The U.S. could cooperate with foreign partners on uranium enrichment to wean nuclear power plants off Russian fuel. But should it?
Western efforts to sanction Russian energy exports following Moscow’s invasion of Ukraine have run into an uncomfortable truth: Russia supplies much of the enriched uranium fuel used to power existing nuclear reactors in the West (and will likely supply planned advanced reactors as well). This dependency is especially lucrative for Russia’s war economy and also makes essential utilities vulnerable to a sudden Russian decision to cut off fuel supply. Both the Biden administration and Congress are pushing to incentivize new uranium enrichment capability in the United States and are considering a ban on Russian uranium imports. What’s more, European enrichment firms are planning to increase their production capacity as well to lessen the West’s dependency on Russia for fuel.
One additional option the U.S. government might consider to bolster uranium enrichment capacity would be nuclear “friend-shoring”—a trade practice in which supply chain networks are realigned to manufacture in and source goods from countries that are geopolitical allies. In this case, the U.S. government would partner with other allied governments to construct new uranium enrichment facilities. Friend-shoring could enable shared financing and make use of some potential partners’ sizable industrial capacity to help diversify sources of enrichment supply, insulate against future market disruption, and challenge Russian market dominance. The U.S. already has partnerships with Australia and a group of European countries for uranium enrichment facilities on U.S. territory. Critically, friend-shoring also could involve transfers of enrichment technology or equipment to partner countries for use on their territories. This would constitute a major shift in U.S. policy with implications for the proliferation of nuclear weapons, and it would therefore present more difficult legal issues than enrichment cooperation would on U.S. territory.
The two pathways for producing fissile material for nuclear weapons are uranium enrichment and plutonium reprocessing. A uranium enrichment facility separates uranium isotopes to increase the concentration of uranium-235. Most commercial enrichment facilities use high-speed centrifuges, but enrichment can also be done with lasers and other techniques. Plutonium reprocessing involves separating plutonium from spent nuclear fuel, typically fuel from specialized reactors that maximize plutonium production. An enrichment facility configured to produce low-enriched uranium fuel for nuclear power plants can be reconfigured to produce highly enriched uranium for nuclear weapons. For that reason, the United States has maintained a long-standing policy disfavoring cooperation with other nations on these technologies, even for civil nuclear energy programs, given the risk that these technologies might be shifted to producing fissile material for nuclear weapons. Efforts to control the supply of uranium enrichment and other such sensitive, dual-use technologies are among the reasons why just nine countries today possess nuclear weapons.
A critical threshold question is whether the United States has enrichment equipment or technology that could be exported. The U.S. government no longer engages in uranium enrichment. There is currently just one U.S. company, Centrus, that operates an enrichment facility utilizing U.S.-origin technology—it recently inaugurated a new enrichment facility in Piketon, Ohio, and is looking to expand operations there. As a private enterprise, it would have to decide that it wished to export its technology for use in an overseas facility. There are also commercial enrichment joint ventures with European companies operating on U.S. territory, but these enrichment facilities utilize European-origin centrifuge technology, and the applicable intergovernmental agreements do not permit reexport of the equipment and technology, so those governments would have to agree to amend the agreements to enable cooperation in a third country. Even if these European governments were willing to consider amending these agreements, their decision would presumably hinge on the nonproliferation credentials of the proposed recipient of the reexport.
Assuming a U.S. or European enrichment technology could be identified for export, various crucial questions remain: How does U.S. law treat possible enrichment transfers? What are the associated policy considerations? And what concerns might be relevant for a congressional review of such a strategy?
U.S. Law Concerning Uranium Enrichment Cooperation
The Atomic Energy Act of 1954 is the primary U.S. statute that governs nuclear energy cooperation with other countries. Prompted in part by the 1974 “peaceful” nuclear explosion conducted by India, the Carter administration and Congress enacted the Nuclear Nonproliferation Act of 1978 (NNPA), which amended the Atomic Energy Act to more explicitly disfavor enrichment and reprocessing cooperation. The NNPA did not prohibit international cooperation on uranium enrichment altogether. Rather, it called for (a) increased U.S. enrichment capacity, (b) fuel supply assurances so that other nations would not need to develop their own enrichment capabilities, and (c) binding international arrangements to guarantee nuclear fuel to any nation committed to nuclear nonproliferation. Notably, under the Atomic Energy Act, U.S. fuel assurances were intended for states that “do not establish any new enrichment or reprocessing facilities under their de facto or de jure control, and place any such existing facilities under effective international auspices and inspection.” Although these objectives were never fully realized, they did constrain potential foreign cooperation on enrichment.
