“Only Applicants and Successful Intervenors May Sue”:
Supreme Court Tightens the Hobbs Act’s “Party Aggrieved” Test in NRC v. Texas (2025)

Introduction

In Nuclear Regulatory Commission et al. v. Texas et al., the U.S. Supreme Court set a definitive — and restrictive — rule about who can obtain judicial review of Nuclear Regulatory Commission (NRC) licensing orders. The Court held that only two categories of participants qualify as a “party” under the Hobbs Act: (1) the license applicant itself, and (2) those who successfully intervene in the agency’s licensing proceeding pursuant to §2239 of the Atomic Energy Act (AEA). Submitting comments or merely attempting (and failing) to intervene is not enough.

The decision reverses the Fifth Circuit, repudiates that court’s broad reading of the “ultra vires” exception, and leaves undisturbed — for now — the NRC’s substantive authority to license private off-site storage of spent nuclear fuel. Although Justice Gorsuch’s dissent calls the majority’s jurisdictional holding a “fox-guards-the-henhouse” impediment to judicial review, the newly announced standard will soon reverberate well beyond nuclear-energy law, affecting any federal agency whose orders are reviewable under the Hobbs Act (e.g., FCC, FERC, NLRB, FDIC, EPA on certain matters).

Summary of the Judgment

• Holding: Texas and Fasken Land & Minerals were not “parties” to the NRC licensing proceeding; therefore, the Hobbs Act (§2344) barred them from obtaining judicial review of the license granted to Interim Storage Partners (ISP). The Fifth Circuit’s judgment vacating the license is reversed.
• Majority Opinion (Kavanaugh, J., 6–3):
  • Under §2239(a)(1)(A) AEA, one becomes a “party” only by being the applicant or by being “admitted” after requesting a hearing (i.e., successful intervention).
  • Fasken’s failed intervention was fully reviewable — and finally rejected — by the D.C. Circuit; collateral attack in a new Hobbs Act petition is impermissible.
  • Texas & Fasken’s attempt to invoke Leedom v. Kyne ultra vires review does not fit the narrow exception and would undercut the Hobbs Act’s comprehensive scheme.
  • Because review is unavailable on jurisdictional grounds, the Court does not address whether the NRC possesses substantive authority to license private off-site spent-fuel storage.
• Dissent (Gorsuch, J., joined by Thomas & Alito):
  • The NWPA limits interim spent-fuel storage to reactor sites or federal facilities; NRC lacked statutory power to license ISP.
  • Texas and Fasken became “parties” by extensively participating in the environmental-review portion of the licensing proceeding; requiring successful intervention gives the agency veto power over who may obtain judicial review.

Analysis

1. Precedents Cited & Their Influence

• United States v. Detroit Timber & Lumber Co. (1906) – reaffirmed that a syllabus is not part of the opinion (housekeeping).
• Union of Concerned Scientists v. NRC (D.C. Cir. 1990) – upheld NRC intervention regulations; majority invokes it to rebut claims that NRC sets an unlawfully high bar to intervene.
• Bullcreek v. NRC (D.C. Cir. 2004) – earlier circuit precedent sustaining NRC authority to license private off-site storage; majority notes but does not adopt on merits, yet uses it to show the statutory question is debatable, not clearly ultra vires.
• Boire v. Greyhound (1964) & Railway Clerks v. ABNE (1965) – define strict limits of Kyne ultra vires review; majority relies heavily on these to constrict the exception.
• Board of Governors v. MCorp Financial (1991) – agency-specific review scheme forecloses blanket equity jurisdiction; supports majority’s refusal to allow end-run around Hobbs Act.
• United States ex rel. Eisenstein (2009) – only parties may appeal; used as analogy to explain why commenters are analogous to amici, not parties.
• Leedom v. Kyne (1958) – narrow door for non-statutory review of agency orders that flagrantly exceed jurisdiction; majority closes that door here.

