What does Chevron mean for nuclear?

The NRC was the undisputed final word in what goes for nuclear energy in the United States. Did the overturning of the longstanding Chevron decision now put the courts above the regulatory agency?

The US Supreme Court just overturned the longstanding “Chevron deference” This is a move so dramatic that Dahlia Lithwick, senior legal editor at Slate, described it as a “requiem” for the Administrative state.

According to Lithwick in the Slate Podcast on the issue, the Chevron doctrine said that when a statute is unclear, federal courts should defer to a reasonable interpretation by administrative agencies. No more. Courts can now decide from the get-go what a statute means, regardless of what the agency thinks.

Once upon a time, ironically, it was the conservative Justice Scalia who was the Chevron doctrine’s biggest fan. But as it becomes increasingly clear that the conservative justices are going to enjoy a generational hold on the Supreme Court while the party holding the Executive Branch flips and flops, it became an advantageous political project for the court to take out Chevron and transfer power from the “ABC agencies,” which of course includes the National Regulatory Commission (NRC) over to the courts.

“This fundamentally changes the way government governs,” said Lithwick.

So what now? If the court is now the final arbiter for whether, say, a bump stock makes a gun a machine gun, is it also going to become the final arbiter on whether a giant trampoline works as well as a reinforced containment dome for that purpose of protecting a nuclear reactor from the impact of a large commercial aircraft?

In fact, since the Aircraft Impact Assessment (AIA) is a part of the NRC’s regulations, not explicitly mandated by law, the court can even opt to throw the regulation out entirely.

The undercutting of the NRC goes both ways: just as nuclear companies can now challenge what they see as unreasonably onerous NRC regulations in court, they are now also vulnerable to individuals or groups claiming harm, even if the companies followed all the regulatory guidelines, increasing their legal risk.

As Chief Justice John Roberts wrote in his opinion in the landmark 6-3 ruling, “Agencies have no special competence in resolving statutory ambiguities. Courts do.”

In a dissenting opinion, Justice Elena Kagan warned that Congress does not have the ability to write perfectly complete regulatory statutes and it would be preferable for the gaps formed by inevitable ambiguities to be filled by the responsible agency, not a court. The decision “is likely to produce large-scale disruption.”

I am not a lawyer, and this piece is not meant to be authoritative, but the beginning of a conversation that can have monumental impact for the course of nuclear energy development, along with so many other sectors.

There hasn’t been the time for much industry reaction yet, but nuclear entrepreneur Josh Payne thinks that on balance the overturning of the Chevron Doctrine could be a good thing for the US’ Nuclear Energy development.

“A big part of nuclear’s problems is that many of the regulations are ambiguous. Under Chevron, the NRC had ultimate authority on interpretation. Other agencies at least are under the executive so that the will of the people can influence them through the White House. The NRC is odd in that it only answers to Congress.”

The “bedrock” of nuclear legislation remain unchanged. But that bedrock was laid down a long time ago — think the Atomic Energy Act of 1954. This is the primary piece of legislation governing nuclear energy and materials and while it has been amended to address specific issues such as waste disposal, changes have been relatively minor.

Everything the NRC then created on the basis of that bedrock based on their interpretation without changing the underlying law is now up for challenge.

However, energy lawyer Elina Teplinsky of Pillsbury thinks this has significant ramifications for the nuclear industry — and not on the upside.

“It opens a big door for interventors (anti-nuclear interests of all types) on every NRC decision,” said Teplinsky.

There are already existing avenues for companies to challenge agency decisions even with Chevron in place, and rather than opening a door to positive changes as Payne hopes, the industry should be on guard for possible derailment.

“Getting rid of Chevron will create chaos - judges are often not as well equipped as agencies to implement and interpret legislation.”

THE ELEMENTAL TAKE

There’s already been furious discussions about the role of the NRC and whether or not it is the roadblock to accelerated nuclear development in the United States. That discussion has now been overtaken by the Deus-ex-machina development of the overturning of the Chevron defense.

On the plus side, it’s long been assumed (by me anyhow) that even patently stupid nuclear regulations like the AIA will never be rolled back because there simply isn’t a mechanism to do this outside of the NRC, who will never be willing to do it. Now a door is open.

On the down side, should we trust the courts to be better arbiters of how nuclear power plants should be regulated than the actual agency set up to regulate them?

In the best-case scenario, judges will still place proper deference to the NRC’s expertise and the overturning of Chevron will simply check the powers of the administrative state while also encouraging congress to issue clarifying legislation.

In the worst-case scenario, rogue judges are now empowered to issue out-of-pocket decisions on highly technical matters they don’t actually understand.