Deep Decarbonization and Nuclear Energy

• Date: 01 March 2018

48 ELR 10244 ENVIRONMENTAL LAW REPORTER 3-2018

A R T I C L E

Deep

Decarbonization

and

Nuclear Energy

by David A. Repka and Tyson R. Smith

David A. Repka is a retired partner, and Tyson R.

Smith is a partner, with Winston & Strawn LLP.

Summary

e Deep Decarbonization Pathways Project (DDPP)

projects a doubling of U.S. demand for electricity by 2050,

even accounting for increased energ y eciency a nd con-

servation. In two DDPP scenarios, this demand would

be met by signica nt increases in nuclear, wind, and solar

energy by 2050. e High Nuclear Scenario involves more

than 400 gigawatts of nuclear, four times current capac-

ity. e Mixed Scenario involves approximately 200 giga-

watts of nuclear, or two times current capacity. A sustained

national commitment to nuclear energy would be nece s-

sary to meet the DDPP goals for either scenario. Advanced

technologies exist or a re under development that could

support a signica nt, rapid expansion of nuclear energy

capacity, but under current conditions, those technologies

are not likely to be deployed at the scale required. is

Article, excerpted from Michael B. Gerrard & John C.

Dernbach, eds., Legal Pathways to Deep Decarbonization

in the United States (forthcoming in 2018 from ELI Press),

highlights various factors t hat impact nuclear energy, and

proposes legal, regulatory, and policy changes to reduce

barriers and promote increased use of nuclear generation.

I. Introduction: The Role of Nuclear

Energy in Decarbonization

e Deep Decarbonization Pathways Project (DDPP)

report calls for f undamental changes in U.S. energy sys-

tems, including switching energy end uses such as transpor-

tation to electricity a nd decarbonizing t he electricity fuel

supply. According to the U.S. Energy Information Admin-

istration (EIA), as of 2016, nuclear energy accounted for

nearly 60% of the carbon-free electricity generation in the

United States.1 e contribution of nuclear to carbon-free

electricity presently exceeds the contributions of hydro-

power and other renewables combined.2

e DDPP report projects a doubling of U.S. demand

for electricity by 2050, even accounting for increased energy

eciency and conservation. In t wo DDPP scenarios—the

High Nuclear and Mixed Scena rios—this demand would

be met by signicant increases in nuclear, wind, and solar

energy by 2050. A lthough there are obstacles to wide-

spread deployment of nuclear energy, the technology oers

the clear potential to reach the sc ale needed to achieve the

DDPP goals by 2050.

In 2016, 99 U.S. nuclear power reactors operated at a

capacity factor of 92.5% a nd generated 805 billion kilo-

watt hours (kWh) of electricity,3 representing about 20%

of electricity in the United States.4 To put the DDPP goals

in perspective, the current installed nuclear capacity in

the United States is approximately 100 gigawatts (elec-

tric) (GWe).5 e DDPP High Nuclear Scenario involves

more tha n 400 GWe of nuclear.6  is is four times cur-

rent capacity. (e DDPP report shows nuclear at 40.3%

of U.S. electricity in 2050 for the High Nuclear Scenario.7)

e DDPP Mixed Scena rio involves approximately 200

GWe of nuclear capacity (27.2% of the increased U.S. elec-

tricity supply), or two times current capacity.8

is Article therefore focuses on identifying obstacles

to achie ving those capacitie s and the polic y cha nges

1. EIA, U.S. E-R C D E, 2016 (2017).

2. According to the EIA, hydro accounted for 19% of carbon-free generation,

while wind and solar combined for 20%. Id.

3. EIA, Frequently Asked Questions—What Is U.S. Electricity Generation by En-

ergy Source?, https://go.usa.gov/xn4yW (last updated Apr. 18, 2017).

4. Id.

5. EIA, U.S. Nuclear Generation and Generating Capacity, https://go.usa.gov/

xn4y5 (last released Dec. 22, 2017); see also World Nuclear Association,

Nuclear Power in the USA, http://bit.ly/2b0sXpQ (last updated Oct. 2017).

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.

6. J H. W  ., E  E E,

I.  ., P  D D   U S,

US 2050 R, V 1: T R xiv (2015).

7. Id. at 19-20 tbl. 7.

8. Id. at 36 g. 30.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

3-2018 NEWS & ANALYSIS 48 ELR 10245

needed to overcome those obstacles. Consistent with t he

DDPP scenarios, increased nuclear generation would be

developed in c oncert with increased reliance on renew-

ables (whether util ity-scale or distributed), as substantial

nuclear and renewable contributions are contemplated in

both scenarios.

