NRC v. Texas

P R E L I M I N A R Y P R I N T
Volume 605 U. S. Part 2
Pages 665–713
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 18, 2025
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users 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.

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TERM, 2024
665
Syllabus
NUCLEAR REGULATORY COMMISSION et al. v.
TEXAS
et al.
certiorari to the united states court of appeals for
the fth 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 Commis-
sion 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 re-
view 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. 674–690.
(a) In the Hobbs Act, Congress specifed that only a “party aggrieved”
by a licensing order of the Commission may seek judicial review. 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 license applicant or
successfully intervene in order to obtain party status 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
*Together with No. 23–1312, Interim Storage Partners, LLC v. Texas
et al., also on certiorari to the same court.

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666 NRC
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Syllabus
by the proceeding, and shall admit any such person as a party to such
proceedi
ng.” 42 U. S. C. § 2239(a)(1)(A). That text means that a “per-
son” 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. And if the Commission fails to “admit” someone “as a party,” that
person is not a party. Pp. 674–678.
(b) Fasken contends that it can maintain this suit because it satisfed
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 contemplates. 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 inter-
vention regulations. Fasken simply challenged how the Commission
applied its regulations in this case. But the D. C. Circuit rejected
Fasken's arguments and upheld the Commission's denial of Fasken's pe-
tition 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 fnal. Fasken cannot now use a new Hobbs Act suit to collaterally
attack the D. C. Circuit's prior ruling on intervention. Pp. 678–680.
(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. Greyhound
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 nonstatutory review was
available because the agency order “was an attempted exercise of power
that had been specifcally withheld” and violated a “specifc prohibition”
in the National Labor Relations Act. Id., at 188–189. “The Kyne ex-
ception is a narrow one” that does not apply simply because an agency
arguably reached “a conclusion which does not comport with the law.”
Boire, 376 U. S., at 481. Rather, it applies only when an agency acts
entirely “in excess of its delegated powers and contrary to a specifc
prohibition” in a statute. Railway Clerks v. Association for Beneft
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 per-
sons 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 judi-

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667
Syllabus
cial review of either the Commission's intervention denial or, if interven-
ti
on is granted, the Commission's fnal licensing order. Additionally, no
precedent supports bringing an ultra vires claim in a court of appeals
rather than frst in a district court. Pp. 680–683.
(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. 683–687.
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., fled a dissenting opinion, in which Thomas and Alito, JJ.,
joined, post, p. 690.
Deputy Solicitor General Stewart argued the cause for
petitioners in No. 23–1300. With him on the briefs in both
cases were Acting Solicitor General Harris, former Solici-
tor General Prelogar, Assistant Attorney General Kim, Ni-
cole Frazer Reaves, Jennifer S. Neumann, Michael T. Gray,
Justin D. Heminger, and Andrew P. Averbach.
Brad Fagg argued the cause for petitioner in No. 23–1312.
With him on the briefs in both cases were Timothy P. Mat-
thews, Michael E. Kenneally, and Ryan K. Lighty.
David C. Frederick argued the cause for respondent
Fasken Land and Minerals, Ltd. With him on the brief in
both cases were Scott H. Angstreich, Christopher C. Good-
now, Matthew J. Wilkins, Ryan M. Folio, Allan Kanner,
Annemieke M. Tennis, and Monica Renee Perales. Aaron
L. Nielson, Solicitor General of Texas, argued the cause
for respondent Texas et al. With him on the brief in both
cases were Ken Paxton, Attorney General, Brent Web-
ster, First Assistant Attorney General, Lanora C. Pettit,
Principal Deputy Solicitor General, and Benjamin W. Men-
delson and Sara B. Baumgardner, Assistant Solicitors
General.†
†Anne R. Leidich and Jay E. Silberg fled a brief in both cases for Holtec
International as amicus curiae urging reversal.
