met the statutory and regulatory criteria. §§2231,
2239. Section 2239 governs intervention in those
proceedings. It states: “In any proceeding” for “the
granting, suspending, revoking, or amending of any license
. . . any person whose interest may be affected by the
proceeding” may request to intervene and participate in a
hearing, and the Commission “shall admit any such person
as a party to such proceeding.” §2239(a)(1)(A). The
Commission in turn has promulgated regulations
specifying when a person may intervene under §2239.
Among other things, the Commission directs intervenors to
proffer a “contention” that shows a “genuine dispute . . . on
a material issue of law or fact.” 10 CFR §2.309 (f) (2024). In
1990, the D. C. Circuit upheld the Commission’s
intervention regulations as consistent with the Atomic
Energy Act. See Union of Concerned Scientists v. NRC, 920
F. 2d 50 , 51–56.
The licensing proceeding culminates with a final order by
the Commission that either grants or denies the license.
The final orders of the Commission are subject to judicial
review under the Administrative Orders Review Act of
1950, commonly known as the Hobbs Act. Ch. 1189, 64
Stat. 1129 , as amended; see §2239(b). The Hobbs Act
provides that any “party aggrieved by the final order may,
within 60 days after its entry, file a petition to review the
order” in a court of appeals. 28 U. S. C. §2344 (emphasis
added).
4 NRC v. TEXAS
Opinion of the Court
B
For decades, the question of how best to store and dispose
of spent nuclear fuel has sparked contentious American
policy and political debates, and intermittent legislative
and regulatory efforts. More than 50 commercial nuclear
power plants in the United States now store spent nuclear
fuel on site at the plants themselves. That waste must be
carefully stored in pools or casks. Safe storage requires
substantial space and resources.
In 1980, acting pursuant to the 1954 Atomic Energy Act,
the Nuclear Regulatory Commission promulgated
regulations governing the licensing of private spent fuel
storage facilities. 45 Fed. Reg. 74693 (1980); see 10 CFR pt.
72. In adopting those regulations, the Commission
emphasized that it was not claiming new authority, but
instead was codifying “certain existing regulatory practices
and better defin[ing] licensing requirements covering” off-
site storage under the Atomic Energy Act. 45 Fed. Reg.
74693 . Under the Commission’s regulations, private
storage facilities for spent nuclear fuel may be located either
on site or off the site of a commercial nuclear power plant.
Id., at 74696 . Eligible storage facilities can obtain
renewable 40-year licenses for interim storage of spent
nuclear fuel “pending its ultimate disposal.” Id., at 74694,
74703 ; 10 CFR §72.42 .
Soon thereafter, Congress passed and President Reagan
signed the Nuclear Waste Policy Act of 1982, 96 Stat. 2201 ,
42 U. S. C. §10101 et seq. That Act directed the
Department of Energy to build a geologic repository to
permanently dispose of the Nation’s spent nuclear fuel. See
42 U. S. C. §§10131–10145. Importantly, the Act did not
disturb the Commission’s 1980 regulations allowing both
on-site and off-site private storage facilities.
The U. S. Court of Appeals for the D. C. Circuit
subsequently upheld the Commission’s 1980 regulations for
the licensing of private off-site storage facilities. See
Cite as: 605 U. S. ____ (2025) 5
Opinion of the Court
Bullcreek v. NRC, 359 F. 3d 536 , 537–538, 541–543 (2004).
The D. C. Circuit reasoned that the 1980 regulations were
authorized by and consistent with the 1954 Atomic Energy
Act, and that the 1982 Act did not deny or repeal the
Commission’s authority to license private off-site storage
facilities or otherwise disturb the 1980 regulations. Ibid.
Under licenses granted by the Commission, spent nuclear
fuel is currently being stored at about 10 privately owned
storage sites in the United States where there are no active
nuclear reactors. Brief for United States 6.
Meanwhile, in 1987, Congress amended the 1982 Act to
specify Yucca Mountain in Nevada as the permanent
repository site for spent nuclear fuel. See 101 Stat. 1330–
227 to 1330–228 (codified at 42 U. S. C. §10172 ). But
Nevada’s objections and the (not coincidental) lack of
appropriated funds slowed progress on the Yucca Mountain
repository. And the U. S. Government eventually
suspended the Yucca Mountain project. Most of the
Nation’s spent nuclear fuel continues to be stored on site at
nuclear power plants.
C
In 2018, Interim Storage Partners, a business known as
ISP, applied for a license to build a private off-site storage
facility in Andrews County, Texas. Andrews County is in
West Texas, northwest of Midland and north of I–20
adjacent to the Texas–New Mexico border. The Nuclear
Regulatory Commission published a notice in the Federal
Register. 83 Fed. Reg. 44070 (2018). Several entities
sought to intervene in the licensing proceeding, including
Fasken, which grazes cattle and operates oil and gas wells
in West Texas. Fasken objected to the proposed facility and
raised various concerns, including possible environmental
contamination and harm to endangered species.
The Commission denied Fasken’s petition to intervene.
The Commission’s regulations require would-be
6 NRC v. TEXAS
Opinion of the Court
intervenors to, among other things, proffer a sufficient
“contention,” which means “sufficient information to show
that a genuine dispute exists with the applicant/licensee on
a material issue of law or fact.” 10 CFR §2.309 (f). After
holding two days of oral argument on various intervention
petitions, the Commission’s Atomic Safety and Licensing
Board Panel ruled that Fasken (and several other would-be
intervenors) had not satisfied the requirements for
intervention. The full Commission affirmed.
Fasken then sought review in the D. C. Circuit,
challenging the Commission’s denial of intervention.
Fasken did not argue that the regulations were inconsistent
with the statute. Rather, it contended that, under the
regulations, it had a right to intervene. The D. C. Circuit
decided that Fasken was not entitled to intervene. Don’t
Waste Mich. v. NRC, 2023 WL 395030 (Jan. 25, 2023).
Fasken did not seek en banc review of the denial of
intervention, nor did it petition for certiorari in this Court.
In May 2020, the Commission issued a draft
environmental impact statement, or EIS, as required by the
National Environmental Policy Act, 83 Stat. 852 , as
amended, 42 U. S. C. §4321 et seq. See 10 CFR §51.10
et seq. A Texas government agency and Fasken both
commented on the draft EIS. App. 125, 205. The Texas
agency contended that the proposed facility was creating
“significant unease with the public” and that the
Commission had done too little to prevent the facility from
becoming a de facto permanent storage site. Id., at 205 .
Fasken argued that the facility created an unacceptably
high risk of environmental contamination. Id., at 126 ; see
also id., at 128–146, 198–199. In July 2021, the
Commission published its final EIS.
In September 2021, the Commission granted ISP a
license to build and operate its proposed off-site facility for
storage of spent nuclear fuel. Id., at 284–287. Texas and
Fasken then sued in the Fifth Circuit, arguing that the
Cite as: 605 U. S. ____ (2025) 7
Opinion of the Court
Commission lacked statutory authority to license storage of
spent nuclear fuel at a private off-site facility.
The Fifth Circuit vacated ISP’s license. 78 F. 4th 827 ,
831 (2023). First, notwithstanding that the Hobbs Act
limits jurisdiction to a “party” aggrieved and that neither
Fasken nor Texas successfully intervened as a “party”
under the Atomic Energy Act, the court ruled that it could
reach the merits. The Fifth Circuit reasoned that Texas
and Fasken could challenge ultra vires agency action—that
is, action entirely outside the Commission’s authority—
regardless of whether they qualified as parties aggrieved
under the Hobbs Act. Id., at 839–840. Second, on the
merits, the Fifth Circuit held that the Commission lacked
statutory authority to license a private off-site facility for
storage of spent nuclear fuel. Id., at 840 . In so ruling, the
Fifth Circuit disagreed with the D. C. Circuit’s 2004
Bullcreek decision, which had held to the contrary. 78 F.
4th, at 841–842.
By a 9-to-7 vote, the Fifth Circuit denied rehearing en
banc. 95 F. 4th 935 (2024). The Nuclear Regulatory
Commission and ISP both sought review in this Court, and
we granted certiorari. 603 U. S. ___ (2024).
II
The Hobbs Act generally allows any “party aggrieved” by
a licensing order of the Nuclear Regulatory Commission to
obtain judicial review in a federal court of appeals. 28
U. S. C. §2344 . The threshold question here is whether
Texas and Fasken qualified as parties to the Commission
proceeding who could obtain judicial review in the Fifth
Circuit.
The Commission argues that, to become a party to a
Commission licensing proceeding for purposes of the Hobbs
and Atomic Energy Acts, a person or entity must either be
the license applicant or successfully intervene in the
proceeding. Because Texas and Fasken are not the license
8 NRC v. TEXAS
Opinion of the Court
applicants and did not successfully intervene, the
Commission contends that Texas and Fasken are not
parties and cannot maintain this suit.
Texas and Fasken disagree and advance three
alternative arguments for why they can pursue this case.
First, according to Texas and Fasken, they were parties
because both of them submitted comments to the
Commission. Fasken also separately argues that it was a
party because it sought to intervene in the licensing
proceeding, even though it did not successfully intervene.
Second, Fasken contends that the Commission
erroneously denied Fasken’s intervention petition.
Specifically, Fasken contends that the Commission’s
regulations governing intervention are inconsistent with
the text of the Atomic Energy Act and set too high a bar for
intervention. Fasken says that the D. C. Circuit’s decision
affirming the Commission’s denial of Fasken’s intervention
petition does not preclude Fasken from relitigating the
intervention issue in this litigation.
Third, Texas and Fasken claim that their statutory
claims are reviewable even if they were not parties to the
Commission’s licensing proceeding. Agreeing with the
Fifth Circuit, they argue that the Commission acted ultra
vires by issuing a license to ISP, so a court may invalidate
the license even if no statutory avenue for judicial review
like the Administrative Procedure Act or the Hobbs Act is
available.
We disagree with each of Texas’s and Fasken’s
arguments. They were not parties to the Commission’s
licensing proceeding and therefore cannot obtain judicial
review of the Commission’s licensing decision.
A
First, Texas and Fasken contend that simply submitting
comments or attempting to intervene in the Commission’s
licensing proceeding suffices to qualify as a party under the
Cite as: 605 U. S. ____ (2025) 9
Opinion of the Court
Hobbs Act. Not so.
