Invigorated Federal Interest in Fusion Energy Presents Opportunities and Questions for Growing Private Fusion Energy Sector

by K&L Gates LLP

K&L Gates LLP

Significant investment is flowing into private companies seeking long-sought-after breakthroughs to develop practical power generation solutions based on nuclear fusion reactions. [1] Fusion reactions have become relatively commonplace in the laboratory setting, but no one has developed a nuclear fusion reactor yet that produces more energy than the device uses to operate and maintain the reaction. Numerous private companies, in the United States and around the world, are attacking this challenge with a variety of approaches, with the goal of making the technology sustainable, practical, and commercial. These companies are receiving significant investment from backers who believe a solution is within reach.

The U.S. Congress and the executive agencies (like the Department of Energy) have shown that they remain committed to developing the underpinnings of a more complete fusion energy ecosystem. Indeed, they may even be more interested in fusion energy now than in years past. For example, Congress’s latest appropriations legislation increases funding for fusion energy science at the Department of Energy (“DOE”) and increased funding for the United States’ contribution to the International Thermonuclear Experimental Reactor (“ITER”) under construction in France. Other recent legislation has directed DOE and other agencies to take a more active role in understanding fusion energy issues.

But many questions remain unresolved regarding the government’s role in regulating fusion energy systems. Which agency will regulate fusion energy activities? What should those regulations cover? What should the regulatory philosophy be? These open questions present opportunities for the growing fusion business community to present their views to policymakers and regulators, allowing private-sector stakeholders to help shape a regulatory framework that promotes safe operations and efficient deployment of the technology when commercial fusion reactors transition from the laboratory to the power grid.

State of Fusion Regulation

Although the United States does not have a comprehensive regulatory program for commercial fusion reactors, current law contemplates the potential for regulating fusion energy devices. Section 11 of the Atomic Energy Act (“AEA”) provides authority to the Nuclear Regulatory Commission (“NRC”) to regulate “utilization facilities” that use “atomic energy” when those facilities’ atomic energy use implicates “significance to the common defense and security or … affect the health and safety of the public.” [2] The AEA defines “atomic energy” as “all forms of energy released in the course of nuclear fission or nuclear transformation.” [3] Legislative history accompanying the 1954 amendment to the AEA indicates that Congress may have intended the phrase “nuclear transformation” to include fusion reactors. [4] Under the terms of the AEA, NRC must assert its jurisdiction via a federal rulemaking procedure.

In response to inquiries from early movers in the private fusion sector, NRC evaluated the state of fusion regulation. An April 2009 memorandum from NRC staff considered the question and recommended that NRC assert jurisdiction over commercial fusion devices and that NRC staff monitor developments in the space. [5] The NRC staff memorandum recognized that the AEA requires that NRC make a rulemaking to establish jurisdiction over commercial fusion energy devices. [6] NRC agreed and adopted its staff’s recommended approach in July 2009, stating that the agency “asserts, as a general matter, that the NRC has regulatory jurisdiction over commercial fusion energy devices whenever such devices are of significance to the common defense and security, or could affect the health and safety of the public.” While the staff recommended “conducting further evaluations of the technical and legal issues associated with the regulation of specific fusion devices and providing more detailed recommendations to the Commission,” NRC’s Commissioners cautioned against expending significant resources to develop a regulatory framework for fusion until commercial deployment is “more predictable” or “much nearer at hand.” [7]

Presumably because it considers commercial fusion energy to remain less predictable and not close at hand, NRC has not taken further public steps toward developing a national regulatory framework that would apply to commercial fusion energy systems or toward initiating a rulemaking to establish explicit jurisdiction over commercial fusion energy devices.

Increased Federal Interest in Fusion Energy

Although NRC has not moved forward on developing a regulatory framework for fusion, DOE and Congress remain focused on fusion energy research and development. DOE’s Office of Science has managed federal research efforts, in concert with various national laboratories, for many years for magnetic confinement and inertial confinement fusion approaches. [8] DOE’s Fusion Energy Science initiative also disburses funding for fusion energy research [9] and manages the efforts of the Fusion Energy Sciences Advisory Committee (“FESAC”). [10]

Likewise, the United States Congress has continued to support fusion energy research, increasing appropriations for Fiscal Year 2019 to support fusion energy science, high energy plasma, and the United States’ contribution to ITER. [11] Congress also boosted support for ARPA-E, [12] which supports fusion research and development via the “ALPHA” program. [13] And Congress has directed FESAC to work with DOE to “review establishing a reactor concepts research, development and deployment activity. [14]

In addition to appropriating federal funds, Congress has directed DOE to take a more active role in encouraging commercialization of advanced nuclear reactor technologies, including fusion energy. Passed by Congress and signed by President Trump on September 28, 2018, the Nuclear Energy Innovation Capabilities Act of 2017 mandates that DOE assist in the development of civilian nuclear research for eventual commercial application. The statute includes “nuclear fusion reactors” within the definition of “advanced nuclear reactors” that DOE should support. [15] According to this new law, DOE and NRC must enter into a memorandum of understanding that allows:

  • DOE to gain “sufficient technical expertise to support the timely research, development, demonstration, and commercial application by the civilian nuclear industry of safe and innovative advanced nuclear reactor technology” and
  • NRC to build “sufficient technical expertise to support the evaluation of applications for licenses, permits, and design certifications and other requests for regulatory approval for advanced nuclear reactors. [16]