Briefs of amici curiae urging affrmance in both cases were fled for the
State of Idaho by Raúl R. Labrador, Attorney General of Idaho, Alan
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668 NRC
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Opinion of the Court
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 prob-
lem, federal law has long designated the Yucca Mountain Nu-
clear Waste Repository in Nevada as the future permanent
site for disposal of spent nuclear fuel. But the Nevada proj-
ect has caused signifcant political controversy and has
stalled.
To fll 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
Regulatory Commission.
Hurst, Solicitor General, Michael A. Zarian, Deputy Solicitor General,
and Robert M. Follett and Ann N. Yribar, Deputy Attorneys General; for
the State of New Mexico et al. by Raúl Torrez, Attorney General of New
Mexico, and by Dana Nessel, Attorney General of Michigan, Aletheia V.
P. Allen, Solicitor General, William Grantham, Assistant Attorney Gen-
eral, Lawrence Marcus, Assistant Solicitor General, and Esther Jamison,
Assistant Attorney General; for the State of Utah et al. by Derek E.
Brown, Attorney General of Utah, Stan ford E. Purser, Solicitor General,
and Haley Sousa, Assistant Attorney General, and by the Attorneys Gen-
eral for their respective States as follows: Tim Griffn of Arkansas,
Brenna Bird of Iowa, Gentner F. Drummond of Oklahoma, Alan Wilson
of South Carolina, Marty J. Jackley of South Dakota, and John B. Mc-
Cuskey of West Virginia; for Beyond Nuclear, Inc., by Diane Curran and
Mindy Goldstein; for Don't Waste Michigan et al. by Wallace L. Taylor
and Terry J. Lodge; for the Pacifc Legal Foundation by Oliver J. Dun ford;
for the Permian Basin Petroleum Association et al. by James R. Conde;
and for Sen. Ted Cruz et al. by Jason R. LaFond.
Briefs of amici curiae were fled in both cases for the City of Fort
Worth by Laetitia Coleman Brown; and for the Nuclear Energy Institute,
Inc., by Paul D. Clement, Andrew C. Lawrence, Ellen C. Ginsberg, and
Jonathan M. Rund.
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as: 605 U. S. 665 (2025)
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Opinion of the Court
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 pri-
vate 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 deci-
sion. To qualify as a party to a licensing proceeding, the
Atomic Energy Act requires that one either be a license ap-
plicant or have successfully intervened in the licensing pro-
ceeding. 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 li-
cense 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 nu-
clear power plants. Today, more than 50 nuclear power
plants—along with coal, natural gas, and renewable energy
sources—produce electricity for American homes and busi-
nesses. In all, nuclear power plants generate almost 20 per-
cent of the electricity in America.
Nuclear power plants also create radioactive waste—as
relevant here, spent nuclear fuel. To lawfully store that
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670 NRC
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Opinion of the Court
waste, nuclear power plants and storage facilities must ob-
t
ain 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 inter-
venors to proffer a “contention” that shows a “genuine dis-
pute . . . on a material issue of law or fact.” 10 CFR
§ 2.309(f ) (2024). In 1990, the D. C. Circuit upheld the Com-
mission'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 fnal order by
the Commission that either grants or denies the license.
The fnal 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 fnal order may, within 60 days after
its entry, fle a petition to review the order” in a court of
appeals. 28 U. S. C. § 2344 (emphasis added).
