Josh Greenzeig, Fordham Environmental Law Review, Staff Member, Class of 2027

While global conflicts in Ukraine and the Middle East raise the specter of atomic warfare, the United States appears to be on the precipice of a nuclear energy renaissance. Unprecedented demand driven by data centers and AI, technological innovation in reactors and fuel, and a friendly regulatory environment are enabling a new generation of nuclear power projects to meet the moment. One such endeavor is the TerraPower reactor in Kemmerer, Wyoming, which received a key federal construction permit on March 4th, 2026. Although the facility will not generate any electricity until at least 2031, the Kemmerer reactor functions as a useful case study to examine how changes to the regulatory process and technological innovation condition legal challenges to–and defenses for–developers at the forefront of the United States’ nuclear energy renaissance. 

Congressional Action and Executive Orders Facilitating Nuclear Power Development

In 2024, President Biden signed into law the Atomic Energy Advancement Act, which streamlines the Nuclear Regulatory Commission’s (“N.R.C.”) permitting and approval processes while also reducing onerous application fees that proved costly for developers. On May 23rd, 2025, President Trump announced four executive orders aimed at “reinvigorating” the nuclear industrial base. Executive Orders 14299, 14300, 14301, and 14302 are meant  to increase fuel availability, secure supply chains, improve licensing efficiency, foster technological innovation, and integrate nuclear energy into critical national security infrastructure. 

TerraPower’s expedited construction permitting is a direct result of these policies. Initially estimated to take a little over two years, the N.R.C.’s review of TerraPower’s construction permit application took just 18 months instead. While a more efficient regulatory process strongly signals to the industry that development is encouraged, it remains unclear whether traditional challenges to agency action–such as whether any relevant permitting decision is arbitrary or capricious–will delay or derail the Kemmerer project. As observed in the offshore wind context, challenges to agency action can derail projects before they begin producing electricity by delaying construction, increasing regulatory and legal costs, and undermining financing agreements based on expected power generation. Given legitimate safety and security concerns, opponents of nuclear energy still retain the traditional set of tools used to impede projects. Whether these tools will actually undermine the federal government’s goal of adding 300 gigawatts of new capacity by 2050 remains an open question.

New Reactor Technologies, the National Environmental Policy Act, the Atomic Energy Act, and “Aggrieved Parties”

Approval of TerraPower’s construction permit also highlights questions about the technologies underpinning the new generation of nuclear power. Attempting to address traditional barriers to nuclear development–such as high construction costs, safety concerns, and containment of radioactive wastes–projects are embracing liquid sodium as a new reactor coolant and a new fuel (TRi-structural ISOtropic or “TRISO”). While the Kemmerer reactor employs only the former, both technological developments will likely generate curiosity and immense scrutiny.

Unlike water, liquid sodium coolants operate at higher temperatures and generate significantly less steam and pressure. For TerraPower, this technology creates two principal benefits. First, it alleviates safety concerns related to high-pressure pipe bursts or steam explosions that can halt power generation or spread radioactive waste into surrounding communities. Second, it eliminates the need for complicated pipe networks and cooling towers that are cumbersome and costly to construct. Proponents of employing liquid sodium believe this will facilitate cheaper reactor designs that are smaller, easier to produce, and safer to site closer to population centers. TerraPower seeks to capitalize on this simplified construction process to expand its operations. Despite these benefits, there are serious safety and operational concerns regarding liquid sodium’s flammability, chemical reactivity with water and air, and propensity for leakage. The Kemmerer project is the first commercial-scale liquid sodium cooled reactor; as TerraPower continues to engage in the regulatory process, the technology’s novelty, coupled with genuine safety concerns, is likely to produce legal action challenging its approval under the National Environmental Policy Act and the Administrative Procedure Act.

TRISO fuel particles are created by surrounding radioactive material with layers of carbon and ceramic coating, containing nuclear radiation and reducing the short-term potential for releasing hazardous materials during accidents. The N.R.C. has approved the production of TRISOs by granting licenses to manufacturers for the handling of nuclear material, but no American reactor currently runs on the fuel. While TRISOs may facilitate nuclear power generation as a high efficiency fuel that reduces infrastructure costs, they are also expensive and untested at scale. Unlike the challenges to agency action described above, a litigant seeking to undermine TRISO production must satisfy the strict “aggrieved party” requirement created by Nuclear Regulatory Commission v. Texas. There, the Court stated that under the Hobbs Act, the only parties that can seek judicial review of N.R.C. licensing decisions are either the license applicant or a party that has successfully intervened in the licensing proceeding. This procedural requirement creates a high bar for establishing standing, suggesting that TRISO production is likely insulated from meaningful legal challenges by advocacy groups.