WSJ: “A Lawless NRC Obstructs Safe Nuclear Power”
Utah, Texas, and Last Energy take the NRC to court
“A Lawless NRC Obstructs Safe Nuclear Power” is The Wall Street Journal’s headline for an opinion piece by the Abundance Institute’s Chris Koopman and Eli Dourado. The nuclear company Last Energy, Texas, and Utah have filed a lawsuit against the Nuclear Regulatory Commission, arguing that the NRC exceeds its granted authority by applying the same regulations to gigawatt scale facilities as to small, modular reactors.
You can read the complaint here, view the entire docket, or read Eli’s overview. The big-picture outcome of a win would be that states, not the NRC, could run the nuclear rules within their borders, at least for certain smaller reactors.
The NRC most hampers innovative and inherently safe types of nuclear
At the heart of the motivation for the case, the lawsuit argues that different risks require different rules. The legal argument is that the NRC does not have authority over smaller reactors because its authority is limited to those using substantial fuel, or reactors that necessarily affect public health and safety. Today, however, as Chris points out, the NRC regulates “a university teaching reactor that couldn't power your phone charger THE EXACT SAME WAY as a gigawatt nuclear plant.”
As Chris and Eli point out, the licensing rules the NRC uses are a poor fit for the most innovative, new technologies:
This licensing regime is most harmful to the most innovative nuclear technology. Small modular reactors are dramatically different from the massive reactors envisioned during the Cold War. The reactors at issue in this case generate a fraction of the power of conventional nuclear plants—around 20 megawatts or less—and are designed with modern safety features that would release close to zero radiation even in a worst-case meltdown scenario. Last Energy’s design operates entirely inside a container with 12-inch steel walls that has no credible mode of radioactive release even in the worst reasonable scenario.
Even in such a scenario, according to the plaintiffs, radiation exposure would be less than a tenth what the NRC has deemed too safe to require regulation in other contexts—and less than 1/800th of a routine abdominal CT scan.
States are already preparing to run the show
Some responses to the lawsuit have been pessimistic—worried that 50 different sets of rules will hamper the growth of SMRs. It’s a real concern. Of course, it’s no different from the status quo. Not to mention that if the NRC has overextended its authority, then the lawsuit has merit beyond an idealized rollout plan for enabling SMRs via NRC approval.
The promise of giving authority to states is not that, for example, Wyoming instantly has well-defined nuclear rules, and it’s open season for SMRs. Instead, the laboratory of democracy will reveal a suite of options among states that want to pursue it. Over time, we should see the best practices adopted across the country.
Texas and Utah are already ahead of the pack on nuclear rules. Utah’s Office of Energy Development has been working on nuclear rules and guidelines for more than a year. In late 2024, a Texas nuclear working group released a report on how Texas can enable nuclear energy. They’re not the only ones—other states have removed bans on building new nuclear facilities. Montana, for example, removed their ban in 2021.
Chris and Eli conclude:
Federal courts should simply require the NRC to follow federal law. Reactors that could affect the nation’s public health and safety should be subject to rigorous federal oversight. But state regulatory authorities are more than sufficient to ensure that small modular reactors operate safely. Washington doesn’t need to be involved.
This case isn't just about the NRC’s rightful authority—it's about clearing the path for innovation in nuclear energy. States like Texas and Utah have started on the groundwork for regulations tailored to the risks of SMRs instead of the one-size-fits-all approach the NRC has taken.
SMRs deserve their day in court. If successful, this lawsuit could begin a more dynamic, state-led approach to nuclear power, unlocking its potential to meet our energy needs safely and sustainably.