B
For decades, the question of how best to store and dispose
of spent nuclear fuel has sparked contentious American pol-
icy and political debates, and intermittent legislative and
regulatory efforts. More than 50 commercial nuclear power
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671
Opinion of the Court
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 regula-
tions 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 defn[ing]
licensing requirements covering ” off-site storage under the
Atomic Energy Act. 45 Fed. Reg. 74693. Under the Com-
mission's regulations, private storage facilities for spent nu-
clear 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 dis-
pose 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 subse-
quently upheld the Commission's 1980 regulations for the li-
censing of private off-site storage facilities. See 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 author-
ity to license private off-site storage facilities or otherwise
disturb the 1980 regulations. Ibid. Under licenses granted
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Opinion of the Court
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 reposi-
tory site for spent nuclear fuel. See 101 Stat. 1330–227 to
1330–228 (codifed at 42 U. S. C. § 10172). But Nevada's ob-
jections 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 intervenors
to, among other things, proffer a suffcient “contention,”
which means “suffcient 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 Com-
mission's Atomic Safety and Licensing Board Panel ruled
that Fasken (and several other would-be intervenors) had
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as: 605 U. S. 665 (2025)
673
Opinion of the Court
not satisfed the requirements for intervention. The full
Commissi
on affrmed.
Fasken then sought review in the D. C. Circuit, challeng-
ing the Commission's denial of intervention. Fasken did not
argue that the regulations were inconsistent with the stat-
ute. 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 Envi-
ronmental Policy Act, 83 Stat. 852, as amended, 42 U. S. C.
§ 4321 et seq. See 10 CFR § 51.10 et seq. A Texas govern-
ment agency and Fasken both commented on the draft EIS.
App. 125, 205. The Texas agency contended that the pro-
posed facility was creating “signifcant unease with the pub-
lic” 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 unac-
ceptably high risk of environmental contamination. Id., at
126; see also id., at 128–146, 198–199. In July 2021, the
Commission published its fnal 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 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 ju-
risdiction 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 chal-

674 NRC
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lenge ultra vires agency action—that is, action entirely out-
side
the Commission's authority—regardless of whether they
qualifed 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 pri-
vate 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 con-
trary. 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 Com-
mission and ISP both sought review in this Court, and we
granted certiorari. 603 U. S. 949 (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 qualifed 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 Com-
mission 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 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 Commis-
sion. Fasken also separately argues that it was a party be-
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675
Opinion of the Court
cause 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. Specifcally, Fasken
contends that the Commission's regulations governing inter-
vention 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 affrming the Commission's
denial of Fasken's intervention petition does not preclude
Fasken from relitigati ng the i nterventi on issue in th is
litigation.
Third, Texas and Fasken claim that their statutory claims
are reviewable even if they were not parties to the Commis-
sion's licensing proceeding. Agreeing with the Fifth Cir-
cuit, 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 Ad-
ministrative 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 proceed-
ing and therefore cannot obtain judicial review of the Com-
mission's licensing decision.
A
First, Texas and Fasken contend that simply submitting
comments or attempting to intervene in the Commission's
licensing proceeding suffces to qualify as a party under the
Hobbs Act. Not so.
Under the Hobbs Act, only a “party” aggrieved by the li-
censing proceeding may seek judicial review. Importantly,
a “party” aggrieved is not synonymous with a “person” ag-
grieved. In the Administrative Procedure Act of 1946, Con-
gress 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
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v. TEXAS
Opinion of the Court
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 Com-
mission licensing proceeding. Texas and Fasken emphasize
ordinary dictionary defnitions of “party,” such as “participa-
tor.” E. g., 11 Oxford English Dictionary 281–282 (2d ed.
1989); see Random House Dictionary of the English Lan-
guage 1052–1053 (1966) (“participant”). According to Texas
and Fasken, they “participated” and became parties by fling
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 pro-
ceeding. That Act provides: “In any proceeding under this
chapter, for the granting . . . of any license . . . the Com-
mission shall grant a hearing upon the request of any per-
son whose interest may be affected by the proceeding,
and shall admit any such person as a party to such proceed-
ing.” 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 actu-
ally “admit[ted] . . . to such proceeding ” by the Commis-
sion. Ibid. It follows that if the Commission fails to
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677
Opinion of the Court
“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 proceed-
ings. So as Texas sees it, the same participation that con-
fers party status in an agency rulemaking—namely, fling a
comment—should suffce to qualify for party status in an
agency adjudication such as a Commission licensing proceed-
ing. 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 suffces
for party status in one category of proceeding may be inade-
quate in another. Here, the text of the Atomic Energy Act
makes clear that a person or entity must be granted inter-
vention in order to become a “party” to a Commission licens-
ing proceeding, even if something less than intervention may
suffce in other proceedings such as rulemakings (or perhaps
certain less-formal agency adjudications) that are also gov-
erned by the Hobbs Act.
