The Supreme Court, the Atom, and a Heap of Trouble

In the grand old tradition of kicking troublesome cans down the road, the Supreme Court plans to referee a dispute over where to pile up America’s surplus of nuclear leftovers. On one side, you have the federal government and a private outfit keen on stacking spent uranium in the open country of Texas. Texas Governor Greg Abbott is objecting to Uncle Sam’s latest scheme to turn his state into a glow-in-the-dark pantry for radioactive odds and ends.

The whole business traces its roots back to the ever-elusive search for a proper resting place for America’s atomic junk. Once a grand vision for permanent storage, the Yucca Mountain project got torpedoed by the citizens of Nevada, who decided that turning their backyard into a uranium burial ground was not on their list of civic improvements. That left the Nuclear Regulatory Commission scrambling for other options, which led to the bright idea of “temporary” storage in the wide-open spaces of Texas and New Mexico—temporary, of course, like an old sofa dumped in the desert is “temporary.”

At the heart of the matter is the legal right of states to protest when the federal government decides the state in question makes a fine dumping ground. The Fifth Circuit Court of Appeals ruled that the NRC overstepped its bounds in approving a Texas site, a decision that now stands in contrast to other courts that gave the NRC a free hand. The Supreme Court will now decide whether the Lone Star State and its neighbors get a say in the matter or whether the federal government, like a pushy dinner guest, can leave its mess wherever it pleases.

With the long memory of a government agency tasked with justifying its power, the Justice Department argues that the authority to handle nuclear waste has been in place since the Eisenhower administration. Opponents, including Republican and Democratic politicians and oil and gas interests, counter that storing radioactive fuel atop the Permian Basin—the golden goose of American energy—is about as wise as storing gunpowder in a blacksmith’s shop.

New Mexico’s governor, Michelle Lujan Grisham, finds herself in rare agreement with Abbott, both unwilling to see their states serve as America’s nuclear attic. Meanwhile, a chorus of concerned lawmakers, including Senator Ted Cruz, warns of the security risks posed by leaving highly radioactive material just sitting out in the countryside like an oversized, uranium-flavored piñata for any mischief-maker with bad intentions.

And so, the Supreme Court finds itself faced with deciding what to do with things no one wants. The fate of these nuclear waystations now rests with nine justices, who will determine whether the law permits this game of radioactive hot potato—or if Congress must first be bothered to say so explicitly.