Should India amend its nuclear energy laws?

The Hindu

2 days ago

Discussions are ongoing in India to amend the nuclear liability framework, regulated by the Civil Liability for Nuclear Damages Act (CLNDA), 2010, and the Atomic Energy Act (AEA), 1962, to allow private companies to build and operate nuclear energy-generation facilities. This move is part of a broader strategy to expand India's nuclear energy capacity from the current 8 GW to 100 GW by 2047, aligning with the country's clean energy goals. Should India amend its nuclear energy laws? Ashley Tellis and D. Raghunandan discuss the question in a conversation moderated by Kunal Shankar.
Edited excerpts:
Do you support the proposed amendments to India's nuclear energy laws?
Ashley Tellis: If India has set for itself a goal of expanding nuclear energy, it cannot reach that goal without expanding its domestic capacity. If we are talking of a timeline that is, say, 20 years, we must supplement those indigenous capabilities with foreign participation. This is where there is a roadblock. Current Indian law prevents foreign participation. The imagined future when we negotiated the U.S.-India civil nuclear deal in 2008 was that foreign companies would participate in India's nuclear renaissance. That dream has been frustrated by the legal evolution in the liability regime in India since 2000. So I would cheer the Prime Minister on, with respect to getting these amendments done.
D. Raghunandan: The idea of amending the law to attract foreign investment to expand nuclear power generation capacity in India is based on two flawed arguments or assumptions. The first is that the roadblock to expansion of nuclear power is one of investment. The second is that no major nuclear supplier country has shown domestic capacity expansion at the rate at which we assume India will expand. We have not seen that happen in the U.S. or France. Britain does not have much capacity anyway; Japan is on a slow track. Only China, perhaps, has the capacity to expand at scale and I don't see major Chinese investment coming into India.
Ashley Tellis: The Indian nuclear liability law is a genuine impediment to foreign participation in the sector. Companies from France, Japan, and the U.S. have said they cannot enter the market if the current law stands. Russia is an interesting case because Rosatom is a parastatal. Even Rosatom refused to accept India's liability law. India indemnified Rosatom through a contractual agreement reached in 2008 before the liability law was passed. After 2010, that is not an option available to the government because to indemnify through a private contract would violate parliamentary intention. This law affects Indian industry as well. The Department of Atomic Energy (DEA) had NPCIL (Nuclear Power Corporation of India Ltd) indemnify Indian private suppliers through contractual agreements. The problem started at Kovvada; after the civil liability legislation was passed, domestic suppliers refused to supply components. So NPCIL, through contractual agreements, waived liability using a rationale that if there is a failure in components made to their specifications, it is NPCIL's fault, a logic that is suspect and never tested in court. Raghu is right: the U.S. is driving this pressure, partly for political and economic reasons. If we want foreign participation, we have to amend the law.
Regarding supply-side capacity, whether we have it now is suspect. But this investment in India is over a long horizon. Western nuclear suppliers are responsive to market signals and will build up capacity if demand presents itself.
One of the reservations with private companies' participation has been about technology transfer, particularly as this is considered a strategic space with attendant security risks. Even if India were to amend the AEA, would the level of technology transfer that took place under agreements in the past between Russia and India take place in future? Particularly in the case of the Small Modular Reactors (SMRs) that appear to be gaining ground as a safer alternative to large nuclear reactors?
Ashley Tellis: This is a commercial question. If your suppliers are private entities, their technology transfer decisions will be based on profitability. Governments don't have powers to force a private entity to transfer technology. The U.S. will have a role through its licensing process for what technology transfer is permitted. For example, the U.S. permitted Westinghouse to transfer certain reactor design technologies to China, a decision Westinghouse probably rues because the AP1000 technology was cloned by the Chinese. My expectation is that India will seek technology transfer and will probably get some, consistent with company profitability and what the U.S. government will want to protect for national security or proliferation reasons. Even Rosatom has not done a complete transfer of VVER-1000 technology to India; they have allowed India to build sub-components but maintain proprietary control over many elements, especially in the hot section, related to advanced materials and chemistry. This will not be a showstopper. Newer companies involved in SMRs are actually more enthusiastic about technology transfer than old majors because it is an economic decision to access the market, get economies of scale, and increase profit. This will not be a serious problem. The bigger problems are high capital costs and how much money will India be able to invest.
D. Raghunandan: A lot of this debate is based on hypotheticals and we cannot frame policies based on those. For 15 years, India has been chasing technology transfer and investment in defence, increasing FDI from 25% to 100%, yet no major foreign company invested or transferred technology because it's not in their interest. So I am not convinced that new futuristic technologies such as SMRs, which India does not possess, will transform the nuclear energy landscape if they come to India. The argument often comes down to making smaller 200 MW or even 60-70 MW reactors instead of 500 MW ones. In its last Budget, India earmarked money for five small reactors based on the pressurised heavy water cycle that it is familiar with. The question is attracting investment to scale this up.
Dr. Tellis, considering India is a developing country with other commitments, for these newer SMR suppliers, would it not be fair to seek compensation [if things go wrong] because it's an untested technology?
Ashley Tellis: No, I don't think so. The Convention on Supplementary Compensation (CSC) is an international effort to create an environment conducive for expanding nuclear power production and understanding its inherent risks. The CSC's purpose in a nuclear accident is not to litigate who is responsible, but to rush compensation to those affected. It has three key principles: first, all liability is channeled to the operator. Second, a pre-accident fund is created (the Convention has a three-tiered fund). Third, supplier liability is permitted if it's through contract or if there are issues of wilful misconduct; there isn't an overarching principle of supplier liability because of the fear of litigation delays. This model assumes an environment with adequate design review and a neutral regulatory authority not linked to the operator or supplier.
If a real nuclear accident occurs, the sovereign on whose territory it occurs is the ultimate guarantor of protection. The question was how to create a regime allowing them to pick from a readily available pool of money, hence the insurance pool systems. Regarding SMRs, the problem is not design immaturity. Many SMRs have very advanced passive designs. The real problem SMRs will face is economic: capital costs are still extremely high. We don't know if the SMR cost will be disproportionately smaller. A big assumption with SMRs is that they will be manufactured through an assembly line process in a factory and components transported and assembled on site. I have greater faith in the SMR technology than in the assembly line model of manufacturing just yet.
Listen to the conversation in The Hindu Parley podcast