ELR Citation: 53 ELR 20027
No(s). 21-9593 (10th Cir. Feb 10, 2023)

The Tenth Circuit dismissed a petition to review NRC's grant of a temporary license for spent nuclear fuel storage near the New Mexico border. New Mexico argued NRC violated NEPA and the Nuclear Waste Policy Act, and acted ultra vires in granting the license. NRC moved to dismiss for lack of jurisdiction. New Mexico invoked jurisdiction under a combination of the Hobbs Act and the Atomic Energy Act. The court found that neither Act triggered jurisdiction because New Mexico did not participate in NRC's licensing proceeding, that jurisdiction did not exist under the Nuclear Waste Policy Act because the Commission did not issue the EIS with respect to an action under Part A of the Act, and that even if NRC had acted ultra vires, the court lacked jurisdiction because New Mexico could have asserted its arguments in the licensing proceeding. It granted NRC's motion to dismiss.