Significant legal developments concerning “independent” regulatory agencies in the United States and what it could mean for the Nuclear Regulatory Commission

Abstract

Multiple sources of international nuclear law, including binding instruments such as the Convention on Nuclear Safety (CNS)1 and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Joint Convention),2 stress the importance of the independence of the regulator, as well as the effective separation of that regulatory body from others tasked with the promotion or utilisation of nuclear energy. Since its creation in 1974, the United States (US) Nuclear Regulatory Commission (NRC) has been characterised as an “independent agency” within the US government. One of the hallmarks of this independence is that, by law, members of the Commission cannot be removed at will by the President over policy disagreements. However, recent decisions by the US Supreme Court have declared that restrictions on the President’s ability to remove the heads of certain agencies are incompatible with the nation’s constitutional structure and are therefore invalid and unenforceable. As of this writing, these decisions have been limited to independent regulatory agencies headed by a single administrator, not multi-member boards or commissions such as the NRC. However, the Court’s legal reasoning sweeps broadly, and if the holding of these decisions were to be applied to multi-member regulatory bodies (as legal scholars predict), it would shake the organisational bedrock upon which the Commission has rested since its creation. It may also risk transforming the Agency’s public image into that of a political or promotional actor, whose activities are closely overseen by the President who is also responsible for setting energy-related national priorities and goals.