Trump Administration, Federal Circuit Set to Jumpstart Investments in Nuclear Energy

With new executive orders (EOs) directing the slashing of red tape for the nuclear industry and new legal precedent from the Federal Circuit dramatically broadening government-backed indemnification for all steps of the nuclear fuel cycle, nuclear power enters 2025 as a key player in America’s energy security and green transition.

On Monday of this week, the U.S. Court of Appeals for the Federal Circuit expanded the scope of government-sponsored indemnification under the Price-Anderson Act (PAA) in its decision in Cotter Corp., N.S.L. v. United States, --- F. 4th ---, 2025 WL 439853 (Fed. Cir. Feb. 10, 2025). As the new opinion recognizes, the PAA enacted an indemnification regime for the nuclear fuel cycle in order to “protect the public and to encourage the development of the atomic energy industry.” To that end, the PAA mandates indemnification for certain Nuclear Regulatory Commission (NRC) licensees, and further directs the U.S. Department of Energy (DOE) to enter into indemnity agreements with particular contractors. Notably, DOE-contractor indemnification under 42 U.S.C. § 2210(d) accrues for legal claims arising out of “nuclear incidents” not just as to the prime contractors themselves, but also with respect to other “persons indemnified in connection with the contract.” In Cotter, the Federal Circuit held that Congress intended the term “person indemnified” to have an expansive scope, extending to any person who conducted activities in connection with the DOE contract and is potentially liable for a “nuclear incident.” The Federal Circuit similarly held that the definition of “nuclear incident” is also intended to be expansive and extends to “occurrences within the United States causing personal or property-related harm arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material.”

Thus, the Federal Circuit held that PAA-indemnification attaches to the use of nuclear materials used or created in connection with a DOE contract, regardless of whether that nuclear material is in the prime contractors’ possession at the time of the nuclear incident. In other words, under the Federal Circuit’s logic, much of the nuclear industry (whether or not in direct privity with DOE and so long as the material handled has a connection to a DOE contract) may be “persons indemnified” under the PAA.

This reaffirmation of expansive protection attaching to projects related to DOE comes hot on the heels of substantial investments in the nuclear industry over the past several years. Microsoft, for instance, announced last fall that it is financing the reopening of Three Mile Island, the mothballed nuclear power plant near Harrisburg, Pennsylvania. At the same time, Google inked a deal with Kairos Power to bring 500 MW of nuclear plants online by 2035. Multiple states — including Wyoming, Texas, Virginia, South Carolina, and Michigan — are also getting in on the action, with partnerships to expand output from existing plants and even build new ones.

Two EOs from Day 1 of the Trump administration are set to boost industry’s continued investment in nuclear power even further. For instance, in President Trump’s Executive Order “Unleashing American Energy,” all relevant agencies must review and retool any “agency actions” that have “impose[d] an undue burden on the identification, development or use of” “nuclear energy resources.” And in President Trump’s Executive Order “Declaring a National Energy Emergency,” relevant agencies must “exercise any lawful emergency authorities” to “facilitate,” among other things, the “transportation [and] refining” of uranium to further develop the generation of nuclear power. The DOE is wasting no time to implement these new EOs. Just recently confirmed, Secretary of Energy Chris Wright has promised to “launch” a “long-awaited American nuclear renaissance.”

President Trump’s direction in the “Unleashing American Energy” EO builds upon the May 2024 Advanced Nuclear for Clean Energy (ADVANCE) Act, which directed the NRC to modernize licensing for new technologies (including a focus on microreactors), increase staffing, and lower fees. The ADVANCE Act also requires NRC to evaluate ways to reuse brownfield sites, such as former coal plants, to site new nuclear projects. With these changes to the permitting process underway, we anticipate an increase in investments that advance domestic nuclear energy. The next big question, then, is whether Congress will take critical steps to break the decades’ long impasse over permanent storage solutions for spent fuel.

Together, the EOs appear to promise cheaper and quicker permitting for new projects, and the Federal Circuit has ensured broad indemnity for all those companies in the nuclear fuel cycle who contract with DOE. All told, 2025 may well be the watershed moment for Secretary Wright’s “long-awaited American nuclear renaissance.”

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.