[I]t is hereby declared to be the policy of the people of the United States that, subject at all times to the paramount objective of assuring the common defense and security, the development and utilization of atomic energy shall, so far as practicable, be directed toward improving the public welfare, increasing the standard of living, strengthening free competition in private enterprise, and promoting world peace.

— The Atomic Energy Act of 1946 (McMahon Act)

Seventy-nine years ago, American engineers and scientists set forth a vision for a new kind of energy, granting the American people an age of prosperity and progress unlike any yet seen or even imagined. Atomic age science fiction grasped at what could be—man among the stars, an independent power source for every family, with abundance and energy for all. This was our birthright. The United States emerged from three decades of global warfare victorious, and we did so by harnessing material reality. Matter itself bent the proverbial knee to the American will to power the nation.

A lot can change in eighty years. What doesn’t is the Nuclear Necessity. Since the first reactor turned on under the football stands at the University of Chicago where my great grandfather was an undergraduate, to the X-10 Reactor at Oak Ridge, where he worked on the Manhattan Project, nuclear dominance has been a critical national security priority for the United States. Atomic energy is made in America; we invented and built the first nuclear reactors here. For the better part of the great American century, our nuclear superiority was often imitated, never duplicated, never superseded.

Until it was. We fell behind. Whether for well-meaning yet uninformed environmentalism or for understandable attempts to stay nuclear weapons proliferation, the reasons are debatable. What’s not debatable is the truth: Today, the USA has zero commercial nuclear reactors under construction, while our chief adversary China has twelve.

What’s holding back nuclear energy in America isn’t talent, demand, or resources—it’s innovation. And even that is not because we don’t innovate; it’s because we can’t. We know how to do it. It’s simply forbidden.

America is a nation of innovators. Innovation happens through iteration and hardware development. But the current form of the Nuclear Regulatory Commission (NRC) makes that virtually impossible. Their rules–created in the overreaction to the Three Mile Island incident–shuttered the nuclear industry. Simply testing a reactor prototype takes five to seven years, at best. This is not the way to foster innovation! To regain our dominance in nuclear energy, the status quo must change, quickly.

That is why, today, we are suing the Nuclear Regulatory Commission, calling upon them to uphold the statute of congress and allow for nuclear innovation once again.

The Lawsuit

We recognize that it’s difficult for a bureaucracy to serve two missions at once: maintaining the gigawatt-class reactors that provide 20% of America’s power, while also fostering pilot-scale innovation. Congress recognized this reality as well.

In the original Atomic Energy Act of 1946, Congress gave the NRC’s predecessor, the Atomic Energy Commission, sweeping authority over “any equipment or device capable of making use of fissionable material or peculiarly adapted for making use of atomic energy.”

However, in the Atomic Energy Act of 1954, Congress deliberately changed course to narrow the scope of reactors that the AEC was intended to regulate. The new language gave licensing authority over “utilization facilit[ies],” defined only as “any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.” 42 U.S.C. § 2014(cc) (emphasis added); see also United States v. Wilson, 503 U.S. 333, 336 (1992) (“[W]hen Congress alters the words of a statute, it must intend to change the statute’s meaning.”).

The United States has a longstanding and respected history of delegating legislative authority to state governments, thereby allowing for variance in the approaches and methods of governance. This yields incredible benefits over time as different states pursue varying strategies for legislation with varying outcomes, these outcomes being observable by all other states. This creates an innovative opt-in environment for legislation.

By narrowing the jurisdiction of the AEC in the 1954 AEA, Congress returned legislative authority for small reactors to the states.

When the 1954 AEA was passed, both Congress and the AEC understood the new law to exclude certain reactors by imposing thresholds related to common defense, security, health, and safety.

As the AEC itself put it, the AEA would give it “flexibility to exclude from the definitions, and hence from the licensing features of the bill, equipment or devices not capable of producing or using significant quantities of fissionable material and not important from the public health and safety standpoint.” AEC, Part IV of Draft Statement for Presentation to Joint Committee 33 (May 27, 1954).

Indeed, the AEC was “glad to see these changes in definitions” because it was “unnecessary to apply the licensing provisions to the construction or operation of certain research accelerators and certain small reactors.” (Id.)

