Bush Sends Russia Nuclear Energy Pact to Hill

Miles A. Pomper

President George W. Bush May 13 asked Congress to approve a long-stalled civil nuclear agreement with Russia, despite complaints from Capitol Hill about the Kremlin's ongoing nuclear and military cooperation with Iran. Meanwhile, the Senate May 22 approved a provision in an emergency spending bill designed to prod Russia to dramatically reduce its stockpile of weapons-grade highly enriched uranium (HEU).

The nuclear cooperation agreement, known as a "123" agreement, after the relevant provision of the Atomic Energy Act, drew criticism from lawmakers of both parties.

 "Rewarding the Russian government sends the wrong signal at a time when it is knowingly pursuing policies that undermine both U.S. interests and global security, especially with regard to Iran," said Rep. Ileana Ros-Lehtinen (R-Fla.), the ranking member on the House Foreign Affairs Committee. "The administration should have ensured that Russia had stopped all cooperation with Iran's nuclear sector."

However, some prominent former senior U.S. nonproliferation officials disagreed. "As a practical matter, blocking a 123 agreement would not likely produce improved Russian conduct on these other issues, but rather provoke retaliatory responses likely to inflict further damage on U.S. interests," said a May 28 report prepared by five former senior U.S. government officials for the Center for Strategic and International Studies (CSIS). By contrast, the report said that if the agreement is approved, "then the Russians will gain a vested interest in continued cooperation with the United States," including on Iran.

The agreement comes at a time of deep tensions between the United States and Russia over other issues, including U.S. plans for the construction of a missile defense system in Europe, Russia's decision to stop abiding by the Conventional Forces in Europe Treaty, differences over Kosovo, and the interest of the former Soviet republics of Georgia and Ukraine in joining NATO. (See ACT, May 2008.)

Supporters of the agreement said its realization would send a valuable political signal in favor of bilateral cooperation, particularly on nonproliferation issues. "Virtually every nuclear danger America faces will be made more dangerous if Congress rejects it," wrote Sen. Richard Lugar (R-Ind.) and former Sen. Sam Nunn in the May 30 New York Times. . Lugar, the top Republican on the Senate Foreign Relations Committee and Nunn, the former chairman of the Senate Armed Services Committee, drafted legislation that led to many current nonproliferation programs between Russia and the United States.

Rose Gottemoeller, who served as the Department of Energy's lead official on nuclear nonproliferation issues during the Clinton administration and is one of the authors of the CSIS report, also pointed out in a May 10 e-mail that the United States "does have remaining leverage once the 123 [agreement] is in force-it's the basic legal framework, but every deal will have to be scrutinized and approved in contracting and licensing processes."

The resolution has been submitted for approval by Congress and the Russian Duma. Given the tight hold that the Kremlin maintains over Russia's political process, Duma approval is viewed as a virtual certainty. Therefore, the agreement is expected to enter into force if both houses of Congress fail to pass a disapproval resolution within 90 legislative days from when it was sent to Capitol Hill. Rep. Edward Markey (D-Mass.) has introduced such a resolution in the House, citing Russia's cooperation with Iran, but it is unclear if there is sufficient support for such a disapproval resolution, particularly in the Senate.

Yet, some congressional aides have suggested that the agreement could also fail to win approval given this year's compressed congressional calendar. Congress is expected to adjourn for much of the summer for the political conventions and to allow lawmakers to campaign for re-election; the House, in particular, may not be in session for enough time to meet the 90-day requirement unless lawmakers agree to a post-election lame-duck session.

Benefits for GNEP, Nuclear Industry

On a practical level, the direct, short-term benefits of the agreement are likely to be limited. Most importantly it would not significantly affect imports of Russian fuel to the United States, which are governed by a separate agreement, nor would it govern other ongoing nonproliferation efforts.

Nevertheless, the measure could yield some benefits for both countries, for hopes for a global nuclear energy "renaissance," and for the Bush administration's controversial Global Nuclear Energy Partnership (GNEP). (See ACT, April 2008.) Current and former government officials and diplomats in the United States and Russia said the agreement would boost a recent strategic agreement between Russia's nuclear behemoth Atomenegorprom and Japan's Toshiba Corp., which owns U.S.-based Westinghouse Electric. The enterprises are looking to jointly market products such as nuclear reactors and fuel. Russia and Japan are expected to sign their own nuclear cooperation agreement later this year in part to facilitate the deal.

