The opinion of the court was delivered by: GREEN
This action is brought by three members of Congress (one United States Senator and two United States Representatives)
and six self-described public interest organizations
against various individuals within the executive branch of the United States Government.
Each of the defendants was allegedly involved in the negotiation, review, recommendation, and/or authorization of identical provisions of Agreed Minutes which are an integral part of the Agreement for Cooperation between the United States of America and Sweden Concerning Peaceful Uses of Nuclear Energy (the Swedish Agreement) and the Revised Agreement for Cooperation between the United States of America and Norway Concerning Peaceful Uses of Nuclear Energy (the Norwegian Agreement) (collectively "the Agreements"). Plaintiffs assert that these Agreements (in particular, the Agreed Minutes thereto) violate provisions of the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, as amended by the Nuclear Non-Proliferation Act of 1978 ("the NNPA"), Pub. L. No. 95-242, 92 Stat. 120 (Mar. 10, 1978), in that they grant the advance long term consent of the United States to the transfer by Sweden and Norway of spent nuclear reactor fuel for reprocessing at facilities in the United Kingdom and France, subject to certain limitations.
This action involves interpretation of the Atomic Energy Act/NNPA provisions concerning international management of spent nuclear reactor fuel. Spent fuel is nuclear reactor fuel that has been irradiated in a nuclear reactor in order to produce power through nuclear fission. The physics of the nuclear fission reaction need not be described here.
For our purposes, it will suffice to recognize a nexus between the civilian nuclear power process and the risk of proliferation of nuclear explosives. While spent fuel used in a civilian fission reactor cannot be directly fashioned into a nuclear explosive, it can be reprocessed to provide weapons grade plutonium suitable for nuclear weapons manufacture. Thus, a spent fuel management policy is essential to prevent diversion of nuclear materials into the hands of would-be weapons manufacturers.
One aspect of that policy under the Atomic Energy Act and NNPA is the focus of this case.
Plaintiffs seek a judicial determination that the Norwegian and Swedish Agreements violate certain spent fuel management provisions of the Atomic Energy Act as amended by the NNPA. They further seek a mandatory injunction requiring the Secretary of State of the United States and the Secretary of Energy of the United States to review case by case all transfers from Sweden and Norway of spent reactor fuel subject to the Agreements for purposes of reprocessing. Complaint at 27. Defendants have moved to dismiss the complaint on the grounds that (1) the case presents a nonjusticiable political question, (2) plaintiffs are without standing to sue, and (3) Congress intended to preclude judicial review of agreements for nuclear cooperation, including the Agreements at issue here.
Under the Atomic Energy Act of 1954, an agreement for cooperation is the fundamental mechanism for nuclear cooperation between the United States and other nations or international organizations. Such bilateral agreements provide the framework for technical cooperation and for export of certain nuclear materials from the United States to nations abroad, and for safeguarding of exported items against theft, diversion or illicit use; moreover, an agreement for cooperation is a prerequisite to the licensing of certain nuclear exports. See Note, Nuclear Proliferation and Subsequent Arrangements for Retransfer for Reprocessing (hereinafter "Nuclear Proliferation"), 20 Va. J. Int'l L. 99, 100 n.13 (1979), citing Library of Congressional Research Service, United States Agreements for Cooperation in Atomic Energy, prepared for Senate Comm. on Government Operations, 94th Cong., 2d Sess. (Comm. Print 1976) at CRS-24; see also 42 U.S.C. § 2153.
(5) a guaranty by the cooperating party that any material or any Restricted Data transferred pursuant to the agreement for cooperation and. . . any production or utilization facility transferred pursuant to the agreement for cooperation or any special nuclear material
produced through the use of any such facility or through the use of any material transferred pursuant to the agreement, will not be transferred to unauthorized persons or beyond the jurisdiction or control of the cooperating party without the consent of the United States.
(7) [except in cases not here applicable] a guaranty by the cooperating party that no material transferred pursuant to the agreement for cooperation and no material used in or produced through the use of any material, production facility, or utilization facility transferred pursuant to the agreement for cooperation will be reprocessed, enriched or (in the case of plutonium, uranium 233, or uranium enriched to greater than twenty percent in the isotope 235, or other nuclear materials which have been irradiated) otherwise altered in form or content without the prior approval of the United States.
Procedurally, section 123 allocates responsibilities and establishes steps for negotiation, review and approval of agreements for cooperation. Under this section, agreements are to be negotiated by the Secretary of State, "with the technical assistance and concurrence of the Secretary of Energy and in consultation with the Director of the Arms Control and Disarmament Agency" ("ACDA"). 42 U.S.C. § 2153(a). The President then is to consider the recommendations of these officials and of the Nuclear Regulatory Commission, as well as an unclassified nuclear proliferation assessment statement prepared by ACDA. Id. Presidential approval of an agreement requires a written determination by the President that "the performance of the proposed agreement will promote, and will not constitute an unreasonable risk to, the common defense and security." 42 U.S.C. § 2153(b). The Act also provides for Congressional review of agreements for cooperation: certain agreements (including the Norwegian and Swedish Agreements at issue here) must be "submitted to the Congress, together with the approval and determination of the President, for a period of sixty days of continuous session . . . and referred to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate." 42 U.S.C. § 2153(d). Procedures for Congressional consideration of Presidential submissions are set forth at 42 U.S.C. § 2159. That section provides for consideration by the relevant committees and the respective Houses of Congress, debate, and passage of a concurrent resolution approving or disapproving the agreement under review. 42 U.S.C. § 2159(b)-(f). In keeping with Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), Congress cannot veto an agreement for cooperation by a concurrent resolution pursuant to this section.
Section 303 of the NNPA added to the Atomic Energy Act section 131, which deals with "subsequent arrangements" arising under agreements for cooperation, 42 U.S.C. § 2160. Such subsequent arrangements are entered into by the United States and another country after the agreement for cooperation between those parties takes effect, and may involve, inter alia,
[United States] approvals for the transfer, for which prior approval is required under an agreement for cooperation, by a recipient of any source or special nuclear material, production or ...