Under the Hobbs Act, only a “party” aggrieved by the
licensing proceeding may seek judicial review.
Importantly, a “party” aggrieved is not synonymous with a
“person” aggrieved. In the Administrative Procedure Act of
1946, Congress created a general cause of action for any
“person . . . aggrieved” by agency action. 5 U. S. C. §702 .
But as then-Judge Scalia explained, when Congress
enacted the Hobbs Act in 1950, it “did not adopt the ‘person
aggrieved’ standard used in the general judicial review
provision of the APA, even though the features of that
legislation adopted four years earlier were prominently in
mind.” Simmons v. ICC, 716 F. 2d 40 , 43 (CADC 1983).
Therefore, as Judge Scalia stated, “we must read ‘party’ as
referring to a party before the agency.” Ibid. Other Courts
of Appeals agree with the D. C. Circuit on that point. See,
e.g., Blackstone Valley Nat. Bank v. Board of Governors of
FRS, 537 F. 2d 1146, 1147 (CA1 1976); Wales Transp., Inc.
v. ICC, 728 F. 2d 774, 776, n. 1 (CA5 1984); Packard
Elevator v. ICC, 808 F. 2d 654, 655 (CA8 1986); Sierra Club
v. NRC, 825 F. 2d 1356 , 1360 (CA9 1987).
The question then is how one becomes a party in a
Commission licensing proceeding. Texas and Fasken
emphasize ordinary dictionary definitions of “party,” such
as “participator.” E.g., 11 Oxford English Dictionary 281–
282 (2d ed. 1989); see Random House Dictionary of the
English Language 1052–1053 (1966) (“participant”).
According to Texas and Fasken, they “participated” and
became parties by filing comments or attempting to
intervene.
But the text of the Atomic Energy Act indicates that one
must be the license applicant or successfully intervene in
order to obtain party status in a Commission licensing
proceeding. That Act provides: “In any proceeding under
this chapter, for the granting . . . of any license . . . the
Commission shall grant a hearing upon the request of any
10 NRC v. TEXAS
Opinion of the Court
person whose interest may be affected by the proceeding,
and shall admit any such person as a party to such
proceeding.” 42 U. S. C. §2239 (a)(1)(A) (emphasis added).
That text means that a “person” becomes a “party” only
after that person requests to participate in a hearing before
the Commission—that is, requests to intervene—and is
actually “admit[ted] . . . to such proceeding” by the
Commission. Ibid. It follows that if the Commission fails
to “admit” someone “as a party,” that person or entity is not
a party.1
Texas responds that the text of the Hobbs Act does not
distinguish between rulemaking and adjudicative
proceedings. So as Texas sees it, the same participation
that confers party status in an agency rulemaking—
namely, filing a comment—should suffice to qualify for
party status in an agency adjudication such as a
Commission licensing proceeding. We disagree with that
“lowest common denominator” approach to party status.
Tr. of Oral Arg. 85. The Hobbs Act applies to a variety of
agency actions, and what suffices for party status in one
category of proceeding may be inadequate in another. Here,
the text of the Atomic Energy Act makes clear that a person
or entity must be granted intervention in order to become a
“party” to a Commission licensing proceeding, even if
something less than intervention may suffice in other
proceedings such as rulemakings (or perhaps certain less-
formal agency adjudications) that are also governed by the
Hobbs Act.
Because the Atomic Energy Act confines party status to
——————
1 To be sure, if the Commission errs in denying intervention, the
denied person or entity may obtain judicial review of the denial of
intervention (as Fasken did here in the D. C. Circuit). But until one is
granted intervention either by the Commission directly or following a
reviewing court’s decision, that person or entity is not a “party” and
cannot obtain judicial review of the Commission’s licensing decision
under the Hobbs Act.
Cite as: 605 U. S. ____ (2025) 11
Opinion of the Court
license applicants and intervenors, we also reject Texas’s
argument, advanced for the first time at oral argument,
that the Commission in effect offered party status to those
who submitted comments on the draft EIS. Id., at 86–88.
By way of comparison, participation by amici in a court
proceeding does not make the amici parties, even if the
court invited such participation. See United States ex rel.
Eisenstein v. City of New York, 556 U. S. 928, 933 (2009).
So too in Commission licensing proceedings under the
Atomic Energy Act. Where judicial review of an underlying
agency action is not otherwise available, an entity cannot
bootstrap its way into judicial review of that action simply
by commenting on a draft EIS, even if invited to do so.
To be clear, Texas and Fasken could (and did) submit
information and views to the Commission that the
Commission could analyze in its decisionmaking process—
not unlike an amicus brief in a court proceeding. But that
level of participation does not equate to party status in this
statutory scheme.
In light of the statutory text and context, those who were
not license applicants or granted intervention in the
Commission’s licensing proceeding do not qualify as parties
who can obtain judicial review under the Hobbs Act.
B
Second, Fasken asserts (as does the dissent) that, in any
event, Fasken satisfied the statutory criteria for
intervention under the Atomic Energy Act—and thus
should have been granted intervention by the Commission.
And Fasken contends that the D. C. Circuit’s decision
upholding the Commission’s denial of intervention in
earlier litigation does not preclude it from now relitigating
that issue in the Fifth Circuit and this Court. We disagree.
The Atomic Energy Act generally provides that the
Commission “shall admit” any person who requests a
hearing and “whose interest may be affected by the
12 NRC v. TEXAS
Opinion of the Court
proceeding.” 42 U. S. C. §2239 (a)(1)(A). The Commission’s
regulations governing intervention in turn require
intervenors to meet several specific criteria. For example,
the Commission directs intervenors to proffer a
“contention” that creates a “genuine dispute . . . on a
material issue of law or fact.” 10 CFR §2.309 (f) (2024). In
1990, the D. C. Circuit upheld the Commission’s
intervention regulations as consistent with the Atomic
Energy Act, including §2239. See Union of Concerned
Scientists v. NRC, 920 F. 2d 50 , 51–56.
According to Fasken (and the dissent), the Commission’s
regulations set a higher bar for intervention than the
Atomic Energy Act contemplates. In 1990, the D. C. Circuit
rejected that argument. See ibid. In any event, that
question is not before us in this case. Fasken could (and
already did) obtain judicial review in the D. C. Circuit of the
denial of its petition to intervene. See §2239(b)(1). In the
D. C. Circuit, Fasken did not question the legality of the
Commission’s intervention regulations. See Don’t Waste
Mich. v. NRC, 2023 WL 395030 (Jan. 25, 2023). Fasken
simply challenged how the Commission applied its
regulations in this case. But the D. C. Circuit rejected
Fasken’s arguments. And Fasken did not seek en banc
review in the D. C. Circuit or certiorari in this Court. The
decision on intervention is final.
Fasken cannot now use a new Hobbs Act suit to
collaterally attack the D. C. Circuit’s prior ruling on
intervention. An analogy to judicial proceedings is
instructive. In the judicial context, “intervention is the
requisite method for a nonparty to become a party to a
lawsuit.” Eisenstein, 556 U. S., at 933 . And “only parties
to a lawsuit, or those that properly become parties, may
appeal an adverse judgment.” Marino v. Ortiz, 484 U. S.
301, 304 (1988) (per curiam).
Therefore, a nonparty who wishes to appeal from a
district court decision ordinarily must seek to intervene in
Cite as: 605 U. S. ____ (2025) 13
Opinion of the Court
the district court proceeding. If the district court denies
that intervention motion, the nonparty may appeal the
denial of intervention. But the nonparty may not obtain
appellate review of any final order of the district court in
the underlying proceeding unless and until the denial of
intervention is reversed. See ibid.
So too in Commission proceedings. If a request to
intervene fails before the Commission, the would-be
intervenor may seek judicial review of that decision—as
Fasken did in the D. C. Circuit. But a person who has not
successfully intervened before the Commission may not, as
a nonparty, bring a Hobbs Act suit contesting the merits of
orders issued in the underlying Commission proceeding.
Texas and Fasken complain that the Commission is
unilaterally denying access to judicial review by limiting
intervention. That charge rings hollow. Texas did not even
seek to intervene in the Commission’s licensing proceeding.
As for Fasken, the Commission’s gatekeeping decision
denying it intervention was subject to judicial review in the
D. C. Circuit. After losing there, Fasken chose not to seek
en banc review or further review in this Court.
In short, the Hobbs Act affords judicial review to those
who were parties before the Commission. Here, obtaining
party status required Texas or Fasken to successfully
intervene in the Commission proceeding. Because neither
Texas nor Fasken successfully intervened, they may not
obtain judicial review of the Commission’s licensing
decision under the Hobbs Act.
C
Third, Texas and Fasken alternatively argue that they
need not be parties in order to bring claims of ultra vires
agency action. That argument was the basis of the Fifth
Circuit’s decision. (Notably, the dissent today does not
adopt that argument.)
Before enactment of the APA, those challenging agency
14 NRC v. TEXAS
Opinion of the Court
action often lacked a statutory cause of action. Yet courts
sometimes entertained “a bill in equity to attack
administrative action when no statutory review was
available.” 3 K. Hickman & R. Pierce, Administrative Law
§20.7, p. 2600 (7th ed. 2024). In particular, courts
recognized a right to equitable relief where an agency’s
action was ultra vires—that is, “unauthorized by any law
and . . . in violation of the rights of the individual.”
American School of Magnetic Healing v. McAnnulty, 187
U. S. 94, 110 (1902).
According to Texas and Fasken, judicial-review statutes
like the Hobbs Act and the APA did not displace pre-
existing nonstatutory ultra vires review. And they say that
they may assert ultra vires claims here. They contend that
the Commission’s issuance of a license to ISP was ultra
vires because the Commission’s licensing authority, in their
view, does not extend to private off-site facilities for the
storage of spent nuclear fuel.
This Court’s leading case on post-APA ultra vires review
is Leedom v. Kyne, 358 U. S. 184 (1958). That case arose
from an improper agency certification of a collective
bargaining unit—an interlocutory order not subject to
review under the judicial-review provisions of the APA or
the National Labor Relations Act. See id., at 185, 187 . This
Court held that nonstatutory review was available because
the agency order at issue “was an attempted exercise of
power that had been specifically withheld,” and the
agency’s order violated a “specific prohibition” in the Act.
