The ADVANCE Act’s Implementation in a New Regulatory Climate

Michael Hren

Edited by Keerthi Chalamalasetty, Dillon Murti, Mac Kang, and Sahith Mocharla

Introduction

Microsoft and Constellation announced a deal in September 2024 to reopen the Three Mile Island Unit 1 nuclear reactor, which had been shut down since 2019. Largely driven by a growing need for energy, the reopening of Three Mile Island exemplifies the recent renaissance of the United States’ nuclear sector. Earlier in 2024, Congress passed the ADVANCE (Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy) Act with bipartisan support, hailing the end of the American nuclear industry’s quarter-century moratorium on the construction of new nuclear power plants [1]. For decades, while public fear over the proliferation of nuclear energy––fueled by major disasters, including the Three Mile Island Unit 2 meltdown, Chernobyl, and Fukushima Daiichi—stalled the industry’s growth, the American nuclear industry’s development moratorium stemmed primarily from “the negative learning curve” of nuclear energy [2]. Whereas the cost of other forms of renewable energy, such as solar, decreases with increased manufacturing, nuclear energy has the inverse relationship; as more traditional nuclear power plants are built, it becomes more expensive to build more [3] [4]. Additionally, before the ADVANCE Act passed, developing a nuclear power plant could take up to a decade; the act reduced the otherwise expensive licensing and construction burdens upon applicants; ameliorating concerns for previously disincentivized companies to build new nuclear plants and increase industry innovation [5]. 

So, after a quarter-century of nuclear development stagnation, why is the U.S. now interested in revitalizing nuclear development? Firstly, as addressed in the ADVANCE Act’s first provision, “American Nuclear Leadership,” the U.S. now considers the nuclear industry paramount to national security. Moreover, the global nuclear development market is booming due to the need for clean, scalable power, where 30 countries have already invested in developing nuclear infrastructure [6]. The U.S.’s major adversaries, China and Russia, are at the forefront of nuclear technology and have exported their nuclear expertise to interested countries, thereby positioning them to dominate this valuable international market [7] [8]. Overall, the ADVANCE Act is Congress’s signal to the Nuclear Regulatory Commission (NRC), the federal agency overseeing nuclear regulatory matters, that it's time to reenter the global nuclear energy market and reposition the United States as a global leader. This paper examines the landscape of administrative law surrounding the ADVANCE Act, the mechanisms it introduces, and the potential challenges it poses for the NRC

Current State of Administrative Law

In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned the Chevron deference––a long-standing doctrine of administrative law—effectively creating a new era of administrative law where the Judicial branch, rather than (expert) federal agencies, has the primary role in interpreting congressional statutes [9]. The Chevron Deference, established in Chevron v. NRDC (1984), required courts to defer to an agency’s interpretation of ambiguous statutes. In comparison, Loper Bright transferred that authority back to the courts where the Supreme Court ruled that the National Marine Fisheries Agency (NMFA) did not have the authority, under the Magnuson-Stevens Act, to force ships to pay for government-mandated compliance agents. The Supreme Court justified their decision based on the Chevron Deference’s incompatibility with the Administrative Procedures Act (APA), Section 706, which mandates that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action” [10] [11] [12]. More broadly, however, Loper Bright is part of a response to perceived agency overstep caused by the Chevron Deference, and thus establishes a narrower scope of federal agencies’ interpretations of congressional statutes [13]. As Professor Hammond of George Washington University Law expressed in an NRC-facilitated panel on the impact of new administrative law on the NRC, “the Supreme Court's recent actions, including the Loper Bright decision, are driven by a fundamental shift in judicial attitudes: a distrust of the administrative state and its perceived threat to liberty” [14]. 

