In July, the Fifth Circuit ruled in Nuclear Regulatory Commission v. Texas that the Nuclear Regulatory Commission (NRC) does not have the legal authority to issue licenses for private companies to store spent nuclear fuel at locations away from reactors. The court’s decision rests in part on a cursory and strained application of the major questions doctrine. Now that the Supreme Court has taken up the case, it has an opportunity to offer some much-needed clarity on the boundaries of the doctrine—and whether it even remains relevant.

The Fifth Circuit’s decision created not one but two circuit splits.^[1] In its first circuit-splitting holding, the court created an exception to a jurisdictional requirement in the Hobbs Act. The Hobbs Act grants Courts of Appeals exclusive jurisdiction to review certain agency orders, including final NRC orders. But the Hobbs Act requires that anyone seeking judicial review of certain agency actions must have been a “party aggrieved” by the action, which other courts have held requires participation as a party in the underlying agency proceeding. In contrast, the Fifth Circuit applied an ultra vires exception based on dicta in old Fifth Circuit cases that allows a challenge to such actions in court, whether or not the challenger participated in the original agency proceeding, so long as the challenger argues that the agency acted outside of its statutory authority.

In its other circuit-splitting holding, the Fifth Circuit ruled that the Atomic Energy Act (AEA) does not empower the NRC to issue licenses for private, off-site storage of spent nuclear fuel. The AEA empowers the NRC^[2] to issue licenses for the possession of “special nuclear material,” “source material,” and “byproduct material,” each of which is a constituent part of spent nuclear fuel, but the court determined that the NRC may grant such licenses only for specific enumerated purposes that do not include long-term storage or disposal of spent fuel. Although the AEA delegates authority to the NRC to issue licenses for uses that it “determines to be appropriate to carry out the purposes” of the AEA or “for any other use” that the NRC approves “as an aid to science or industry,” the Fifth Circuit concluded that these broad, expansive terms were limited by more specific terms granting authority for research and development.

Further, the court found that the Nuclear Waste Policy Act (NWPA) prohibits the NRC from issuing the licenses. Congress passed the NWPA in 1982 to create a permanent repository for the disposal of spent nuclear fuel, but, after decades of debate around the selected location of Yucca Mountain in Nevada, the federal government’s efforts to create a permanent repository have stalled with no solution in sight. The Fifth Circuit argued that, political problems aside, Congress mandated in the NWPA that spent nuclear fuel could be disposed of only in a federally-established permanent repository and that the NRC therefore could not issue licenses for long-term storage at private sites, which risked becoming a permanent solution in violation of the NWPA.

In interpreting these two statutes, the Fifth Circuit, which issued its ruling before Loper Bright Enterprises v. Raimondo, addressed the NRC’s argument that its interpretation of the AEA’s ambiguous statutory language should receive Chevrondeference. The Fifth Circuit determined that, even if the language was ambiguous, the NRC’s interpretation “wouldn’t be entitled to deference,” because it concluded that the major questions doctrine applied to the NRC’s licensing decision. But the court reached this conclusion in two skimpy paragraphs of analysis. It reasoned that nuclear waste disposal is an issue of great “economic and political significance,” pointing to the Yucca Mountain saga, which, according to the court, triggered the doctrine. And the court concluded that the AEA did not provide a “clear delegation” to the NRC to issue the licenses. 

While the court cited West Virginia v. EPA for this conclusion, it did not fully grapple with the factors identified in West Virginia. In an amicus brief for the Nuclear Energy Institute (a nuclear industry trade association), Paul Clement argues that the West Virginia factors weigh against the application of the major questions doctrine in this case: NRC v. Texas, Clement asserts, presents “well-nigh the opposite situation” of that presented in West Virginia. 

First, Clement explains that, unlike in West Virginia, the NRC did not “discover in a long-extant statute” a new, “unheralded power” that transforms its authority; instead, according to Clement, the NRC has consistently relied on the AEA for nearly fifty years for its authority to issue licenses for private, off-site storage of spent nuclear fuel. 

Second, Clement contends that the NRC’s authority is not located in the “vague language” of an “ancillary provision” of the AEA; instead, the NRC’s authority is based on a central component of the AEA: the authority to issue licenses for possession of the constituent parts of spent nuclear fuel. 

Clement emphasizes that West Virginia makes clear that the major questions doctrine applies only in “extraordinary” cases, and the NRC’s decades-long consistent interpretation of this authority without congressional intervention demonstrates that the Fifth Circuit’s application of the doctrine is particularly inappropriate here. 

The Supreme Court may resolve this case on the Hobbs Act question. But if it chooses to reach the major questions doctrine, the Court could take this opportunity to rein in a doctrine that has already in the two years since West Virginiabeen applied in unpredictable and contradictory ways by the lower courts. As the Fifth Circuit’s decision demonstrates, lower courts are interpreting West Virginia as setting forth an unbounded inquiry that encourages undisciplined legal reasoning. (Others have explained that West Virginia, properly understood—and understood just as Clement argues in his brief—is not so amorphous, but the decision is sufficiently fuzzy that lower courts continue to misapply it.) Regardless of whether the Court agrees with Clement’s and the NRC’s positions on the individual elements of the major questions doctrine, the Court has an opportunity to clarify the doctrine.

In fact, whether the major questions doctrine has any remaining relevance after Loper Bright is an open question. As noted, the Fifth Circuit appears to have appended its cursory paragraphs addressing the major questions doctrine because the NRC argued it was entitled to deference under Chevron. After Loper Bright, however, the NRC is not entitled to deference when it comes to any potentially ambiguous statutory terms in the AEA or NWPA. In addition, Loper Bright includes the main major questions doctrine precedents as among the many exceptions that emerged over time to deal with some of the limitations of Chevron deference. 144 S. Ct. 2244, 2268-69 (2024). With Chevron deference gone, those exceptions—including the major questions doctrine—no longer serve a purpose. Rather, Loper Bright instructs courts to find the “best reading” of statutory language in all circumstances. And Loper Bright’s key directive that a best reading exists in all cases does not allow for different tiers of judicial scrutiny depending on the significance of the question at stake. Loper Bright’s core holding is thus incompatible with the major questions doctrine. 

The Fifth Circuit’s undisciplined application of the major questions doctrine further expands an already amorphous doctrine. At a minimum, the Supreme Court should take this opportunity to rein in lower courts’ haphazard applications of the doctrine based on instinctive feelings about whether the question at issue is “major” or not. Better yet, the Supreme Court could take this opportunity to explain that the doctrine no longer serves any purpose: It started as an exception to the Chevron doctrine, which the Court eliminated in Loper Bright while also explaining that a court’s job is to find the best reading of a statute. After Loper Bright, a court’s role in statutory interpretation is the same regardless of whether the question at hand is arguably “major” or not. 

Jack Jones is a Legal Fellow at the Institute for Policy Integrity at NYU School of Law. This post does not purport to represent the views, if any, of NYU School of Law.

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^[1] Each of the two splits is with both the D.C. Circuit and the Tenth Circuit.

^[2] The AEA initially granted the Atomic Energy Commission authority over nuclear development, but in 1974 Congress disbanded the Atomic Energy Commission and assigned the authority relevant here to the newly-created NRC.