The Energy Department has published three plans that let named uranium and reactor companies work on supply together, and the antitrust defence that comes with them requires a Justice Department or FTC lawyer in the room
A Justice Department or Federal Trade Commission lawyer has to be in the room.
That requirement runs through all three plans of action the Energy Department filed on Friday morning under section 708 of the Defense Production Act, the provision that lets the federal government convene competitors and attach a defence to what they do there. The three plans implement a Nuclear Fuel Cycle Consortium voluntary agreement, approved by the Secretary of Energy after consultation by the Attorney General and the Chairman of the FTC, and they cover between them uranium mining and milling, conversion, enrichment, fuel fabrication, used fuel recycling and reactor components. They publish on Monday.
What the defence actually says
Each plan carries an identical section headed Antitrust Defense, and it is narrower than the headline idea of antitrust immunity.
Under subsection 708(j), a participant has a defence to any civil or criminal action brought under the antitrust laws, or any similar law of any state, for actions taken in developing or carrying out the plan. Four conditions travel with it. The action has to be inside the scope of the plan and of the relevant committee. It has to have been taken at the direction and under the active supervision of the Energy Department. The company asserting the defence carries the burden of proving both. And the defence disappears entirely if the party suing shows the action was taken for the purpose of violating the antitrust laws.
It also stops when the plan does.
The supervision is written down
The oversight is procedural rather than aspirational, and the documents are specific about it. A DOJ or FTC representative must attend each substantive committee meeting. A federal representative must attend all substantive working group meetings, which the plans tie to 50 U.S.C. 4558(h)(5) and 10 C.F.R. 821.4(c)(4). Any substantive meeting among participants needs advance approval. Every meeting is to be recorded, with transcripts on Microsoft Teams, and the record is kept by the Energy Department chair.
A participant that attends fewer than 75 percent of scheduled meetings may lose its vote and its seat.
Who is named
The Material Sufficiency plan names eleven companies as having indicated they can commit uranium data toward a proposed defence priority permitting lane and toward stocking the Strategic Uranium Reserve: Anfield Energy, Cameco Resources, DISA, enCore Energy, Energy Fuels, General Atomics, IsoEnergy, Laramide Resources and NuFuels, Strata Energy, Uranium Energy Corporation and Ur-Energy. Five of them, enCore Energy, Energy Fuels, DISA, IsoEnergy and Laramide Resources and NuFuels, are named as committed to preparing the 60-day permitting report. The workforce plan names Constellation and Oklo as reviewers and 3M as a contributor.
Several other slots in all three plans read "companies to be identified".
The deliverable worth watching
The Market-Integrated Fuel Utilization plan gives its committee 60 days to report on how a coordinated demand aggregation mechanism for reactors, critical components and materials could be established and operated, and it asks the committee to assess the feasibility of coordinated or pooled purchasing. The same plan asks for a funding roadmap for a proposed Advanced Fuel Availability Program built on fixed-price offtake agreements, and it names one possible source of the money outright: accrued interest on the Nuclear Waste Fund, or congressional appropriations.
The Material Sufficiency plan sets its own arithmetic against a stated goal of 400GW of nuclear capacity by 2050, and asks for supply and demand surveys of conversion and enrichment capacity running through that year, developed with the Nuclear Energy Institute and an independent third party.
No plan sets a price, a quota or an allocation. What they set is a table, a transcript, and a lawyer at the end of it.
