Time for Democrats to Move on From Marzano Nomination

Why Continuing A Zombie Confirmation Effort Will Undermine Regulatory Modernization

By Ted Nordhaus

If Senator Tom Carper, the retiring chair of the outgoing Democratic majority on the Senate Environment and Public Works committee, has his way, Democrats will hold a party line vote to advance the confirmation of Matthew Marzano to the Senate floor on Wednesday. The Marzano nomination marks the second time in the last two years that Democrats have attempted to place a highly partisan and status quo candidate on the commission. After failing to confirm Jeff Baran to a third term on the commission last year, due in significant part to opposition within their own caucus, Carper and the Biden administration could have selected from a number of well-qualified Democratic candidates who would have garnered broad and bipartisan support. Instead, they selected a callow Carper staffer with no public record to speak of and dared their fellow Democrats to vote against him in the waning months of the Biden presidency and the Democratic Senate majority. 

That gamble has already backfired. The nomination was announced in July and a hearing and committee vote was scheduled for September. But after Marzano’s disastrous testimony, Carper didn’t have the votes to send Marzano’s nomination to the Senate floor and was forced to delay until after the election. 

As I documented earlier this fall, under questioning during the hearing, Marzano failed to name a single NRC regulation that he would repeal or change. He affirmed his support for the NRC’s current mission, which Congress, by an overwhelming bipartisan vote, had directed the NRC to change just months earlier (through a provision of the ADVANCE Act that Marzano had, notably, vigorously resisted as Carper’s emissary). He refused to say how he would have voted on past commission decisions with the exception, bizarrely, of the Commission’s vote in 2023 to reverse approvals of subsequent license renewals for two nuclear plants, which he said he too would have voted with the majority on the commission to reverse.

Now, the worst-case electoral outcome for Democrats has transpired. Donald Trump will be the next president. Republicans will have a significant majority in the Senate. The election was, among other things, a significant rebuke to much of the Democratic climate and energy agenda. Trump blamed Democrats for high energy prices and ran against Democratic policies that he and his surrogates branded as extreme, both far too focused on solar, wind, and electric vehicles and hostile toward America’s exploitation of its abundant oil and gas resources. In poll after poll, substantial majorities of voters, including majorities of Democrats, agreed with Trump’s criticism, supporting an “all of the above” federal energy agenda, inclusive of fossil fuels, renewables, and nuclear energy. 

Biden and then Harris attempted to pivot on these issues late in the game. But the damage had already been done. As a result, the next four years are likely to feature sustained effort to dismantle the Inflation Reduction Act and other climate and energy policies established over the last four years, which many Democrats have come to see as the most important accomplishments of Biden’s presidency. 

Nuclear energy, notwithstanding the partisanship of the Baran and Marzano nominations, has mostly been a happy exception to the increasing Congressional polarization around federal climate and energy policy. Through the first Trump administration and then the Biden administration, both administrations and strong bipartisan majorities of Congress have enacted a series of new laws to reform and modernize the Nuclear Regulatory Commission and commercialize a new generation of nuclear reactors. Despite some confusing words from Trump about “nuclear warming” during the campaign, all indications suggest that the second Trump administration and Republican congressional majorities will continue to be strongly supportive of nuclear energy. Elon Musk, Trump’s most prominent supporter and biggest funder, has been a vocal advocate for nuclear energy. Chris Wright, Trump’s nominee to be Secretary of Energy, is also a strong supporter of nuclear energy and sits on the board of Oklo, a leading advanced nuclear startup. Doug Burgum, Trump’s Interior nominee, who is pegged to lead the Administration’s new national energy council, also strongly endorses nuclear energy. 

Democrats will no doubt fight hard to defend the Inflation Reduction Act. But one place where they will have an opportunity in the next Congress to work with Republicans to advance clean energy will be through reform at the NRC. Despite long-standing claims from the anti-nuclear movement, doing so in no way requires any compromise of public health or safety. The next generation of reactors, featuring simpler designs, meltdown-resistant fuels, and a range of further innovations, will almost certainly be far safer than America’s already extremely safe conventional reactors. 

In the lead up to the new Administration and the next Congress, Democrats may have a strong interest in confirming Biden appointments during the lame duck, particularly judicial nominees. But expending significant political capital and very limited Senate floor time to confirm Marzano serves no useful purpose for Democrats, who largely agree with Republicans that NRC modernization is a national priority. Almost any imaginable Republican nominee will be more committed to reform than Marzano. And developments at the NRC in the months since Marzano’s nomination should put to rest any doubts about the scope of reform that will be necessary to assure that the US is able to launch a globally competitive advanced nuclear sector.  

Last month, the NRC Office of General Counsel released a radically minimalist interpretation of the ADVANCE Act’s mission modernization requirement, inventing a non-existent statutory prohibition against “promotion” of nuclear energy to claim that the agency lacked the authority to recognize the benefits of nuclear energy to society in its mission or account for those benefits in its regulatory proceedings as directed by the new law. That came just weeks after the release of a new draft of the congressionally mandated Part 53 licensing framework for advanced reactors that, on a number of key issues related to radiological health standards and safety requirements, directly flaunted not only clear congressional direction but also direction from the Commission itself.

These developments should establish that, despite assurances to the contrary, regulatory modernization, consistent with commitments from both parties to start building nuclear power plants again, is most decidedly not on track. The norms, culture, and practices at the agency remain stuck in the past. Visionary leadership on the commission, committed to modernization and reform, and to holding the agency bureaucracy accountable, will be necessary to drive the necessary change at the NRC. Matthew Marzano, it should be clear at this point, is not the man for that job. 

So rather than continuing to poison the well by advancing a highly partisan lame duck confirmation that is likely doomed on the Senate floor, Democrats on EPW would be far better served to move on from Marzano now and begin working with the incoming Republican majority to identify strong Republican candidates for the job who are committed to transforming the NRC to be the 21st century regulator that the nation needs. 

That decision, to be clear, will ultimately be up to Trump and Republicans in Congress. But Trump’s nominees in his first term have generally proven to be responsible champions of reform and given Trump’s continuing support for nuclear energy, the same is likely to be the case in the next Administration. Nobody is proposing the abolition of the NRC or the deregulation of atomic energy. The reality, though, is that the dangers to the future of nuclear energy and the nation’s health, environment, and energy security of going too slow on modernization and reform are far greater than going too fast.

In some cases, Democrats and Republicans have very different reasons for supporting nuclear energy. But continuing to accept leadership on the commission that is not sufficiently serious about transformation of the agency threatens the nuclear ambitions of both parties, which is why the Marzano nomination was so problematic in the first place. Democrats, unfortunately, have now twice missed out on the opportunity to put a visionary leader on the NRC prepared to champion reform. It would be a mistake to now double down on that error by pushing forward with a nominee for entirely partisan reasons whose commitments to change at the NRC are increasingly out of step with those of much of the Senate Democratic caucus itself.