LEGAL DEFICIENCIES IN THE PROPOSED AGREEMENT FOR NUCLEAR COOPERATION BETWEEN THE UNITED STATES AND EURATOM

January 29, 1996

On November 29, 1995, the Administration submitted to the Congress, pursuant to Sections 123b. and d. of the Atomic Energy Act of 1954, 42 U.S.C. 2153(b),(d) (the "Act"), as amended by the Nuclear Non-Proliferation Act of 1978, Pub. L. No. 95-242, 92 Stat. 120 (March 10, 1978) (the "NNPA"), a proposed agreement for cooperation in the peaceful uses of nuclear energy between the European Atomic Energy Community ("EURATOM") and the United States (the "EURATOM Agreement"). See H. Doc. No. 138, 104th Cong., 1st Sess. (November 29, 1995).

The submission of the EURATOM Agreement followed a determination that the Agreement met all statutory requirements. See Memorandum, dated September 22, 1995, from Secretary of State Christopher and Secretary of Energy O'Leary to President William J. Clinton, H. Doc. No. 138 at 137. Under the procedures of Section 123, the Congress now has a total of ninety legislative days to review the Agreement and decide whether it favors or does not favor the Agreement. If the Congress takes no action, the Agreement will automatically go into effect at the end of the review period. Should the Congress not favor the Agreement, it may adopt a joint resolution of disapproval which, unless vetoed by the President, will prevent the Agreement from coming into force.

The NNPA establishes a finely-tuned system of U.S. "consent rights" over activities involving U.S.-origin facilities, equipment and materials. These consent rights, to be embodied in the first instance in agreements for nuclear cooperation and thereafter confirmed in individual export licensing proceedings and exercised in connection with the authorization of "subsequent arrangements", are fundamental to achievement of U.S. non- proliferation objectives. Yet, contrary to the Administration's determination, the proposed EURATOM Agreement effectively ignores this consent rights regime and cedes unprecedented control over activities involving U.S.-origin facilities, equipment and materials to the Europeans themselves. Indeed, it essentially authorizes a wide range of activities (including reprocessing of nuclear fuel and subsequent storage and use of recovered plutonium), required by law to be subject to the exercise of consent rights, over the entire term of the Agreement.

In the circumstances just described, the proper course for the Congress is to reject the Agreement. At the least, the Congress should insist, following consultation with the Executive Branch pursuant to Section 123b., that the Agreement be renegotiated or resubmitted with a waiver of statutory requirements. In that case, in accordance with the provisions of Section 123d. of the Act, the Agreement would not come into force unless the Congress adopted a joint resolution affirmatively approving it.

Overview -- The NNPA, Consent Rights and the EURATOM Agreement

In adopting the NNPA in 1978, the Congress intended to establish clear and unequivocal controls over a range of activities in recipient countries involving U.S.-origin nuclear facilities, equipment and fuel. These controls were to be reflected in the first instance in a series of nine specific guarantees in agreements for cooperation entered into under Section 123 of the Act. The controls were meant to apply equally to all our trading partners in order to assure comprehensive and effective protections governing commerce in sensitive items, especially U.S.-origin, weapons-usable fissile material.

The NNPA controls were to be confirmed in connection with individual export licensing decisions for facilities and fuel. See Act, Section 127, 42 U.S.C. 2156. Thereafter, the controls, in the form of "consent rights", were to be applied in connection with the approval of individual "subsequent arrangements", most importantly those relating to reprocessing and retransfer of recovered plutonium, under Section 131 of the Act, 42 U.S.C. 2160.

In short, over the term of cooperation with foreign trading partners, effective, consistent and continuing oversight and control were to be maintained by the United States. The House Report on the NNPA, in particular, underscored that "variable controls" which had existed in the past were unacceptable and needed to be replaced, among other things, by a "clear and simple" consent rights regime, which would secure for the United States a continuing veto power over the use of its facilities, equipment and materials and ensure the application of "consistent" standards -- standards which would "be unqualified and set forth in the agreement unambiguously." H.R. Rep. No. 587, 95th Cong., 1st Sess. 4, 7, 13-14 (1977).

The elaborate, iterative process established by the NNPA for the implementation of U.S. nuclear cooperation with its trading partners is deliberate and is fundamental to the achievement of U.S. non-proliferation goals. The language of the Act and its legislative history clearly contemplate that several actions subsequent to the entry into an agreement for cooperation -- including initial transfer of facilities, material and equipment from the United States and then an indication by the receiving country of an intent that reprocessing, for example, is desired - - must take place before consent and approval rights guaranteed in an agreement are called into play. This iterative process was designed to allow the United States to have a free hand to pursue its non-proliferation objectives as and if circumstances and/or understandings change.

