The Green New Deal Must Preserve the Existing Nuclear Fleet

Abstract

As the largest source of carbon-free energy in the United States, nuclear energy must play a vital role in reducing emissions. This article suggests the Green New Deal, an ambitious federal proposal to address climate change, should aim to preserve the existing nuclear fleet by authorizing states to establish zero emission credit (“ZEC”) programs. The ZEC programs will provide credits, in the form of revenue, for the carbon-free attribute of nuclear energy. This article posits the ZEC programs should be based on a model ZEC program developed by the Federal Energy Regulatory Commission and explicitly authorized by amendment of the Federal Power Act to avoid issues of preemption.

Keywords:

• Nuclear energy
• green new deal
• zero emission credit
• climate change
• federal energy regulatory commission
• carbon emissions

Notes

1 Power plants, or nuclear power plants, may have more than one nuclear reactor. References to a nuclear reactor refer to the nuclear energy producing reactor, not the entire power plant.

2 World Nuclear Ass’n, Nuclear Power in the USA, http://bit.ly/2b0sXpQ (last visited Apr. 23, 2019); Union of Concerned Scientists, The Nuclear Power Dilemma: Executive Summary 1 (2018).

3 One GW is equivalent to one billion watts of electric capacity. How is Electricity Measured?, Union of Concerned Scientists, https://www.ucsusa.org/clean_energy/our-energy-choices/how-is-electricity-measured.html (last visited Apr. 22, 2019); World Nuclear Ass’n, Nuclear Power in the World Today, http://www.world-nuclear.org/information-library/current-and-future-generation/nuclear-power-in-the-world-today.aspx (last visited Apr. 23, 2019).

4 David A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 Envtl. L. Rep. News & Analysis 10244, 10245 (2018).

5 Voters in Washington state, some of the most liberal in the country, voted no on a carbon tax proposal twice. See David Roberts, Washington votes no on a carbon tax — again, Vox (Nov. 6, 2018), https://www.vox.com/energy-and-environment/2018/9/28/17899804/washington-1631-results-carbon-fee-green-new-deal.

6 Frequently Asked Questions–What Is U.S. Electricity Generation by Energy Source?, U.S. Energy Info. Admin. (Mar. 1, 2019), https://go.usa.gov/xn4yW.

7 U.S. Energy-Related Carbon Dioxide Emissions, 2017, U.S. Energy Info. Admin. (Sept. 25, 2018), https://www.eia.gov/environment/emissions/carbon/.

8 Id.

9 42 U.S.C. § 2133.c (2018).

10 Backgrounder on Reactor License Renewal, Nuclear Regulatory Comm’n (Oct. 1, 2018), https://go.usa.gov/xn4VZ.

11 Id.

12 Id.

13 Subsequent License Renewal Background, Nuclear Regulatory Comm’n, https://go.usa.gov/xn4V5 (last visited Apr. 5, 2019); Status of Subsequent License Renewal Applications, Nuclear Regulatory Comm’n, https://www.nrc.gov/reactors/operating/licensing/renewal/subsequent-license-renewal.html (last visited Apr. 10, 2019) (“The [NRC] staff has defined subsequent license renewal (SLR) to be the period of extended operation from 60 years to 80 years.”).

14 Subsequent License Renewal Applications, supra note 13.

15 Id.

16 See Metin Celebi et al., Nuclear Retirement Effects On CO2 Emissions: Preserving A Critical Clean Resource The Brattle Group (2016), http://bit.ly/2yfCzfZ; James Conca, Are California Carbon Goals Kaput?, Forbes, Oct. 2, 2014, http://bit.ly/2ifvYrc.

17 Stanley Reed, Germany's Shift to Green Power Stalls, Despite Huge Investments, N.Y. Times (Oct. 7, 2017), http://nyti.ms/2g0h4YV.

18 The Nuclear Power Dilemma, supra note 2; Who We Are, Union of Concerned Scientists, https://www.ucsusa.org/about-us (last visited Apr. 10, 2019).

19 More Than One-Third of Nation’s Nuclear Plants at Risk of Early Closure or Slated for Retirement, Union of Concerned Scientists (Nov. 8, 2018) https://www.ucsusa.org/press/2018/more-one-third-nation-s-nuclear-plants-risk-early-closure-or-slated-retirement.

