U.S. Law, Advance Consents for Reprocessing and the “Timely Warning” Standard
AUTHOR: Eldon Greenberg
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One of the most controversial policies under the U.S. Atomic Energy Act of 1954 (the “Act”), as amended by the Nuclear Non-Proliferation Act of 1978 (the “NNPA”), has been the policy of the U.S. Government to include within agreements for nuclear cooperation with certain of our trading partners its advance, long-term consent to the retransfer and reprocessing of “spent” nuclear reactor fuel. This paper examines the lawfulness of this policy and the history of its implementation, with particular reference to the applicability of the “timely warning” standard embodied in U.S. law. The story, which runs basically from 1978 to 1996, is one of 20 years of systematic dismantling by the Executive Branch of statutory restrictions on reprocessing approvals, with the result that, at the end of the day, the United States has been left with little control over the back end of the fuel cycle, in particular in Japan and EURATOM. The paper concludes that, while principles of judicial deference and Congressional acquiescence in the Executive Branch’s policy undoubtedly insulate it from court challenge, there nonetheless remain good reasons for reconsidering the wisdom and utility of the policy.
 42 U.S.C. 2011, et seq.
 Pub. L. No. 95-242, 92 Stat. 120 (March 10, 1978).