Id., at 188–189.
Because ultra vires review could become an easy end-run
around the limitations of the Hobbs Act and other judicial-
review statutes, this Court’s subsequent cases have strictly
limited nonstatutory ultra vires review to the
“painstakingly delineated procedural boundaries of Kyne.”
Boire v. Greyhound Corp., 376 U. S. 473, 481 (1964). “The
Kyne exception is a narrow one,” and it does not apply
Cite as: 605 U. S. ____ (2025) 15
Opinion of the Court
simply because an agency has arguably reached “a
conclusion which does not comport with the law.” Ibid.
Rather, it applies only when an agency has taken action
entirely “in excess of its delegated powers and contrary to a
specific prohibition” in a statute. Railway Clerks v.
Association for Benefit of Noncontract Employees, 380 U. S.
650, 660 (1965).
Ultra vires review is also unavailable if, as is usually the
case, a statutory review scheme provides aggrieved persons
“with a meaningful and adequate opportunity for judicial
review,” or if a statutory review scheme forecloses all other
forms of judicial review. Board of Governors, FRS v. MCorp
Financial, Inc., 502 U. S. 32, 43 (1991); see id., at 44 .
Given all that, “a Leedom v. Kyne claim is essentially a
Hail Mary pass—and in court as in football, the attempt
rarely succeeds.” Nyunt v. Chairman, Broadcasting Bd. of
Governors, 589 F. 3d 445, 449 (CADC 2009).
For at least two reasons, Texas’s and Fasken’s ultra vires
claims under Leedom v. Kyne fall far short here.
First, Texas and Fasken basically dress up a typical
statutory-authority argument as an ultra vires claim. That
is a fairly common maneuver when a litigant tries to
squeeze its arguments into the Leedom v. Kyne box—and is
in large part why those claims rarely succeed. Here, Texas
and Fasken contend that the Commission’s general
authority to license storage of spent nuclear fuel does not
extend to the licensing of private off-site storage. In 2004,
the D. C. Circuit rejected that statutory argument. See
Bullcreek v. NRC, 359 F. 3d 536 , 537–538, 541–543. Even
if one were to disagree with the D. C. Circuit’s conclusion,
the statutory argument falls well shy of a meritorious
Leedom v. Kyne claim. See 358 U. S., at 189 .
Second, and alternatively, ultra vires review is not
available because Texas and Fasken had an alternative
path to judicial review. Entities like Texas and Fasken who
seek to intervene are guaranteed judicial review of either
16 NRC v. TEXAS
Opinion of the Court
the Commission’s denial of intervention or, if intervention
has been granted, the Commission’s final order arising from
the licensing proceeding.
Also, Texas and Fasken’s theory of ultra vires review
would lead to major anomalies. For example, the Fifth
Circuit purported to exercise original—rather than
appellate—jurisdiction over these ultra vires claims. But
as counsel for Fasken acknowledged at oral argument, no
precedent supports bringing an ultra vires claim in a court
of appeals in the first instance, rather than in a district
court. Tr. of Oral Arg. 76.
In addition, Fasken argues (and Texas does not dispute)
that the Hobbs Act’s 60-day time limit for seeking judicial
review would apply even under its ultra vires theory. Brief
for Respondent Fasken 45. But Fasken does not explain
how it makes sense for an ultra vires claim to be limited by
the 60-day requirement yet not by the “party aggrieved”
requirement in the very same sentence of the Hobbs Act.
We need not further prolong the discussion. Texas and
Fasken may not maintain a nonstatutory ultra vires claim.
D
1
The dissent primarily focuses not on the threshold Hobbs
Act reviewability issue on which we rest our decision, but
rather on the ultimate merits question raised by Texas and
Fasken: Whether the Commission possessed statutory
authority to issue a license to ISP. According to the dissent,
that merits question is “not hard” because, in its view, the
Nuclear Waste Policy Act of 1982 authorizes the storage of
spent fuel only at private on-site facilities or at federal
facilities—but not at private off-site facilities. Post, at 9
(opinion of GORSUCH, J.).
Because Texas and Fasken have no right to judicial
review of the licensing proceeding, the Court today need not
and does not decide that statutory interpretation question.
Cite as: 605 U. S. ____ (2025) 17
Opinion of the Court
But we do briefly note, in response to the dissent’s
narrative, that history and precedent offer significant
support for the Commission’s longstanding interpretation.
Contrary to the dissent, the Commission for about 50 years
has read the Atomic Energy Act of 1954 to authorize storage
of spent nuclear fuel at private off-site facilities. And this
Court in 1983 and several Courts of Appeals have similarly
interpreted the Atomic Energy Act of 1954 to authorize
licenses for the storage of spent nuclear fuel. See Pacific
Gas & Elec. Co. v. State Energy Resources Conservation and
Development Comm’n, 461 U. S. 190, 207, 217 (1983);
Bullcreek, 359 F. 3d, at 538 (collecting cases and stating
that “it has long been recognized that the AEA confers on
the NRC authority to license and regulate the storage and
disposal of” spent nuclear fuel).2
To spell it out some more: In 1980, the Commission
adopted regulations that interpreted the 1954 Atomic
Energy Act to authorize storage at private off-site facilities.
Those regulations established licensing procedures for
private on-site and off-site facilities. See 10 CFR pt. 72. In
adopting those regulations, the Commission made clear
that it was not claiming new authority, but instead was
codifying “certain existing regulatory practices and better
defin[ing] licensing requirements covering the storage of
spent fuel in” on-site and off-site facilities under the Atomic
——————
2 The dissent says that Pacific Gas “never decided that question” and
Bullcreek “had no occasion to resolve” it. Post, at 15. In Pacific Gas,
however, this Court noted that the Commission extensively regulates
spent fuel storage under the Atomic Energy Act, and the Court relied on
that fact in reasoning that “nuclear waste disposal” is a regulatory “field
. . . occupied by the Federal Government.” 461 U. S., at 219 ; see also id.,
at 217 . And Bullcreek reaffirmed—without relying on Chevron
deference—that the Commission has “authority under the AEA to license
and regulate private use of private away-from-reactor spent fuel storage
facilities.” 359 F. 3d, at 542 ; see also id., at 541 (disclaiming any reliance
on Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837 (1984)).
18 NRC v. TEXAS
Opinion of the Court
Energy Act. 45 Fed. Reg. 74693 (1980).
In the ensuing 45 years, the Commission’s regulations
have continued to authorize storage of spent nuclear fuel,
including at private off-site facilities. And both before and
after the Commission’s 1980 regulations, the Commission
has in fact licensed those facilities. For example, one such
facility, the GE Morris facility in Morris, Illinois, received a
license in 1971 and obtained a renewed license following
the 1980 regulations. See In re General Elec. Co., 22
N. R. C. 851, 853–854 (1985). Today, there are about 10
privately owned storage sites where there are no active
nuclear reactors.
Importantly, in 1982 when enacting the heavily
negotiated Nuclear Waste Policy Act, Congress was of
course fully aware of the 1954 Atomic Energy Act and the
Commission’s 1980 regulations authorizing private off-site
storage of spent nuclear fuel—as well as the existence of
private off-site storage facilities like the GE Morris facility.
See S. Rep. No. 97–282, pp. 44, 65 (1981); In re Private Fuel
Storage, LLC, 56 N. R. C. 390, 400 (2002) (“Members of
Congress clearly were well aware that ‘other provisions of
law’ authorized private AFR [away-from-reactor] storage
facilities, as the existence, and fate, of such facilities was
discussed in congressional committee debates”).
In that 1982 Act, Congress did not disturb the
Commission’s 1980 regulations or its practice of licensing
temporary private off-site facilities under the Atomic
Energy Act. In §135(h) of that Act (which the dissent cites,
see post, at 3, 9), Congress set forth guidelines for
construing “this chapter” of the 1982 Act but did not speak
one way or another about the Commission’s existing
licensing authority under the 1954 Act. 42 U. S. C.
§10155 (h). Instead, in the 1982 Act, Congress primarily
focused on authorizing a permanent nuclear waste
repository that would exist for thousands of years.
When a license for a private off-site storage facility was
Cite as: 605 U. S. ____ (2025) 19
Opinion of the Court
later challenged in the D. C. Circuit, that court upheld the
license and the Commission’s 1980 regulations, finding
them to be consistent with the 1954 Atomic Energy Act and
the 1982 Act. Bullcreek, 359 F. 3d, at 537–538, 541–543.
The D. C. Circuit reasoned that courts, including the
Supreme Court, had “long . . . recognized” that the Atomic
Energy Act “confers on the NRC authority to license and
regulate the storage and disposal of such fuel,” including at
private off-site facilities. Id., at 538 . Then, after
considering the text and structure of the 1982 Act, the D. C.
Circuit further concluded that the 1982 Act’s “text . . .
demonstrates that Congress did not intend to repeal or
supersede the NRC’s authority under the AEA to license
and regulate private use of private away-from-reactor spent
fuel storage facilities.” Id., at 542 .
The dissent today first argues, however, that the
Commission never had authority under the 1954 Atomic
Energy Act to license on-site or off-site storage facilities.
See post, at 10–13. But this Court has already rejected that
interpretation of the Act. See PG&E, 461 U. S., at 207, 217 ;
see also Bullcreek, 359 F. 3d, at 538 .
And the dissent’s theory that the Atomic Energy Act does
not authorize storage of spent nuclear fuel anywhere would
have extraordinary consequences. As was pointed out at
oral argument, if that interpretation were correct, then it
also would necessarily mean that private off-site facilities
actually do not need a license to store spent nuclear fuel in
the first place. (That is because, if spent nuclear fuel is not
covered by the 1954 Act, then it follows that the Act does
not prohibit its possession or use.) If that were the case,
petitioner ISP could build the West Texas facility without
even bothering to seek a license from the Commission.
Although ISP might benefit somewhat from such a novel
reading, it forthrightly stated at oral argument that “that’s
not a credible interpretation of the Atomic Energy Act.” Tr.