Nonetheless, in 1956, the AEC inexplicably promulgated a rule that defined “utilization facility,” for which a license is needed to operate, as “[a]ny nuclear reactor other than one designed or used primarily for the formation of plutonium or U-233.” 21 Fed. Reg. 355, 356 (Jan. 19, 1956) (codified at 10 C.F.R. § 50.2) (emphasis added) (“Utilization Facility Rule”).

In other words, despite recognizing Congress had narrowed the AEC’s authority, the agency kept things exactly as they were before Congress changed the definition of utilization facility.

The AEC left no record of comments on this definition nor any explanation for why—contrary to the AEC’s own prior view—every nuclear reactor necessarily uses material in such quantity as to “be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.” See 21 Fed. Reg. 355; 20 Fed. Reg. 2,486 (Apr. 15, 1955).

As a result, the AEC proceeded, without explanation, to require licenses even for reactors that use small amounts of special nuclear material that have no effect on US defense and security or public health and that the NRC itself has stated do not pose public health and safety risks.

This is why today, Valar Atomics is joining the states of Texas, Utah, Louisiana, Florida, Arizona, as well as fellow reactor companies Last Energy and Deep Fission in a lawsuit against the Nuclear Regulatory Commission.

Our Vision

Our vision is to engineer a new atomic age to fulfill our destiny to “improve the public welfare, increase the standard of living, strengthen free competition in private enterprise, and promote world peace.” But current restrictions imposed on the nuclear industry by the NRC make that impossible.

This is personal. Valar Atomics’ own Ward One is a reactor named in the suit. Ward One, a 100kWt High Temperature Gas Reactor using TRISO fuel, is named after Ward Schaap, my great grandfather. Its planned operational lifetime is less than a month, and its architecture uses principles of strong negative thermal reactivity feedback and low power density, leading to completely passive decay heat removal from the core. Our analysis indicates that holding the spent fuel from this system for five minutes gives the equivalent radiation exposure to receiving a CAT scan.

Operating Ward One in a remote testing area within the United States would not pose a threat to the health and safety of the public or impact to national security based on any reasonable accident scenario.

The states of Utah, Texas, and others have expressed interest in hosting this test reactor and some have gone as far as taking the initial steps to create state regulatory bodies which would allow for a rapid testing process.

However, because the NRC has failed to implement rules which would exempt this small test reactor from full NRC regulations, we are building and testing this reactor in the Philippines instead.

Our hope is that by aligning themselves with the statute, the NRC will be better able to focus on the existing gigawatt-class fleet of nuclear reactors, which require intense regulatory scrutiny for a piece of critical infrastructure, while allowing states like the named plaintiffs to promote nuclear innovation with a hands-on, testing based approach at a small scale. A recent Wall Street Journal piece lays out the situation:

A new federal lawsuit may finally unleash nuclear energy’s potential. On Dec. 30, Texas and Utah, along with the startup company Last Energy, sued to force the Nuclear Regulatory Commission to stop breaking the law and start letting small, modular nuclear reactors operate without crushing overregulation. This could be the most consequential legal challenge to America’s nuclear regulatory regime in 70 years, freeing states to expand nuclear power generation as population booms and energy demands soar.

Valar’s participation in the lawsuit is sensible. Why Texas and Utah, you might wonder, beyond the opportunity to host-test Ward One? States have rights—and reasons.

Texas and Utah face energy crises as their populations grow. Texas operates its own electrical grid, serving more than 27 million customers. With its rapid population growth and booming economy, the Lone Star State faces an unprecedented need for reliable power. Utah’s “Operation Gigawatt” aims to double its power production over the next decade. Nuclear power could play a crucial role in both states’ energy futures, to say nothing of America’s, if regulatory barriers don’t stand in the way.

Here’s the bottom line:

Federal courts should simply require the NRC to follow federal law. Reactors that could affect the nation’s public health and safety should be subject to rigorous federal oversight. But state regulatory authorities are more than sufficient to ensure that small modular reactors operate safely. Washington doesn’t need to be involved.

Since 1942, fewer than 700 commercial reactors have been built, following dozens of different designs. The NRC has within its power the opportunity to let private industry safely 10X that number.

Should our suit succeed, Valar Atomics and our colleagues in this industry will provide abundant energy for all mankind—to the United States, to the Philippines, and to the stars.

Follow us on 𝕏 @valaratomics for the latest updates on the lawsuit and everything else happening at Valar Atomics to make generation IV nuclear reactors that generate clean, low-cost hydrocarbon fuels.