The NNPA also modified Section 123 of the Atomic Energy Act, which specifies conditions for nuclear cooperation agreements (known as “123 agreements”) in ways that tightly regulate potential transfers of enrichment equipment or technology. These agreements cover U.S. transfers of nuclear power reactors, nuclear reactor components, and nuclear material (typically natural and enriched uranium), and specify the provisions and assurances U.S. partners must satisfy, especially relating to nonproliferation and security of nuclear facilities and materials. Following enactment of the NNPA, the Atomic Energy Act makes clear that transfers of “major critical components”—that is, parts essential to the operation of enrichment or reprocessing facilities such as centrifuges—may occur only if the applicable 123 agreement explicitly provides for such transfers. The NNPA also imposes similar requirements for sharing of enrichment-related technology—that is, “sensitive nuclear technology,” which it defines as nonpublic information “important to the design, construction, fabrication, operation or maintenance of a uranium enrichment or nuclear fuel reprocessing facility.” Third, the act regulates the sharing of “Restricted Data,” which is “all data concerning … the production of special nuclear material; or the use of special nuclear material in the production of energy.” Section 144(a) of the Atomic Energy Act permits cooperation involving the “communication” of Restricted Data only if “the cooperation is undertaken pursuant to an agreement for cooperation entered into in accordance with section 123.”
Thus, any nuclear friend-shoring involving the transfer of enrichment equipment and/or related technology and information would be subject to fairly stringent nonproliferation conditions under the Atomic Energy Act. Enrichment cooperation is possible, but there are high bars that the executive branch would need to clear in negotiating a 123 agreement that entails such cooperation with a foreign partner. Further, Congress is likely to take a keen interest in the issues and implications of enrichment cooperation during its mandatory review of all nuclear cooperation agreements.
U.S. Policy on Enrichment Cooperation
In addition to constraints in U.S. law, there are long-standing U.S. policies that bear on enrichment cooperation with foreign partners. Consistent with national policy disfavoring the spread of enrichment and reprocessing capabilities, U.S. administrations have sought to constrain such sensitive cooperation internationally through the Nuclear Suppliers Group (NSG), a multilateral nuclear trade policy body that formed in the wake of India’s 1974 nuclear test. Today, the NSG membership of 48 countries comprises nearly all current and potential suppliers of nuclear technology. Its guidelines—which specify stringent nonproliferation conditions for the supply of nuclear equipment and technology—are not legally binding under international law, but the participants generally seek to comply with them, including by enshrining NSG technology lists in their national export control guidelines.
In the late 2000s, the United States led a push at the NSG to institute a ban on further transfers of enrichment and reprocessing capabilities to any state that did not already possess them. This effort confronted significant opposition, but after substantial diplomatic effort by the U.S. and other governments, the group reached a compromise agreement in 2011. Today, the NSG guidelines stipulate that “[s]uppliers should exercise a policy of restraint in the transfer of sensitive facilities, equipment, technology and material usable for nuclear weapons or other nuclear explosive devices.” Further, the guidelines state that suppliers “should not” authorize the transfer of enrichment or reprocessing facilities, equipment, or technology unless the recipient state satisfies the following criteria:
- Full compliance with the Nuclear Non-Proliferation Treaty.
- Good standing with the International Atomic Energy Agency (IAEA) regarding compliance with IAEA safeguards.
- Adherence to the NSG guidelines (even if not an NSG “participant”) and implementation of effective export controls identified in United Nations Security Council Resolution 1540.
- Conclusion of an agreement with the supplier including assurances regarding non-explosive use, effective safeguards in perpetuity, and retransfer.
- A commitment to international standards of physical protection.
- A commitment to international safety standards.
