Holtec International v. Nuclear Regulatory Commission, et al.

After more than six years of extensive licensing proceedings, the United States Nuclear Regulatory Commission (NRC) issued petitioner a license to store spent nuclear fuel at a proposed facility in New Mexico. Several opposing parties in the NRC proceeding sought judicial review of petitioner’s license in the normal course: before the D.C. Circuit pursuant to the Administrative Order Reviews Act (commonly known as the Hobbs Act), 28 U.S.C. §

1. Years later, one of those parties initiated a second attack on petitioner’s license in the Fifth Circuit, relying on the Fifth Circuit’s unique ultra vires exception to the Hobbs Act to challenge the NRC’s issuance of petitioner’s license as beyond the agency’s authority. The Fifth Circuit heard the case, deepening a split with the Second, Seventh, Tenth, and Eleventh Circuits which have rejected such an exception to the Hobbs Act. The Fifth Circuit also decided that the NRC does not have authority under the Atomic Energy Act, 42 U.S.C. § 2011 et seq., and Nuclear Waste Policy Act, 42 U.S.C. § 10131(a) et seq., to issue licenses for spent fuel storage and vacated petitioner’s NRC license. In issuing this decision, the Fifth Circuit created yet another split from decades-long precedent in the D.C. Circuit and the Tenth Circuit, where petitioner’s facility would be located. The questions presented are:

2. Whether there is an exception to the partyaggrieved requirement of the Hobbs Act for an ultra vires challenge to an agency action.