NRC v. Texas

JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, dissenting.¶verify

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 Nuclear Regulatory Commission (NRC) issued an interim storage 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.¶verify

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 respondents are the State of Texas and Fasken Land and Minerals, Ltd., a landowner with property near the proposed facility. And, yes, they are “aggrieved” by the NRC’s decision. Radioactive waste poses risks to the State, its citizens, 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 reasons, its hands are tied: The agency did not admit Texas or Fasken as parties in its hearing, and that is that.¶verify

I cannot agree. Both Texas and Fasken participated actively in other aspects of the NRC’s licensing proceeding. No more is required for them to qualify as “parties aggrieved” by the NRC’s licensing decision. Both are entitled to their day in court—and both are entitled to prevail.¶verify

I A¶verify

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 Federal Petitioners 3 (citing Idaho v. Department of Energy , 945 F. 2d 295, 298 (CA9 1991)). Perhaps for that reason, 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).¶verify

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¶verify

298. Those developments presented the Nation with an acute problem. Spent nuclear fuel is “radioactive, explosive, and highly volatile,” and it can remain so for thousands 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.¶verify

In 1982, Congress reentered the picture to address the problem, passing a new law appropriately named the Nuclear Waste Policy Act (NWPA), 96 Stat. 2201, 42 U. S. C. §10101 et seq . In it, Congress tasked the Department of Energy with selecting a permanent federally owned repository for spent nuclear fuel. See §§10132, 10134. In the meantime, the NWPA authorized the “interim” storage of spent nuclear fuel in two—and only two—places. Spent fuel, Congress said, could be stored either “at the site of each civilian nuclear reactor” or at “facilities owned by the Federal Government.” §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).¶verify

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 Mountain 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 remains today more a dream than a reality. App. 2; see National Assn. of Regulatory Util. Comm’rs v. United States Dept. of Energy , 680 F. 3d 819, 821 (CADC 2012).¶verify

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 federally owned facilities. Now, however, the NRC and ISP seek to experiment with a different solution.¶verify

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).¶verify

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.¶verify

Despite those risks, and despite the NWPA’s mandate that spent nuclear fuel must be stored at reactors or federally owned sites, the NRC launched an administrative proceeding 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.¶verify

B¶verify

Slogging through the steps the agency took between receiving ISP’s application in 2016 and rendering a final decision approving the license in 2021 makes for less than easy reading. But those steps matter because of the way the Court chooses to dispose of this case, so bear with me.¶verify

After receiving ISP’s application and before it could issue any sort of license, the NRC acknowledges, it had to undertake 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 proposed site, ISP’s proposed operating systems, and the design of its proposed structures (among many other things). See NRC, Final Safety Evaluation Report for Specific Materials License No. SNM–2515 (Sept. 2021), pp. ii–xiii. The agency’s final safety evaluation report was 366 pages long. See ibid.¶verify

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 provided for by 42 U. S. C. §2239.¶verify

Start with the environmental review. The NRC said it could not issue a license without certifying that it had completed an environmental impact statement (EIS) that assessed “the potential environmental impacts of the proposed” 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).¶verify

After the agency published its draft EIS for public comment, 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.¶verify

118. He expressed concern that an accident or an act of terrorism 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 Commission on Environmental Quality also provided comments expressing concern that, by authorizing private “interim” storage for 40 years (and perhaps longer) without addressing what should happen next, the NRC was effectively ignoring Congress’s directive that Yucca Mountain should become the Nation’s permanent repository for spent nuclear fuel. Id ., at 206.¶verify

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 multiple 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.¶verify

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 voluminous—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 comments. 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¶verify

------¶verify

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.¶verify

1 See NRC, Environmental Impact Statement for Interim Storage Partners LLC’s License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas, Final Report, App. D (NUREG–2239, July 2021).¶verify

51927.¶verify

Turn now to the other task the agency said it had to complete: the §2239 hearing. “[U]pon the request of any person whose interest may be affected by the [licensing] proceeding,” that statute provides, the agency “shall grant a hearing” 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).¶verify

Fasken sought to take advantage of this opportunity as well. In response to the Federal Register notice, it submitted two filings: A motion to dismiss and a petition for hearing. 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 company 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 effectively “denied all third-party participation.” Brief for Pacific Legal Foundation as Amicus Curiae 6 (emphasis added). Fasken went back and forth with the agency several 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).¶verify

