Trump wants to export to the Saudis. Can he do that?

By Blake Sobczak | 02/26/2019 07:30 AM EST

An ongoing investigation by House Democrats into White House efforts to export U.S. nuclear technology to Saudi Arabia raises an overarching question about executive power: What can President Trump do on his own, without congressional oversight?

A reported push by White House officials to export nuclear power technology is raising legal questions.

A reported push by White House officials to export nuclear power technology is raising legal questions. Sean Hayford Oleary/Flickr

An ongoing investigation by House Democrats into White House efforts to export U.S. nuclear technology to Saudi Arabia raises an overarching question about executive power: What can President Trump do on his own, without congressional oversight?

Democrats on the House Oversight and Reform Committee revealed they are investigating Trump administration officials’ overtures to Saudi Arabia as the oil-rich kingdom seeks to develop a domestic nuclear power industry (Greenwire, Feb. 19).

Committee Chairman Elijah Cummings (D-Md.) said multiple whistleblowers had come forward with "credible information" tying Trump administration officials to an ethically gray — and possibly illegal — effort to transfer "highly sensitive U.S. nuclear technology to Saudi Arabia."


Indeed, the president has long looked for ways to boost the domestic U.S. nuclear power industry, whether it be through offering fuel security subsidies, betting on breakthroughs in reactor technologies or clearing the way for exports to interested allies like Saudi Arabia (Energywire, Jan. 15).

But the effort raises security questions given the recent slaying of Washington Post journalist Jamal Khashoggi, not to mention Saudi Crown Prince Mohammed bin Salman’s assertion on "60 Minutes" last year that his kingdom would pursue a nuclear bomb if Iran did so first.

Enriched uranium is vital fuel for nuclear power production, but the enrichment process is also a needed step toward building the fissile core of a nuclear weapon.

E&E News spoke with several lawyers, consultants, nuclear critics and supporters to examine the constraints on selling nuclear power technology to foreign countries.

The Nuclear Regulatory Commission and the Department of Energy hold the primary statutory authorities for approving exports of U.S. nuclear technology.

Depending on the extent of the deal, Congress; the departments of Defense, State and Commerce; and the Office of the Director of National Intelligence may also need to be drawn into the discussion.

A unilateral White House push to greenlight nuclear technology sales to Saudi Arabia would almost certainly run afoul of the Atomic Energy Act, whose Section 123 establishes congressional oversight of nuclear export agreements with foreign countries, experts say.

"To actually sell anything to Saudi Arabia, there has to be a 123 agreement, and most people in the nuclear industry are aware of this," said former NRC Chairwoman Allison Macfarlane, professor of public policy and international affairs at George Washington University. "You can transfer other technology, like some nuclear-related information, but for the nuclear material — that would need to be licensed by the NRC."

Amy Roma, partner at the Hogan Lovells law firm in Washington, D.C., said that to export certain nuclear technology and personnel, "all you’ll need is authorization from the secretary of Energy."

But for concrete, physical equipment like Westinghouse Electric Corp.’s AP1000 pressurized water reactor, Cabinet-level approvals likely won’t cut it.

"There is no presidential workaround for NRC export without a 123 agreement," Roma said.

The White House did not immediately respond to a request for comment.

A ‘make or break’ prospect

Trump’s promised "complete review" of the civil nuclear industry has yielded little concrete action to date, even as top administration officials have repeatedly huddled with nuclear executives and booster groups like the Institute for Public-Private Partnerships (IP3) to brainstorm ways to offer the industry support.

A lucrative contract to supply Saudi Arabia with nuclear technology would mark a major coup for Westinghouse, the bankrupt U.S. reactor manufacturer that was recently acquired by a Canadian firm, Brookfield Asset Management Inc., with business ties to Trump’s son-in-law and senior adviser, Jared Kushner.

The kingdom offers a tempting prospect for nuclear companies in the United States, where the average operational plant is well over 3 decades old. The lone new development still under construction in the United States, Southern Co.’s Plant Vogtle in Georgia, has been beset by delays and cost overruns.

Saudi Arabia represents a "make-or-break deal for the U.S. nuclear industry," said nuclear energy consultant Melissa Hersh. "This doesn’t mean that nonproliferation standards should be abandoned."