20 The Nuclear Power Dilemma, supra note 2.

21 Id. at 2.

22 Id.

23 Id. at 4.

24 Id.

25 Id; see Reactor Oversight Process, Nuclear Regulatory Comm’n, https://www.nrc.gov/reactors/operating/oversight.html (last visited Apr. 5, 2019).

26 The Nuclear Power Dilemma, supra note 2, at 4.

27 Id.

28 James H. Williams et al., Pathways To Deep Decarbonization In The United States, Volume 1: Technical Report xiv (2014).

29 Id. at x.

30 Id.

31 Repka & Smith, supra note 4, at 10244 n.5 (“Gigawatts measure the capacity of large power plants or of many plants. One GW = 1,000 megawatts (MW) = 1 billion watts. A typical nuclear unit would have a capacity around 1,000 MW. Future units may be larger or smaller, depending on the design and technology. A typical combined-cycle natural gas plant is about 600 MW in size.”).

32 Williams et al, supra note 28, at 17.

33 U.S. Nuclear Generation and Generating Capacity, U.S. Energy Info. Admin. (Mar. 29, 2019) https://go.usa.gov/xn4y5; see also Nuclear Power in the USA, supra note 2.

34 The Nuclear Power Dilemma, supra note 2, at 2.

35 Id. at 1.

36 For example, the NRC is expected to take 40 months to review a design certification for a small modular reactor. Advanced Nuclear Power Reactors, World Nuclear Ass’n (Oct. 2018), http://www.world-nuclear.org/information-library/nuclear-fuel-cycle/nuclear-power-reactors/advanced-nuclear-power-reactors.aspx.

37 Cassandra Profita, Oregon’s Small-Scale Nuclear Company Looks To Build 1st Plant In Idaho, Oregon Pub. Broad., (Mar. 12, 2019), https://www.opb.org/news/article/nuscale-power-oregon-small-scale-nuclear-company-first-plant-idaho/.

38 Coal. for Competitive Elec., Dynegy Inc. v. Zibelman, 272 F. Supp. 3d 554, 561 (S.D.N.Y. 2017), aff'd sub nom. Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41 (2d Cir. 2018) (citing CES Order, supra note 90, App'x E at 1).

39 Table 8.4. Average Power Plant Operating Expenses for Major U.S. Investor-Owned Electric Utilities, 2007 through 2017 (Mills per Kilowatthour), U.S. Energy Info. Admin. https://www.eia.gov/electricity/annual/html/epa_08_04.html (last visited Apr. 23, 2019).

40 See Coal. for Competitive Elec. 906 F.3d at 41; Elec. Power Supply Ass'n v. Star, 904 F.3d 518, 522 (7th Cir. 2018), reh'g denied (Oct. 9, 2018).

41 Federal Power Act, 16 U.S.C. § 791a et seq.

42 See Peter S. Ross, Zero-Emission Credits and The Threat To Optimal State Incentives 39 Energy L.J. 427, 429–31 (2018).

43 16 U.S.C. § 824(b)(1) (2018).

44 Id.

45 Id. § 824d(a). See also id. § 824e(a) (if a rate or charge is found to be unjust or unreasonable, FERC “shall determine the just and reasonable rate”).

46 Id. § 824(d).

47 Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1292 (2016) (quoting FERC v. Elec. Power Supply Ass’n (EPSA), 136 S. Ct. 760, 766 (2016) (quoting 16 U.S.C. § 824(b))).

48 16 U.S.C. § 824(b)(1).

49 FERC v. Elec. Power Supply Ass’n (EPSA), 136 S. Ct. 760, 766 (2016).

50 16 U.S.C. § 824(b)(1); see Pacific Gas & Elec. Co. v. State Energy Res. Conservation and Dev. Comm'n, 461 U.S. 190, 205 (1983) (“Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.”).

51 Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288 (2016).

52 Id. at 1292.

53 Id.

54 Id. at 1292–93.

55 Id. at 1293.

56 See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527, 546–548 (2008) (Because rates set through good-faith arm's-length negotiation are presumed reasonable, “FERC may abrogate a valid contract only if it harms the public interest.”).