Both DDPP scenarios would likely require preservation

of at least some of the existing nuclear eet. A n operat-

ing license (OL) from the Nuclear Regulatory Commission

(NRC) is initially issued with a term of 40 years.9 Based

on required technical analyses, most operating plants have

been granted a renewed license that extends their license

terms by 20 years.10 But even so, by 2040, one-half of the

nation’s existing nuclear eet will have turned 60 years old

and a renewed license will have expired. For plants still

operating at 60 years, NRC regulations allow an applica-

tion for a second license renewal for 20 additional years.11

But the regulatory process for second license renewal has

not yet been tested. By 2050, absent second renewal, nearly

all currently operating nuclear units will be retired.

ere has also been a trend in recent years of prema-

ture closure of nuclear plants for technical, political, and

economic reasons.12 ese closures will make achieving

the DDPP goals more dicult. Plants that have perma-

nently ceased, or announced plans to cease, operations

since 2013 include Crystal River, Fort Calhoun, Indian

Point, Kewaunee, Pilgrim, San Onofre, Vermont, and

Yankee, with additional closures predicted in the next few

years.13 e operator of Diablo Canyon in California also

announced that it will not renew the OLs for those two

units beyond 2024 and 2025, due to a policy preference in

California for renewable energy sources.

As long as natural gas generation is needed to make

up for intermittency of wind and solar, replacing nuclear

generation with a combination of intermittent wind or

solar and natural gas leads to far greater emissions than

simply maintaining existing nuclear generation. is has

been demonstrated by emissions increases in California,

Florida, New England, and Wisconsin following closures

9. 42 U.S.C. §2133.c.

10. NRC, Backgrounder on Reactor License Renewal, https://go.usa.gov/xn4VZ

(last updated Nov. 27, 2017). As this Article went to press, 84 of the 99

operating reactors had received renewed licenses.

11. NRC, Subsequent License Renew al Background, https://go.usa.gov/xn4V5

(last visited Dec. 23, 2017). NRC explains t hat there are no specic limi-

tations in the Atomic Energy Act (AEA) or NRC’s regulations restricting

the numbe r of times a license may be renewed. e decisi on to grant a

renewed license is based on the outcome of an NRC review to assess if th e

nuclear facility can continue to operate safely during the 20-year period of

extended operation.

12. See Emily Hammond & David B. Spence, e Regulatory Contract in the

Marketplace, 69 V. L. R. 141, 147-48, 190 (2016).

13. See, e.g., Jim Polson,    

Fails, B, June 2, 2016, https://bloom.bg/1Pngzmh.

of nuclear plants there.14 e same dynamic occurred in

Germany, where emissions declines have stagnated follow-

ing nuclear closures despite a decade of heavy investment

in renewables.15 Preserving existing nuclear avoids taking a

backward step on the path to decarbonization.

Regardless of the existing eet, the nuclear capacity

assumptions in both the High Nuclear and Mixed Sce-

narios require the development of a substantial amount

of new nuclear generation capacity utilizing advanced

nuclear technology. In the United States, one new nuclear

unit (Watts Bar Unit 2 in Tennessee) began operating in

2016—the rst new commercial unit to begin operating

since 1996. Only four units (two in Georgia and t wo in

South Carolina) have begun construction, and construc-

tion had been suspended at two (the units in South Caro-

lina) as this Article went to press, following a bankruptcy

ling by Westinghouse, the nuclear vendor and parent of

the company responsible for construction. NRC has issued

early site permits (ESPs) and combined licenses (COLs) for

several other new units, but there are no plans to imme-

diately begin construction on any of those projects. e

DDPP projections therefore represent a signicant chal-

lenge—one that cannot be met with the status quo in

nuclear energy economics and public policy.

Advanced nuclear technologies exist or are under devel-

opment that could support a signicant, rapid expansion

of U.S. nuclear energy capacity. With appropriate regu-

latory policies and economic and market conditions, the

most optimistic DDPP projections may be challenging,

but are achievable. ere is precedent. From 1973 to 1988,

with the support of the government and industry, France

radically altered that country’s electricity generation from

almost entirely fossil fuels (mostly imported oil) to more

than 80% nuclear, at a rate of up to six new nuclear plants

per year.16 And the U.S. renewable industry today is the

product of more than a decade of policy choices, portfolio

standards, and subsidies, as well as improved technology

and rapidly declining costs, rather than pure market forces.

A similar sustained national commitment to advanced

nuclear energy in the United States would be necessary to

meet the DDPP goals—rst for the Mixed Scenario and

even more so for the High Nuclear Scenario. In addition

to carbon benets, advanced nuclear could, as a matter of

policy, have a role in a generation mix that considers grid

stability, fuel diversity, and other social benets such as the

14. M C  ., T B G, N R E-

  CO2 E: P  C C R

(2016), http://bit.ly/2yfCzfZ; James Conca,    

Kaput?, F, Oct. 2, 2014, http://bit.ly/2ifvYrc.

15. Stanley Reed, ,

N.Y. T, Oct. 7, 2017, http://nyti.ms/2g0h4YV.

16. World Nuclear Association, , http://bit.ly/2ejXhg1

(last updated Oct. 2017); Jake Richardson,   ,

CT, Aug. 6, 2014, http://bit.ly/2zRKKeY.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.