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On February 2, 2026, the U.S. Department of Energy (DOE) announced a new categorical exclusion (CATEX) under the National Environmental Policy Act (NEPA) covering the authorization, siting, construction, operation, reauthorization, and decommissioning of advanced nuclear reactors. The CATEX is effective immediately and DOE has opened a 30 day comment period through March 4, 2026. 

Crucially, DOE is placing this CATEX in the portion of its NEPA implementing procedures that it keeps outside the Code of Federal Regulations, a structure DOE adopted when it revised Part 1021 in 2025; the Federal Register notice links to DOE’s website where the written record and procedures reside. 

DOE’s “Written Record of Support” explains the technical and regulatory basis: advanced reactor attributes (fuel type, passive/inherent safety features, fission product inventories) and demonstrated waste management approaches support a determination that, as a category, these projects normally do not significantly affect the human environment, subject to project specific conditions and the absence of “extraordinary circumstances.” 

Where did this come from?

The Council on Environmental Quality (CEQ), acting pursuant to Executive Order 14154 (“Unleashing American Energy,” January 20, 2025), rescinded its NEPA regulations on January 8, 2026 and replaced them with agency guidance—part of a broader federal shift giving agencies, including DOE, greater latitude to craft their own NEPA procedures. 

Thereafter, on May 23, 2025, President Trump issued Executive Order 14301 (“Reforming Nuclear Reactor Testing at the Department of Energy”), which directed DOE to create “categorical exclusions as appropriate for reactors within certain parameters.” 

In July 2025, DOE removed most of its NEPA procedures from the Code of Federal Regulations through an interim final rule and now maintains them as procedural guidance—while Part 1021 continues to house appendices and baseline requirements—creating a streamlined path for adding new categorical exclusions such as this one.

These actions culminated in DOE’s most recent procedural determination: a new categorical exclusion issued through DOE’s revised NEPA framework. It is not an executive order and not a traditional notice and comment rulemaking that amends the CFR. 

What exactly does the CATEX cover?

DOE’s CATEX (identified in DOE’s procedures as Appendix B, B5.26) applies to advanced nuclear reactors where DOE determines that project attributes—reactor design, fuel type, operational plans, and bounded fission product inventories—sufficiently reduce the risk of adverse offsite consequences, and that radioactive/hazardous wastes and spent fuel can be managed in accordance with applicable requirements. Multiple reactors can be included within a single nuclear facility under the category. 

DOE emphasizes it will continue to screen for extraordinary circumstances and applicability conditions on a case by case basis; the CATEX does not operate as a blanket waiver from NEPA for all projects. 

Which reactor types are in scope?

The new DOE categorical exclusion applies to a broad range of technologies that fall under the statutory term “advanced nuclear reactor.” In practical terms, this includes microreactors, small modular reactors (SMRs), Generation IV systems, and some Generation III+ designs, so long as their safety features and operating characteristics meet the conditions DOE has outlined for the exclusion.

DOE’s Federal Register notice explains that this determination is based in part on earlier environmental reviews of experimental, test, and demonstration reactors. Because those projects showed very low potential for off site impacts, DOE concluded that similar reactor types developed for other uses—such as electricity production or industrial applications—may also qualify, provided they share the same strong safety attributes.

What projects might qualify—and what still needs review?

Projects most likely to qualify for the new DOE categorical exclusion are those that DOE sponsors or authorizes directly, particularly advanced reactor projects located at DOE facilities or national laboratories. These tend to use designs with strong passive or inherent safety features, low potential for off site impacts, and well developed plans for handling waste — all characteristics that align with DOE’s criteria for streamlined review. 

When a project fits within the categorical exclusion, DOE can bypass the usual Environmental Assessment (EA) or full Environmental Impact Statement (EIS) and instead issue a brief determination explaining why the streamlined process applies. This can significantly reduce the time needed for federal environmental review, sometimes by months or even years. 

However, to be clear, this categorical exclusion does not replace or modify the Nuclear Regulatory Commission’s licensing requirements. The Nuclear Regulatory Commission (NRC) still follows its own NEPA process under 10 C.F.R. Part 51, and while there is ongoing conversation about creating narrower exclusions for microreactors, nothing comparable to DOE’s new approach has been adopted by the NRC at this time. In addition, state permits, tribal consultation requirements, historic preservation reviews, and environmental justice considerations may still apply, depending on the project’s location and potential impacts.