Because the Atomic Energy Act confnes party status to
license applicants and intervenors, we also reject Texas's ar-
gument, advanced for the frst 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 proceed-
ing 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 Com-
mission licensing proceedings under the Atomic Energy Act.
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 inter-
vention 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.
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Where judicial review of an underlying agency action is not
other
wise 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 infor-
mation 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 partici-
pation 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 Commis-
sion'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 satisfed the statutory criteria for intervention
under the Atomic Energy Act—and thus should have been
granted intervention by the Commission. And Fasken con-
tends that the D. C. Circuit's decision upholding the Commis-
sion's denial of intervention in earlier litigation does not pre-
clude it from now relitigating that issue in the Fifth Circuit
and this Court. We disagree.
The Atomic Energy Act generally provides that the Com-
mission “shall admit” any person who requests a hearing and
“whose interest may be affected by the proceeding.” 42
U. S. C. § 2239(a)(1)(A). The Commission's regulations gov-
erning intervention in turn require intervenors to meet sev-
eral specifc 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 Com-
mission's intervention regulations as consistent with the
Atomic Energy Act, including § 2239. See Union of Con-
cerned Scientists v. NRC, 920 F. 2d 50, 51–56.
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According to Fasken (and the dissent), the Commission's
reg
ulations set a higher bar for intervention than the Atomic
Energy Act contemplates. In 1990, the D. C. Circuit re-
jected that argument. See ibid. In any event, that ques-
tion 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 Commis-
sion's intervention regulations. See Don't Waste Mich. v.
NRC, 2023 WL 395030 (Jan. 25, 2023). Fasken simply chal-
lenged 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
fnal.
Fasken cannot now use a new Hobbs Act suit to collater-
ally attack the D. C. Circuit's prior ruling on intervention.
An analogy to judicial proceedings is instructive. In the ju-
dicial 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 the dis-
trict 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 fnal order of the district court in the underly-
ing proceeding unless and until the denial of intervention is
reversed. See ibid.
So too in Commission proceedings. If a request to inter-
vene 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,
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bring a Hobbs Act suit contesting the merits of orders issued
i
n the underlying Commission proceeding.
Texas and Fasken complain that the Commission is unilat-
erally denying access to judicial review by limiting interven-
tion. 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. Cir-
cuit. 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 inter-
vene in the Commission proceeding. Because neither Texas
nor Fasken successfully intervened, they may not obtain ju-
dicial 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
action often lacked a statutory cause of action. Yet courts
sometimes entertained “a bill in equity to attack administra-
tive 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 equita-
ble 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
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may assert ultra vires claims here. They contend that the
Commissi
on'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 certifcation of a collective bargain-
ing 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 specifcally withheld,” and the agency's order violated
a “specifc 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. Grey-
hound Corp., 376 U. S. 473, 481 (1964). “The Kyne exception
is a narrow one,” and it does not apply 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 dele-
gated powers and contrary to a specifc prohibition” in a
statute. Railway Clerks v. Association for Beneft of Non-
contract 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 re-
view,” 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
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rarely succeeds.” Nyunt v. Chairman, Broadcasting Bd. of
Go
vernors, 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. Cir-
cuit 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 avail-
able 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 the Com-
mission's denial of intervention or, if intervention has been
granted, the Commission's fnal order arising from the licens-
ing proceeding.