2. The Court’s Legal Reasoning

1. Statutory Text Controls Party Status.
   • Hobbs Act grants review only to a “party aggrieved”.
   • Atomic Energy Act §2239(a)(1)(A) prescribes that anyone other than the applicant becomes a “party” only if the Commission “shall admit” them after they “request” a hearing. Thus, intervention = sine-qua-non.
   • Ordinary dictionary meanings cannot trump the statute’s internal definitional structure.
2. No Collateral Attack on Denial of Intervention.
   • Fasken already litigated intervention in the D.C. Circuit and lost; principles of issue preclusion and finality foreclose recycling that dispute in another circuit.
3. Leedom v. Kyne Exception Narrowed.
   • Ultra vires suits lie only where the agency acts contrary to a specific statutory prohibition and where the statutory scheme affords no alternative review.
   • Because intervention denials are reviewable, and statutory authority is at least colorable, Kyne does not apply.
4. Merits Debate Left Unresolved.
   • Majority underscores that its jurisdictional ruling says nothing about — and does not implicitly endorse — the NRC’s view that the NWPA permits private off-site storage.

3. Potential Impact

• Tighter Standing at the Gate: Any stakeholder (state, business, NGO, tribe) must now rigorously pursue and win intervention under 10 C.F.R. §2.309 to preserve judicial review of NRC licensing orders.
• Cross-Agency Ripple: Courts may import the same applicant/intervenor rule to Hobbs-Act-covered decisions from FCC, FERC, NLRB, FAA, and FDIC, limiting review to a narrower pool of litigants.
• Strategic Behavior by Agencies: Agencies may tighten intervention criteria to insulate decisions. Expect APA suits attacking intervention regulations themselves — a route the majority leaves theoretically open.
• State Sovereignty Concerns: States opposing federal siting decisions must now intervene promptly or risk forfeiture; federalism debates may intensify in energy, environmental, and telecom contexts.
• Legislative Response? Congress could revisit the Hobbs Act or §2239 to clarify that commenters or “any person adversely affected” may seek review, if it wishes broader access.

Complex Concepts Simplified

• The Hobbs Act (28 U.S.C. §§2341-2351): A special statute funnelling challenges to certain agency orders directly to federal courts of appeals, bypassing district courts.
• “Party Aggrieved”: A litigant who both (1) participated as a formal party in the agency proceeding and (2) is adversely affected by the outcome.
• Intervention (§2239): In NRC adjudications, outsiders must file timely petitions demonstrating a concrete interest and at least one “contention” showing a genuine dispute on law or fact. Successful petitioners gain full litigation rights (discovery, cross-examination).
• Ultra Vires / Leedom v. Kyne Review: An extraordinary judicial remedy allowing review of agency action that is plainly beyond statutory authority where no adequate review mechanism exists. Think of it as a legal “emergency exit.”
• Environmental Impact Statement (EIS): A detailed study, required by NEPA, assessing environmental effects and alternatives before major federal actions (such as licensing a nuclear facility).

Conclusion

NRC v. Texas is less about nuclear waste than about the procedural fences Congress erected around judicial review of agency action. By limiting the term “party aggrieved” to licensees and successful intervenors, the Court fortifies the Hobbs Act as a gatekeeper statute. Key takeaways:

1. Commenting, objecting, or even filing an unsuccessful intervention petition does not preserve standing to challenge an NRC license.
2. Parties denied intervention get one appellate bite under §2239(b) to challenge that denial; afterwards, they are locked out of merits review nationwide.
3. The ultra vires “escape hatch” is now even narrower: only where Congress explicitly forbade the agency action and provided no review channel.
4. While the Court dodged the substantive fight over off-site spent-fuel storage, its procedural holding may prove more consequential, constraining access to the courts in a wide array of federal regulatory arenas.

Practitioners must therefore treat NRC intervention petitions — and analogous participation requirements before other Hobbs-Act agencies — as mission-critical litigation events. One misstep at the agency level now means permanent silence in the courts of appeals.