57 Hughes, 136 S. Ct. at 1293.

58 Id.

59 Id.

60 Id.

61 Id.

62 Hughes, 136 S. Ct. at 1293.

63 Id.

64 Id.

65 Id. at 1294.

66 PJM, 126 FERC ¶ 61,275 (2009).

67 Hughes, 136 S. Ct. at 1295.

68 Id. at 1295.

69 Id.

70 Id. at 1297.

71 Id.

72 Hughes, 136 S. Ct. at 1296 (citing PPL EnergyPlus, LLC v. Nazarian, 753 F.3d 467, 476 (4th Cir. 2014)).

73 Id.

74 Hughes, 136 S. Ct. at 1298 (emphasis added). See ONEOK, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599 (2015) (holding that state gas price manipulation which incidentally affected wholesale rates was not preempted by the Natural Gas Act).

75 Hughes, 136 S. Ct. at 1298.

76 Coal for Competitive Elec., 906 F.3d at 49 (citations_omitted).

77 Jim Rossi, The Brave New Path of Energy Federalism, 95 Tex. L. Rev. 399, 417 (2016).

78 Coal. for Competitive Elec., 906 F.3d at 50 (“An FPA field preemption claim was recently considered by the Supreme Court in Hughes[.]”).

79 Allco Fin. Ltd. v. Klee, 861 F.3d 82 (2d Cir. 2017) cert. denied, 138 S. Ct. 926 (2018).

80 “This RFP process, including any selection of preferred projects, does not obligate any [utility] to accept any bid,’ (emphasis added), and (b) that the winning bidders ‘will enter into separate contracts with one or more [utilities] at the discretion of the [utilities.]’ (‘The [utilities] will be responsible for negotiation and execution of any final Power Purchase Agreement.’).” Id. at 98 (citations omitted).

81 Id. at 100.

82 Id. at 99.

83 Id.

84 Id. at 101.

85 Allco Fin., 861 F.3d at 101.

86 Id; Hughes, 136 S. Ct. at 1299 (“Nothing in this opinion, should be read to foreclose Maryland and other states from encouraging production of new or clean generation through measures untethered to a generator's wholesale market participation.”) (internal quotations omitted).

87 Allco Fin., 861 F.3d at 102 (citation omitted).

88 See Ross, supra note 42, at 432.

89 See Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41 (2d Cir. 2018); Elec. Power Supply Ass'n v. Star, 904 F.3d 518 (7th Cir. 2018).

90 Coal. for Competitive Elec., 906 F.3d at 47 (“The ZEC program aims to prevent nuclear generators that do not emit carbon dioxide from retiring until renewable sources of energy can pick up the slack.”); New York Pub. Serv. Comm’n, Order Adopting a Clean Energy Standard (Aug. 1, 2016) [hereinafter CES Order].

91 Id. at 55–56 (citing CES Order, supra note 90, at 229).

92 Robert Walton, Generators: New York Nuclear Subsidies Defy FERC Jurisdiction, Supreme Court Decision,

Util. Dive (Oct. 20, 2016), https://perma.cc/WZ43-F3C5.

93 Coal. for Competitive Elec., 906 F.3d at 45; “The ZEC price formula is the social cost of carbon minus RGGI revenues minus the amount that forecasted energy and capacity prices combined exceed a baseline of $39/MWh.” Ross, supra note 88, at 434.

94 “… New York created a credit for the type of energy it produces, rather than the energy itself. This does not (on its face) alter the price a nuclear plant can take to market.” David Solimeno, Armageddon: The Inevitable Death of Nuclear Power and Whether New York State Has the Legal Authority to Keep It on Life Support, 35 Pace Envtl. L. Rev. 135, 158 (2017).

95 The social cost of carbon “is a measure, in dollars, of the long-term damage done by a ton of carbon dioxide (CO2) emissions in a given year. This dollar figure also represents the value of damages avoided for a small emission reduction (i.e. the benefit of a CO2 reduction).” EPA Fact Sheet: Social Cost of Carbon, Envtl. Prot. Agency, https://www.epa.gov/sites/production/files/2016-12/documents/social_cost_of_carbon_fact_sheet.pdf (last visited Mar. 26, 2019).

96 See generally Regional Greenhouse Gas Initiative, Regional Greenhouse Gas Initiative, http://www.rggi.org (last visited Apr. 5, 2019).

97 CES Order, supra note 90.

98 Id. App. E at 12; The price of ZECs may also be reduced if there is significant renewable energy penetration. Id. App. E at 137.

99 Id. App. E at 124.

100 Coal. for Competitive Elec., 906 F.3d at 45 (“The PSC has determined that three nuclear power plants (FitzPatrick, Ginna, and Nine Mile Point) qualify for the ZEC program[.]”).