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 proceeding and dispatched them all in a short, unpublished order. 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.¶verify

More than five years after the NRC began the work required to pass on ISP’s application—including its safety review, 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 (referencing “Materials License for ISP, dated September 13, 2021 . . . (Package)”).¶verify

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 conclusion 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. Consistent with its regulations, the agency’s final license package also contained a “concise public record of decision” supporting 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 proposed license [should] be issued to ISP.” Id ., at 288. The record of decision also “incorporate[d] by reference the materials contained in” the final EIS itself. Id ., at 289; see 10 CFR §51.103(c).¶verify

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 the cases. 603 U. S. ___ (2024).¶verify

II¶verify

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 issue such a license?¶verify

A¶verify

The answer is not hard to come by. The NWPA authorizes only two places where spent nuclear fuel may be stored on an “interim” basis—at reactor sites or on federal property. 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).¶verify

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 civilian nuclear power. And, the agency says, it issued regulations pursuant to that statute in 1980 contemplating licenses 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.¶verify

That argument is unpersuasive. Agencies are creatures 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 private, offsite facilities like ISP’s. Just recall: At the time of the AEA’s enactment in 1954, most assumed that spent nuclear fuel would be reprocessed and reused, not stored for millennia. See Part I–A, supra . Reflecting that assumption, 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 authorizes, licenses like ISP’s .¶verify

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 regulations 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.¶verify

B¶verify

To be sure, the NRC (now) has a theory why the AEA authorizes 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 submits, if you cobble together “special,” “source,” and “byproduct” material, you wind up with spent nuclear fuel. See Brief for Federal Petitioners 31–32. So while the AEA may 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 regulations and licenses regarding the storage of spent nuclear fuel. Ibid.¶verify

The agency’s theory may get marks for creativity, but it fails for at least three independent reasons.¶verify

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 briefing 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 byproduct materials include neither of these requirements. See §§2014(e), (z), (aa).¶verify

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 nuclear fuel,” in 1988 Congress amended that law to incorporate the NWPA’s definition of the term. See 102 Stat. 1069. So, today, the AEA authorizes the NRC to ensure that certain “ 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 nuclear fuel really is just the sum of special, source, and byproduct 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¶verify

& B. Garner, Reading Law 174–179 (2012).¶verify

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 material, and other radioactive materials associated with fuel assemblies .” 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.¶verify

Second , the AEA authorizes the NRC to license the use of special, source, and byproduct materials only for very specific purposes—and storage is not among them. So, for example, 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 industrial 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 storage as an approved use.¶verify

The agency admits that the AEA does not expressly authorize it to issue licenses for storage. See Brief for Federal Petitioners 32–34. But, it replies, the statute does so implicitly. 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.¶verify

That hardly works. As this Court has repeatedly recognized, a catchall “at the end of a list of specific items is typically 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 activities listed in §2073, §2093, and §2111 involve the affirmative, productive use of the materials in question—not their passive storage.¶verify

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 question 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 construction “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).¶verify

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 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.¶verify

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-together 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.¶verify

C¶verify

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 (irrelevant) precedent can imbue the NRC with novel authority that appears nowhere in any statute.¶verify

Take precedent first. According to the Court, we and others have “interpreted the Atomic Energy Act of 1954 to authorize licenses for the storage of spent nuclear fuel.” Ibid .¶verify

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 storage 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 construction of new nuclear plants until more spent-fuel storage became 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).¶verify

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 anything like ISP’s. Eight facilities seemingly included in the Court’s count are not “offsite” storage sites at all, but “privately owned nuclear reactor sites that have ceased . . . reactor operations.” Brief for Federal Petitioners 6. Meanwhile, 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¶verify

Court claims for what the agency did here. Ante, at 17.¶verify

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 generate spent fuel, nor did the AEA tolerate its storage by anyone “anywhere.”¶verify

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 required) to keep spent fuel onsite after removing it from a reactor. See id ., at 97. It does not follow that the AEA permitted other parties, without a license, to take spent nuclear fuel offsite and do with it what they pleased.¶verify

III¶verify

Without any persuasive argument on the merits, the NRC urges the Court to dismiss Texas’s and Fasken’s claims on jurisdictional grounds. Ultimately, the Court does just that and thus paves the way for the agency to issue its misbegotten license. As the Court sees it, Texas and Fasken cannot challenge the NRC’s decision in court because they failed to jump through the right hoops before the agency.¶verify

