Experts Navigate New Nuclear Regulations at Climate Week NYC

NEW YORK, NY — September 23, 2024 — At Climate Week NYC, Anthropocene Institute and Pillsbury Winthrop Shaw Pittman LLP co-sponsored the panel "Streamlining Advanced Nuclear Regulation in the Post-Chevron Era," moderated by Melinda Alankar, Director of Investment and Funding Opportunities, Anthropocene Institute. The panel was part of an afternoon event, "Scaling Advanced Nuclear for Net Zero: Harnessing AI Innovation, Policy Mandates and Legal Developments."

Speakers included Prof. Michael Gerrard, Director of the Sabin Center for Climate Change Law, Columbia University; Anne Leidich, Partner, Nuclear Energy, Pillsbury Winthrop Shaw Pittman LLP; Adam Stein, Director of the Nuclear Energy Innovation Program, Breakthrough Institute; and Elina Teplinsky, Partner and Energy Industry Leader, Pillsbury Winthrop Shaw Pittman LLP.

A complex regulatory landscape

Alankar set the stage, noting that now is an exciting time for nuclear energy, with 25 countries pledged to triple nuclear power by 2050 and major banks announcing they will support the goal at Climate Week NYC. She also cited the obstacles. "In the US, building reactors is plagued by high costs, partly related to our complex regulatory landscape. But things are starting to change. Just this past year, significant legal developments have been signaling a policy shift," she said. 

These new regulations include the ADVANCE Act, passed this summer with huge bipartisan support, and the Nuclear Regulatory Commission's Part 53, a draft proposed rule offering a voluntary, performance-based alternative regulatory framework for licensing future commercial nuclear plants. These developments will be viewed considering the Supreme Court decision in Loper Bright Enterprises v. Raimondo overturning the decade-long Chevron Doctrine.

Panelists began by explaining major legal developments, including:

• Overturning the Chevron Doctrine, which stated that if an ambiguous statute exists, the courts will defer to expert agencies on how they interpret that statute. In a recent ruling, the Supreme Court decided they would listen to what the agencies say but no longer defer to them.
• West Virginia versus EPA, which generated the "Major Questions Doctrine," said that when there is a matter of very large economic or political significance, Congress must speak specifically to that issue before agencies have the power to act.
• The Atomic Energy Act (AEA), which gives the NRC authority to issue licenses to promote the "utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public."

Preserving NRC authority

When it comes to how these laws affect the actions of the NRC, Prof. Gerrard noted that no statute is more specific than the ADVANCE Act, which reduces the NRC's vulnerability. He added that the West Virginia case may put new clean power plants at risk because of the Major Questions Doctrine, but he believes that soaring demand for electricity will make up for any efforts to thwart building new plants. 

Leidich noted that overturning the Chevron Doctrine will open the door to litigation, but Loper Bright is narrow in its scope regarding the nuclear regulatory regime and the NRC. Still, third parties will want to see how far they can push it in the Circuit Courts. She then explained that the Fifth Circuit Court struck down and vacated some NRC licenses for nuclear fuel storage. Still, a petition on behalf of Holtec International points back to several provisions of the AEA that delegate authority to the NRC to decide what licenses it will issue.

Teplinsky clarified why deferring to the NRC's authority is a good thing. "In the advanced reactor community, the climate-driven community, the NRC is viewed as a bit of a monster to slay…but the NRC regulates everything related to nuclear power. A lot of discussion has been concerning scaling nuclear advanced reactors. That's about 10 percent of what the NRC does. The rest, the other 90 percent, we are generally happy with. This is why we want the NRC authority protected."

Leidich agreed, "The nuclear industry likes a certain amount of consistency…If we make decisions on a case-by-case basis for every licensed reactor, we're delaying things significantly."

More to be done with regulatory reform

Stein clarified the Nuclear Regulatory Commission's Part 53, which states that vendors must meet performance objectives instead of specific requirements. "If you think about a car, it's like saying you must have four wheels on your car, so many pounds of clamping pressure on your brakes, all these very specific things you must check off. A performance objective would be, 'You must have a car that can go straight down the road and can stop within a certain distance.' It's up to the developer on how to meet those requirements. It opens the door for innovation."

Teplinsky noted that tripling nuclear capacity is impossible under the existing process because the regulations are too complicated. "We need a new rule that is more flexible. However, the developers do have to come in with good licensing submittals, and when they do, we've seen some successes."

She then delved into the specifics of the ADVANCE Act, including an NRC directive to include efficiency in addition to safety and useful provisions on specific licensing activities and timelines, including fossil to nuclear conversion, a 25-month timeline for licensing reactors at existing sites, and a different licensing scheme for microreactors. She also lauded lifting some restrictions regarding foreign investment in nuclear facilities, a welcome development that will enable more projects to move forward.

Changes at the NRC

Stein and Teplinsky discussed the NRC’s need for more staffing, training, and resources to meet new time horizons. The agency also needs a paradigm shift toward more digitized processes and more knowledge of advanced reactors.

Regarding costs, the ADVANCE Act also requires the NRC to reduce the fees for advanced reactors. "In the past, a large lightwater reactor generally required around 30,000 staff hours from the NRC. If we reduce the timeline to about 25 months to issue a license, it will be closer to 18,000 hours. The ADVANCE Act basically cut the hourly rate in half for licensing," said Stein. He added that the Act's provision that the NRC's mission statement must include public benefit in addition to safety and security is crucial to getting more new nuclear built. 

"There's a saying, 'You can do it fast, you can do it cheap, you can do it right, but you can't do all three.' We need an enormous amount of new electricity as quickly as possible, and it has to be safe, so it's a real challenge," said Gerrard. "That's why I'm eager to see the nuclear industry do all three things at once."