By Nicholas W. Scala and Dan C. Deacon
The U.S. Supreme Court recently upheld a Virginia law that bans mining at an untapped uranium deposit on private land in Southern Virginia, which is believed to be the largest deposit in the United States and estimated to be worth somewhere around $6 billion.
The Virginia General Assembly has been wary of mining the uranium since the issue was raised in the early 1980s. Following the nuclear incident at Three Mile Island in Pennsylvania in 1979, the state passed a law in 1982 permitting uranium exploration but imposing a one-year ban on mining. It later extended the ban indefinitely in 1983.
The owners of the property and the company seeking to exploit the deposit, Virginia Uranium, filed a lawsuit with the backing of the Trump administration to overturn the ban. Virginia Uranium is a subsidiary of Vancouver, British Columbia-based Virginia Energy Resources. The group contested Virginia’s power to enact the ban, arguing that the policy should have been preempted by federal law governing nuclear energy.
The dispute focused on whether the federal Atomic Energy Act of 1954, which regulates the development of nuclear energy, preempts Virginia’s mining ban under the U.S. Constitution’s so-called Supremacy Clause. The Supremacy Clause holds that federal law generally supersedes or preempts state law where there is a conflict.
Virginia Uranium argued that the federal Atomic Energy Act should take precedence over state restrictions since it regulates what can be done with uranium and its radioactive waste after extraction from the earth. As stated in the decision, the oversight Atomic Energy Act and Nuclear Regulatory Commission begins when milling of the extracted uranium ore takes place.Differentiating the bounds of the mining process from that of the Department of Labor and Mine Safety and Health Administration, where extraction and milling or processing are considered part of the mining process.
The Court voted 6-3, holding that Virginia’s uranium-mining ban is in accord with the U.S. Atomic Energy Act and the Commonwealth has the power to regulate the industry on private land. However, the reasoning behind the Court’s decision differed greatly. The majority concluded that federal law does not preempt Virginia’s decades-old uranium mining ban on private lands. Specifically, the Court explained that Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activities on private lands within their borders.
“Every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the states and grant the NRC regulatory authority only after uranium is removed from the Earth. . .”
Although the Atomic Energy Act grants the Nuclear Regulatory Commission “extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining,” it expressly states that the Nuclear Regulatory Commission’s regulatory powers arise only after uranium is mined.
The distinction between public (or federal land) and private lands is significant. If the land in question was to be public or federally owned, the Virginia mining ban would not prevent the extraction of the uranium ore. Consequently, if the federal government were to purchase the land, or acquire it through eminent domain, production and extraction could begin immediately. A crucial factor in the Court’s decision was that the land in question is private, and therefore it remains under the dominion of Virginia’s state legislature.
While Justice Gorsuch’s opinion explained that state legislative purpose has no place in preemption analyses, Justice Ginsburg’s opinion expressed discomfort at such a hardline stance and declined to disavow any inquiry into state legislative purpose. Chief Justice Roberts’ dissent, which was joined by Justices Alito and Breyer, would have used evidence of state legislative purpose to find that Virginia’s ban was preempted by the Atomic Energy Act.
Chief Justice Roberts criticized the majority opinion for evading the real issue –whether the state could regulate a non-preempted field (uranium mining safety) as a pretext for regulating in a field that is preempted (uranium milling and tailings safety), or in other words, that Virginia’s mining ban is in fact to prevent the milling process and the associated safety concerns. Per Chief Justine Robert’s analysis, the safety of milling process is regulated by the Atomic Energy Act and Nuclear Regulatory Commission, and if Virginia sought to prevent safety concerns during the milling process by prohibiting mining then the ban would be unenforceable and preempted by the federal regulations. Roberts opined that the state law is preempted when its purpose is a pretext for regulating within a preempted field.
These three divergent opinions are signs of future and important battles to come on the matter of legislative purpose, as the boundaries of state regulatory powers will continue to be stretched and ultimately tested. But in this instance, the result is that Virginia can ultimately maintain its uranium mining ban on private lands in the Commonwealth, and state regulation of areas not specifically reserved by federal statues continues.