Importantly, Loper Bright does not get rid of court deference to agencies. Instead, it reinstates deference as outlined in Skidmore v. Swift & Company (1944) in which the weight given to an agency's interpretation is determined through a four-part test: the agency’s thoroughness, the validity of its reasoning, the agency’s consistency in its positions, and other factors such as the degree of agency expertise and the matter’s technical nature [15]. As Professor Dru Stevensen of South Texas College of Law outlines, Skidmore creates two ways in which courts consider an agency’s interpretation or opinion [16]. Firstly, in contemplating questions of law, the Court decides itself without any agency deference, as this would be a violation of the Administrative Procedures Act. Secondly, while contemplating questions of law and fact, the Court considers if Congress had entrusted authority to the agency in the statute. If the agency was entrusted with decision-making, the Court will defer to the agency's interpretation if it is reasonable. Alternatively, if the Court rules that the statute was either too ambiguous or that Congress did not grant the agency decision-making powers, then it will give the agency’s interpretation consideration, the degree of which will be determined by the interpretation’s adherence to Skidmore’s four factors.

The stage for Loper Bright was set by the Court’s earlier ruling in West Virginia vs. Environmental Protection Agency (2022) that established that the Court retains primary authority if an agency’s interpretation of a congressional statute touches upon a question of major economic or political significance [17]. While originally framed as an exception, the ‘Major Questions Doctrine’ must also be considered alongside Skidmore deference. Skidmore requires that Congress explicitly delegate authority to an agency on issues of vast economic and political significance [18]. This doctrine was pivotal in key contemporary cases like Biden v. Nebraska, where the Supreme Court struck down the U.S. Department of Education’s student loan forgiveness, as justifying such enormous government spending triggered a Major Question, and thus required clear congressional authorization. Overall, this new era of administrative law greatly reduces agency power, creating a climate in which agencies face an increased burden to justify their statutory interpretations. 

This all begs the question of how the Major Questions Doctrine will influence court decisions in conjunction with the revival of the Skidmore deference taking precedence. As the Major Questions Doctrine imposes a higher burden on an agency’s claim to constitutional authority, an agency’s interpretation that may have previously been valid under Skidmore would not achieve deference under the Major Questions Doctrine if the act touches on major economic or legal questions [19]. 

The ADVANCE Act

The ADVANCE Act, officially codified into law on July 9, 2024, aims to revitalize the U.S.’s global nuclear leadership and expand domestic nuclear production. Before Congress passed the ADVANCE Act, the NRC mainly focused on the radiological and safety regulation of nuclear power plants [20]. More broadly, however, the ADVANCE Act revises the NRC’s official mission statement to “protect public health and safety and advance the nation’s common defense and security….” established exchange programs and reduced barriers for friendly foreign nations to invest in the U.S.’s domestic nuclear production to re-cement its role as a global nuclear leader [21]. 

Additionally, Congress included several key economic incentives to spur nuclear development. First and foremost, the ADVANCE Act reduces review costs by 50 percent, capping the amount of money companies must pay for their licensing review. Second, it provides a free licensing fee for five different types of nuclear reactors, encouraging developers to innovate new reactor designs. Third, it creates shorter timelines for reviewing licenses of micro-reactors, which are portable and produce less power. Lastly, it accelerates the timeline for licensing projects on pre-existing nuclear sites, to prevent closed reactors from remaining ghost plants [22] [23]. Notably, two of the provisions shortening timelines for nuclear reactor plans review correspond with Google and Microsoft’s deals for nuclear energy with Kairos Power and Constellation, respectively. 

The passage of the ADVANCE Act coincides with the Executive Branch’s recent push to expand nuclear power under both the Biden and Trump administrations [24]. Even though Trump is pro-coal, his energy strategy purports to maximize the U.S.’s full energy potential, including natural gas, coal, and nuclear, encapsulated through his motto “drill, baby, drill!” [25]. 

Overall, the ADVANCE Act is a landmark piece of legislation that transforms the NRC from another regulatory commission into an agency driving development and global leadership.

Triggering Major Questions: Economics 

The NRC’s expanded regulations are projected to create thousands of jobs and drive billions of dollars into major players in the nuclear industry. Within the ADVANCE Act, two key sections are particularly likely to trigger a major economic question: Sections 207 and 301. 