Also, Texas and Fasken's theory of ultra vires review
would lead to major anomalies. For example, the Fifth Cir-
cuit purported to exercise original—rather than appellate—
jurisdiction over these ultra vires claims. But as counsel for
Fasken acknowledged at oral argument, no precedent sup-
ports bringing an ultra vires claim in a court of appeals in
the frst 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
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Opinion of the Court
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 au-
thority 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 facili-
ties—but not at private off-site facilities. Post, at 698 (opin-
ion 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. But
we do briefy note, in response to the dissent's narrative, that
history and precedent offer signifcant support for the Com-
mission's longstanding interpretation. Contrary to the dis-
sent, 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 stor-
age of spent nuclear fuel. See Pacifc 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
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v. TEXAS
Opinion of the Court
license and regulate the storage and disposal of ” spent nu-
clear
fuel).
2
To spell it out some more: In 1980, the Commission
adopted regulations that interpreted the 1954 Atomic En-
ergy Act to authorize storage at private off-site facilities.
Those regulations established licensing procedures for pri-
vate 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 defn[ing]
licensing requirements covering the storage of spent fuel in”
on-site and off-site facilities under the Atomic 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 facil-
ity, the GE Morris facility in Morris, Illinois, received a li-
cense 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.
2
The dissent says that Pacifc Gas “never decided that question” and
Bullcreek “had no occasion to resolve” it. Post, at 704. In Pacifc 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 “feld
. . . occupied by the Federal Government.” 461 U. S., at 219; see also id.,
at 217. And Bullcreek reaffrmed—without relying on Chevron defer-
ence—that the Commission has “authority under the AEA to license and
regulate private use of private away-from-reactor spent fuel storage facili-
ties.” 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)).

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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 stor-
age 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 con-
gressional committee debates”).
In that 1982 Act, Congress did not disturb the Commis-
sion'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 692,
698), Congress set forth guidelines for construing “this chap-
ter” 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 nu-
clear waste repository that would exist for thousands of years.
When a license for a private off-site storage facility was
later challenged in the D. C. Circuit, that court upheld the
license and the Commission's 1980 regulations, fnding 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

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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 frst argues, however, that the Commis-
sion never had authority under the 1954 Atomic Energy Act
to license on-site or off-site storage facilities. See post, at
699–702. But this Court has already rejected that interpre-
tation 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 frst 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. Al-
though ISP might beneft somewhat from such a novel read-
ing, it forthrightly stated at oral argument that “that's not a
credible interpretation of the Atomic Energy Act.” Tr. 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 care-
fully avoided denying or repealing the Commission's author-
ity to license private off-site facilities. See 359 F. 3d, at 542.
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 705. But the 1982 Act in relevant part simply grants the Commis-
sion authority additional to the 1954 Act to authorize storage of spent
nuclear fuel. See 42 U. S. C. § 10155(a).

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On that issue, the 1982 Act left the law where it was—
namely
with the 1954 Atomic Energy Act and the 1980 Com-
mission 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 ulti-
mate 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 merits. The dis-
sent's description of an agency that is fagrantly 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 unpersua-
sive, in our respectful view.
Under the Hobbs Act, as we have explained and the dis-
sent acknowledges, Texas and Fasken may obtain judicial re-

688 NRC
v. TEXAS
Opinion of the Court
view of the licensing decision only if they were parties to the
Commissi
on's licensing proceeding. See post, at 707. The
Atomic Energy Act—in particular, 42 U. S. C. § 2239—pre-
scribes 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 709. We disagree. Section 2239 provides that
“[i]n any proceeding” for granting a license, “the Commis-
sion 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 licens-
ing proceeding ”—not merely one subpart of that proceeding.
Post, at 709. And § 2239 specifes intervention as the mecha-
nism 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, the Commission must admit that person
or entity as a party.
