The Export and Proliferation of Nuclear Technology

The Export and Proliferation of Nuclear Technology

Session 11 of the Congressional Study Group, Wednesday, May 11, 2022 “”……………………………………………………. Greenberg and Sokolski began the session with some opening remarks focusing on the Nuclear Non-Proliferation Act (“NNPA”). Below is a recording:

Greenberg then discussed the questionable lawfulness of advanced long-term consent agreements for reprocessing and the meaning of timely warning criteria in the Act. As for advanced long-term consent, the goal of the statute was to impose clear controls on back-end fuel cycle activities; that is inconsistent with allowing our trade partners to do whatever they please once they retain control of the facilities. Consent cannot mean abdication of future consent rights. In regard to timely warning, Professor Greenberg noted that, under any interpretation of section 131(b), it is difficult to reconcile the need to make determinations about increases in proliferation-risk and timely warning of diversions with an effort to “crystal-ball” the risks of an agreement.

Greenberg then provided an overview of how Congress’s intent—and the basic principles underlying the NNPA—unraveled, from President Carter to W. Bush. He then fast-forwarded to the present, noting that in 2021, the issue of advanced long-term consent and the applicability of timely warning is more an academic, historical topic than a real, political problem. Principles of Chevron deference coupled with congressional acquiescence make any legal challenge a losing proposition. Still, the argument against 30-year advanced consent has the intellectual high ground. And nothing is stopping President Biden from exercising control over back-end fuel cycle activities.

Sokolski spoke next. He argued that Congress has much more power regarding the export and proliferation of civilian nuclear technology than it thinks. Indeed, Congress can condition the executive branch’s authority to seal nuclear cooperative agreements with foreign entities, and it can condition the executive’s authority to strike nuclear cooperative agreements (and has done so previously). Additionally, Congress can treat nuclear cooperative agreements as it currently does trade agreements—that is, by requiring majority approval in each House of Congress.

As it currently stands, however, Congress takes a hands-off approach to nuclear cooperative agreements. The presumption, adopted 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, wherein Congress delegated most of its nuclear trade-making authority to the President. But there is no reason why Congress cannot regain control today. To be sure, Congress has asserted some control in the past and has forced the President’s hand on several occasions, forcing him to amend and/or suspend the U.S.-Russia, U.S.-UAE, U.S.-Vietnam, and the U.S.-China agreements. These examples make clear that congressional control is possible here—and it is preferable.

The study group then moved to open discussion where participants raised a number of related issues, including the role of environmental safeguards, the role of congressional oversight versus legislative control, and procedural reasons why Congress may or may not wish to be involved in closer scrutiny of relevant agreements. https://www.brookings.edu/research/the-export-and-proliferation-of-nuclear-technology/