Austin and Santa Fe Can’t Nuke the Constitution

A solid economic-development opportunity stretching across the Texas-New Mexico border — i.e., the creation of an industry cluster that will help address a vexing national problem — is now illegal in both states.

Illegal under state statutes, that is. If challenged under “the supreme law of the land,” elected officials in Austin and Santa Fe are likely to see their antinuclear virtue-signaling obliterated.

As the Southwest Public Policy explained in February, the federal government’s bungling of its legal and contractual obligations to permanently dispose of spent nuclear fuel (SNF) created an opening for private efforts to craft a stopgap solution. And as luck would have it, the facilities planned by Interim Storage Partners and Holtec International are located in adjacent jurisdictions in our region — Andrews County, Texas and Lea County, New Mexico.

The spotless record of transportation and storage of SNF should have prompted leaders in both states to warmly welcome the companies’ proposals. But “nuclear waste” scares voters, so Republican and Democratic politicians responded in predictably hysterical fashion.

Deep-red Texas was the first to act. In September 2021, it adopted a law that “effectively bans highly radioactive materials.” Earlier this month, deep-blue New Mexico followed suit. Only “hours after the Legislature passed a bill limiting the storage of high-level nuclear waste in New Mexico, Gov. Michelle Lujan Grisham signed the bill into law.”

Both measures are sure to boost the job security of many men and women in “public service.” But federal judges are almost certain to see things very differently.

At issue is the Supremacy Clause — the provision in the U.S. Constitution that places federal law above “any conflicting rules of state law.”

When it comes to nuclear power, the feds have run the show from the start. As the U.S. Court of Appeals for the Tenth Circuit wrote in 2004, D.C.’s monopolization began with the Atomic Energy Act of 1954, and includes the Price-Anderson Act (1957), Energy Reorganization Act (1974), and Nuclear Waste Policy Act (1982).

Several U.S. Supreme Court rulings — Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission (1983), Silkwood v. Kerr-McGee Corp. (1984), English v. General Electric Co. (1990), and Virginia Uranium, Inc. v. Warren (2019) — have set the boundaries for how states can and cannot regulate the nuclear industry. Tort claims for negligence are permitted, for example, and legislatures can ban uranium mining. But the language of the Silkwood decision is clear: States “are precluded from regulating the safety aspects of nuclear energy.”

Rather dimly, supporters of both the Texas and New Mexico laws have consistently cited safety — and a number of other dubious gripes, such as “environmental justice” — as the basis for their opposition to SNF storage. The SSPI’s review of public statements made by pro-ban politicians has yielded no justifications that are likely to pass constitutional muster. Even the Land of Enchantment’s own attorney general, in 2018, admitted that the U.S. Nuclear Regulatory Commission “has the statutory authority to license and regulate consolidated interim nuclear waste storage facilities, and … the comprehensiveness of that federal regulatory scheme pre-empts virtually any state involvement.”

Antinuclear posturing comes in handy on Election Day. But fortunately for the folks who could use the jobs Interim Storage Partners and Holtec International hope to create, Austin and Santa Fe are asserting authority they don’t have. With the NRC already issuing a license for the Texas facility, and a final decision on New Mexico a few months away, let’s hope the appropriate parties head to court to overturn both laws.