NRC v. Texas

The Hobbs Act authorizes review only for a "party aggrieved," not for every "person aggrieved." That wording matters because the Administrative Procedure Act generally permits suit by a "person" adversely affected or aggrieved, while the Hobbs Act instead incorporates party status from the underlying agency proceeding.

The Atomic Energy Act supplies the relevant definition of party status in an NRC licensing proceeding. It provides that a person whose interests may be affected may request a hearing, and the NRC must admit that person "as a party" to the proceeding. Thus, apart from the license applicant, a person becomes a party only by successfully intervening and being admitted by the NRC.

Submitting environmental comments did not make Texas or Fasken a party. Their comments gave the NRC information and views to consider, much like an amicus submission in litigation, but they did not confer party status in an adjudicative licensing proceeding. The Court rejected the argument that commenting should suffice merely because comments may establish party status in some rulemaking proceedings governed by the Hobbs Act.

Fasken's unsuccessful effort to intervene also did not make it a party. A denied intervenor may seek judicial review of the denial of intervention, but unless that denial is reversed, the entity remains a nonparty and cannot seek merits review of the final licensing order. Texas, meanwhile, never sought intervention at all.

Fasken had a statutory path to obtain review of the NRC's intervention decision, and it used that path in the D.C. Circuit. In that case, Fasken argued that it qualified for intervention under the NRC's existing regulations, but the D.C. Circuit rejected its arguments.

Fasken did not argue in the D.C. Circuit that the intervention regulations themselves were unlawful or inconsistent with the Atomic Energy Act. It also did not seek en banc rehearing or certiorari after losing there. That judgment on intervention therefore became final.

The Court analogized the situation to ordinary civil litigation. A nonparty ordinarily must intervene to appeal a merits judgment; if intervention is denied, the nonparty may appeal that denial but may not bypass it and directly appeal the merits judgment. The same rule applies to NRC licensing proceedings.

Leedom v. Kyne permits a limited form of nonstatutory review where an agency acts wholly beyond delegated authority and contrary to a specific statutory prohibition. But the Court has repeatedly described that exception as narrow, because a broader doctrine would allow litigants to evade carefully drawn statutory limits on judicial review.

Texas and Fasken presented an ordinary dispute about the scope of the NRC's statutory authority to license off-site storage. Even assuming their interpretation might be plausible, that sort of statutory-authority disagreement is not the exceptional, plainly forbidden agency action required by Leedom v. Kyne.

Ultra vires review was independently unavailable because the statutory scheme gave affected entities an adequate opportunity for judicial review. An entity may seek review of an intervention denial, or, if admitted as an intervenor, may seek review of the final licensing order. Fasken received review of its intervention denial, while Texas chose not to seek intervention.

The Court also noted that the Fifth Circuit's approach created procedural anomalies. No precedent supported bringing an original ultra vires action directly in a court of appeals, and respondents could not coherently invoke the Hobbs Act's 60-day filing deadline while disregarding the same provision's requirement that the petitioner be a party aggrieved.

The Court expressly rested its judgment on reviewability and therefore left the underlying statutory question unresolved. It reversed the Fifth Circuit without deciding whether the Atomic Energy Act and Nuclear Waste Policy Act authorize private, away-from-reactor interim storage facilities.

The majority nevertheless explained that the NRC's position had substantial support in decades of agency practice, the NRC's 1980 regulations, congressional awareness of those regulations when it enacted the Nuclear Waste Policy Act, and the D.C. Circuit's decision in Bullcreek v. NRC. The Court stressed, however, that these observations did not amount to a merits holding.