The guidelines further provide that recipients should have not only a full-scope safeguards agreement with the IAEA but also the IAEA Additional Protocol, which gives the agency more intrusive monitoring authority in the form of additional information and access provisions to ensure no diversion of nuclear materials to nonpeaceful uses. In addition, the guidelines provide that suppliers should “seek a legally-binding undertaking from the recipient state” not to enrich above 20 percent in the isotope uranium-235, and to design and construct facilities in ways that would make it difficult to produce highly enriched uranium. Further, the guidelines provide that suppliers should “[a]void, as far as practicable, the transfer of enabling design and manufacturing technology” associated with enrichment facilities or equipment, and seek “conditions that do not permit or enable replication.”
These policy guidelines include a number of requirements that go beyond the legal mandates of the Atomic Energy Act, including that a prospective partner should implement the IAEA Additional Protocol safeguards agreement. Although the United States is not legally bound to follow the NSG guidelines, history suggests it is unlikely to violate them. For instance, in 2008 the U.S. persuaded NSG members to adopt an exception to the guidelines to allow for nuclear cooperation with India, rather than engage in such cooperation contrary to the guidelines. In the case of enrichment cooperation, following the guidelines without any exception would not only mitigate the potential nonproliferation risks but also increase the chances of congressional acceptance of a 123 agreement providing for such cooperation.
Congressional Review
As previously discussed, enrichment cooperation is permissible, if constrained, under the Atomic Energy Act and Nuclear Suppliers Group guidelines. To transfer the major critical components of an enrichment plant, the U.S. would have to enter into a 123 agreement with the recipient country that specifically provided for the transfer of such components. This 123 agreement would be subject to congressional review pursuant to the Atomic Energy Act. If the United States already had a 123 agreement with the recipient country, that agreement would have to be amended and resubmitted for congressional review to provide specifically for the transfer of major critical components.
Under the Atomic Energy Act, an agreement for nuclear cooperation that satisfies all section 123 requirements typically is subject to a period of congressional review totaling 90 days of continuous session, after which it may enter into force absent enactment of a resolution disfavoring the agreement. Thus, 123 agreements that explicitly provided for the transfer of major critical components, Restricted Data, or sensitive nuclear technology would afford Congress an opportunity to evaluate the proposed agreement with the expectation that it might lead to uranium enrichment cooperation.
In practice, most 123 agreements do not allow for cooperation involving transfers of major critical components, Restricted Data, or sensitive nuclear technology. A few agreements expressly exclude such cooperation. The 123 agreement reached with the United Arab Emirates (UAE) in 2009, for example, provided that the UAE “shall not possess sensitive nuclear facilities within its territory or otherwise engage in activities within its territory for, or relating to, the enrichment or reprocessing of material.” This nonproliferation commitment was hailed as the new “gold standard” for 123 agreements, reflecting the U.S. policy commitment to preventing the spread of enrichment and reprocessing technologies. As such, Congress likely would expect an explanation of how the executive branch evaluated not only the nonproliferation risks in an agreement providing for enrichment cooperation but also the potential negative implications for other nuclear cooperation agreements and for the NSG guidelines.
One possible approach to mitigate proliferation risks would be for the United States to construct and operate an enrichment facility on foreign territory without providing the host country any access to the facility—a so-called black box arrangement. Barring a hostile takeover of the enrichment plant by the host government, such an arrangement would appear to be consistent with nonproliferation objectives, including the U.S. policy against proliferation of enrichment capabilities. The NSG guidelines would provide a sound justification for the U.S. to seek such restrictions from the foreign country, as strict compliance with the guidelines would enhance the prospects for congressional approval or acquiescence in the proposed enrichment cooperation.
Some observers might argue that, in a black box arrangement, a recipient country should not be deemed to receive a transfer of enrichment equipment or technology because it never has physical access to that equipment and technology, and thus an enrichment-specific 123 agreement should not be required. However, an argument that no transfer/export occurred would have to be viewed with great skepticism where the equipment or technology has left U.S. territory and is subject to the sovereignty of a foreign government. Moreover, such an attempt to avoid an enrichment-specific 123 agreement—and thereby avoid congressional review—would needlessly antagonize Congress, likely leading to a worse outcome than the straightforward approach of negotiating a 123 agreement allowing for transfers of enrichment equipment and technology.