4
4
Even if § 2239 were not the exclusive path to party status in Commis-
sion 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 707–708. 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 677–678. 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 envi-
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Section 2239 is thus the exclusive path to party status in
Commissi
on 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 Com-
mission 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 711. The D. C. Circuit rejected
that argument 35 years ago in Union of Concerned Scien-
tists. See 920 F. 2d, at 51–56. And in any event, we 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 argu-
ment. 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
ronmental 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); Ameri-
can 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.
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attack that decision here, as we have explained. See supra,
at
679–680. (For its part, Texas did not even try to inter-
vene 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 inter-
vention issue. To review: Texas and Fasken had ample op-
portunity to present their views on the proposed storage site
to the Commission. They did so. And they had the oppor-
tunity 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 unsuccess-
ful 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 re-
view 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
with instructions to deny or dismiss the petitions for review.
It is so ordered.
Justice Gorsuch, with whom Justice Thomas and Jus-
tice 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
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691
Gorsuch, J., dissenting
miles from the nearest reactor. The agency's decision was
unlawfu
l.
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 Min-
erals, Ltd., a landowner with property near the proposed
facility. And, yes, they are “aggrieved” by the NRC's deci-
sion. Radioactive waste poses risks to the State, its citi-
zens, 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 reason, Con-
gress's frst 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.
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The statute spoke about nearly everything else—from the
constr
uction of commercial nuclear reactors to their owner-
ship and operation—but not spent nuclear fuel or its storage.
Pacifc Gas & Elec. Co. v. State Energy Resources Conserva-
tion 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
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.
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 nu-
clear reactor” or at “facilities owned by the Federal Govern-
ment.” § 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 Mountain
should begin operations no later than January 31, 1998. See
101 Stat. 1330–227 to 1330–228, 42 U. S. C. § 10172. Despite
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that mandate, and “more than $15 billion” spent on the proj-
ec
t, the Yucca Mountain repository remains today more a
dream than a reality. App. 2; see National Assn. of Regula-
tory 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 feder-
ally owned facilities. Now, however, the NRC and ISP 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 oilfeld 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 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
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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 fnal deci-
sion 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.
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 design
of its proposed structures (among many other things). See
NRC, Final Safety Evaluation Report for Specifc Materials
License No. SNM– 2515 (Sept. 2021), pp. i i–xi i i. The
agency's fnal 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
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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 oilfeld containing more than 40%
of America's proven oil reserves would be “dangerous.”
App. 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 com-
ments expressing concern that, by authorizing private “in-
terim” storage for 40 years (and perhaps longer) without ad-
dressing 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.
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 fnal 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 fnal EIS was volumi-
nous—684 pages in total, with 173 of those dedicated to sum-
marizing and responding to comments from the public.
1
The
1
See NRC, Environmental Impact Statement for Interim Storage Part-
ners LLC's License Application for a Consolidated Interim Storage Facil-
ity for Spent Nuclear Fuel in Andrews County, Texas, Final Report, App.
D (NUREG–2239, July 2021).
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EIS specifcally 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 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 man-
date, the NRC published a notice in the Federal Register
inviting “any persons . . . whose interest may be affected”
by ISP's license to “fle 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 flings: 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 effectively “de-
nied all third-party participation.” Brief for Pacifc Legal
Foundation as Amicus Curiae 6 (emphasis added). Fasken
went back and forth with the agency several times, appeal-
ing unfavorable rulings and fling 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).
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.
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Eventually, Fasken went to court to challenge the agency's
var
ious 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 cu-
riam). In the only paragraph dedicated to Fasken's peti-
tion, 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 fve 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 fnal 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 (refer-
encing “Materials License for ISP, dated September 13, 2021
. . . (Package)”).
That package included a preamble in which the agency re-
cited the various fndings necessary to issue the license.