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.¶verify

In reaching that conclusion, the Court does not (and cannot) 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.”¶verify

Still, the Court reasons, neither Texas nor Fasken are “parties” aggrieved by the NRC’s decision to issue ISP’s license. 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 accepted those comments and considered them before issuing its environmental review findings and final EIS that themselves 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 licensing proceeding. And that, the Court concludes, is enough to prevent both Texas and Fasken from lodging any complaint in court about the agency’s work.¶verify

A¶verify

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.¶verify

Doing so raises a few questions. First, what was the “final order” in this action? Plainly, the NRC’s licensing decision. 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 proceeding 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 Simmons ).¶verify

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 environmental impact statement weighing alternatives to ISP’s proposal, including the possibility of denying it. Ibid. Reflecting as much, the agency’s final license “package” included a preamble in which the agency recorded various findings, including a finding that it had completed a final EIS. Ibid .¶verify

The package also included a “concise public record of decision” outlining the findings of the agency’s final EIS, incorporating that document by reference, and reporting its conclusion that ISP’s license application should be granted. Supra , at 8 (citing 10 CFR §51.102(a); App. 288–298).¶verify

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 .¶verify

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-andcomment,” 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.¶verify

B¶verify

For its part, the Court seems to consider Texas’s and Fasken’s participation in the agency’s environmental review irrelevant. As I understand it, the Court thinks that, to “qualify as a party,” Texas and Fasken also had to “successfully intervene” in the agency’s §2239 hearing. Ante, at 2.¶verify

I fail to see why. By the terms of one statute and set of regulations, the agency may have had to offer a public hearing. But by the terms of other statutes and regulations, the agency also had to conduct, among other things, an environmental review and a safety review. Each of these steps, the agency insists, was necessary before it could reach a decision on ISP’s license application. See Part I–B, supra ; see also, e . g ., 81 Fed. Reg. 79532. And all of the agency’s various tracks of review culminated in a single decision. Indeed, 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 environmental-review portion of the agency’s licensing proceeding. Ibid. The Hobbs Act requires no more. See Simmons , 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)).¶verify

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 affected 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 affected by the agency’s decision would have at least one forum in which to express their views to the NRC. But nowhere 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 proceeding.¶verify

More than that, the statute’s terms preclude any interpretation 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. Under §2239, after all, a hearing may or may not be required, depending on whether someone “request[s]” one. And, with or without a hearing, the NRC must, by statute and regulation, undertake an extensive “proceeding . . . for the granting . . . of [the] license” that includes an environmental review and a safety review. §2239(a)(1)(A); see also Part I–B, supra . 3¶verify

Any possible lingering doubt on this score is resolved by recalling that the Hobbs Act is a jurisdictional statute. Jurisdictional statutes, this Court has said, must be read in light of a “strong presumption that Congress intends judicial 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 showing 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 proceeding must participate in another just to be heard in court. Certainly, nothing in the Hobbs Act or §2239 clearly and¶verify

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3 The Court insists 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.” 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 circuit 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 commenting 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 “intervention” 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.¶verify

convincingly requires that result.¶verify

A corollary to the presumption favoring judicial review only serves to bolster that conclusion. “[A]bsent clear statement,” this Court does not read legislation “to place in executive hands authority to remove cases from the Judiciary’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, agencies are likely to ensure nothing survives.¶verify

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 admit any such person as a party to such proceeding.” By any measure, Fasken satisfied the law’s terms. It sought to participate, 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 “admit” Fasken as “a party.”¶verify

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 5764. 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 1920.¶verify

By that series of steps, the agency effectively seeks to control who may challenge its decisions in court—and ensure that the answer is no one. Perhaps, as the Court observes,¶verify

Fasken could have challenged the agency’s internal regulations 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.¶verify

*¶verify

The NWPA prohibits the NRC from licensing the storage of spent nuclear fuel at privately owned sites like ISP’s. Despite that command, the NRC forged ahead anyway. As the Fifth Circuit recognized, the agency’s decision was unlawful. 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 administrative proceedings into one restricting access. And it asks¶verify

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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)).¶verify

us to believe that the very State in which the agency intends to store spent nuclear fuel indefinitely cannot be heard in court to complain about the agency’s plans. Because nothing in the law requires us to indulge any of those fantasies, I respectfully dissent.¶verify