101 Id. at 46.

102 Id.

103 Id. at 54.

104 Id. at 46, 55–57.

105 Id. at 57–58.

106 Coal. for Competitive Elec., 906 F.3d at 46.

107 Id. at 50 (quoting Hughes, 136 S. Ct. at 1300 (Sotomayor, J., concurring)).

108 Id. at 51 (quoting Hughes, 136 S. Ct. at 1299 (Sotomayor, J., concurring)).

109 Id.

110 Id. at 52.

111 S.B. 2814, 99th Gen. Assem. (Ill. 2016).

112 Elec. Power Supply Ass'n v. Star, 904 F.3d 518, 522 (7th Cir. 2018) [hereinafter EPSA].

113 Id. at 521–25.

114 Id. at 522.

115 Id. at 523.

116 S. 2313, A. 3724, 218th Gen. Assem. (enacted at N.J. Stat. Ann. § 48:3-87.5 (West 2018)).

117 Peter Peretzman, NJBPU Approves Zero Emission Credit Program and Application Process for Nuclear Power Plants, N.J. Bd, of Pub. Util’s (Nov. 19, 2018), https://nj.gov/bpu/newsroom/2018/20181119.html.

118 Statement to S. 2313, Senate Budget & Appropriations Comm. (N.J. Apr. 5, 2018), https://www.njleg.state.nj.us/2018/Bills/S2500/2313_S1.PDF.

119 N.J. Stat. Ann. §§ 48:3-87.5

120 Id. §§ (e)(1–5).

121 Id. § (i)(1).

122 Id. § (d).

123 Id. § (i)(2).

124 Jamison Cocklin, 'Ramifications for Gas Markets' as Nuclear Subsidies Approved in New Jersey, Natural Gas Intel (Apr. 22, 2019), https://www.naturalgasintel.com/articles/118105-ramifications-for-gas-markets-as-nuclear-subsidies-approved-in-new-jersey.

125 H.B. 11, Gen. Assem. (Pa. 2019). https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=S&SPick=20190&cosponId=28189.

126 See Paulina Firozi, The Energy 202: Should nuclear plants get a bailout in the name of climate change? Pennsylvania debates, Wash. Post (Feb. 26, 2019), https://perma.cc/PX6J-SKEP.

127 H.B. 11, Gen. Assem. (Pa. 2019).

128 Id.

129 Id.; Three Mile Island ceased operations in September 2019. Ledyard King, Three Mile Island, where a meltdown forever changed nuclear energy in America, shut down Friday, USA Today (Sept. 20,2019), https://www.usatoday.com/story/news/politics/2019/09/20/three-mile-island-closes-meltdown-changed-nuclear-energy-america/2352254001/

130 H.B. 11, Gen. Assem. (Pa. 2019).

131 See Jeff St. John, Pennsylvania Nuclear Bailout Bill Draws Fire From Ratepayer, Natural Gas and Enviro Groups, Greentech Media (Mar. 12, 2019), https://www.greentechmedia.com/articles/read/pennsylvania-nuclear-bailout-bill-draws-fire#gs.1d7yrh; Andrew Maykuth, Customers would pay millions to rescue Pa. nuclear reactors, including some that are already profitable, Philly Inquirer (Mar. 9, 2019), https://www.philly.com/news/pennsylvania-nuclear-bailout-might-cost-ratepayers-millions-20190309.html.

132 H.B. 381, 132nd Gen. Assem. (Ohio 2019).

133 FirstEnergy spent heavily in the previous Ohio election and is supportive of the bill to bail out their nuclear reactors. For a summary of the politics behind the Ohio nuclear bill, see Dan Gearino, Ohio Weighs a Nuclear Plant Bailout at FirstEnergy's Urging. Will It Boost Renewables, Too?, Inside Climate News (Mar. 11, 2019), https://insideclimatenews.org/news/07032019/ohio-nuclear-bailout-firstenergy-renewable-energy-legislature-election-campaign-donations.

134 Id.

135 Jeff Deyette, Even in a Carbon-Constrained World, FirstEnergy’s Nuclear Bailout Proposal in Ohio Must Be Rejected, Union of Concerned Scientists (Nov. 8, 2018), https://blog.ucsusa.org/jeff-deyette/firstenergys-nuclear-bailout-proposal-ohio.

