Updates on various federal appeals court cases opposing CISFs in TX and NM

There are three major federal appeals court cases (often involving a consolidation of the opposition of multiple parties) against the so-called "private" consolidated interim storage facilities (CISFs) targeted at Texas (by Interim Storage Partners, LLC) and New Mexico (by Holtec International).

The single largest consolidation of cases is in the U.S. Court of Appeals for the District of Columbia Circuit, often called "the second highest court in the land," just under the U.S. Supreme Court. There, Beyond Nuclear, Don't Waste Michigan et al. (a seven-group, national, grassroots environmental coalition), and Sierra Club have each filed appeals against both the ISP and Holtec CISFs. So too has Fasken Land and Mineral, Ltd., and Permian Basin Land and Royalty Owners Association. ISP was already approved for construction and operation by NRC on 9/13/21, so that appeals case is first; but NRC is expected to approve Holtec later this year as well, so that case will pick up then. The court had ordered major filings of briefs to be due on 1/20/22. However, shortly before that deadline, the court suspended it. The court has not yet notified the parties of a rescheduling, but the court's order could come at any time. All parties opposed to ISP stand ready to meet whatever deadline the court orders.

In the U.S. Court of Appeals for the 5th Circuit (technically, also the second highest court in the land -- all U.S. Courts of Appeals are equal in status and stature), headquartered in New Orleans, LA, opponents to ISP have filed appeals. This includes, again, Fasken Land and Minerals, Ltd., and PBLRO Assn. But it also includes the State of Texas itself. (Please note that the State of Texas opposes both CISFs, ISP in TX, as well as Holtec in NM. However, per above, since NRC has already rubber-stamped the ISP license, that case is happening first). This federal court appeal is not suspended. The court ordered a 2/7/22 filing of briefs by Fasken/PBLRO Assn. and State of TX. Both parties will meet this deadline.

In the U.S. Court of Appeals for the 10th Circuit (also tied for the second highest court in the land), headquartered in Denver, CO, the State of New Mexico has filed an appeal against the licensing of ISP. As with TX, NM also opposes both CISFs, the one within its borders at Holtec, the other immediately upon its border (within 0.37 miles), and upstream -- ISP. This case is also not suspended, so is proceeding. On January 20th, the court informed all parties that major filings of briefs would be due on or about 60 days in the future, so on or about March 20th.

In addition to its 10th Circuit appeal, the State of NM has also filed a lawsuit in federal district court in NM, opposing both CISFs. The NRC has filed a motion for summary disposition there. The court could rule on this motion for summary dismissal at any time.

In addition to federal court appeals, the parties opposed to both CISFs are taking action in other arenas, as well. For example, the State of TX enacted a law in September 2021, making the proposed CISF at ISP illegal. It ordered state agencies, such as TDEC (Texas Department of Environmental Control), to not issue permits required for the ISP CISF to go forward.

The State of NM is considering a similar law to disallow CISFs within its borders. A bill in the state legislature, under very active consideration right now, would do just that.