20 NRC v. TEXAS
Opinion of the Court
of Oral Arg. 43.3
Regardless of the scope of the 1954 Atomic Energy Act,
the dissent next says that the 1982 Act restricted storage of
spent nuclear fuel to on-site and federal facilities. But as
the D. C. Circuit explained in Bullcreek, the 1982 Act
carefully avoided denying or repealing the Commission’s
authority to license private off-site facilities. See 359 F. 3d,
at 542 . On that issue, the 1982 Act left the law where it
was—namely with the 1954 Atomic Energy Act and the
1980 Commission regulations authorizing licensing of
private off-site storage facilities. See ibid.
In short, the 1982 Act did not withdraw or displace the
Commission’s authority under the Atomic Energy Act (and
the 1980 regulations) to authorize private off-site storage.
On the contrary, the 1982 Act preserved pre-existing law on
that issue. Simply put, the dissent seems to underread the
1954 Atomic Energy Act and to overread the 1982 Act.
Given all of that, it is perhaps no surprise that neither
Fasken’s intervention petition to the Commission nor
Texas’s comments to the Commission questioned the
Commission’s statutory authority to license private off-site
storage of spent nuclear fuel. They raised other issues, but
they did not question the Commission’s statutory authority
to issue a license for private off-site storage.
To be clear, because Texas and Fasken’s claims are not
judicially reviewable, we need not and do not decide the
ultimate question of statutory authority that the dissent
focuses on. So that there is no confusion, however, we
underscore that in resting on the threshold reviewability
issue, we are not somehow assuming or buying into a
premise that the Commission is wrong on the underlying
——————
3 The dissent responds that the 1982 Act “addressed spent nuclear fuel
directly, and that statute authorizes its storage in only two locations.”
Post, at 16. But the 1982 Act in relevant part simply grants the
Commission authority additional to the 1954 Act to authorize storage of
spent nuclear fuel. See §10155(a).
Cite as: 605 U. S. ____ (2025) 21
Opinion of the Court
merits. The dissent’s description of an agency that is
flagrantly violating its governing statutes seems to be in
substantial tension with about 50 years of consistent
congressional action, agency practice, and judicial
interpretation.
2
When it turns to the Hobbs Act reviewability question on
which our decision rests, the dissent’s analysis is
unpersuasive, in our respectful view.
Under the Hobbs Act, as we have explained and the
dissent acknowledges, Texas and Fasken may obtain
judicial review of the licensing decision only if they were
parties to the Commission’s licensing proceeding. See post,
at 18. The Atomic Energy Act—in particular, 42 U. S. C.
§2239—prescribes how one becomes a party to a
Commission licensing proceeding. Under §2239, to be a
party, one must either be the license applicant or be
admitted by the Commission as a party (that is, be granted
intervention).
The dissent claims that §2239 is not the exclusive way to
become a “party” to a Commission licensing proceeding.
See post, at 20. We disagree. Section 2239 provides that
“[i]n any proceeding” for granting a license, “the
Commission shall grant a hearing upon the request of any
person whose interest may be affected by the proceeding,
and shall admit any such person as a party to such
proceeding.” §2239(a)(1)(A) (emphasis added). As the
dissent seems to acknowledge, when §2239 uses the word
“proceeding” rather than “hearing,” it refers to the
Commission’s “overall licensing proceeding”—not merely
one subpart of that proceeding. Post, at 20. And §2239
specifies intervention as the mechanism for a person other
than the license applicant to become “a party to such
proceeding”—that is, to the Commission’s overall licensing
proceeding. For that person or entity to qualify as a party,
22 NRC v. TEXAS
Opinion of the Court
the Commission must admit that person or entity as a
party.4
Section 2239 is thus the exclusive path to party status in
Commission licensing proceedings. To be a party, one must
be admitted by the Commission as a party. As we noted
above, the Commission applied its regulations
implementing §2239 and denied Fasken intervention.
Importantly, if a person or entity believes that the
Commission wrongly denied it intervention, then it may
obtain judicial review of the intervention decision. Here,
Fasken obtained such judicial review in the D. C. Circuit,
but lost. It cannot get a second bite at the apple on
intervention in this litigation.
The dissent responds that the Commission’s intervention
regulations misinterpret §2239 and set too high a bar for
intervention. See post, at 22. The D. C. Circuit rejected
that argument 35 years ago in Union of Concerned
Scientists. See 920 F. 2d, at 51–56. And in any event, we
——————
4 Even if §2239 were not the exclusive path to party status in
Commission licensing proceedings, Texas and Fasken would still not be
parties under the Hobbs Act. The dissent suggests that Texas and
Fasken could achieve party status for purposes of the Hobbs Act merely
by commenting on the Commission’s draft EIS. See post, at 18–19. That
contention—that every interested commenter in an agency adjudication
is a party for purposes of the Hobbs Act—is, as best as we can tell,
unprecedented. See supra, at 10–11. The dissent points to no authority
suggesting that a person who is not involved in an agency adjudication
can bootstrap his way under the Hobbs Act into plenary judicial review
of the legality of that adjudication merely by commenting on a related
EIS. Rather, Courts of Appeals have long held that litigants cannot use
collateral environmental claims to evade the limits on judicial review
imposed by an exclusive judicial-review provision like the Hobbs Act.
See, e.g., Center for Biological Diversity v. EPA, 861 F. 3d 174, 186
(CADC 2017); American Bird Conservancy v. FCC, 545 F. 3d 1190 , 1194–
1195 (CA9 2008). In these Commission proceedings, a person or entity
who comments on the EIS can petition to intervene, and if denied
intervention, may appeal that denial—as Fasken did to the D. C. Circuit,
where it did not prevail. But commenting on an EIS in an adjudication
does not automatically make one a party under the Hobbs Act.
Cite as: 605 U. S. ____ (2025) 23
Opinion of the Court
need not delve into that question here because, to reiterate,
Fasken had an opportunity to raise that argument to the
D. C. Circuit when it challenged the Commission’s denial of
intervention. But Fasken, though it appealed to the D. C.
Circuit, did not even raise that argument in that court.
Rather, it argued that it should have been admitted under
the Commission’s existing intervention regulations.
Fasken did not prevail in the D. C. Circuit on that
intervention argument. See Don’t Waste Mich. v. NRC,
2023 WL 395030 . And it did not seek either en banc review
or certiorari. Having lost in the D. C. Circuit, Fasken
cannot collaterally attack that decision here, as we have
explained. See supra, at 12–13. (For its part, Texas did not
even try to intervene in the Commission’s licensing
proceeding.)
The dissent exudes a sense that Texas and Fasken have
been treated unfairly. But the dissent wants to give Texas
and Fasken a second or third bite at the apple on the
intervention issue. To review: Texas and Fasken had
ample opportunity to present their views on the proposed
storage site to the Commission. They did so. And they had
the opportunity to try to intervene before the Commission
and become a party—and after being denied, to raise their
arguments for intervention on appeal to the D. C. Circuit,
and if unsuccessful there, to this Court. They did not
prevail (or did not try) in those forums. And having not
secured intervention, they were not parties to the licensing
proceeding under §2239—and therefore under the Hobbs
Act cannot obtain judicial review of the licensing decision
in this litigation.
* * *
Texas and Fasken were not parties to the Commission’s
licensing proceeding and are not entitled to obtain judicial
review of the Commission’s licensing decision. We reverse
the judgment of the Court of Appeals and remand the cases
24 NRC v. TEXAS
Opinion of the Court
with instructions to deny or dismiss the petitions for
review.
It is so ordered.
Cite as: 605 U. S. ____ (2025) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 23–1300 and 23–1312
_________________
NUCLEAR REGULATORY COMMISSION, ET AL.,
PETITIONERS
23–1300 v.
TEXAS, ET AL.
INTERIM STORAGE PARTNERS, LLC, PETITIONER
23–1312 v.
TEXAS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2025]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
By law, spent nuclear fuel may be stored on an interim
basis in only two places: at a nuclear reactor or a federally
owned facility. Disregarding those instructions, the Nu-
clear Regulatory Commission (NRC) issued an interim stor-
age license to a private company, Interim Storage Partners,
LLC (ISP), allowing it to store thousands of tons of spent
nuclear fuel on its private property in Texas, hundreds of
miles from the nearest reactor. The agency’s decision was
unlawful.
Still, the Court says, there is nothing we can do about it.
Why? Because neither of the respondents before us is a
“party aggrieved” by the agency’s decision. Yes, the re-
spondents are the State of Texas and Fasken Land and
Minerals, Ltd., a landowner with property near the pro-
posed facility. And, yes, they are “aggrieved” by the NRC’s
2 NRC v. TEXAS
GORSUCH, J., dissenting
decision. Radioactive waste poses risks to the State, its cit-
izens, its lands, air, and waters, and it poses dangers as well
to a neighbor and its employees. But, the Court insists, the
agency never admitted Texas or Fasken as “parties” in a
hearing it held before issuing ISP’s license—and that’s the
rub. Maybe the agency’s internal rules governing who can
participate in its hearing are highly restrictive. Maybe
those rules are themselves unlawful. But, the Court rea-
sons, its hands are tied: The agency did not admit Texas or
Fasken as parties in its hearing, and that is that.
I cannot agree. Both Texas and Fasken participated ac-
tively in other aspects of the NRC’s licensing proceeding.
No more is required for them to qualify as “parties ag-
grieved” by the NRC’s licensing decision. Both are entitled
to their day in court—and both are entitled to prevail.
I
A
At the dawn of the atomic age, few worried about where
to store spent nuclear fuel. The “prevailing expectation”
was that it would be reprocessed and reused. Brief for Fed-
eral Petitioners 3 (citing Idaho v. Department of Energy,
945 F. 2d 295, 298 (CA9 1991)). Perhaps for that rea-
son, Congress’s first piece of major legislation regulating
the nuclear power industry, the Atomic Energy Act of 1954
(AEA), 68 Stat. 919 , did not address the storage of spent
nuclear fuel. In fact, the AEA didn’t mention spent nuclear
fuel at all. The statute spoke about nearly everything
else—from the construction of commercial nuclear reactors
to their ownership and operation—but not spent nuclear
fuel or its storage. Pacific Gas & Elec. Co. v. State Energy
Resources Conservation and Development Comm’n, 461
U. S. 190 , 206–207 (1983).
By the 1970s, things looked very different. Spent nuclear
fuel was piling up, and there was nowhere to put it. The
reprocessing industry had “collapsed.” Idaho, 945 F. 2d, at
Cite as: 605 U. S. ____ (2025) 3
GORSUCH, J., dissenting
298. Those developments presented the Nation with an
acute problem. Spent nuclear fuel is “radioactive, explo-
sive, and highly volatile,” and it can remain so for thou-
sands of years. Brief for State of Idaho as Amicus Curiae 7.