Hersh suggested U.S. negotiators could seek new ways to mitigate concerns that Saudi Arabia might have in agreeing to forgo uranium enrichment. "This could allow the U.S. a way to compete with countries like Russia, China, France, and South Korea," she said in an email.

Late last year, Energy Secretary Rick Perry met with Saudi Energy Minister Khalid al-Falih and suggested they were working to lay the groundwork for reaching a nuclear deal.

"Secretary Perry underscored the message that he carries all over the world: any nation seeking to develop a truly safe, clean, and secure nuclear energy program should turn to American companies who have the ability to provide the technology, knowledge, and experience that are essential to achieving that goal," a DOE readout of their meeting said.

DOE and 123

Generally, DOE export approvals encompass "services and technology," while NRC approvals — predicated on the United States’ having a 123 agreement with the destination country — include "equipment and material."

In 2015, DOE clarified what was covered under its so-called Part 810 export approval, an authority also derived from the Atomic Energy Act of 1954.

It marked the first major changes to the regulations in nearly three decades.

The updates included a list of countries generally approved to receive certain U.S. nuclear information, from Argentina to Vietnam.

Absent from the list: Saudi Arabia.

That means U.S. nuclear workers and national security officials alike would need to get a "specific authorization" from Perry to deal with their Saudi counterparts.

Even a PowerPoint presentation analyzing publicly available information on nuclear technology could run afoul of federal law if such an analysis would not normally be found in the public domain, based on DOE guidance.

Winning an 810 approval can free a U.S. nuclear company to dispatch personnel to foreign sites to offer advice and expertise, hire foreign nationals for work at U.S. nuclear sites or send technical information abroad to countries not covered by a blanket authorization.

DOE’s National Nuclear Security Administration typically processes several hundred applications per year, according to DOE documents.

The main consideration in granting an 810 approval: whether a tech transfer would be "noninimical" to American interests — jargon for whether it’s a net good for the United States.

Perry cannot approve a transfer without input from other agencies. At the very least, an 810 application lands on desks at the departments of State, Commerce and Defense, as well as NRC and U.S. national labs, according to federal law. DOE also has to notify Congress in certain circumstances — if, for instance, an applicant wants to share sensitive information with China or Russia.

The road to an 810 approval still crosses Section 123. The secretary of Energy weighs the presence — or not — of such an agreement with the country in question before approving any Part 810 request. Other factors include the significance of the technology relative to the maturity of that country’s existing nuclear program and whether the country has adopted the International Atomic Energy Agency’s standards for ensuring nuclear materials are only used for peaceful purposes, according to DOE guidance.

‘Gold standard’

A Section 123 agreement opens more doors for U.S. manufacturers but also draws in Congress, the Department of State and the intelligence community for additional checks.

Any country that reaches a deal with the United States has to commit to safeguarding imported nuclear material in perpetuity, submitting to oversight from the International Atomic Energy Agency and ensuring no classified material moves anywhere without U.S. approval, among six other guarantees.

With a 123 in place, a U.S. nuclear supplier can apply to NRC for a license to export material and equipment through yet another regulatory process that is also overseen by various executive branch agencies.

Countries do not have to pledge not to reprocess or enrich uranium as part of a 123 deal, giving the United States more flexibility in negotiations.

Saudi Arabian authorities have signaled that they will seek a nuclear weapon if their regional rival Iran takes that path.

By contrast, Saudi Arabia’s neighbor, the United Arab Emirates, has already won a 123 agreement with the United States that includes a "gold standard" for nonproliferation. Since the agreement took effect in 2009, UAE officials have agreed not to pursue any enrichment and reprocessing of imported nuclear fuel.

Kingston Reif, director for disarmament and threat reduction policy at the Arms Control Association, urged the Trump administration to use its political and economic leverage with Saudi Arabia to ensure that "the commercial interest doesn’t come at the expense of, in my view, the more important security and nonproliferation interests in preventing the spread of nuclear fuel-making technology."

He said the Democrats’ interim report suggested Trump’s former national security adviser, Michael Flynn, and one of Flynn’s top aides, Derek Harvey, may have pledged too much too soon in their talks with would-be suppliers to Saudi Arabia.

"What caught my attention was this apparent notion on the part of Flynn and Harvey that they could push through a major reactor sale without a 123 agreement, which is required by the AEA to facilitate U.S. nuclear exports," he said. "So either they were ignorant of this fact, which is possible, or they were deliberately trying to circumvent the law, which is also possible."