From Waste Confidence to Continued Storage: Legal theories supporting the US NRC’s licensing of nuclear facilities without a repository: 0

In New York v. Nuclear Regulatory Commission (New York 2012),1 the US Court of Appeals for the District of Columbia (DC) Circuit vacated the 2010 update to what was commonly known as the US Nuclear Regulatory Commission’s (NRC or Agency) “Waste Confidence Decision”. The Waste Confidence Decision was premised upon the NRC’s professed confidence that spent nuclear fuel could and eventually would be disposed of in an underground repository and that spent fuel could be stored safely and without significant environmental consequence until that time. For decades, the decision had provided legal support for the Agency’s issuance and renewal of licences for power reactors to operate, even as the process for licensing and constructing a repository in the United States became delayed and ultimately stalled (as it remains today). The court ruled in New York 2012 that the NRC’s continued reliance upon its Waste Confidence Decision to support these licensing decisions was inconsistent with the US National Environmental Policy Act (NEPA), which requires US federal agencies to consider the full panoply of the environmental impacts of certain “major federal actions” (including decisions to licence nuclear facilities).2 The court required the Agency to further develop its analysis of the impacts of storing spent fuel for an extended period of time and to address the possibility of a repository not becoming available.