It can poison people and animals, render land and water
unusable, and, should it fall into the wrong hands, it can be
weaponized. See id., at 8 .
In 1982, Congress reentered the picture to address the
problem, passing a new law appropriately named the Nu-
clear Waste Policy Act (NWPA), 96 Stat. 2201 , 42 U. S. C.
§10101 et seq. In it, Congress tasked the Department of En-
ergy with selecting a permanent federally owned repository
for spent nuclear fuel. See §§10132, 10134. In the mean-
time, the NWPA authorized the “interim” storage of spent
nuclear fuel in two—and only two—places. Spent fuel, Con-
gress said, could be stored either “at the site of each civilian
nuclear reactor” or at “facilities owned by the Federal Gov-
ernment.” §10151(b). In case those instructions left any
room for doubt, Congress added that “nothing” in its new
law “shall be construed to encourage [or] authorize” storage
at offsite, private facilities. §10155(h).
Eventually, the Department of Energy selected Yucca
Mountain in Nevada to serve as the permanent repository
for spent nuclear fuel. And, in 1987, Congress amended the
NWPA to endorse that choice, directing that Yucca Moun-
tain should begin operations no later than January 31,
1998. See 101 Stat. 1330–227 to 1330–228, 42 U. S. C.
§10172 . Despite that mandate, and “more than $15 billion”
spent on the project, the Yucca Mountain repository re-
mains today more a dream than a reality. App. 2; see Na-
tional Assn. of Regulatory Util. Comm’rs v. United States
Dept. of Energy, 680 F. 3d 819, 821 (CADC 2012).
That leaves the question what to do. Spent fuel must be
stored somewhere. And, until recently, that somewhere has
usually been where Congress directed—at reactors or fed-
erally owned facilities. Now, however, the NRC and ISP
4 NRC v. TEXAS
GORSUCH, J., dissenting
seek to experiment with a different solution.
In 2016, ISP’s predecessor applied for a license to build
and maintain an aboveground storage facility for at least
5,000 metric tons of spent nuclear fuel in Andrews County,
Texas. App. 12. By way of reference, that is more than the
amount of spent fuel currently stored at any other site in
the country. Brief for Respondent Fasken 9. And ISP’s
plans include the possibility of storing much more on its
land—up to 40,000 metric tons of spent fuel in all. 78 F.
4th 827 , 843 (CA5 2023).
ISP’s proposed site lies in the Permian Basin, an area
about 250 miles wide and 300 miles long in western Texas
and eastern New Mexico. App. 64–65. That area is “the
largest producing oilfield in the world.” Id., at 118 . It also
includes aquifers that provide water to “dozens of counties
in Texas and New Mexico.” Brief for Respondent Fasken 8.
While storing so much spent fuel on private land controlled
by a private company poses serious risks, transporting the
waste there will be tricky, too. The company’s property lies
more than 300 miles from the nearest nuclear power plant,
and more than 1,000 miles from most other reactors. Id.,
at 9 .
Despite those risks, and despite the NWPA’s mandate
that spent nuclear fuel must be stored at reactors or feder-
ally owned sites, the NRC launched an administrative pro-
ceeding to consider ISP’s request. And, at the end of it all,
the agency issued a license to ISP authorizing it to store
spent fuel at its site for 40 years. In doing so, the agency
left open the possibility it might choose to extend that term
even further. App. to Pet. for Cert. 53a–59a; App. 175.
B
Slogging through the steps the agency took between re-
ceiving ISP’s application in 2016 and rendering a final de-
cision approving the license in 2021 makes for less than
easy reading. But those steps matter because of the way
Cite as: 605 U. S. ____ (2025) 5
GORSUCH, J., dissenting
the Court chooses to dispose of this case, so bear with me.
After receiving ISP’s application and before it could issue
any sort of license, the NRC acknowledges, it had to under-
take a number of tasks. So, for example, it had to complete
a “safety review to determine [the applicant’s] compliance
with NRC’s regulations.” 81 Fed. Reg. 79532 (2016). In
that review, NRC staff examined the conditions of the pro-
posed site, ISP’s proposed operating systems, and the de-
sign of its proposed structures (among many other things).
See NRC, Final Safety Evaluation Report for Specific Ma-
terials License No. SNM–2515 (Sept. 2021), pp. ii–xiii. The
agency’s final safety evaluation report was 366 pages long.
See ibid.
But that “safety review” was just one piece of the puzzle.
As the agency saw it, it also had to complete other tasks
before issuing a license. Two are especially relevant here.
One is what the agency called an “environmental review.”
See, e.g., 81 Fed. Reg. 79532 . The other is a hearing pro-
vided for by 42 U. S. C. §2239 .
Start with the environmental review. The NRC said it
could not issue a license without certifying that it had com-
pleted an environmental impact statement (EIS) that as-
sessed “the potential environmental impacts of the pro-
posed” license and weighed alternatives, including the
possibility of “no-action.” 81 Fed. Reg. 79532 , 79533. To
discharge that responsibility, the agency had to prepare a
draft EIS, publish it, accept public comments, and provide
a reasoned decision for any conclusions it reached. Brief for
Federal Petitioners 27 (citing §4321 et seq.); see also 81 Fed.
Reg. 79532 ; 10 CFR pt. 51 (2024).
After the agency published its draft EIS for public com-
ment, Texas answered the call. Writing on behalf of the
State, Governor Greg Abbott warned that storing spent fuel
on “a concrete pad” in an oilfield containing more than 40%
of America’s proven oil reserves would be “dangerous.” App.
6 NRC v. TEXAS
GORSUCH, J., dissenting
118. He expressed concern that an accident or an act of ter-
rorism could harm “the entire country.” Id., at 122 . For all
these reasons and more, he asked the NRC to “deny ISP’s
license application.” Id., at 121–122. The Texas Commis-
sion on Environmental Quality also provided comments ex-
pressing concern that, by authorizing private “interim”
storage for 40 years (and perhaps longer) without address-
ing what should happen next, the NRC was effectively ig-
noring Congress’s directive that Yucca Mountain should be-
come the Nation’s permanent repository for spent nuclear
fuel. Id., at 206 .
Fasken offered comments, too. Fasken owns hundreds of
thousands of acres in the Permian Basin, where it grazes
cattle and operates oil and gas wells. Brief for Respondent
Fasken 9. In its comments, the company highlighted what,
in its view, constituted “systemic regulatory failures in mul-
tiple areas of the” draft EIS. App. 126; see id., at 123–168.
Fasken also warned of threats “to the environment of West
Texas and the Permian Basin” presented by ISP’s plans.
Id., at 186 .
When it published its final EIS, the agency explained
that it was doing so “as part of the NRC’s process to decide
whether to issue a license to ISP.” 86 Fed. Reg. 43278
(2021). Like the safety report, the final EIS was volumi-
nous—684 pages in total, with 173 of those dedicated to
summarizing and responding to comments from the public.1
The EIS specifically addressed Texas’s and Fasken’s com-
ments.2 And, after responding to those and other comments
and weighing various alternatives, the agency concluded
with a “recommendation to issue” a license to ISP. Id., at
——————
1 See NRC, Environmental Impact Statement for Interim Storage Part-
ners LLC’s License Application for a Consolidated Interim Storage Fa-
cility for Spent Nuclear Fuel in Andrews County, Texas, Final Report,
App. D (NUREG–2239, July 2021).
2 See id., at D–21, D–24, D–25, D–29, D–34, D–37, D–49, D–91, D–93,
D–95, D–97, D–100, D–150, D–153, D–159, D–162.
Cite as: 605 U. S. ____ (2025) 7
GORSUCH, J., dissenting
51927.
Turn now to the other task the agency said it had to com-
plete: the §2239 hearing. “[U]pon the request of any person
whose interest may be affected by the [licensing] proceed-
ing,” that statute provides, the agency “shall grant a hear-
ing” and “shall admit any such person as a party to such
proceeding.” §2239(a)(1)(A). To comply with that mandate,
the NRC published a notice in the Federal Register inviting
“any persons . . . whose interest may be affected” by ISP’s
license to “file a request for a hearing and petition for leave
to intervene.” 83 Fed. Reg. 44071 (2018).
Fasken sought to take advantage of this opportunity as
well. In response to the Federal Register notice, it submit-
ted two filings: A motion to dismiss and a petition for hear-
ing. See In re Interim Storage Partners, LLC, 90 N. R. C.
31, 43–44 (2019). But instead of granting Fasken a hearing,
the agency invoked its own internal rules to keep the com-
pany out of that process. As the agency saw it, Fasken had
failed to meet its standards for “intervention” and had
failed to advance any “admissible contention” under its
rules. Id., at 38 , 52–54, 109–118; see also 10 CFR §2.309 (f ).
Nor was Fasken singled out for this treatment. While the
agency allowed its own staff and ISP to be heard, it effec-
tively “denied all third-party participation.” Brief for Pa-
cific Legal Foundation as Amicus Curiae 6 (emphasis
added). Fasken went back and forth with the agency sev-
eral times, appealing unfavorable rulings and filing new
motions, but the agency rebuffed all of its many efforts to
participate. See In re Interim Storage Partners, LLC, 92
N. R. C. 463, 489 (2020); In re Interim Storage Partners,
LLC, 93 N. R. C. 244 (2021).
Eventually, Fasken went to court to challenge the
agency’s various decisions preventing it from obtaining a
hearing under §2239. So did others in Fasken’s shoes. The
D. C. Circuit consolidated those challenges into one pro-
8 NRC v. TEXAS
GORSUCH, J., dissenting
ceeding and dispatched them all in a short, unpublished or-
der. Don’t Waste Michigan v. NRC, No. 21–1048 (Jan. 25,
2023) (per curiam). In the only paragraph dedicated to
Fasken’s petition, the court concluded that the NRC had
properly denied Fasken’s “motion to admit a new contention
and its motion to reopen the record.” Id., at 4.