136 US Nuclear Power Policy, World Nuclear Ass’n (Mar. 2019), http://www.world-nuclear.org/information-library/country-profiles/countries-t-z/usa-nuclear-power-policy.aspx.

137 Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.

138 Id.

139 Secretary Perry Announces Financial Close on Additional Loan Guarantees During Trip to Vogtle Advanced Nuclear Energy Project, Dep’t of Energy (Mar. 22, 2019), https://www.energy.gov/articles/secretary-perry-announces-financial-close-additional-loan-guarantees-during-trip-vogtle?wpisrc=nlenergy202&wpmm=1.

140 U.S. Department of Energy Further Advances Nuclear Energy Technology through Industry Awards of $19 Million, Dep’t of Energy (Mar. 27, 2019), https://www.energy.gov/ne/articles/us-department-energy-further-advances-nuclear-energy-technology-through-industry-awards.

141 S. 512, 115th Cong., Pub. L. 115-439 (2019); Erik Slobe, Nuclear Energy Innovation and Modernization Act signed into law, Jurist (Jan. 17, 2019), https://perma.cc/S4CP-24TJ.

142 S. 903, 116th Cong. (2019); see Republican News: Murkowski, Booker, and 13 Colleagues Reintroduce the Nuclear Energy Leadership Act, U.S. Senate Comm. on Energy and Nat. Res. (Mar. 27, 2019), https://www.energy.senate.gov/public/index.cfm/republican-news?ID=1E0EC688-A6CB-4EAB-803B-5C37152CB5EE.

143 Bill Gates 'thrilled' by legislative boost for nuclear, World Nuclear News (Mar. 29, 2019), http://world-nuclear-news.org/Articles/Bill-Gates-thrilled-by-legislative-boost-for-nucle.

144 Id.

145 A Green New Deal, Data for Progress 2 (2018) (“The goal of a Green New Deal is to build the 21st century economy, which by design will mitigate the causes of climate change while building resilience to its effects, restore the American landscape, and improve access to clean air and water—all in ways that prioritize justice and equity, and grow the economy and jobs.”).

146 Id; see also Dan Lashof, 5 Things to Look for in the Green New Deal, World Res. Inst. (Feb. 4, 2019), https://perma.cc/C9HH-2RGB.

147 H.R. 109, 116th Cong. (2019).

148 Id.

149 Bob Fredericks, Senate rejects Ocasio-Cortez’s Green New Deal in 57-0 vote blasted as a ‘sham’ by Dems, N.Y. Post (Mar. 26, 2019), https://nypost.com/2019/03/26/senate-rejects-ocasio-cortezs-green-new-deal-in-57-0-vote-blasted-as-a-sham-by-dems/.

150 H.R. 109, 116th Cong. (2019).

151 See Dan Robitzski, The Problem With AOC’s Green New Deal: It Ignores Fusion Power, Futurism (Feb. 28, 2019), https://futurism.com/problem-green-new-deal-ignores-fusion-power/ (states the Resolution fails to sufficiently promote advanced nuclear energy technology, such as fusion power); John Rie & Alan Emery, The Nuclear Option Is the Real Green Deal, Wall Street J. (Feb. 25, 2019), https://www.wsj.com/articles/the-nuclear-option-is-the-real-green-deal-11551137688; cf. Mark Szybist, PA Needs Clean Energy. Why Are Legislators Stuck on Nuclear?, Nat. Res. Def. Counsel (Feb. 1, 2019), https://www.nrdc.org/experts/mark-szybist/nrdc-pa-legislators-make-transition-your-nuke-position (indicating state support for existing nuclear energy is unwise unless a long term energy plan, sans nuclear energy, is implemented); Tara Golshan and Ella Nilsen Alexandria Ocasio-Cortez’s Rocky Rollout of the Green New Deal, Explained, Vox (Nov. 11, 2018), https://perma.cc/8RHH-WY8X (describing a leaked GND fact sheet that expressly disavowed nuclear).

152 H.R. 109, 116th Cong. (2019).

153 A report by Data for Progress also supports including nuclear energy in the GND with a goal for “100% Clean and Renewable Energy by 2035 [which states] all electricity consumed in America must be generated by renewable sources, including solar, wind, hydro, geothermal, sustainable biomass, and renewable natural gas, as well as clean sources such as nuclear and remaining fossil fuel with carbon capture.” Data For Progress, supra note 145, at 5 (emphasis added).