Contrary to the assertions of the Administration, see Arms Control and Disarmament Agency, Nuclear Proliferation Assessment Statement II-20 (September 8, 1995) (the "NPAS"), H. Doc. No. 138 at 113, the review of an agreement by the President and the Congress at the time of entry into force, no matter how thorough, cannot substitute for later reviews by both the Executive Branch and the Congress under statutory procedures for subsequent arrangements. Upfront, open-ended authorizations for fuel cycle activities, in other words, are fundamentally incompatible with the NNPA. As Senator Glenn, one of the principal sponsors of NNPA, stated over a decade ago when the concept of advance, long-term consent was first unveiled by the Reagan Administration:

I believe ...the ... proposal for one-shot, long-term programmatic approvals is contrary to the Non- Proliferation Act. Without going into all the details here, the text and legislative history of that act make clear that Congress was fully aware of the longstanding practice of reviewing subsequent arrangements on a case-by-case basis.

One of the principal reforms Congress introduced in the act was to bring this approval process, which had long been handled behind the scenes, into the public arena by requiring each subsequent arrangement to be justified publicly and to lay before Congress for fifteen days of continuous session. This congressional oversight would be crippled if the United States were to grant a long-term generic approval which might last for a period of decades ....

The NNPA also established a tough standard for reviewing subsequent arrangements based upon a determination that they would not cause a significant increase in the risk of proliferation beyond that which existed at the time the approval was requested.

Given the practice at the time this provision was adopted, it is clear that Congress had in mind an examination of proliferation risk on a relatively frequent basis, with the issue to be evaluated each time a new subsequent arrangement request came forward. The ... [long-term consent] proposal, in contrast, would require the implausible finding that activities involving major quantities of weapons-usable plutonium were not going to increase proliferation risks for a period of up to 30 years. Such an inherently arbitrary determination is totally at odds with the kind of careful, ongoing scrutiny Congress intended for these transactions when it adopted the increased proliferation risk standard.

See Hearings on Plutonium Use Policy before the Subcommittee on Energy, Nuclear Proliferation and Government Processes of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess. 10-11 (1982). In short, the elimination of opportunity for subsequent reviews under an agreement for cooperation -- the very heart of the arrangement proposed for EURATOM -- subverts one of the central purposes of the Congress in enacting the NNPA.

In the NNPA, the Congress also elevated the so-called "timely warning" criterion of Section 131 to a place of central prominence in the statutory scheme. Section 131b.(2) of the Act, 42 U.S.C. 2160(b)(2), provides that, in assessing the appropriateness of requests to reprocess U.S.-origin fuel, the Administration must make a determination that such reprocessing "will not result in a significant increase in the risk of proliferation", giving "foremost consideration ... to whether or not the reprocessing ... will take place under conditions that will insure timely warning to the United States of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device."

The "timely warning" criterion is a critical element of the Act's non-proliferation regime. See S. Rep. No. 467, 95th Cong., 1st Sess. 10-12 (1977); 124 Cong. Rec. S.1310 (daily ed., February 7, 1978) (Statement of Senator Glenn). It was intended by the Congress to be primarily a technically-based criterion, judged in light of the workability of safeguards. E.g., H.R. Rep. No. 587, 95th Cong., 1st Sess. 18-19 (1977); S. Rep. No. 467, 95th Cong., 1st Sess. 11-12 (1977). More than ten years ago, the Nuclear Regulatory Commission confirmed this interpretation in connection with the first major shipment of U.S.-controlled plutonium to Japan, stating, "Congress intended timely warning to be essentially a technical matter involving such factors as safeguards measures applied to the material and the technical ease of incorporating the material into a nuclear explosive device." Letter, dated September 13, 1984, from the Nuclear Regulatory Commission to the Department of Energy, cited in S. Rep. No. 275, 100th Cong., 1st Sess. 5 (1988).

Yet, in the Administration's hands in connection with the EURATOM Agreement, the criterion is treated as essentially a political one, with only the most cursory discussion of technical issues. This leaves the criterion little different than the catch-all statutory standard of "inimicality" under Section 131. See Department of Energy, Analysis of Consents and Approvals 54-64, 67-68 (September 8, 1995) (the "DOE Analysis"), H. Doc. No. 138 at 213-223, 226-227. Such treatment essentially empties the criterion of meaning and relevance.

