Nuclear Power as an Alternative Green Fuel: Why Uprates to Commercial Nuclear Reactors Deserve to Be Eligible for Federal Loan Guarantees, and Why the DOE’s Decision to Make Them So Warrants Chevron Deference

Abstract

Title XVII of the Energy Policy Act of 2005 (the “Act”) authorizes the Department of Energy (“DOE”) to provide loan guarantees to nuclear energy projects that avoid, reduce, or sequester greenhouse gas emissions while employing new or significantly improved technology. The agency’s decision to include uprates—projects that increase the amount of power an existing reactor produces—among those nuclear projects that may apply for a loan guarantee should survive a legal challenge under the deferential standard laid out in Chevron. A court should defer to the DOE’s interpretation of the Act because Congress failed to express its unambiguous intent regarding which types of projects qualify for the program, and the agency’s interpretation reflects a permissible construction of the statute. Consistent with Congress’s goal of combating global warming and climate change, the DOE’s interpretation of Title XVII encourages the growth of America’s commercial nuclear capacity in an effort to reduce reliance on fossil fuels to generate electricity.