they do not call for case by case review of retransfers.
The Norwegian and Swedish Agreements are the product of some five years of negotiation, which included extensive discussions of the prior consent issue. The advance consent provisions in those Agreements reflect a policy change brought about by the Reagan administration: previous presidential administrations, both before and after the passage of the NNPA, considered requests to retransfer and reprocess irradiated fuel elements on a case by case basis as they arose. See Plaintiffs' Memorandum at 5. The Norwegian and Swedish Agreements -- the first to include advance consent provisions -- were adopted through the process prescribed by statute and outlined above; that is, the Agreements were reviewed by the Secretaries of State and Energy, and the Director of ACDA, and those officials submitted to the President statements, findings, and/or recommendations as required under the Act. Each of those officials specifically addressed the matter of advance consent to retransfers for reprocessing with respect to proliferation risks; each concluded that execution of the Agreements would be compatible with United States nonproliferation policy. The Director of ACDA further concluded that the proposed Agreements met all substantive requirements of the Atomic Energy Act and NNPA. See Swedish Message, supra n. 7 at 45; Norwegian Message, supra, n.7 at 89. Upon review of those submissions, the Agreements, and the views of the Nuclear Regulatory Commission,
the President approved the Agreements and authorized their execution by memoranda dated November 21, 1983. Swedish Message at 45; Norwegian Message at 41.
Pursuant to Section 123, 42 U.S.C. § 2153(d), the President submitted the Agreements, together with statements of the Secretaries of State and Energy, the Director of ACDA, and the NRC, to the Congress on January 26, 1984. During the 60 days of continuous session that followed, neither House of Congress held hearings or requested the views of any of the affected agencies and departments as provided for in the Act, nor did either House of Congress attempt to pass a concurrent resolution disapproving either of the Agreements or take any other legislative action to disapprove the Agreements. After passage of the 60-day period and after approval of the Swedish Agreement by the Swedish Government, on April 11, 1984, the United States and Sweden exchanged diplomatic notes bringing that Agreement into force. On June 5, 1984, the Parliament of Norway approved the Norwegian Agreement, and the diplomatic notes bringing this Agreement into effect were exchanged on June 2, 1984.
Defendants deny that the Norwegian and Swedish Agreements -- including the advance consent provisions -- run afoul of the Atomic Energy Act and NNPA. Leaving aside the merits of the case, defendants argue in the instant motion that plaintiffs' claim is of a nonjusticiable nature, that plaintiffs lack standing to pursue it, and that the statute precludes judicial review of the Agreements.
Defendants argue that plaintiffs' attempt to invalidate the advance consent provisions of the Norwegian and Swedish Agreements presents a nonjusticiable political question. In defendants' view, this case places at issue United States nuclear nonproliferation policy and foreign relations, matters best (and necessarily) left to the political branches of government.
Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962) supplies the standards for identifying nonjusticiable political questions. That case sets forth six separate formulations:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217; see also Consumer Energy, Etc. v. FERC, 218 U.S. App. D.C. 34, 673 F.2d 425, 452 (D.C. Cir. 1982), aff'd 463 U.S. 1216, 103 S. Ct. 3556, 77 L. Ed. 2d 1402 (1983); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 599 (D.D.C. 1983); Crockett v. Reagan, 558 F. Supp. 893, 898 (D.D.C. 1982), aff'd 232 U.S. App. D.C. 128, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839 (1984). If any one or more of these conditions is inextricable from the case at bar, dismissal for nonjusticiability under the political question doctrine may well be appropriate. Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332 (S.D.N.Y. 1984), aff'd 755 F.2d 34 (2d Cir. 1985); see also Baker v. Carr, 369 U.S. at 217.
The Baker v. Carr criteria may be grouped and stated as three inquiries:
(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?