154 There is also significant disinformation regarding the specifics of the GND. For example, President Trump claimed the GND would limit Americans to owning only “one car.” This does not appear anywhere in the text of the GND Resolution. See H.R. 109, 116th Cong. (2019); see also Dino Grandino, The Energy 202: Trump Keeps Inventing New Details About the Green New Deal, Wash. Post (Apr. 8, 2019), https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2019/04/08/the-energy-202-trump-keeps-inventing-new-details-about-the-green-new-deal/5caa394b1b326b0f7f38f344/?utmterm=.e144d1252868.

155 See Dino Grandino, The Energy 202: 'Let a Thousand Climate Proposals Bloom.' Lawmakers Tee Up Green New Deal Alternatives, Wash. Post (Mar. 26, 2019), https://perma.cc/D8Z2-UBC6.

156 The Energy Innovation and Carbon Dividend Act, H.R. 763, S. 3791; see Energy Innovation and Carbon Dividend Act, EnergyInnovationAct.org, https://energyinnovationact.org/ (last visited Apr. 7, 2019).

157 The Energy Innovation and Carbon Dividend Act has not been promoted by Democrats like the GND. See Bill Scher, Why Is the Left Ignoring the Bipartisan Carbon Tax Bill?, RealClear Politics (Dec. 3, 2018), https://perma.cc/E3E2-L96N.

158 H.R. 109, 116th Cong. (2019).

159 For example, Cory Booker (D-NJ), who is running for president as a Democrat, is a vehement supporter of nuclear energy. See Nathanael Johnson, Cory Booker — And His Full-Throated Support of Nuclear Energy — Enters the Presidential Race, Grist (Feb. 1, 2019), https://grist.org/article/cory-booker-and-his-full-throated-support-of-nuclear-energy-enters-the-presidential-race/. Prominent climate scientist James Hansen now fully supports nuclear energy. Pushker A. Kharecha & James E. Hansen, Prevented Mortality and Greenhouse Gas Emissions from Historical and Projected Nuclear Power, 47 Envtl. Sci. & Tech. 4889, 4889–4895 (2013).

160 Michael Shellenberger, If Progressive Democrats Care So Much About The Climate, Why Are They Trying to Kill Nuclear Power?, Forbes (Jan. 17, 2019), https://www.forbes.com/sites/michaelshellenberger/2019/01/17/if-progressive-democrats-care-so-much-about-the-climate-why-are-they-trying-to-kill-nuclear-power/#1bd953c9588d (noting several prominent progressive politicians, including Sen. Bernie Sanders (I-VT), Sen. Ed Markey (D-MA) and, Chellie Pingree (D-ME) do not support nuclear energy); Jacqueline Toth, Nuclear’s Bleak Odds in a Green New Deal, Morning Consult (Jan. 14, 2019), https://morningconsult.com/2019/01/14/nuclears-bleak-odds-in-a-green-new-deal/.

161 Dep’t of Energy, supra note 139.

162 Dino Grandoni, The Energy 202: Rick Perry Calls Expanding Nuclear Energy “The Real” Green New Deal, Wash. Post. (Mar. 25, 2019), https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2019/03/25/the-energy-202-rick-perry-doubles-down-on-nuclear-energy-calling-it-the-real-green-new-deal/5c97dd741b326b0f7f38f24c/.

163 Dep’t of Energy, supra note 139.

164 Congress could amend the FPA to alter states’ authority over the siting on intra state energy generation, however this would likely not be supported by states and upend decades of policies. This article calls for a narrower approach to preserve the existing nuclear fleet that does not dramatically alter the role of the federal and state governments as established in the FPA. See 16 U.S.C. § 824(b)(1).

165 An attempt to include these factors on the federal level failed. States should be permitted to consider other factors in calculating ZECs, as the FPA provisions governing wholesale ratemaking apply exclusively to FERC. See Grid Resiliency Pricing Rule, 82 Fed. Reg. 46,940 (Oct. 10, 2017); see also Order Terminating Rulemaking Proceeding, Initiating New Proceeding, And Establishing Additional Procedures, 162 FERC ¶ 61,012 (Jan. 8, 2018).