More than five years after the NRC began the work re-
quired to pass on ISP’s application—including its safety re-
view, environmental review, and the §2239 hearing—the
agency published a final decision approving ISP’s license.
See 86 Fed. Reg. 51927 . The license itself consisted of a
self-described “package” of materials. See id., at 51928 (ref-
erencing “Materials License for ISP, dated September 13,
2021 . . . (Package)”).
That package included a preamble in which the agency
recited the various findings necessary to issue the license.
App. 284; cf. id., at 277 . Among those findings was a con-
clusion that “issuance of this license is in accord with 10
CFR Part 51 . . . and all applicable requirements [of that
Part] have been satisfied.” Id., at 286 . Translation: The
NRC had completed a final EIS. See 10 CFR §51.91 . Con-
sistent with its regulations, the agency’s final license pack-
age also contained a “concise public record of decision” sup-
porting its environmental findings. §51.102(a); see App.
288–298. That document described the agency’s findings in
its final EIS, including its recommendation that “the pro-
posed license [should] be issued to ISP.” Id., at 288. The
record of decision also “incorporate[d] by reference the ma-
terials contained in” the final EIS itself. Id., at 289; see 10
CFR §51.103 (c).
After the agency issued its decision, Texas and Fasken
petitioned the Fifth Circuit for review, arguing that the
NRC lacked legal authority to license ISP’s facility. That
court agreed with Texas and Fasken and vacated the NRC’s
decision. 78 F. 4th, at 844. The agency and ISP then sought
review of the Fifth Circuit’s decision, and we agreed to take
Cite as: 605 U. S. ____ (2025) 9
GORSUCH, J., dissenting
the cases. 603 U. S. ___ (2024).
II
With that background in mind, turn first to the question
whether the NRC may license a private company to store
spent nuclear fuel, not at a reactor or on federal land, but
on its own private property. This “interim” license runs for
40 years—subject to renewal. Can the agency lawfully is-
sue such a license?
A
The answer is not hard to come by. The NWPA author-
izes only two places where spent nuclear fuel may be stored
on an “interim” basis—at reactor sites or on federal prop-
erty. See 42 U. S. C. §§10151–10157. When it comes to that
direction, Congress was clear as it could be, adding that
“nothing in [the NWPA] shall be construed to encourage [or]
authorize” storage at any “facility located away from the
site of any civilian nuclear power reactor and not owned by
the Federal Government.” §10155(h).
Given Congress’s emphatic instructions, how did the
NRC come to the view that it possesses authority to do what
the NWPA forbids? It’s a convoluted story. Before the
NWPA’s adoption in 1982, the agency observes, the AEA
represented Congress’s primary legislation in the field of ci-
vilian nuclear power. And, the agency says, it issued regu-
lations pursuant to that statute in 1980 contemplating li-
censes like ISP’s. See 45 Fed. Reg. 74693 ; Brief for Federal
Petitioners 4. Congress, the agency continues, must have
been aware of those regulations when it adopted the NWPA
in 1982. So, the agency reasons, Congress cannot have
meant for its new legislation to disturb them. See id., at
30–48; Brief for Petitioner ISP 29–42. As a result, the NRC
says, it was entitled to rely on those regulations to issue
ISP’s license.
That argument is unpersuasive. Agencies are creatures
10 NRC v. TEXAS
GORSUCH, J., dissenting
of statute, and they have no authority to dispense licenses
except as Congress provides. See West Virginia v. EPA, 597
U. S. 697 , 723 (2022). And nothing in the AEA authorizes
the NRC to license the storage of spent nuclear fuel at pri-
vate, offsite facilities like ISP’s. Just recall: At the time of
the AEA’s enactment in 1954, most assumed that spent nu-
clear fuel would be reprocessed and reused, not stored for
millennia. See Part I–A, supra. Reflecting that assump-
tion, the AEA did not even mention spent nuclear fuel, let
alone address its storage. Ibid. Congress first provided for
the storage of spent nuclear fuel only in 1982, with the
adoption of the NWPA. And that statute forbids, not au-
thorizes, licenses like ISP’s.
In the past, the NRC itself has acknowledged as much.
In 1978, the agency’s chairman recognized that the AEA did
“not explicitly authorize the regulation of radioactive waste
facilities.” NRC, Regulation of Federal Radioactive Waste
Activities, p. G–9 (NUREG–0527, Sept. 1979); see also Brief
for Respondent Fasken 3. And in the same 1980 regula-
tions the NRC now seeks to rely upon to issue a license to
ISP, the agency conceded that the need for a place to store
“spent fuel . . . for a number of years” became apparent only
“[f]ollowing the President’s deferral of reprocessing of spent
fuel in April 1977.” 45 Fed. Reg. 74693 .
B
To be sure, the NRC (now) has a theory why the AEA au-
thorizes it to issue regulations regarding the storage of
spent nuclear fuel and grant licenses like ISP’s. The agency
points to three provisions of the AEA that allow it to issue
licenses to entities seeking to “possess . . . special nuclear
material,” §2073(a), “distribute source material,” §2093(a),
or “use byproduct material,” §2111(a). And, the agency sub-
mits, if you cobble together “special,” “source,” and “by-
product” material, you wind up with spent nuclear fuel. See
Brief for Federal Petitioners 31–32. So while the AEA may
Cite as: 605 U. S. ____ (2025) 11
GORSUCH, J., dissenting
not contain a single provision addressing the storage of
spent nuclear fuel, the agency insists, taken collectively
these three provisions effectively authorize it to issue regu-
lations and licenses regarding the storage of spent nuclear
fuel. Ibid.
The agency’s theory may get marks for creativity, but it
fails for at least three independent reasons.
First, it’s hard to see how the power to license the use of
“special,” “source,” and “byproduct” material amounts to a
power to license the storage of spent nuclear fuel. In brief-
ing before us, even the agency admits that spent fuel “is a
substance different from any one of its constituent parts,”
Reply Brief for Federal Petitioners 13, n. 2. And Congress
itself has defined those terms very differently. Under the
NWPA, spent nuclear fuel must “ha[ve] been withdrawn
from a nuclear reactor following irradiation” and must not
have undergone “reprocessing.” §10101(23). Meanwhile,
the AEA’s detailed definitions of special, source, and by-
product materials include neither of these requirements.
See §§2014(e), (z), (aa).
Elsewhere, too, Congress has distinguished spent nuclear
fuel from special, source, and byproduct materials. While
the AEA as enacted in 1954 said nothing about “spent nu-
clear fuel,” in 1988 Congress amended that law to incorpo-
rate the NWPA’s definition of the term. See 102 Stat. 1069 .
So, today, the AEA authorizes the NRC to ensure that cer-
tain “byproduct materials, source materials, special nuclear
materials, [and] spent nuclear fuel” transferred in the
United States are done so in a specific manner. §2210i(b)
(emphasis added). If the agency were right, and spent nu-
clear fuel really is just the sum of special, source, and by-
product materials, Congress’s inclusion of the phrase “spent
nuclear fuel” would have been meaningless. And we do not
usually presume that Congress takes the trouble to amend
its laws to add words and phrases that perform no work.
See Duncan v. Walker, 533 U. S. 167, 174 (2001); A. Scalia
12 NRC v. TEXAS
GORSUCH, J., dissenting
& B. Garner, Reading Law 174–179 (2012).
If more evidence were needed, the 1980 regulations on
which the NRC now seeks to rely would provide it. There,
the agency explained its view that “[s]pent fuel includes the
special nuclear material, byproduct material, source mate-
rial, and other radioactive materials associated with fuel as-
semblies.” 45 Fed. Reg. 74700–74701 (emphasis added).
Even in the 1980 regulations the agency invokes to justify
ISP’s license, then, the agency itself admitted that spent
nuclear fuel includes materials besides special, source, and
byproduct materials. The agency cannot have it both ways.
Second, the AEA authorizes the NRC to license the use of
special, source, and byproduct materials only for very spe-
cific purposes—and storage is not among them. So, for ex-
ample, the AEA says that the agency may grant licenses for
the possession of “special nuclear material” for activities
like “research and development,” “medical therapy,” and in-
dustrial or commercial purposes. §§2073(a)(1)–(3); see
§2133. The provisions speaking to “source material” and
“byproduct material” contain similar lists of approved uses.
See §§2093(a), 2111(a). None of those lists discusses stor-
age as an approved use.
The agency admits that the AEA does not expressly au-
thorize it to issue licenses for storage. See Brief for Federal
Petitioners 32–34. But, it replies, the statute does so im-
plicitly. For support, the agency points to the fact that the
provisions discussing “special,” “source,” and “byproduct”
material each contain a “catchall.” Ibid. So, for example,
§2073(a) authorizes the agency to license the possession of
“special nuclear material” not just for medical research and
the like, but also for “such other uses as the Commission
determines to be appropriate to carry out the purposes of
this chapter.” And, the agency says, it has determined it
“appropriate” to issue licenses for the “interim” storage of
spent fuel to private companies like ISP. See id., at 32.
Cite as: 605 U. S. ____ (2025) 13
GORSUCH, J., dissenting
That hardly works. As this Court has repeatedly recog-
nized, a catchall “at the end of a list of specific items is typ-
ically controlled and defined by reference to the specific
classes that precede it.” Fischer v. United States, 603 U. S.
480, 487 (2024) (internal quotation marks and ellipses
omitted); accord, Yates v. United States, 574 U. S. 528 , 545
(2015) (plurality opinion). So, the catchalls before us cannot
be read as permission to the NRC to go forth and do good.
Instead, they must be read in light of, and consistently
with, the lists that precede them. And here, all of the activ-
ities listed in §2073, §2093, and §2111 involve the affirma-
tive, productive use of the materials in question—not their
passive storage.
Third, even assuming (against all the evidence) that the
AEA once might have implicitly authorized the NRC to
grant licenses like the one at issue here, it cannot be fairly
read to do so after Congress adopted the NWPA in 1982. If
the AEA spoke at all to the storage of spent nuclear fuel, it
did so elliptically and without offering any specifics about
what sort of storage might be appropriate. The NWPA, by
contrast, speaks directly to spent nuclear fuel and the ques-
tion of its storage. In doing so, that law makes plain that
only two kinds of “interim” storage sites are permissible.