In addition, the measure could help provide U.S. companies with another source for nuclear components, labor, and expertise at a time that global plans for new nuclear plants have left such resources in short supply. It could benefit Russia by allowing it to re-enrich depleted uranium tails from U.S.-origin spent fuel now in the United States and East Asia. This in turn could be one means that the deal could aid Russian plans to develop an international uranium enrichment center at Angarsk in Siberia.

"With this agreement, we can better work with Russia to create an international fuel bank and guarantee the availability of nuclear-fuel services on the international market," Lugar and Nunn wrote. Gottemoeller, now director of the Carnegie Moscow Center, said that while U.S. law would not require such an agreement before the United States could participate in the Angarsk facility, Russia had made its approval a sine qua non for US participation.

There are several additional ways that the agreement could benefit GNEP, experts said. For one, lawmakers have often sounded alarm bells over U.S. interactions with Russian nuclear researchers that they view as inappropriate. A nuclear cooperation agreement would increase the confidence of nuclear researchers in both countries that they could step up cooperation in some areas, such as research into controversial fast reactors which rely on plutonium-based fuels, without political heat from Congress.

Russia has been moving ahead with fast reactors and has long-term plans to grant them a significant role in its nuclear infrastructure. Last November, U.S. and Russian negotiators tentatively agreed to recast a 2000 pact that required each country to dispose of 34 metric tons of weapons-grade plutonium so Russia could use these new facilities in the effort. The agreement has drawn criticism from Congress (see ACT, December 2007)

Moreover, a nuclear cooperation agreement would permit U.S. researchers to take advantage of Russian expertise and facilities, for example, by testing potential new fuels in Russian reactors. The pact also would allow Russia to store and potentially reprocess U.S.-origin nuclear fuel irradiated in reactors in countries such as South Korea, if Washington gave permission. A proposed element of GNEP is "fuel leasing" in which supplier countries, such as the United States and Russia, would provide fresh fuel to countries and then take back their spent fuel. Controversially, however, a central plank of GNEP is the idea not merely of storing this fuel but reprocessing it so that the plutonium in it could be used in fuel for nuclear reactors. The U.S.-Russian agreement has fed concerns that either Russia or Asian countries would use reprocessed spent fuel for nuclear weapons. The United States has striven for decades to prevent countries such as South Korea and Taiwan from undertaking reprocessing. (See ACT, April 2008.)

Years in the Making

Indeed, much of the initial impetus for the agreement had come nearly a decade ago when Russia, then in the midst of the economic crisis, viewed the storage of foreign spent fuel as an economic opportunity worth as much as $20 billion and had passed a law permitting it to occur. However, with Russia's economy now booming thanks to soaring oil and gas revenues, Russian officials have shown little desire to store such fuel in the near term although they have held out the possibility that they might do so in the future. In fact, Russia has required in new reprocessing contracts with foreign customers that it would not accept spent fuel for permanent storage but would only be willing to hold it while it separated out the plutonium. Moreover, unlike other agreements the United States has concluded with Japan and the European nuclear consortium Euratom, the agreement would not allow Russia to reprocess U.S.-origin spent fuel to obtain plutonium, unless it first obtained U.S. consent. Should the executive branch give this permission, however, U.S. law only requires that Congress be notified 15 legislative days in advance.

Nor does the agreement permit transfers of "sensitive nuclear technology"-technology that could be used for weapons production such as uranium enrichment and plutonium reprocessing-without the administration submitting an amendment to the pact to Congress. In that case, lawmakers would have the same 90 days of legislative consideration to which the underlying agreement is now subject.

The United States and Russia have been discussing such an agreement for more than a decade. Completion had been held up by U.S. displeasure about Russia's cooperation with Iran in missiles, advanced conventional weapons, and especially its construction of a light-water nuclear reactor at Bushehr. Initial operation of that reactor has been repeatedly delayed but is now set for later this year.