Through this memorandum of understanding, the statute establishes the mechanism for NRC to solidify the expertise it needs to develop a regulatory framework for advanced nuclear reactors, including nuclear fusion reactors. The statute does not require that NRC develop a regulatory framework that would apply to commercial fusion devices at this time. Instead, the statute lays out an avenue for NRC to develop expertise on fusion energy and other advanced nuclear reactor technologies. The statute also directs DOE to establish a cost sharing grant program that would cover a portion of the fees associated with NRC’s pre-application and application review activities. [17] Congress also requests a report within six months outlining “engineering designs for innovative fusion energy systems that have the potential to demonstrate net energy production not later than 15 years after the start of construction.” [18]

Congress has taken further action with the Department of Energy Research and Innovation Act, also signed into law on September 28, 2018. [19] Section 307 of this new statute directs DOE to support research and development for tokamaks [20] and inertial confinement fusion energy approaches, [21] as well as “alternative and enabling concepts” that may provide “solutions to significant challenges” to achieving commercial fusion power. The statute also requires DOE to coordinate with ARPA-E and to develop a 10-year plan for fusion energy research and development activities.

Next Steps and Opportunities

Given Congress’s mandates, the Trump administration’s efforts to accelerate commercial development of fusion technologies, and recent high-profile investments in fusion start-up companies, [22] there are opportunities to shape how the federal government will approach the regulation of fusion energy systems and how fusion energy companies will interact with regulators. In addition to providing funding, Congress is seeking a path to build a fusion energy ecosystem, with full participation by the private sector. Congress has asked for input as to how it should direct its funding in the coming years, signaling its openness to suggestions for future appropriations.

These recent actions indicate that DOE and NRC are moving into a more active phase of involvement in the fusion energy space through the memorandum of understanding process to allow both agencies to understand the needs and goals of commercial fusion developers. The agencies’ interests present opportunities for the private fusion energy sector to engage with and shape policymakers’ approaches to fusion in the years to come.

In order to take advantage of these opportunities, the fusion industry should clarify its ideal government support and regulatory environment and present these optimal conditions to policymakers for implementation. Private stakeholders should work together to solidify their policy requests to Congress and the executive agencies, clarifying what the private fusion community wants, what it does not want, and how to best implement these goals. Stakeholders in the fusion sector should take advantage of policymakers’ current focus on fusion energy topics to demonstrate the value proposition of commercial fusion for the U.S. energy portfolio and for U.S. leadership in this critical field of technology.

[1] For the purposes of this non-technical analysis, “fusion energy” refers to energy released upon the fusing of two relatively light atomic nuclei. There are two technical approaches to maintaining a nuclear fusion reaction: magnetic confinement and inertial confinement. DOE has explained the differences between the two approaches. DEP’T OF ENERGY OFFICE OF SCIENCE, About Fusions and Plasmas,
[2] 42 U.S.C. § 2014(cc).
[3] 42 U.S.C. § 2014(c).
[4] S. Rpt. No. 1699 at 11. See also id. at 8 (explaining that Congress changed the phrase “fissionable material” to “special nuclear material” in order to apply the provision to materials that parties use in fusion processes).
[5] R. W. Borchardt, NRC Memorandum, SECY-09-0064, (Apr. 20, 2009).
[6] Id. at 3.
[7] Annette L. Vietti-Cook, NRC Memorandum on Commission Voting Record for SECY-09-0064, (Jul. 16, 2009), Comments of Commissioners Dale Klein and Kristine Svinicki.
[8] DEP’T OF ENERGY OFFICE OF SCIENCE, Fusion Energy Sciences,
[9] DEP’T OF ENERGY OFFICE OF SCIENCE, Fusion Energy Sciences Funding Opportunities,
[10] DEP’T OF ENERGY OFFICE OF SCIENCE, Fusion Energy Sciences Advisory Committee,
[11] H.R. 5895, Energy and Water Appropriations at 13,
[12] Id.
[14] Conference Report to Accompany H.R. 5895 at 162,
[15] Nuclear Energy Innovation Capabilities Act of 2017 § 2(a), The statute does not define the term “nuclear fusion” or “nuclear fusion reactor,” but other federal laws define “fusion” in other contexts. See, e.g., Magnetic Fusion Energy Engineering Act of 1980 § 3, 42 U.S.C. § 9302(1) (“‘[F]usion’ means a process whereby two light nuclei, such as deuterium and tritium, collide at high velocity, forming a compound nucleus, which subsequently separates into constituents which are different from the original colliding nuclei, and which carry away the accompanying energy release”).
[16] Nuclear Energy Innovation Capabilities Act of 2017 § 2(h),
[17] Nuclear Energy Innovation Capabilities Act of 2017 § 3,
[18] Id. at §2(j).
[19] Department of Energy Research and Innovation Act,
[20] A “tokamak” is a fusion device design that uses magnetic containment. CULHAM CENTRE FOR FUSION ENERGY, The Tokamak,
[21] nfinement fusion” refers to devices that direct powerful lasers at small pellets of fuel, often isotopes of hydrogen, to initiate a fusion reaction. LAWRENCE LIVERMORE NATIONAL LABORATORY, Inertial Confinement Fusion: How to Make a Star,
[22] Akshat Rathi, In Search of Clean Energy, Investments in Nuclear-Fusion Startups Are Heating Up, QUARTZ,

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.