Chris Wilford
Associate Editor
Loyola University Chicago School of Law, JD 2026
On Wednesday, March 5th, the Supreme Court heard oral arguments on two cases involving the licensing of private contractors for temporary disposal of nuclear waste in Texas. The cases focused on two issues: (1) an administrative law question about a third party being able to challenge an agency ruling, and (2) whether the Nuclear Regulatory Commission (NRC) can issue licenses for private companies to operate temporary disposal sites. Ultimately, the holdings will not matter because the underlying problem remains the same. Due to a combination of government inaction and inefficiency, there are no permanent nuclear waste disposal sites in the US.
A brief introduction to the Nuclear Waste Policy Act
Passed in 1982, the Nuclear Waste Policy Act (NWPA) authorized the federal government to determine how to dispose of American nuclear waste. It directed the Department of Energy to find a suitable site for permanent disposal. Beginning in 1998, the federal government became responsible for the disposal of nuclear waste in the US and its associated costs under the NWPA. At first, the DOE found nine sites, then three, and then out of a concern about wasting resources by researching three simultaneously, Congress amended the Act to focus on researching only one site: Yucca Mountain in Nevada. Since 1987, Yucca Mountain has been the only statutorily allowed place to be considered a permanent site of nuclear waste disposal. In 2002, after numerous studies and regulatory approvals, President Bush signed a bipartisan resolution officially establishing the Yucca Mountain Repository. Since then, no waste has ever been stored there. No ground has ever been broken. In fact, President Obama’s administration stopped funding for it and the Department of Energy pulled its own application for the repository, leaving the only location without a viable way to be approved.
Permanent vs. temporary
A temporary site is typically above ground and is licensed for 40 years at a time. The Yucca Mountain plans are underground and designed to be safe for millions of years. Underlying the supreme court cases above and the gridlock of the application process is that Congress has only authorized the DOE to build a permanent location. Congress had originally considered approving temporary depositories for the DOE until they found a permanent location. Smartly, they were concerned that if the DOE found a temporary location, they would give up on finding a permanent depository site – essentially where the US is today but with private temporary storage facilities instead of public ones.
40 years and $40 billion later
Within the NWPA, Congress created the Nuclear Waste Fund (NWF). Its purpose is to cover the building, maintenance and operating costs of the future disposal facility. It would be funded by collecting a small fee paid by nuclear power producers. This fund has collected somewhere north of $44 billion since its inception in 1982, theoretically a great starting point to help offset costs incurred by the federal government. Yet, because there was not an active application for a permanent facility, nuclear power producers sued to stop their required payments to the Nuclear Waste Fund. The ruling was in the producers’ favor, indefinitely suspending the fee. Since 2014, no money has come from nuclear waste producers to help offset the costs of disposal which are estimated to be a cost of $600-800 million annually. Because any site other than the Yucca Mountain would be a temporary site rather than a permanent one, none of that money from the NWF can be used. Instead of being able to cover the costs with that fund, the federal government was brought to court by nuclear waste producers for storage costs. After 40 years of paying into the fund and $40 billion being collected, it was dissolved and merged back into the agency’s general fund because of the lack of a viable permanent location.
Why does it matter?
From a safety perspective there is no glaring risk of radiation exposure from the temporary sites. The DOE has not experienced any major accidents, nor have private disposal sites. Yet, these sites are only temporary, much more temporary (decades) than the half-life of any of the radioactive isotopes in the nuclear waste (millennia). Currently, nuclear waste is spread out over 39 states and over 90 locations. The regulatory nature alone would suggest that nuclear waste is easier to track and maintain in a single place rather than 90+ when the federal government is responsible for all of it. Additionally, the cost of not having a central repository is astronomical. Currently, the US pays about $2 million in storage costs to private parties every day. And this cost is only going to rise. 20% of US electricity is powered by nuclear energy. A trend of larger power consumption and the extreme power needs of AI have created an even larger incentive to increase nuclear power production. The first new plant in 30 years was opened in Georgia in 2024, and 3 more states have plans to open or reopen nuclear plants of their own. Nuclear power is here to stay and so is nuclear waste.
What to do?
President Trump has made wasteful government spending one of the early targets of his administration. The current process: paying private companies to do the federal government’s job while simultaneously not addressing the stalemate between the strict language of the NWPA and the DOE’s nonexistent application for Yucca Mountain is very likely wasteful of taxpayer money and at the very least, extremely inefficient. This would be the perfect issue for a President who has both houses of Congress and a mission for eliminating government inefficiencies to target. However, given the missteps of the DOGE cuts so far, the administration must be cautious in restarting the application process – without rushing it. After all, this is nuclear waste.