Bush and Putin initialed the agreement in 2006, a year after Russia agreed to try to minimize the possibility that Iran could divert fresh or spent fuel from Bushehr. In 2005, Russia and Iran signed an agreement under which Russia agreed to supply the reactor only with just-in-time supplies of fresh fuel and to take back spent fuel to prevent it from being reprocessed to separate plutonium.

Final agreement was held up for nearly two years as various agencies in the U.S. government haggled over the text and as Washington sought and won Moscow's support in the UN Security Council for several resolutions sanctioning Iran for failing to suspend its uranium-enrichment program or the construction of reprocessing-related facilities. Nevertheless, some Russia-Iran sensitive nuclear cooperation appears to have continued. The CSIS study said that that during a March visit to Moscow by U.S. Secretary of State Condoleezza Rice and Secretary of Defense Robert Gates, Russian officials at the highest levels provided explicit assurances that "any sensitive cooperation between Russian entities and Iran would be stopped."

Congressional Consideration

Congressional critics said that Russia still needs to do more. In September 2007, the House of Representatives approved legislation aimed at Russia that would prohibit the United States from entering into a nuclear cooperation agreement with any country assisting Iran's nuclear program or transferring conventional arms and missiles to Iran.

That legislation, supported by powerful pro-Israel lobbying groups, has won 71 co-sponsors in the Senate, sufficient to overcome a presidential veto, but has been stalled in that body. Only 32 senators signed a May letter by Sens. Norm Coleman (R-Minn.) and Evan Bayh (D-Ind.) to Secretary of State Condoleezza Rice condemning Russia's "increasingly abrasive foreign policy" and urging the administration not to send the agreement to Congress because it "could severely undermine our policy with respect to Iran at a crucial juncture."

Aside from the Markey legislation and the House-passed bill, critics have discussed other options for legislation, including attaching conditions to the measure or restricting money to implement it. Rep. Howard Berman (D-Calif.), chairman of the House Foreign Affairs Committee, suggested in a May 13 e-mail that he might seek "additional legislation."

Meanwhile, the Senate Appropriations Committee May 15 approved an amendment by Sen. Pete Domenici (R-N.Mex.) to a supplemental spending bill, primarily intended to pay for the wars in Iraq and Afghanistan. The Senate approved the supplemental spending bill, including the provision on May 22. It must now be merged with the House version of the bill, which contains no such provision, in a House-Senate conference committee.

Domenici's amendment would effectively alter an agreement that U.S. and Russian negotiators signed Feb. 1. That agreement was intended to govern Russia's ability, particularly after 2013, to export low-enriched uranium (LEU) to the United States for use in U.S. nuclear power plants. It would eventually concede about 20 percent of the U.S. LEU market to Russia but would not dictate whether this fuel originated as natural uranium or from weapons. (See ACT, April 2008.)

Since 1993, the United States has restricted imports from Russia of LEUs to those that came from uranium downblended from weapons-grade HEU. That Megatons to Megawatts program has downblended 325 tons of HEU and is slated to downblend another 175 tons before it expires in 2013. But Russia, which would prefer to take the more lucrative path of enriching natural uranium in its underused enrichment facilities, has successfully challenged the U.S. restrictions at the U.S. Court of International Trade, threatening both the current and future accords. In doing so, Russia has followed a precedent set by the European enrichment consortium Eurodif. The Eurodif case was upheld by the U.S. Court of Appeals for the Federal Circuit in September 2007, but the Bush administration has appealed that case to the U.S. Supreme Court, which has agreed to hear it this fall.

 Domenici's amendment sought to provide Russia with incentives to downblend another 300 metric tons of HEU after 2013, enough for more than 10,000 nuclear weapons. According to the International Panel on Fissile Materials, an independent experts group, Russia has well more than 600 metric tons of HEU in its weapons stockpile not subject to the current agreement, compared to about 250 metric tons for the United States.

Domenici's amendment would limit Russia's export of enriched natural uranium after 2013 to 17 percent of the U.S. market until it had reached the 300 metric-ton goal. But if Russia continued to downblend uranium at its current rate, it would grant Russian exporters as much as 25 percent of the U.S. market. The measure also seeks to cut off Russian access to the U.S. market if Russia abandons the current agreement.

Corrected online August 29, 2008. See explanation.