A directly related question is whether the 123 agreement would have to allow for the communication of Restricted Data if the United States built and operated the enrichment facility and blocked all access by the recipient country. The situation would be roughly analogous to an existing agreement under which the European uranium enrichment consortium Urenco operates an enrichment facility in Eunice, New Mexico. In that instance, the agreement provided that there would be no transfers of “new” Restricted Data from the United States to the European partners. But that agreement covered activities on U.S. territory rather than foreign territory and pertained to technology already held and operated by Urenco. The physical presence of Restricted Data on foreign territory would make it difficult to argue that no communication of Restricted Data had occurred. Rather than straining to pursue such a complex and controversial argument, the better course, as above, would be to allow for the communication of Restricted Data in the 123 agreement while imposing constraints aimed at preventing such communication.
A further issue that Congress would likely want to consider is what might happen if the friend-shoring partner attempted to misuse the facility for an illicit nuclear weapons program. Although the 123 agreement (per standard provisions) would give the United States a right to demand the return of transferred items in the event of violations of the 123 agreement or of IAEA safeguards, in practice this right has never been tested. Exercising a right of return would present daunting technical challenges, and the recipient government might refuse to honor that right, leaving the U.S. with limited recourse under international law.
In sum, Congress would presumably have a strongly negative reaction to enrichment cooperation with a foreign country absent significant restrictions on that country’s access to sensitive enrichment equipment and technology. Congress should not—and presumably would not—view the right of return as providing sufficient protection against misuse of the transferred technology. If Congress opposed a 123 agreement providing for enrichment cooperation, it could adopt a resolution of disapproval. If the president vetoed that resolution, and Congress could not override it, it might instead pursue legislation specifying conditions that would have to be met in implementing the enrichment cooperation, conditions that would be subject to negotiation with the president to avoid a veto of that legislation. It is worth noting in this regard that, amid rumors of a potential U.S.-Saudi 123 agreement that could enable enrichment cooperation, members of Congress introduced legislation that would bar any 123 agreement with Saudi Arabia unless Riyadh renounced enrichment and reprocessing on its territory and agreed to sign and implement an Additional Protocol with the IAEA (and even then the 123 agreement would not go into effect without affirmative approval of Congress). Although this legislation has not been enacted, it may foreshadow congressional views on enrichment cooperation abroad.
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Uranium enrichment friend-shoring would be unprecedented and controversial. Pursuing enrichment cooperation on foreign territory with countries that currently lack that capability would be a departure from long-standing U.S. policy, as reflected in the Atomic Energy Act and the NSG guidelines. Further, by “normalizing” enrichment cooperation, the United States would have difficulty objecting to other countries following suit. Russia and China might not impose the same constraints on such cooperation, and they might be more inclined to cooperate with countries that posed a significant risk of diversion of the transferred enrichment capability to nuclear weapons production. Of course, Russia or China might decide to transfer sensitive nuclear technology to foreign partners regardless of whether the U.S. pursues nuclear friend-shoring.
However, policymakers may perceive that the vicissitudes of geopolitical competition with Russia and China—or, for that matter, a sizable expansion of nuclear power as part of efforts to decarbonize economies—require major revisions to past practice when it comes to sharing nuclear technology. The long-term implications of sharing enrichment technology with foreign partners deserve scrutiny given the potential to enable a nuclear weapons capability in recipient states. Before entering into such an agreement with a prospective foreign enrichment partner, the executive branch and Congress should establish clear understandings of how sensitive nuclear technology transfers would be treated under U.S. law and policy. Technology and policy constraints, such as black box transfers and limiting enrichment to no greater than 5 percent (the level most commonly used for nuclear power reactors), should be considered where appropriate, taking into account the nonproliferation records of proposed recipients.
Getting this policy right is important for both improving energy security and diluting Russian control over nuclear energy markets. Even more crucially, existing policies to limit the spread of sensitive technologies are a major reason why many more states than the current nine do not possess nuclear weapons. If the U.S. government is going to dramatically alter those policies, it is best to take steps to ensure it doesn’t inadvertently weaken one of the most effective proliferation restraints.
– Newell Highsmith, Toby Dalton, Published courtesy of Lawfare.