App. 284; cf. id., at 277. Among those fndings was a conclu-
sion that “issuance of this license is in accordance with 10
CFR Part 51 . . . and all applicable requirements [of that
Part] have been satisfed.” Id., at 286. Translation: The
NRC had completed a fnal EIS. See 10 CFR § 51.91. Con-
sistent with its regulations, the agency's fnal license package
also contained a “concise public record of decision” support-
ing its environmental fndings. § 51.102(a); see App. 288–
298. That document described the agency's fndings in its
fnal 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 fnal EIS itself. Id., at 289; see 10 CFR
§ 51.103(c).
After the agency issued its decision, Texas and Fasken pe-
titioned the Fifth Circuit for review, arguing that the NRC
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lacked legal authority to license ISP's facility. That court
agreed
with Texas and Fasken and vacated the NRC's deci-
sion. 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. 949 (2024).
II
With that background in mind, turn frst 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?
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 feld 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
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says, it was entitled to rely on those regulations to issue
ISP'
s license.
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 author-
izes 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. Refecting that assump-
tion, the AEA did not even mention spent nuclear fuel,
let alone address its storage. Ibid. Congress frst 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 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]ol-
lowing 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
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
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submits, if you cobble together “special,” “source,” and “by-
produc
t” 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.
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
briefng 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 defned 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 defnitions of special, source, and byprod-
uct 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 defnition 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 specifc 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
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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 &
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
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 nu-
clear fuel includes materials besides special, source, and by-
product 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-
cifc 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 indus-
trial or commercial purposes. §§ 2073(a)(1)–(3); see § 2133.
The provisions speaking to “source material” and “byproduct
mater ia l” cont ai n si mi lar l ists of approved uses. See
§§ 2093(a), 2111(a). None of those lists discusses storage 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
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this chapter.” And, the agency says, it has determined it
“appropr
iate” to issue licenses for the “interim” storage of
spent fuel to private companies like ISP. See id., at 32.
That hardly works. As this Court has repeatedly recog-
nized, a catchall “at the end of a list of specifc items is typi-
cally controlled and defned by reference to the specifc
classes that precede it.” Fischer v. United States, 603 U. S.
480, 487 (2024) (internal quotation marks and ellipsis omit-
ted); 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. In-
stead, 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 affrmative,
productive use of the materials in question—not their pas-
sive 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 specifcs 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 specifc statute controls over a general one.”
Bulova Watch Co. v. United States, 365 U. S. 753, 758 (1961);
accord, Morton v. Mancari, 417 U. S. 535, 550–551 (1974);
contra, ante, at 686, 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
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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 indefnitely? 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-
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 frst 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. Citi-
zens 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
justifed by “history and precedent.” Ante, at 683. Yet
neither the Court's (revisionist) history nor its (irrelevant)
precedent can imbue the NRC with novel authority that ap-
pears nowhere in any statute.
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Take precedent frst. 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.
In truth, this Court has never decided that question. Our
decision in Pacifc 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).
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 684. That
careful phrasing obscures that none of those facilities is any-
thing 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 . . . reac-
tor 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 in-
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voked its 1980 regulations to license a private, offsite storage
faci
lity—and that facility “was never built.” See Tr. of Oral
Arg. 81. I struggle to see in any of this the “signifcant
support” the Court claims for what the agency did here.
Ante, at 683.
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 any-
where and do so without a license. See ante, at 686. 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 fve 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 nu-
clear fuel offsite and do with it what they pleased.
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III
W
ithout 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 misbegot-
ten 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.
The Cour t's reasoni ng fol lows th is path: Texas and
Fasken seek judicial review under the Hobbs Act. That
statute permits “[a]ny party aggrieved by [an agency's] fnal
order [to] fle 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 qualifes as
a “party aggrieved” by the NRC's decision. Ante, at 674.
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 675. 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 fndings and fnal 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-
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707
Gorsuch, J., dissenting
ing proceeding. And that, the Court concludes, is enough to
pre
vent both Texas and Fasken from lodging any complaint
in court about the agency's work.
