Congress Gives Nod to Environmental Permitting Reform

One of the biggest strides the United States can take toward a greener world is transitioning from harmful fossil fuels to dependable, clean energy sources. An increasingly large share of the public and policymakers understand this, and are theoretically ready to make the leap. In practice, however, actually making the transition will require modernizing U.S. environmental regulations.

Earlier this summer, Washington finally started doing just that. On June 3, U.S. President Joe Biden signed into law NEPA modernization provisions in the Fiscal Responsibility Act of 2023 (FRA). The amendments to NEPA, a result of much compromise and negotiation in Congress, should push the Nuclear Regulatory Commission (NRC) to streamline the environmental review process for approving new reactors.

Among other stipulations, the NEPA amendments:

• Set an appropriate level of review;

• Limit the timelines for reviews;

• Establish page count limits for review documents;

• And mandate consideration of the negative consequences of the no-action alternative.

Level of Review. Nuclear licensing has often been slowed by lengthy Environmental Impact Statements (EIS), which are vital tools for making decisions on projects like Plant Vogtle 3 and 4. But they might not always be necessary, like in the case of the Microreactor Applications Research Validation and Evaluation (MARVEL) reactor at Idaho National Laboratory, which underwent an Environmental Assessment (EA). The existence of EAs predates the NEPA amendments and is now presented as the “first-pick” for environmental reviews through those changes. NEPA now establishes a threshold for when to use an EA: when the action by a federal agency “does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown.” Using an EA as a preliminary step makes sense. When the expected impact is minimal, an EA can get the job done without the need for a larger study. When stakes rise—medium impact or beyond—EIS is a logical next step.

Timelines. In the world of environmental assessments and project reviews, timelines and clarity are of the essence. The new law is taking a step forward by setting the expectation that these processes run like well-oiled machines. For those complex projects that demand a comprehensive EIS review, the law is putting a two-year deadline on it. But if a project leans towards the simpler side and only requires an EA, the target is to get the review done within one year. It's a move to make sure things get done promptly and with precision.

Page Counts. Embracing a more streamlined approach, the new regulations also place page limits on environmental documents. To ensure clarity without overwhelming detail, the general aim is to keep an EIS within 150 pages. For those projects that fall under the category of "extraordinary complexity," a bit more space—up to 300 pages—is granted. For the lighter touch EAs, the goal is to stay within 75 pages. The FRA does leave a potential workaround. The appendix doesn’t count toward the page limit, a loophole which could undermine the whole reform.

No Action Alternative. NEPA now mandates consideration of the negative impacts of the “no-action” alternative:

“...a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal.”

This is almost opposite to the NRC’s current practice, which is to consider the risks of action and the benefits of no-action, including that a patch of land may not be bulldozed, cooling water may not be drawn from a nearby water body, and so on. But not building a nuclear plant would not eliminate the need for a power source.

Once the NRC starts considering the negative impact of a “no-action” alternative, it would have to grapple with the likelihood of prolonged fossil fuel use, either by an old fossil fuel plant having to stay open longer or a proposed nuclear project being replaced by a fossil fuel project—and the serious public health, safety, and climate consequences involved.

It is up to the NRC to implement the new amendments, quickly.

In a promising move by the NRC, the staff announced the creation of an internal working group dedicated to improving environmental reviews at a recent advanced reactor stakeholder meeting. The working group intends to comply with and will implement changes to NEPA as per the FRA. The task ahead for the working group is straightforward. As several first steps, it should recommend that:

• The NRC must drop its requirement in 10 CFR 51.20 for a full-scale Environmental Impact Statement to enable the use of a simpler Environmental Assessment when appropriate;

• The NRC should weigh the environmental damage that results if a reactor is not built, leading to getting the energy from more harmful sources; and

• Environmental reviews need to comply with new page count and timeline requirements.

Adopting these policies was always well within the NRC’s authority under the Atomic Energy Act and NEPA. But now, the NEPA amendments forces all federal agencies to apply the changes to their environmental reviews, including the NRC. The outstanding questions are how will the NRC implement the new requirements, and if they will do it on a reasonable timeline.

This is the opportune moment.

This is the perfect moment for the NRC to apply the NEPA amendments quickly— seizing the opportunity to turn law into reality. Kairos Power, an advanced reactor developer recently submitted to the NRC an application for a second iteration of its Hermes test reactor, Hermes II.

Kairos wants to develop its reactor by rapid prototyping, building version after version of various components and subsystems, and eventually, at least two entire reactors, before moving on to its first commercially-deployable version.

The first test reactor, Hermes, is a low-power test reactor that will make heat but not electricity. The NRC has issued the final EIS for the first version of Hermes, in which the NRC analyzed the application for a construction permit according to twelve criteria. It concluded that for each of them, the impact was “small” and recommended that the NRC Commission issue a permit.

Hermes II is essentially the same machine, planned for an adjacent site, with a system added to make electricity. Allowing it to move forward sooner means that the technology will be commercialized sooner, and we can replace fossil fuels with carbon-free nuclear energy sooner.

Environmental reform can take flight with the Hermes II project.

Hermes I already undertook the lengthy, comprehensive EIS review and revealed a small impact. It would be inefficient and counter to the recent NEPA amendments, and intent of Congress to pursue an EIS for Hermes II. An EA review would be more appropriate, and could be followed by an EIS if significant impact is found.

As a test reactor, the NRC is already directed by the Atomic Energy Act to apply the minimum regulation necessary. An extensive rulemaking to revise existing regulations intended for large conventional reactors is not necessary in this case.

The Breakthrough Institute has been flagging for these reforms for years, but now Congress has directed the NRC (and all other federal agencies) to adopt these policies. It is now up to the NRC to implement the law as written, on a timeline that is not an impediment to deployment of new reactors.