In Section 207, Congress entrusts the NRC to expedite the licensing for nuclear reactors that have “a design that is substantially similar to a design of a nuclear reactor for which the Commission has issued a combined license” [26]. The term “substantially similar” is subjective and open to interpretation. Given that the timeliness for Nuclear review can be worth tens of millions of dollars, the NRC's interpretation of “subjectively similar” could result in hundreds of millions of dollars in licensing fees, increasing developers’ costs, raising a question of major economic significance. Moreover, as Congress has designated the nuclear industry as central to national security, Courts may apply the Major Questions Doctrine even to smaller amounts of money if they believe the economic impact intersects with significant national security implications. 

Section 301 of the ADVANCE Act touches on the component of American global nuclear leadership and allows the NRC to issue a license to a foreign developer, “if the Commission determines that issuance of the applicable license to that entity is not inimical to— (1) the common defense and security” [27]. Since there is no standardized congressional definition of what constitutes an inimical proposal to national security, the NRC’s interpretation of this section could trigger a major question not only economically but also in the national security scope. However, under the Major Questions Doctrine, if courts find that NRC interpretations of the ADVANCE Act have caused significant change to the economy, then courts will not give any deference to the NRC’s interpretations.

Triggering Major Questions: Federalism 

Before the ADVANCE Act, the NRC primarily focused on concerns of radiological safety of nuclear power plant design [28]. Matters of economic importance were typically left to state purview. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission (1983) stated that the NRC would regulate the radiological impacts of nuclear plants, but that states would regulate economic factors [29]. Congress’s expanded purview of the NRC into economic territory, while not directly challenging the Pacific Gas ruling, creates an area of overlap that could result in legal challenges. This could therefore trigger a major question. 

However, as safety and economic concerns in building nuclear reactors are inherently intertwined, the ADVANCE Act does not result in a complete shift in regulatory authority to the Federal government. In the scenario that a hostile court rules that the NRC was not explicitly entrusted with the authority to regulate, the NRC could contend that recent pro-nuclear development executive orders and the unanimous passing of the ADVANCE Act demonstrate that the legislative and executive branches have entrusted authority to the NRC [30].

Moreover, the NRC’s greatest asset in curtailing potential threats to its actions is the ADVANCE Act itself, which incorporates explicit Congressional support for expanding its purview. In creating the Major Questions Doctrine, the Supreme Court based its decision on the EPA’s reliance on ancillary evidence from a general provision. By contrast, the ADVANCE Act’s provisions are new, statutory, and have clear congressional support, differentiating it from the EPA. Thus, the NRC could challenge the Supreme Court on whether the Major Questions Doctrine would apply to it, arguing that the NRC is firstly applying the ADVANCE Act in line with Congress’s direction. Therefore, the NRC is not deciding policy matters, ultimately Congress is. As the NRC is simply enforcing Congress’s wishes, the Supreme Court would need to find a legal flaw with the ADVANCE Act itself to overturn the NRC’s regulations. Secondly, the NRC is not enforcing provisions outside its realm of expertise; Nuclear powerplant regulation has been the NRC’s primary function, and incorporating economic factors into its decision does not change the realm it functions in. 

Skidmore in the NRC

Skidmore deference shifts the judicial review process from asking whether an agency’s interpretation of a statute is reasonable to review if it is persuasive and Congressionally aligned. While the NRC’s expansive technical expertise helps make its judgments persuasive, its newfound mission presents a situation where it could fail Skidmore’s deference test. Section 208 of the ADVANCE Act relates to the NRC’s micro-reactor licensing: “The Commission shall, (1) not later than 18 months after the date of enactment of this Act, develop risk-informed and performance-based strategies and guidance to license and regulate micro-reactors” [31]. Courts will heavily weigh the NRC’s interpretation of the Atomic Energy Act in Section 208 of the ADVANCE Act due to its technical expertise. This interpretation is not problematic for the NRC; however, Congress’s 18-month deadline is extremely tight, especially when looking at the ADVANCE Act’s predecessor, the Part 53 rulemaking, which took five years [32]. This creates a speed versus safety paradox, which has opposing pressures. Therefore, courts could find NRC’s interpretation unpersuasive because the NRC’s rushed timeline could result in a tangible lack of thoroughness––a Skidmore factor––when considering the new safety challenges of micro-reactors. 