166 Deyette, supra note 135.

167 See Reactor Oversight Process, supra note 25.

168 The Nuclear Power Dilemma, supra note 2, at 4.

169 There are several states that do not have any existing nuclear reactors. If federal funding is attached solely to utilization of a ZEC program, those states will be unfairly disadvantaged. To compensate for this discrepancy, these states may receive federal funding if they demonstrate support for advanced nuclear energy. Although there should not be an exhaustive list of qualifying actions, states that pass legislation funding advanced nuclear research or provide tax breaks to advanced nuclear energy, for example, may qualify to receive further federal funding. Oregon, Idaho, Montana, North Dakota, South Dakota, Nevada, Utah, Colorado, New Mexico, Oklahoma, Kentucky, West Virginia, Mississippi, Maine, Maryland, Alaska, and Hawaii do not have any LWR nuclear reactors. Nuclear Power in the USA, supra note 2.

170 Light-Water Reactor Sustainability Program, Energy.gov, https://www.energy.gov/ne/nuclear-reactor-technologies/light-water-reactor-sustainability-lwrs-program (last visited Apr. 9, 2019).

171 Id.

172 Scientists at Carnegie Mellon and the University of California, San Diego found a bias towards nuclear energy after conducting a study which asked participants to select an energy mix for the United States without labeling the sources of energy. With the labels hidden, participants showed a greater propensity for nuclear energy. A. Abdulla et al, Limits To Deployment Of Nuclear Power For Decarbonization: Insights From Public Opinion, 129 Energy Pol’y 1339 (2019).

173 “The [NRC] defines nuclear safety culture as the core values and behaviors resulting from a collective commitment by leaders and individuals to emphasize safety over competing goals to ensure protection of people and the environment.” Safety Culture, Nuclear Regulatory Comm’n (Jan. 22, 2018), https://www.nrc.gov/about-nrc/safety-culture.html.

174 See Safety of Nuclear Power Reactors, World Nuclear Ass’n (May 2018), http://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/safety-of-nuclear-power-reactors.aspx (“The use of nuclear energy for electricity generation can be considered extremely safe.”).

175 See Backgrounder on the Three Mile Island Accident, Nuclear Regulatory Comm’n (Jun. 21, 2018), https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html#effects.

176 A Brief History of Nuclear Accidents Worldwide, Union of Concerned Scientists, https://www.ucsusa.org/nuclear-power/nuclear-power-accidents/history-nuclear-accidents#bf-toc-2 (last visited Apr. 9, 2019).

177 Backgrounder on the Three Mile Island Accident, supra note 175.

178 Id.

179 Id.

180 See generally Post-Fukushima Safety Enhancements, Nuclear Regulatory Comm’n, (Jan. 4, 2019), https://www.nrc.gov/reactors/operating/ops-experience/post-fukushima-safety-enhancements.html.

181 Light-Water Reactor Sustainability Program, supra note 170.

182 Repka & Smith, supra note 4, at 10245.

183 Profita, supra note 37.

184 Union of Concerned Scientists, supra note 19.

185 The Nuclear Power Dilemma, supra note 2, at 4.

186 EIA, U.S. Energy-Related Carbon Dioxide Emissions, 2017, https://www.eia.gov/environment/emissions/carbon/ (last visited Apr. 22, 2019).

187 Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288 (2016).

188 Id. at 1299.

189 Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41 (2d Cir. 2018); Elec. Power Supply Ass'n v. Star, 904 F.3d 518 (7th Cir. 2018).

190 S. 512, 115th Cong., Pub. L. 115-439 (2019); Erik Slobe, Nuclear Energy Innovation and Modernization Act signed into law, Jurist (Jan. 17, 2019), https://perma.cc/S4CP-24TJ.

Additional information

Notes on contributors

Ian R. Curry

Ian R. Curry is a law clerk with the Atomic Safety and Licensing Board Panel at the United States Nuclear Regulatory Commission. Mr. Curry is also the author of Establishing Climate Change Standing: A New Approach, 36 Pace Envtl. L. Rev. 297 (2019). He graduated summa cum laude from the Elisabeth Haub School of Law at Pace University and summa cum laude from Rutgers University with a major in political science/history and minor in environmental and business economics. The Author would like to thank Professor Katrina Kuh of the Elisabeth Haub School of Law at Pace University for offering valuable feedback throughout the drafting of this article. DISCLAIMER: The views expressed in the article are solely those of the Author, and do not necessarily represent the views of the Atomic Safety and Licensing Board Panel, the Nuclear Regulatory Commission, or the United States.