The export and proliferation of nuclear technology

On February 5, 2021, the Congressional Study Group on Foreign Relations and National Security met to discuss the export and proliferation of civilian nuclear technology. During the first term of the Biden administration, the United States will have to decide not only to re-enter a nuclear agreement with Iran, but also to renew or modify the American civilian nuclear cooperation agreements with Egypt (2021) , Morocco (2021), South Korea (2021) and Turkey (2023), conclude an agreement with Saudi Arabia and resume or expand nuclear cooperation with Russia and China. But what input does Congress have in these decisions? And how could he choose to structure the judicial authorities differently if he wanted to expand this role?

To discuss these issues, the study group was joined by two outside experts: Henry Sokolski, executive director of the Nonproliferation Education Center; and Eldon Greenberg, former Deputy General Counsel of the United States Agency for International Development (“USAID”), among other senior officials.

Prior to the session, attendees circulated several recommended background readings, including:

  • Shayan Kirbassi, “Civil Nuclear Cooperation Through 123 Agreements: An Introduction”, Straight (October 15, 2020);
  • Victor Gilinsky and Henry Sokolski, “The Nonproliferation Gold Standard: The New Normal?” Arms control today (October 2019);
  • Gregory S. Jones, “Can Bulk Nuclear Fuel Facilities Be Effectively Shielded?” Center for Nonproliferation Policy Education (August 5, 2020); and
  • Eldon VC Greenberg, “US Law, Advance Consents for Reprocessing and the ‘Timely Warning’ Standard,” Nonproliferation Policy Education Center (May 2019).

Greenberg and Sokolski began the session with some introductory remarks focusing on the Nuclear Non-Proliferation Act (“NNPA”). Below is a recording:

You can also access a copy of Sokolski’s PowerPoint slides here.

Greenberg began with an overview of the history of the NNPA, noting that it is marked by the systematic downgrading of basic congressional intent by the executive branch. In 1996, and it continues today, the United States had little control over back-end fuel cycle activities with its major trading partners. This is not the intention of Congress.

Greenberg then discussed the dubious legality of advanced long-term consent agreements for reprocessing and what timely warning criteria mean in law. As for long-term prior consent, the purpose of the law was to impose clear controls on back-end fuel cycle activities; this is inconsistent with allowing our business partners to do whatever they want once they retain control of the facilities. Consent cannot mean the abdication of future consent rights. With regard to timely warning, Professor Greenberg noted that, however section 131(b) is interpreted, it is difficult to reconcile the need to make decisions about increases in the risk of proliferation and timely warning of diversions with an effort to “crystal ball” the risks of a deal.

Greenberg then provided an overview of how congressional intent—and the basic principles underlying the NNPA—unfolded from President Carter to W. Bush. He then moved quickly to the present, noting that in 2021, the issue of long-term advanced consent and timely disclaimer applicability is more of an academic and historical matter than a real political issue. Principles of Chevron the deference associated with Congressional acquiescence makes any legal challenge a losing proposition. Yet the argument against 30-year prior consent has intellectual loftiness. And nothing prevents President Biden from exercising control over the activities downstream of the fuel cycle.

Sokolski then spoke. He argued that Congress has far more power than it realizes when it comes to the export and proliferation of civilian nuclear technology. Indeed, Congress can condition the executive branch’s authority to enter into nuclear cooperation agreements with foreign entities, and it can condition the executive branch’s authority to enter into nuclear cooperation agreements (and has done so previously). In addition, Congress can treat nuclear cooperation agreements as it currently does trade agreements, that is, by requiring majority approval in each House of Congress.

As things stand, however, Congress takes a hands-off approach to nuclear cooperation agreements. The presumption, enacted in the Atomic Energy Act of 1946, was that Congress could control whether nuclear materials and information were shared with other countries. This changed with President Eisenhower and the Atomic Energy Act of 1954, in which Congress delegated most of its authority over nuclear commerce to the President. But there’s no reason Congress can’t regain control today. Admittedly, Congress has exercised some control in the past and has repeatedly forced the president’s hand, forcing him to amend and/or suspend the US-Russian, US-Emirati, US-Vietnamese, and US-China agreements. These examples make it clear that congressional oversight is possible here – and preferable.

The study group then moved into an open discussion where participants raised a number of related issues, including the role of environmental safeguards, the role of congressional oversight versus legislative oversight, and the procedural reasons why Congress may or may not wish to be involved in further scrutiny of relevant agreements.

Visit the Congressional Study Group on Foreign Relations and National Security home page to access notes and information on other sessions.

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