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Virginia ban on uranium mining upheld

Virginia Lawyers Weekly//July 15, 2019

Virginia ban on uranium mining upheld

Virginia Lawyers Weekly//July 15, 2019

A company that wants to mine raw uranium in Virginia, but cannot because of a Virginia ban on uranium mining, failed to persuade the court that Virginia’s ban was preempted by the Atomic Energy Act, or AEA.


Virginia Uranium Inc. wants to mine raw uranium ore from a site near Coles Hill, Virginia, but Virginia law flatly prohibits uranium mining in the commonwealth. The company filed suit, alleging that, under the Constitution’s Supremacy Clause, the AEA preempts state uranium mining laws like Virginia’s and ensconces the Nuclear Regulatory Commission, or NRC, as the lone regulator in the field.

Both the district court and the Fourth Circuit rejected the company’s argument, finding that while the AEA affords the NRC considerable authority over the nuclear fuel life cycle, it offers no hint that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.


We begin with the company’s claim that the text and structure of the AEA reserve the regulation of uranium mining for the purpose of addressing nuclear safety concerns to the NRC alone—and almost immediately problems emerge. Unlike many federal statutes, the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. What the text states, context confirms. Later amendments to the AEA point to the same conclusion.

If the best reading of the AEA doesn’t require us to hold the state law before us preempted, Virginia Uranium takes another swing in the same direction. Only this time, the company submits, our precedents have adopted a different, even if maybe doubtful, reading of the AEA that we must follow. Most prominently, Virginia Uranium points to this court’s decision in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190 (1983). But here, too, problems quickly appear. If Pacific Gas and its progeny alone marked our path, this case might be a close one, as our dissenting colleagues suggest. But for us any lingering doubt dissipates when we consult other cases in this area and this court’s traditional tools of statutory interpretation.

If the AEA doesn’t occupy the field of radiation safety in uranium mining, Virginia Uranium suggests the statute still displaces state law through what’s sometimes called conflict preemption. In particular, the company suggests, Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” According to Virginia Uranium, maybe the text of the AEA doesn’t touch on mining in so many words, but its authority to regulate later stages of the nuclear fuel life cycle would be effectively undermined if mining laws like Virginia’s were allowed. A sound preemption analysis cannot be as simplistic as that.


Concurring opinion

Ginsburg, J., Sotomayor, J., and Kagan, J., concurring in the judgment:

I reach the same bottom-line judgment as does Justice Gorsuch: The commonwealth’s mining ban is not preempted. And I agree with much contained in Justice Gorsuch’s opinion. But his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the court, rather than for individual members of the court. Further, Virginia Uranium’s obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained.

Dissenting opinion

Roberts, C.J., Breyer, J., and Alito, J., dissenting:

Although one party will be happy with the result of today’s decision, both will be puzzled by its reasoning. That’s because the lead opinion sets out to defeat an argument that no one made, reaching a conclusion with which no one disagrees. Specifically, the opinion devotes its analysis to whether the field of uranium mining safety is preempted under the Atomic Energy Act, ultimately concluding that it is not. But no party disputes that. Rather, 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

Virginia Uranium Inc. v. Warren, No. 16-1275, June 17, 2019. Supreme Court (Gorsuch, J.) from 4th Cir. USSUPCT No. 019-1-002, 44 pp.

VLW 019-1-002

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