STATE v. NUCLEAR REGULATORY COMMISSION (2025)

United States Court of Appeals, Fifth Circuit.

STATE of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission On Environmental Quality; Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, v. NUCLEAR REGULATORY COMMISSION; United States of America, Respondents.

No. 21-60743

Decided: September 22, 2025

Before Jones, Ho, and Wilson, Circuit Judges.

Benjamin Wallace Mendelson, Assistant Solicitor General, Office of the Texas Attorney General, Austin, TX, Ryan Baasch, Office of the Attorney General, Consumer Protection Division, Austin, TX, for Petitioners State of Texas, Greg Abbott, Governor of the State of Texas, Texas Commission on Environmental Quality. Allan L. Kanner, Esq., Annemieke Monique Tennis, Kanner & Whiteley, L.L.C., New Orleans, LA, for Petitioners Fasken Land and Minerals, Limited, Permian Basin Land and Royalty Owners. Andrew Paul Averbach, Esq., Solicitor, U.S. Nuclear Regulatory Commission, Office of the General Counsel, Rockville, MD, Merrick Garland, U.S. Attorney General, Attorney General, U.S. Department of Justice, Washington, DC, for Respondent Nuclear Regulatory Commission. Justin Heminger, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Merrick Garland, U.S. Attorney General, Attorney General, U.S. Department of Justice, Washington, DC, for Respondent United States of America. Arnold Bradley Fagg, Ryan Kennedy Lighty, Timothy P. Matthews, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Intervenor. Paul D. Clement, Andrew Lawrence, Clement & Murphy, P.L.L.C., Alexandria, VA, Mariel A. Brookins, U.S. Chamber Litigation Center, Washington, DC, for Amicus Curiae Nuclear Energy Institute, Incorporated. Benjamin L. Bernell, Esq., Pillsbury Winthrop Shaw Pittman, L.L.P., Austin, TX, for Amicus Curiae Holtec International.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Texas state officials concluded that a proposed renewable Nuclear Regulatory Commission (NRC) license allowing a private entity to store nuclear waste in the Permian Basin would not only violate federal law, but also wreak environmental havoc in West Texas and endanger the nation's energy security. Governor Greg Abbott warned that an accident or act of terrorism could affect the entire country's energy supply. See, e.g., NRC v. Texas, 605 U.S. 665, 145 S. Ct. 1762, 1783, 222 L.Ed.2d 260 (2025) (Gorsuch, J., dissenting). A number of officials and private parties also expressed concerns about environmental contamination and harm to endangered species. See, e.g., id. at 1771 (majority opinion); id. at 1783 (Gorsuch, J., dissenting). So the State of Texas challenged the NRC's issuance of the license.

Our court faithfully applied circuit precedent allowing states to bring suits under the Hobbs Act when an agency acts ultra vires. See Texas v. NRC, 78 F.4th 827, 839 (5th Cir. 2023) (citing American Trucking Ass'n, Inc. v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982)). See also Texas v. NRC, 95 F.4th 935, 944 (5th Cir. 2024) (Higginson, J., dissenting from denial of rehearing en banc) (acknowledging “our court's ultra vires exception” and urging rehearing en banc to reconsider that exception).

The Supreme Court reversed our judgment. It held that ultra vires review is unavailable if a “statutory review scheme provides aggrieved persons with a meaningful and adequate opportunity for judicial review” or where an “alternative path to judicial review” exists. NRC, 145 S. Ct. at 1776 (citation omitted). The Court concluded that we lack jurisdiction to consider the petition for review in this case.

Accordingly, we dismiss the petition for review, as required by the Supreme Court.

Per Curiam:

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