And knowing that much is enough to know that the NWPA
must govern, for it is a “familiar” rule of statutory construc-
tion “that a specific statute controls over a general one.”
Bulova Watch Co. v. United States, 365 U. S. 753, 758
(1961) (internal quotation marks omitted); accord, Morton
v. Mancari, 417 U. S. 535 , 550–551 (1974); contra, ante, at
20, n. 3 (mistakenly suggesting in dicta that the NWPA
“simply grant[ed]” the NRC “additional” authority).
Really, any other conclusion would make a mockery of
Congress’s work in the NWPA and risk rendering it a dead
letter. What was the point of legislation specifying two and
only two appropriate sites for the interim storage of spent
fuel if the NRC possesses the power to authorize interim
14 NRC v. TEXAS
GORSUCH, J., dissenting
storage wherever it thinks best? And what was the point of
Congress later amending the NWPA to authorize one and
only one permanent storage site if nothing prevents the
NRC from issuing 40-year “interim” licenses and renewing
them indefinitely? If there are answers to those questions,
the agency has not supplied them.
In short, Texas and Fasken are right. The law does not
permit the NRC to license private companies to store spent
nuclear fuel at private, away-from-reactor facilities. The
NWPA expressly prohibits that course. And cobbled-to-
gether terms addressing other matters in the AEA cannot
be repurposed to authorize what the NWPA forbids. Should
Congress choose, it could grant the agency the power it
seeks. But there are obvious and grave risks associated
with transporting highly radioactive material across the
country and entrusting it to a private company operating
on private property. And it belongs to Congress, not the
agency, to assess those risks in the first instance.
C
Despite insisting that we lack jurisdiction to reach the
merits of Texas’s and Fasken’s claim, the Court proceeds to
devote a healthy section of its opinion to the merits anyway.
See Part II–D–1, ante. That is surely a curious choice, for
anything the Court might say about the merits of a case
over which it lacks jurisdiction is pure dicta. Cf. Steel Co.
v. Citizens for Better Environment, 523 U. S. 83 , 94–95
(1998). Maybe worse, the Court’s dicta is simply wrong.
The Court argues that the NRC’s decision to issue a license
to ISP is justified by “history and precedent.” Ante, at 17.
Yet neither the Court’s (revisionist) history nor its (irrele-
vant) precedent can imbue the NRC with novel authority
that appears nowhere in any statute.
Take precedent first. According to the Court, we and oth-
ers have “interpreted the Atomic Energy Act of 1954 to au-
thorize licenses for the storage of spent nuclear fuel.” Ibid.
Cite as: 605 U. S. ____ (2025) 15
GORSUCH, J., dissenting
In truth, this Court has never decided that question. Our
decision in Pacific Gas simply acknowledged that the NRC
in 1980 “promulgated detailed regulations governing stor-
age and disposal away from the reactor”—an undisputed
fact about regulations no one had challenged—along the
way to holding that neither the AEA nor those regulations
pre-empted a California statute pausing in-state construc-
tion of new nuclear plants until more spent-fuel storage be-
came available. 416 U. S., at 217, 219. As for the lower
courts, the best the Court can muster is a D. C. Circuit case
that had no occasion to resolve whether the AEA authorizes
the NRC to license private, offsite storage, for the parties
there “conceded [that] the NRC ” had just such “authority”
under the 1954 statute. See Bullcreek v. NRC, 359 F. 3d
536, 542 (2004).
History doesn’t get the Court any further. As the Court
sees it, the NRC must have the power to issue licenses to
facilities like ISP’s because it has done so in the past. But
no agency can exercise power without lawful authority, and
repeating a wrong does not make it right. Notice, too, what
the Court has to say about the agency’s past practices:
“[T]here are about 10 privately owned storage sites where
there are no active nuclear reactors.” Ante, at 18. That
careful phrasing obscures that none of those facilities is an-
ything like ISP’s. Eight facilities seemingly included in the
Court’s count are not “offsite” storage sites at all, but “pri-
vately owned nuclear reactor sites that have ceased . . . re-
actor operations.” Brief for Federal Petitioners 6. Mean-
while, the GE Morris facility was initially built to serve as
a reprocessing facility and only became a storage facility by
default after reprocessing collapsed. See Brief for Don’t
Waste Michigan et al. as Amici Curiae 12. That leaves just
one example where it appears the NRC has invoked its 1980
regulations to license a private, offsite storage facility—and
that facility “was never built.” See Tr. of Oral Arg. 81. I
struggle to see in any of this the “significant support” the
16 NRC v. TEXAS
GORSUCH, J., dissenting
Court claims for what the agency did here. Ante, at 17.
One other aspect of the Court’s merits analysis warrants
mention. In the Court’s view, if the AEA did not authorize
the NRC to issue a license to ISP, that would mean private
individuals and companies could store spent nuclear fuel
anywhere and do so without a license. See ante, at 19. That
conclusion does not follow for at least two reasons. First, as
we have seen, in 1982 the NWPA addressed spent nuclear
fuel directly, and that statute authorizes its storage in only
two locations. Second, even before the NWPA, when most
thought spent nuclear fuel would be reprocessed, the AEA
was not blind to the fact that nuclear reactors would gener-
ate spent fuel, nor did the AEA tolerate its storage by any-
one “anywhere.”
To the contrary, the AEA authorized the NRC to license
reactor facilities only so long as they could be operated
safely. See, e.g., 68 Stat. 936–937. Before issuing a license
consistent with that mandate, the NRC understood, it had
to determine that a reactor facility could safely store spent
fuel on an interim basis. See, e.g., 42 Fed. Reg. 34391 (1977)
(“As part of the licensing process for an individual power
reactor facility, the Commission does review the facility in
question in order to assure that the design provides for safe
methods for interim storage of spent nuclear fuel”). Indeed,
we are told that, for safety reasons, spent fuel usually must
be stored onsite for “at least five years.” Tr. of Oral Arg.
105. It follows, then, that under the AEA, the operator of a
licensed reactor would have been authorized (and in fact re-
quired) to keep spent fuel onsite after removing it from a
reactor. See id., at 97 . It does not follow that the AEA per-
mitted other parties, without a license, to take spent nu-
clear fuel offsite and do with it what they pleased.
III
Without any persuasive argument on the merits, the
NRC urges the Court to dismiss Texas’s and Fasken’s
Cite as: 605 U. S. ____ (2025) 17
GORSUCH, J., dissenting
claims on jurisdictional grounds. Ultimately, the Court
does just that and thus paves the way for the agency to is-
sue its misbegotten license. As the Court sees it, Texas and
Fasken cannot challenge the NRC’s decision in court be-
cause they failed to jump through the right hoops before the
agency.
The Court’s reasoning follows this path: Texas and
Fasken seek judicial review under the Hobbs Act. That
statute permits “[a]ny party aggrieved by [an agency’s] final
order [to] file a petition to review the order in the court of
appeals wherein venue lies.” 28 U. S. C. §2344 . And, in the
Court’s estimation, neither Texas nor Fasken qualifies as a
“party aggrieved” by the NRC’s decision. Ante, at 7.
In reaching that conclusion, the Court does not (and can-
not) question that Texas and Fasken have much at stake.
ISP’s plan to store radioactive waste in the Permian Basin
threatens harm to their citizens and employees, poses risks
to their lands, air, and waters, and will diminish the value
of Fasken’s property. See Part I–B, supra. Even the NRC
has acknowledged that Fasken’s interests might be affected
by ISP’s license, 90 N. R. C., at 51–52, and the agency does
not dispute that the same holds true for Texas. Doubtless,
Texas and Fasken are “aggrieved.”
Still, the Court reasons, neither Texas nor Fasken are
“parties” aggrieved by the NRC’s decision to issue ISP’s li-
cense. Ante, at 8. The agency may have solicited public
comments in its environmental review. Texas and Fasken
may have supplied comments. The agency may have ac-
cepted those comments and considered them before issuing
its environmental review findings and final EIS that them-
selves form part of ISP’s license. And, without question,
Fasken struggled mightily to participate in the hearing the
agency conducted under §2239. But the NRC managed to
keep the company out of that particular portion of its licens-
ing proceeding. And that, the Court concludes, is enough to
prevent both Texas and Fasken from lodging any complaint
18 NRC v. TEXAS
GORSUCH, J., dissenting
in court about the agency’s work.
A
I see things differently. Lower courts have often assumed
the phrase “party aggrieved” in the Hobbs Act requires
those seeking relief from an agency’s “final order” in court
to have been “parties to any proceedings before the agency
preliminary to issuance of ” the challenged order. Simmons
v. ICC, 716 F. 2d 40 , 42 (CADC 1983) (citing §2344). The
Court proceeds on that same assumption today. Ante, at 9.
For present purposes, let us take it as given.
Doing so raises a few questions. First, what was the “fi-
nal order” in this action? Plainly, the NRC’s licensing deci-
sion. Second, what were the “proceedings before the agency
preliminary to issuance of [that] order?” Simmons, 716
F. 2d, at 42. As we have seen, the NRC’s licensing proceed-
ing comprised several parts—including the safety review,
environmental review, and a §2239 hearing. Third, who
qualified as a party in that proceeding? To answer that
question, the Court relies on a line of D. C. Circuit cases
that recognize “[t]he degree of participation necessary to
achieve party status varies according to the formality with
which the proceeding was conducted. ” Water Transp. Assn.
v. ICC, 819 F. 2d 1189 , 1192 (CADC 1987) (citing Simmons
for this proposition); see also ante, at 9 (relying on Sim-
mons).
To my mind, that answer resolves this case. Focus on the
agency’s environmental review. Remember, that review
was an essential component of its licensing proceeding. See
Part I–B, supra. The NRC itself admits that it could not
sign off on ISP’s license without completing an environmen-
tal impact statement weighing alternatives to ISP’s pro-
posal, including the possibility of denying it. Ibid. Reflect-
ing as much, the agency’s final license “package” included a
preamble in which the agency recorded various findings, in-
cluding a finding that it had completed a final EIS. Ibid.