Why this matters for utilities and reactor developers

  1. Faster schedule for DOE “major federal actions.”
    Where DOE is the action agency—e.g., providing site authorization, land access, funding/loans, power purchase arrangements, or project approvals—the CATEX can eliminate the EA/EIS step if conditions are met, reducing schedule risk and front end carrying costs.
  2. Better alignment with 2025–2026 permitting reforms.
    This CATEX sits atop a broader re architecture (DOE’s 2025 Part 1021 overhaul and CEQ’s 2026 rescission) that restores agency discretion and sets shorter internal timelines, making it more feasible to sequence NEPA with financing and EPC milestones.
  3. Project finance and LPO implications.
    For developers seeking DOE loans or credit support, a CATEX can be a decisive factor in financial close by limiting NEPA driven timing uncertainty, especially for first of a kind (FOAK) advanced designs targeting near term data center or industrial heat customers
  4. Case by case discipline still required.
    Because DOE will evaluate extraordinary circumstances, site specific factors (ecology, cultural resources, cumulative impacts), and offsite risk before invoking the CATEX, applicants must front load safety/operations narratives and waste management commitments to fit squarely within the category.
  5. Competitive positioning.
    Industry reporting shows that the Administration is moving quickly to launch several test and demonstration reactors at federal sites. Projects that qualify for the new categorical exclusion can move through DOE’s review process much faster, which means they may reach the grid or secure industrial customers sooner than competitors that still must complete full Environmental Assessments or Environmental Impact Statements. 

Legal risk and strategic considerations (our take)

Because DOE placed this new CATEX in procedures that sit outside the Code of Federal Regulations, critics may argue that it did not follow enough formal process under the Administrative Procedure Act (APA). In other words, they may claim DOE did not provide sufficient public notice or justification. However, DOE has taken several steps that strengthen its legal position: it issued a Federal Register notice, published a written record explaining its reasoning, consulted with CEQ, and is actively soliciting public comments. These steps help support a defensible administrative record. Still, individual projects will need strong documentation showing they meet the CATEX criteria—such as demonstrating there are no “extraordinary circumstances” and that their reactor characteristics fall within DOE’s safety and inventory limits—to withstand case specific challenges.

Even if DOE applies the CATEX, other reviews remain. State permitting requirements—including water and air approvals, state siting board reviews, and tribal consultation—still apply and can become the longest part of the overall project timeline when the federal review is shortened. In addition, any utility or company planning to build a commercial reactor outside of DOE controlled land will still need to complete NRC licensing and go through the NRC’s own NEPA process under 10 C.F.R. Part 51. All of this makes early consultation with the NRC and close coordination with state and tribal stakeholders essential for any project hoping to move quickly.

Finally, because the CATEX hinges on a project’s ability to show very low risk of off site impacts, developers must design their reactors and operating plans to fit within DOE’s boundaries. This may mean using conservative assumptions about potential releases, preparing detailed fuel management plans (especially for High-Assay Low-Enriched Uranium, or HALEU, fuel), and adopting rigorous safety practices. Strong engineering discipline helps ensure that DOE can comfortably apply the CATEX and defend that decision if challenged.

Key Takeaways

  • The choice to place the CATEX outside the CFR is deliberate—and double edged. It maximizes DOE agility to apply/adjust the CATEX but may raise APA arguments about process or reliance interests. We recommend anchoring every CATEX determination in a well documented project record mirroring DOE’s written record criteria.
  • For utilities, think “federal site first, fleet later.” Consider DOE site proofs of concept under the CATEX to buy down technology and permitting risk, then leverage those records in state/NRC proceedings for commercial rollouts.
  • Developers should pre engineer for the CATEX. Align source term, containment strategy, HALEU logistics, and waste/used fuel pathways with DOE’s risk bounding narrative; treat stakeholder engagement (tribal, EJ, local) as CATEX enabling rather than optional.
  • Use the comment window. The March 4 deadline is an opportunity to clarify scope (e.g., multi unit campuses, hybrid energy systems, cogeneration/steam applications) and ask DOE to publish exemplars of CATEX determinations to improve predictability. 

Sources cited

This alert is intended as general information and does not constitute legal advice. Please contact us to assess how the CATEX applies to specific projects or transactions.

For questions regarding the new categorical exclusion (CATEX) under the National Environmental Policy Act (NEPA), feel free to reach out to your Womble Bond Dickinson attorney, the author of this Insight, or another member of our Energy and Natural Resources Team.

 

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