Finally, the NNPA was enacted, in part, to give the Congress and the public a continuing opportunity to scrutinize implementation of nuclear cooperation activities. See, e.g., 123 Cong. Rec. 30295 (September 22, 1977 (Statement of Rep. Zablocki); 124 Cong. Rec. S.1310 (daily ed., February 7, 1978) (Statement of Senator Glenn). Under the EURATOM Agreement, however, there may well be radical, highly sensitive changes in European atomic energy programs over time. All manner of future facilities for plutonium handling and use (including both conventional and advanced reactors), not only in the EURATOM countries of today but also in a EURATOM of tomorrow stretching from the Atlantic to the Urals, can be brought under the umbrella of authorized activities by a simple notification procedure.

There is no requirement whatsoever in the EURATOM Agreement that the Congress or the public be notified or that changes in the nature and scope of European programs be subject to any effective oversight or review. Indeed, under Article 8(3) of the Agreement, even the names and locations of facilities where U.S.- origin plutonium may be stored and used must be held "confidential" by the United States, if EURATOM so requests. When this lack of transparency is coupled with the lack of obligation in the Agreement upon EURATOM to provide the United States with current inventory information so as to allow the tracking of U.S.-origin highly enriched uranium and plutonium, it is plain that the agreement reached scarcely comports with the Act's solicitude for an "open" process of nuclear cooperation.

(2) EURATOM And the Concerns of the Framers of the NNPA

There is no doubt that the situation in EURATOM was at the forefront of Congressional concern in 1978. The existing agreements for cooperation with EURATOM did not reserve to the United States any consent rights over the reprocessing of U.S.- origin fuel and the subsequent use of recovered plutonium. The Congress plainly wanted this situation changed.

In the NNPA, the Congress adopted a time-limited waiver of the basic export requirement that the United States have prior approval rights over reprocessing. Act, Section 126a.(2), 42 U.S.C. 2155(a)(2). This waiver was for an initial twenty- four months, subject to annual renewal by the President thereafter. However, the Congress could not have been more clear or explicit in stating its intention that the President was to proceed to renegotiate the agreements with EURATOM to remedy their deficiencies, i.e., to secure consent rights over reprocessing and plutonium use. H.R. Rep. No. 587, 95th Cong., 1st Sess. 23-24 (1977); S. Rep. No. 467, 95th Cong., 1st Sess. 16-17 (1977). The House Report indeed underscored in this context the "central aim of the bill ... to assure that rational criteria are evenly and consistently applied," H.R. Rep. No. 587 at 24, while the Senate Report stressed that acceptance of U.S. approval rights over reprocessing was a "necessary provision[]" of any new agreement with EURATOM. S. Rep. No. 467 at 17.

(3) The Past Debate over Consent Rights

The proper implementation of the NNPA consent rights regime has been the subject of heated debate over the years. The legality of so-called "advance, programmatic consents" given concurrently with entry into force of new agreements has been particularly controversial. The first advance consent arrangements, with Sweden and Norway, were subject to litigation challenging their lawfulness. This litigation was ultimately dismissed on separation of powers grounds, without the court ever passing on the legality of the consent arrangements themselves. See Cranston v. Reagan, 611 F. Supp. 247 (D.D.C. 1985).

More far-reaching arrangements with Japan, although they eventually entered into force, were found to be contrary to the NNPA by the Senate Foreign Relations Committee, which concluded, "The consent embodied in this agreement ... is wholly contrary to the case-by-case review procedures mandated by the Nuclear Non- Proliferation Act and to the intent and spirit of that act ... [and] renders the 'timely warning' criterion [42 U.S.C.S. 2160(b)(2)] of the Nuclear Non-Proliferation Act meaningless." S. Rep. No. 275, 100th Cong., 1st Sess. 4 (1988). These views were echoed by a majority of the members of the House Foreign Affairs Committee in a December 21, 1987 letter to President Reagan. Similar conclusions were reached by the Comptroller General, see General Accounting Office Report No. B- 230201 (February 29, 1988), and the American Law Division of the Congressional Research Service. American Law Division, "U.S.- Japanese Nuclear Cooperation Agreement and Its Conformance to Legal Requirements" (February 5, 1988).

The grounds for finding programmatic, advance consent arrangements contrary to the NNPA -- elimination of case-by-case reviews conducted periodically over the term of an agreement and dependence upon a political, rather than technical, "timely warning" determination -- are as valid today as they were a decade ago. Indeed, there have been no changes in law or fact that would warrant any different conclusions. To the contrary, the prospect of many tons of surplus, stockpiled plutonium (most of it from U.S.-origin nuclear fuel) entering commerce from European plants make these grounds all the more compelling.

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