Furthermore, Section 507 is at the heart of the ADVANCE Act’s deregulatory spirit, in which it mandates that “The Commission shall develop and submit to the appropriate committees of Congress a report that identifies specific improvements to the nuclear reactor and materials oversight and inspection programs” [33]. However, Section 507 could damage the NRC’s rules consistency on safety and inspection quality. If Section 507 forsakes the NRC’s long-standing quality and rigor level to reduce licensing and build times, the court could find that the NRC’s interpretation is unpersuasive because it opposes its long-standing practices. 

Implications for the NRC

Even though the ADVANCE Act has clear bipartisan Congressional support and was written with relatively unambiguous language, the Judicial Branch’s diminishment of agency power limits the NRC’s complete effectiveness. Firstly, the re-institution of Skidmore deference is one of the NRC’s biggest challenges because while Skidmore is a form of deference, it is not very deferential, increasing the burden of proof on the NRC. Beyond the pure legal implications of Skidmore’s reinstitution, this new Court has signaled its willingness to overturn long-standing precedent(s) related to agency power. Therefore, this could potentially increase the number of potential legal challenges the NRC faces. These challenges are likely to come from two major groups. Firstly, anti-nuclear groups could argue that the NRC is too broad in its interpretation and application of ADVANCE. In particular, how NRC’s expanded official purview beyond safety standards could be a conflict of interest, as regulations appear to become more influenced by large corporations. Paradoxically, nuclear technology developers could, and already are, arguing that the NRC is not following exactly the direction outlined in ADVANCE, particularly relating to the licensing of “de minimis” reactors, reactors meeting “de minimis” standards on waste [34]. The re-institution of Skidmore Deference leads to two critical potential problems for the NRC, both resting on the Court’s subjective interpretations. Chiefly, the Supreme Court will have to determine whether Congress entrusted the NRC to make interpretations of ADVANCE. Additionally, if the court decides in the NRC’s favor, it will then need to determine if the NRC’s interpretations are reasonable: a subjective interpretation that rests on very technical knowledge. 

In response to court cases, the NRC could make two major arguments. Principally, the NRC could assert that it is focusing on how it can abide by the Legislative Branch’s directives. Secondly, the NRC will benefit from a long chain of favorable Supreme Court rulings relating to its statutory interpretations. This allows the NRC’s defense to incorporate the Statutory Stare Decisis Doctrine, which ensures that courts follow common law precedent and do not impose their judgment without prior precedent. Through this doctrine, which Justice Kagan highlighted as a doctrine of “judicial modesty” in her dissent in Loper Bright, the NRC would contend that the Supreme Court must have exceptional justification for overturning its practices, which would create a higher burden for the court to rule against the NRC. Beyond implementing the Statutory ‘Stare Decisis’ Doctrine, The NRC could further rely on nuclear development’s national security importance to bolster its argument on why overturning its interpretations could harm American interests. Additionally, as both the Legislative and Executive branches have endorsed the ADVANCE Act, the NRC could claim the Supreme Court’s overturning on the grounds of the Major Questions Doctrine would put it at odds with the other two branches. Given that both the Major Questions Doctrine and Skidmore were instituted to safeguard the Legislative Branch, this defense would frame the NRC actions under the guise of following the wishes of a united Legislative and Executive branches. 