Cite as: 605 U. S. ____ (2025) 19
GORSUCH, J., dissenting
The package also included a “concise public record of deci-
sion” outlining the findings of the agency’s final EIS, incor-
porating that document by reference, and reporting its con-
clusion that ISP’s license application should be granted.
Supra, at 8 (citing 10 CFR §51.102 (a); App. 288–298).
Texas and Fasken were parties to that component of the
agency’s licensing proceeding. After preparing a draft EIS,
the agency solicited comments from the public. Part I–B,
supra. Both Texas and Fasken offered extensive comments,
raising warnings about the impact of ISP’s intended project
on land, water, oil and gas reserves—and people. Ibid. The
agency accepted those comments and undertook to address
them in its final EIS. Ibid.
That is enough to make Texas and Fasken “parties” to
“any proceedings before the agency preliminary to issuance
of ” the challenged order. Simmons, 716 F. 2d, at 42. In
“administrative proceedings” contemplating “notice-and-
comment,” lower courts have long said that “commenting”
qualifies an individual as a “party” for purposes of the
Hobbs Act. ACA Int’l v. FCC, 885 F. 3d 687, 711 (CADC
2018). That much is surely right. And it means that Texas
and Fasken are “parties” who may be heard in court under
the Hobbs Act.
B
For its part, the Court seems to consider Texas’s and
Fasken’s participation in the agency’s environmental re-
view irrelevant. As I understand it, the Court thinks that,
to “qualify as a party,” Texas and Fasken also had to “suc-
cessfully intervene” in the agency’s §2239 hearing. Ante, at
2.
I fail to see why. By the terms of one statute and set of
regulations, the agency may have had to offer a public hear-
ing. But by the terms of other statutes and regulations, the
agency also had to conduct, among other things, an envi-
ronmental review and a safety review. Each of these steps,
20 NRC v. TEXAS
GORSUCH, J., dissenting
the agency insists, was necessary before it could reach a de-
cision on ISP’s license application. See Part I–B, supra; see
also, e.g., 81 Fed. Reg. 79532 . And all of the agency’s vari-
ous tracks of review culminated in a single decision. In-
deed, the agency incorporated the conclusions of each into
its final license “package.” Part I–B, supra. And without
doubt, Texas and Fasken participated as parties in the en-
vironmental-review portion of the agency’s licensing pro-
ceeding. Ibid. The Hobbs Act requires no more. See Sim-
mons, 716 F. 2d, at 42 (participation as a “party” in “any
proceedings before the agency preliminary to issuance of ”
the challenged order is sufficient (emphasis added)).
That conclusion is confirmed by the terms of §2239 itself.
The statute provides that, “[i]n any proceeding . . . for the
granting . . . of any license,” the NRC “shall grant a hearing
upon the request of any person whose interest may be af-
fected by the proceeding, and shall admit any such person
as a party to such proceeding.” §2239(a)(1)(A). With this
language, Congress clearly sought to ensure that anyone af-
fected by the agency’s decision would have at least one fo-
rum in which to express their views to the NRC. But no-
where did Congress say §2239 is the only way someone can
participate in the agency’s licensing proceeding. Nowhere,
for example, did it say that someone must request a hearing
under §2239 to become a party to the NRC’s licensing pro-
ceeding.
More than that, the statute’s terms preclude any inter-
pretation conflating a hearing before the agency with the
licensing proceeding itself. The statute provides that the
“hearing” occurs “[i]n any proceeding . . . for the granting
. . . of any license”—that is to say, in an overall licensing
proceeding. The statute does not say that the hearing is the
licensing proceeding. Surely, too, that is as it must be. Un-
der §2239, after all, a hearing may or may not be required,
depending on whether someone “request[s]” one. And, with
Cite as: 605 U. S. ____ (2025) 21
GORSUCH, J., dissenting
or without a hearing, the NRC must, by statute and regu-
lation, undertake an extensive “proceeding . . . for the
granting . . . of [the] license” that includes an environmen-
tal review and a safety review. §2239(a)(1)(A); see also Part
I–B, supra.3
Any possible lingering doubt on this score is resolved by
recalling that the Hobbs Act is a jurisdictional statute. Ju-
risdictional statutes, this Court has said, must be read in
light of a “strong presumption that Congress intends judi-
cial review of administrative action.” Bowen v. Michigan
Academy of Family Physicians, 476 U. S. 667, 670 (1986).
It is a presumption that can be overcome “only upon a show-
ing of clear and convincing evidence of a contrary legislative
intent.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141
(1967) (internal quotation marks omitted). And here that
presumption counsels strongly against assuming that those
who participate in one aspect of an NRC licensing proceed-
ing must participate in another just to be heard in court.
Certainly, nothing in the Hobbs Act or §2239 clearly and
——————
3 The Court insists that litigants cannot “use collateral environmental
claims to evade the limits on judicial review imposed by an exclusive ju-
dicial-review provision like the Hobbs Act.” Ante, at 22, n. 4. But that
truism is no answer. Texas and Fasken are not seeking to evade the
Hobbs Act by bringing, say, an Administrative Procedure Act claim based
on their environmental objections (much as the litigants in the two cir-
cuit cases the Court cites sought to do in order to evade other exclusive
judicial-review provisions). See ibid. Instead, Texas and Fasken claim
they are entitled to proceed under the Hobbs Act itself. And while com-
menting on an EIS may not always be enough to guarantee “party” status
under the Hobbs Act, it suffices here given the way the NRC’s licensing
proceeding is structured. Nor is it any answer to insist, as the Court
does, that the §2239 hearing is a formal “agency adjudication” where “in-
tervention” is required. Ante, at 10, 22, and n. 4. For one thing, nothing
in §2239(a)(1)(A) suggests that the label “formal agency adjudication” is
appropriate. For another, if the agency’s licensing proceeding involves
an adjudication at all, it “is a very strange type of adjudication,” because
it only sometimes includes a hearing, yet always requires the agency to
open “a notice-and-comment process.” Tr. of Oral Arg. 87.
22 NRC v. TEXAS
GORSUCH, J., dissenting
convincingly requires that result.
A corollary to the presumption favoring judicial review
only serves to bolster that conclusion. “[A]bsent clear state-
ment,” this Court does not read legislation “to place in ex-
ecutive hands authority to remove cases from the Judici-
ary’s domain.” Kucana v. Holder, 558 U. S. 233, 237 (2010).
The reason for that rule is obvious. Allowing agencies to
decide who can challenge their work in court is like letting
the fox guard the henhouse: Given the opportunity, agen-
cies are likely to ensure nothing survives.
This case illustrates the risk. Section 2239 promises that
the NRC “shall grant a hearing upon the request” of anyone
who “may be affected” by a proposed license and “shall ad-
mit any such person as a party to such proceeding.” By any
measure, Fasken satisfied the law’s terms. It sought to par-
ticipate, and the agency concluded that it qualified as a
“person whose interest may be affected.” See 90 N. R. C.,
at 47, 52. From that, it followed that the NRC had to “ad-
mit” Fasken as “a party.”
Despite that mandate, the agency (again) charted its own
course. It developed restrictive internal rules regulating
who may “intervene” in its hearing and what “contentions”
it considers “admissible.” See supra, at 7 (citing 10 CFR
§2.309 (f )). Then, it deployed those rules to exclude Fasken
and others who sought to participate, turning what was
supposed to be a public hearing more nearly into an echo
chamber involving agency staff and ISP. 90 N. R. C., at 57–
64. To top it all off, the agency now asks us to believe that
§2239 (supplemented, of course, by its own regulations)
supplies the only way someone can become a “party” to its
licensing proceeding. Brief for the Federal Petitioners 19–
20.
By that series of steps, the agency effectively seeks to con-
trol who may challenge its decisions in court—and ensure
that the answer is no one. Perhaps, as the Court observes,
Cite as: 605 U. S. ____ (2025) 23
GORSUCH, J., dissenting
Fasken could have challenged the agency’s internal regula-
tions restricting who may participate in a §2239 hearing,
arguing that they defy the statute’s plain terms. See ante,
at 13. And perhaps someone should consider doing just
that.4 But the hard fact remains that, by accepting the
NRC’s strained view that §2239 represents the only way for
someone to become a party to its licensing proceedings, we
effectively allow the agency to keep even a neighboring
landowner and the very State in which massive amounts of
spent nuclear fuel will be stored from being heard in court.
Fox meet henhouse.
*
The NWPA prohibits the NRC from licensing the storage
of spent nuclear fuel at privately owned sites like ISP’s. De-
spite that command, the NRC forged ahead anyway. As the
Fifth Circuit recognized, the agency’s decision was unlaw-
ful. Nor does anything in the Hobbs Act prevent us from
admitting what we know to be true. Both Texas and Fasken
are “parties aggrieved” by the agency’s decision. The NRC’s
theory otherwise requires us to ignore the full scope of the
agency’s own licensing proceeding. It forces us to reimagine
a statute expanding public access to the agency’s adminis-
trative proceedings into one restricting access. And it asks
——————
4 After first touting the availability of this course, the Court later, in
dicta, seems to disparage its prospects, citing a 35-year-old D. C. Circuit
decision for the proposition that the NRC’s regulations do not “set too
high a bar” for intervention. See ante, at 22 (citing Union of Concerned
Scientists v. NRC, 920 F. 2d 50 (1990)). But, of course, that decision
hardly binds this Court. Notably, too, the D. C. Circuit did not pass on
the agency’s intervention regulations alone, but only those regulations
“in conjunction with the [NRC’s] longstanding late-filing rule.” Id., at 53
(“UCS does not . . . contend that the heightened pleading requirement,
standing alone, would be illegal”). In doing so, as well, the court invoked
Chevron deference, an approach this Court has since rejected. See 920
F. 2d, at 54 (citing Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984), overruled by Loper Bright Enterprises
v. Raimondo, 603 U. S. 369 (2024)).
24 NRC v. TEXAS
GORSUCH, J., dissenting
us to believe that the very State in which the agency in-
tends to store spent nuclear fuel indefinitely cannot be
heard in court to complain about the agency’s plans. Be-
cause nothing in the law requires us to indulge any of those
fantasies, I respectfully dissent.