Energy and Environment Monitor

No Uranium Mining in Virginia; Supreme Court Finds Mining Prohibition within State’s Power

July 2, 2019

By: Blair M. Gardner

Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June 17, the Court decided that Virginia’s statutory prohibition did not interfere with the federal AEA. The consequence is that the largest and most valuable uranium deposits in the United States will remain buried in Pittsylvania County, Virginia.

Before imposing its moratorium in 1981 the Virginia General Assembly had commissioned a state agency to evaluate the public health and environmental effects from the surface mining needed to extract and process the uranium ore. In the ensuing report, the agency projected the benefits to cost ratio of 26 to 1 from the mining. Despite the favorable economic benefits, the legislature never enacted the legislation necessary for any mining project to proceed. The owner of the development rights sued the state in federal district court on the theory that regulation over mining had been preempted by federal AEA.

As noted last year, the case pitted two fundamental principles against one another. As the Court’s lead opinion notes, the AEA gives “the Nuclear Regulatory Commission significant authority over the milling, transfer, use, and disposal of uranium, as well as the construction and operation of nuclear power plants.” (Slip Op. at 1). The Court also recognized, however, that “Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders.” The owner of the reserve asserted that Virginia’s facial interest in controlling the mining of the uranium ore – the predicate first step in producing the mineral – was purely a pretext to controlling and preventing its milling, processing, and disposal. Those activities clearly were the prerogative of the Nuclear Regulatory Commission under the AEA.

The Court did not deny that Virginia may have acted primarily to prevent the mining altogether but did “see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives.” In refusing to examine the motives of Virginia’s legislature, the Court warned that consequence “of regular federal judicial inquiries into state legislative intentions would be to stifle deliberation in state legislatures and encourage resort to secrecy and subterfuge. That would inhibit the sort of open and vigorous legislative debate that our Constitution recognizes as vital to testing ideas and improving laws.” (Slip Op. at 12).

In short, the Court chose to apply broadly the concept of state power over a traditionally regulated activity. Simultaneously, it construed the doctrine of federal preemption narrowly, asserting that “we are hardly free to extend a federal statute to a sphere Congress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write.” (Slip Op. at 1).

What makes the case particularly interesting is the split within the Court. Three of the members most generally described as “conservative” (Gorsuch, Thomas and Kavanaugh) joined the opinion. The three members generally described as “liberal” (Ginsberg, Sotomayor and Kagan) concurred in the judgment in a separate opinion. The three remaining members (Chief Justice Roberts, Breyer and Alito) dissented, observing that “the question we agreed to address is whether a State can purport to regulate a field that is not preempted (uranium mining safety) as an indirect means of regulating other fields that are preempted (safety concerns about uranium milling and tailings). And on that question, our precedent is clear: The AEA prohibits state laws that have the purpose and effect of regulating preempted fields.” (Dissent at 1.).

The outcome of the case will be hailed as a great victory by opponents of mining and will certainly be regarded as a bitter defeat by the reserve owner that has sought unsuccessfully to develop its property for nearly 40 years. Nevertheless, the principles employed in deciding the case are inherently traditional ones that defer to state authority, maintain a respectful separation between judicial and legislative power, and limit federal preemption. In most contexts, these are principles that should cheer the hearts of most Americans.

The case is Virginia Uranium, Inc, v. Warren, No. 16-1275, June 17, 2019.