A
I see things differently. Lower courts have often as-
sumed the phrase “party aggrieved” in the Hobbs Act re-
quires those seeking relief from an agency's “fnal 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 676. For present purposes, let us take it as given.
Doing so raises a few questions. First, what was the
“fnal order” in this action? Plainly, the NRC's licensing de-
cision. 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 pro-
ceeding comprised several parts—including the safety re-
view, environmental review, and a § 2239 hearing. Third,
who qualifed 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, and n. 28 (CADC 1987) (citing Simmons for
this proposition); see also ante, at 676 (relying on Simmons).
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. Re-
flec ti ng as much, the agency's fi na l l icense “package”
included a preamble in which the agency recorded various
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Gorsuch, J., dissenting
fndings, including a fnding that it had completed a fnal EIS.
Ib
id. The package also included a “concise public record of
decision” outlining the fndings of the agency's fnal EIS, in-
corporating that document by reference, and reporting its
conclusion that ISP's license application should be granted.
Supra, at 697 (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 ad-
dress them in its fnal 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 ”
qualifes 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 review
irrelevant. As I understand it, the Court thinks that, to
“qualify as a party,” Texas and Fasken also had to “success-
fully intervene” in the agency's § 2239 hearing. Ante, at 669.
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 environ-
mental review and a safety review. Each of these steps,
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709
Gorsuch, J., dissenting
the agency insists, was necessary before it could reach a de-
cisi
on 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. In-
deed, the agency incorporated the conclusions of each into
its fnal 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 pro-
ceeding. 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 suffcient (emphasis added)).
That conclusion is confrmed 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 forum
in which to express their views to the NRC. But nowhere
did Congress say § 2239 is the only way someone can partici-
pate in the agency's licensing proceeding. Nowhere, for ex-
ample, did it say that someone must request a hearing under
§ 2239 to become a party to the NRC's licensing proceeding.
More than that, the statute's terms preclude any interpre-
tation confating a hearing before the agency with the licens-
ing proceeding itself. The statute provides that the “hear-
ing ” occurs “[i]n any proceeding . . . for the granting . . . of
any license”—that is to say, in an overall licensing proceed-
ing. The statute does not say that the hearing is the licens-
ing proceeding. Surely, too, that is as it must be. Under
§ 2239, after all, a hearing may or may not be required, de-
pending on whether someone “request[s]” one. And, with or
without a hearing, the NRC must, by statute and regulation,
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Gorsuch, J., dissenting
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
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 judicial
review of administrative action.” Bowen v. Michigan Acad-
emy 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 in-
tent.” 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
convincingly requires that result.
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 688–689, 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 com-
menting on an EIS may not always be enough to guarantee “party” status
under the Hobbs Act, it suffces 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 677, 688, and n. 4. For one thing, noth-
ing 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.
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711
Gorsuch, J., dissenting
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 exec-
utive 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.
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 satisfed the law's terms. It sought to par-
ticipate, and the agency concluded that it qualifed as a “per-
son 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.”
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 696 (citing 10 CFR
§ 2.309(f )). Then, it deployed those rules to exclude Fasken
and others who sought to participate, turning what was sup-
posed to be a public hearing more nearly into an echo cham-
ber 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 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,
Fasken could have challenged the agency's internal regula-
tions restricting who may participate in a § 2239 hearing, ar-
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guing that they defy the statute's plain terms. See ante, at
680.
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 some-
one to become a party to its licensing proceedings, we effec-
tively allow the agency to keep even a neighboring land-
owner 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 unlawful.
Nor does anything in the Hobbs Act prevent us from admit-
ting 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 reimag-
ine a statute expanding public access to the agency's admin-
istrative proceedings into one restricting access. And it
asks us to believe that the very State in which the agency
4
After frst 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 689 (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-fling 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)).
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intends to store spent nuclear fuel indefnitely 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.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 697, line 15 from bottom: “accord” is changed to “accordance”
p. 699, line 19: “the” is deleted