Conclusion

Overall, the ADVANCE Act is a landmark piece of legislation that cements a U.S. nuclear resurgence, transforming the NRC’s mission from solely focusing on safety to one that actively promotes nuclear development and global leadership. Yet, this new, expanded role places the NRC in the crosshairs of a newly empowered and skeptical Judicial Branch. Despite bipartisan congressional passage, recent developments in administrative law create significant vulnerabilities for the NRC’s interpretations of the ADVANCE Act. Especially considering how courts now must try and find gaps in agencies’ statutory interpretations instead of giving them deference. 

The return to the Skidmore deference requires the NRC to convince courts of its thoroughness, reasoning, and expertise on a case-by-case basis. Critically for the NRC, as the Major Questions Doctrine supersedes the Skidmore deference, it imposes a much higher burden of proof that the NRC must overcome. Additionally, as the ADVANCE Act intersects with questions of vast economic and political significance, it could trigger major questions. This happens especially through Congress’s expansion of the NRC’s regulatory scope. It aligns the NRC with an industry that Congress itself describes as important to national security. Moreover, it transfers economic purview directly to the federal government and away from the states. 

The NRC will most likely argue that the ADVANCE Act’s clear and explicit congressional direction, compounded with executive support and national security concerns, constitutes the unequivocal authorization that is required to survive scrutiny. Its potential defense could position itself as the executor of the Legislative Branch’s wishes, not an over-reaching agency. However, in a judicial climate that presumes executive overreach at Congress’s expense, the burden remains on the NRC to prove that its interpretations are explicitly authorized within the ADVANCE Act. Ultimately, while the ADVANCE Act signals a major commitment to reinvigorating the American nuclear sector, the NRC’s path forward could face severe legal challenges. 

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[1] About the ADVANCE Act, U.S. NRC, https://www.nrc.gov/about-nrc/governing-laws/advance-act/about-advance-act (last visited October 30, 2025).

[2] Thomas Hochman and Nate Hochman, A Nuclear Renaissance?, 70 THE NEW ATLANTIS 3 (2022). Text available at https://www.thenewatlantis.com/publications/a-nuclear-renaissance#:~:text=The%20decades%20after%20Eisenhower%27s%20speech,there%20is%20to%20be%20one (last visited October 30, 2025).

[3] See [1].

[4] Max Roser, Why did renewables become so cheap so fast?, OUR WORLD IN DATA, December 1, 2020, Updated April 2025,  https://ourworldindata.org/cheap-renewables-growth (last visited December 21, 2025).

[5] John Martin Weed, ADVANCE Act Strikes Right Balance for Nuclear Energy Regulation, HARVARD LAW REVIEW, July 11, 2024, https://harvardlawreview.org/blog/2024/07/advance-act-strikes-right-balance-for-nuclear-energy-regulation/ (last visited October 30, 2025).

[6] Sarah Sobalvarro, US Inaction Is Ceding the Global Nuclear Market to China and Russia, WILSON CENTER, April 2, 2025, https://www.wilsoncenter.org/article/us-inaction-ceding-global-nuclear-market-china-and-russia (last visited October 30, 2025).

[7] Kylee Sallee, Regaining American Competitiveness in the Global Nuclear Power Market, AMERICAN UNIVERSITY, February 5, 2021, https://www.american.edu/sis/centers/security-technology/regaining-american-competitiveness-in-the-global-nuclear-power-market.cfm (last visited December 21, 2025).

[8] See [7].

[9] Loper Bright Enterprises v. Raimondo, Secretary of Commerce, ET AL., 603 U.S. 369 (2024). 

[10] See [1].

[11] Jonathan Remy Nash, Chevron Stare Decisis in a Post-Loper Bright World, 110 IOWA LAW REVIEW ONLINE 180 (2025). Text available at https://ilr.law.uiowa.edu/sites/ilr.law.uiowa.edu/files/2025-05/ILROnline-110-Nash.pdf (last visited October 30, 2025).

