Peckinpaugh and 5 co-authors reported in early 2020 that fusion energy is moving towards technological and commercial reality. Fusion involves the release and harnessing of energy by fusing two atomic nuclei to form a heavier nucleus. Fusion reactions differ from nuclear fission, which is the splitting of relatively heavy atoms to release energy. Fusion avoids potential downsides to nuclear fission by leaving behind no long-lived and highly dangerous radioactive waste and creating no risks of a runway chain reaction or meltdown. Fusion also releases substantially more energy and, like fission, can become baseload power that operates 24/7 and releases no CO2 emissions.
Around the world, public and private efforts are sprinting to realize a commercially viable fusion energy system that demonstrates net energy and the potential to enter the global power generation portfolio. The highest profile international effort, the International Thermonuclear Experimental Reactor (“ITER”), is under construction in France and will use magnetic confinement for fusion experiments when it is scheduled to start operations in 2025.
In light of upcoming fusion events, including a forum at the K&L Gates London office hosted by the Fusion Industry Association on March 4, 2020, and the United States Department of Energy (“DOE”) and the U.S. Nuclear Regulatory Commission’s (“NRC”) public forum on March 18, 2020, this client alert reviews select fusion initiatives worldwide, including in the United States, the United Kingdom, the European Union, China, Canada, and Australia.
Developing fusion technology demands following numerous variables across complex systems. Similarly, private fusion developers, investors, and other stakeholders across the industry should account for critical policy and legal issues as they evaluate where to invest their time and capital, including:
- Government policy towards fusion development,
- Regulatory certainty as developers site next generation fusion machines,
- Export controls affecting cross-border movement of advanced technology,
- Government approaches to health, safety, and environmental protection,
- Protection of intellectual property rights, and
- Network of public and academic institutions to support fusion technology and workforce development
The U.S. fusion community is approaching fusion research and development from multiple directions. In the private sector, the Fusion Industry Association counts 22 private members, mostly based in the United States (with some in the UK, the EU, and Canada) with each exploring methods to commercialize fusion (more).
Enabling this private development, the U.S. government is investing more heavily in fusion within new initiatives for technology development funding, as well as initiating discussions about a regulatory framework for the budding industry (more). In late 2019, Congress directed DOE’s Fusion Energy Sciences Advisory Committee to evaluate a cost-share program as part of the Committee’s current long-range strategic planning process (more). Congress also mandated that the DOE prepare a plan for the Congressional Appropriations Committees on a possible fusion public-private partnership cost-share program by June 2020, addressing topics including program objectives, eligibility requirements, and a funding profile.
The DOE’s Office of Fusion Energy Sciences’ “INFUSE” program also supports fusion research by connecting national laboratories with private fusion industry. The program administers grants of $50,000 to $200,000 for the use of national lab facilities and expertise. In October 2019, twelve projects received the first INFUSE grants. With its FY 2020 funding legislation, Congress appropriated an additional $4 million to the INFUSE program and directed DOE to open the program to foreign companies.
The Advanced Research Projects Agency - Energy (“ARPA-E”) is a federal initiative that underwrites cutting-edge energy initiatives, including fusion. ARPA-E’s ALPHA program provides $30 million to advance U.S. efforts to develop low-cost fusion (more). Recently, ARPA-E also introduced the Breakthroughs Enabling Thermonuclear-Fusion Energy (“BETHE”) program to build on the ALPHA program’s initiative. BETHE offers funding amounts of between $150,000 to $10 million to domestic applicants and U.S. subsidiaries of foreign-owned companies, subject to cost-share requirements of at least 20 percent for most applicants. The first round of applications for BETHE funding were due on January 14, 2020, and ARPA-E expects to announce initial awardees in April 2020.
From a regulatory perspective, in 2009 the NRC reviewed the technological advances and legal issues of fusion, but ultimately decided to wait until a predictable commercial development schedule before establishing a comprehensive regulatory framework (more). Aside from asserting a general jurisdiction over commercial fusion, the NRC has not taken any further action to establish rules for fusion energy devices in the decade since. The federal Nuclear Energy Innovation and Modernization Act (“NEIMA”) that went into effect in January 2019 (more); however, directs the NRC to evaluate the rulemaking and licensing process for certain “advanced reactors,” a term that includes fusion reactors as well as advanced fission reactors. As part of this NEIMA-mandated process, the DOE and NRC will discuss the topic and solicit input from the public and industry-at-large at a public meeting scheduled for March 18, 2020. See a draft agenda for the meeting (more).
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