In a Virginia dispute that goes back decades and has pitted state land use authority against the federal government’s control of uranium resources, the U.S. Supreme Court Monday ruled in favor of the state, which has banned uranium mining in the Old Dominion since the early 1980s.
The 6-3 ruling in the case (Virginia Mining Inc. v. Warren), plumbed a long-running issue of where federal law preempts state law. In the 1970s, geologists identified the largest uranium deposit in the U.S. in rural Pittsylvania County in southern Virginia. In the 1980s, Virginia Mining formed in order to mine the ore, mill it, and acid heap leach it to produce concentrated uranium oxide (U3O8) for sale. In 1983, the state put a moratorium on uranium mining on private lands.
The industry contended that the unstated purpose of the state law was not to prevent mining, but to prevent the environmental and health and safety impacts of milling, mill tailings, and leaching. This, they asserted, clashed with the Atomic Energy Act’s broad control of uranium development.
The case turned on whether the court should discern what the legislative intent in Virginia really was, or whether the intent of the state solons was out of bounds and the mining ban was not preempted by the federal law.
The ruling saw an odd combination of three of the court’s staunchest conservative justices – Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas – and three of the most liberal justices – Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan — upholding a ruling by the U.S. Court of Appeals for the Fourth Circuit in Richmond that the broad reach of the Atomic Energy Act’s control over uranium does not extend to mining the ore.
Dissenting were Chief Justice John Roberts, Stephen Breyer, and Samuel Alito.
The ruling was a defeat for the Trump administration’s Nuclear Regulatory Commission and the industry trade group Nuclear Energy Institute, which argued that the law preempted states from regulating anything having to do with uranium. In a July 2018 press release, NEI argued, “The comprehensive federal regulatory framework that Congress has established over the past 60 years undergirds the continued viability of the nuclear industry,” despite the fact that only about 10% of uranium used in the U.S. nuclear industry is domestic. NEI said the Virginia ban gave states open season to impose themselves between industry and the NRC to stop nuclear development.
Writing for the majority, Gorsuch said, “Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activity on private lands within their borders. It is our duty to respect not only what Congress wrote, but, as importantly, what it didn’t write.” He wrote, specifically rejecting NEIs claim of a state camel’s nose under the NRC’s jurisdictional tent, “If trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began?”
In a concurrence by Ginsburg, the liberals weren’t comfortable going as far as Gorsuch. Ginsburg said she wasn’t willing to forever eschewing state intent, but concluded that the argument that the moratorium was a pretext for banning activities under federal control in Virginia didn’t stand up.
In his dissent, Roberts said Virginia’s only reason to ban mining was the state’s “desire to ban the more hazardous steps that come after mining,” a way to achieve something beyond the state’s ability to impact. He was scornful of the notion that the mining ban was “unnecessary because domestic production accounts for less than 10 percent of the uranium used in the country. Given the critical role of uranium in the country’s energy industry and national defense, the near complete reliance on foreign sources of uranium – including substantial imports from Russia, Kazakhstan and Uzbekistan – would seem to suggest just the opposite.”
In an analysis in SCOTUSblog, Emily Hammond, a George Washington University law professor and expert on energy, environmental, and administrative law, wrote, “ Overall, today’s opinions likely presage important battles to come on the matter of legislative purpose as the court’s composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.”
She added, “For followers of federalism and statutory analysis, it seems likely after Virginia Uranium that the justices’ approaches to the role of legislative purpose are in a state of flux. For followers of nuclear-licensing matters, this case is a significant addition to the family of AEA pre-emption decisions in its firm support of state authority despite pretextual motives.”
— Kennedy Maize