[12] The U.S. Supreme Court Trifecta: How Loper Bright, Corner Post, and Jarkesky Are Redefining Administrative Law Post Chevron, PUBLIC HEALTH LAW CENTER AT MITCHELL HAMILINE SCHOOL OF LAW,  https://www.publichealthlawcenter.org/resources/us-supreme-court-trifecta-how-loper-bright-corner-post-and-jarkesy-are-redefining (last visited December 21, 2025).

[13] NRCgov, TH 22 - Legal Impacts of the ADVANCE Act and Recent Supreme Court Administrative Law Decisions, YOUTUBE, April 29, 2025, https://www.youtube.com/watch?v=jS9kSYloVtA (last visited October 30, 2025).

[14] See [8].

[15] Professor Stevenson, Skidmore v. Swift & Co. - Judicial Review & Agency Interpretation of Statutes, YOUTUBE, July 22, 2024, https://www.youtube.com/watch?v=N-jOCEaAoPM (last visited October 30, 2025).

[16] West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).

[17] Bernard Bell, The New Era of Skidmore Deference, YALE JOURNAL ON REGULATION, June 24, 2025, https://www.yalejreg.com/nc/the-new-era-of-skidmore-deference/#:~:text=Chevron%20v.,159%E2%80%9360%20%282000%29 (last visited October 30, 2025).

[18] See [11].

[19] See [1].

[20] See [1].

[21] See [4].

[22] Grant William Eskelsen and Jeffry M. Sharkey, The ADVANCE ACT - One Year Later: The Advances are Real in Nuclear Technology, BALCH & BINGHAM LLP, August 27, 2025, https://www.balch.com/insights/publications/2025/08/advance-act-one-year-later (last visited October 30, 2025).

[23] Joanne Katsantosis, Christopher M. Keegan, Samuel F. Kettering, John L. Spillman, Jr., and Joseph M. Gaston, Executive Orders Seek Resurgence of Nuclear Power in U.S., MCGUIREWOODS, May 27, 2025, https://www.mcguirewoods.com/client-resources/alerts/2025/5/executive-orders-seek-resurgence-of-nuclear-power-in-u-s/#:~:text=On%20May%2023%2C%202025%2C%20President,amounts%20of%20reliable%20electricity%20generation (last visited October 30, 2025).

[24] Trump’s “Drill Baby Drill is not what it seems, UNC KENAN-FLAGLER BUSINESS SCHOOL, https://www.kenan-flagler.unc.edu/perspectives/drill-baby-drill-by-stephen-v-arbogast/ (last visited December 21, 2025).

[25] See [1].

[26] See [1].

[27] See [1].

[28] PG & E v. State Energy Comm’n, 461 U.S 190 (1983).

[29] Bruce White Barnes and Thornburg LLP, From Power Plants to the Moon: The U.S. Nuclear Revival in 2025, THE NATIONAL LAW REVIEW, August 11, 2025 https://natlawreview.com/article/power-plants-moon-us-nuclear-revival-2025 (last visited October 30, 205).

[30] See [1].

[31] Part 53 – Risk Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors, U.S. NRC, https://www.nrc.gov/reactors/new-reactors/advanced/modernizing/rulemaking/part-53 (last visited December 21, 2025).

[32] See [1].

[33] Ellen Conley, Michael Mazzone, and Sam Richards, Let My Nuclear Reactors Go: Texas, Utah and Last Energy, Inc. Challenge the NRC, HAYNES BOONE, January 17, 2025, https://www.haynesboone.com/news/alerts/let-my-nuclear-reactors-go (last visited October 30, 2025).

[34] Ryan K. Light and Scott D. Clausen, Chevron Overturned: Ruling May Impact Challenges to NRC Actions to a Lesser Extent than Other Agencies, UP & ATOM, July 22, 2024,

https://www.morganlewis.com/blogs/upandatom/2024/07/chevron-overturned-ruling-may-impact-challenges-to-nrc-actions-to-a-lesser-extent-than-other-agencies (last visited December 21, 2025).