Debate Over Uranium Mine in Virginia Has Date With Supreme Court

WASHINGTON (CN) – Forty years ago, the largest uranium deposit in North America was discovered under the sleepy Appalachian foothills of Southern Virginia.

Potentially worth billions of dollars, the site has been a subject of controversy ever since a Canadian company learned the geology of the area is similar to that of mines it already operates and began to pursue the right to exploit it.

Environmentalists and many locals objected, and in 1983, Virginia legislators placed a ban on the mining of uranium in the state.

On November 5, the long-running dispute will make its way to the U.S. Supreme Court, where justices will be asked to decide whether the state has the right to block resource development it finds objectionable or has overstepped its authority.

In addition to the mining firm, those opposing the state ban include the Coles family, which owns the land on which the uranium deposit lies.

Walter Coles Sr., the patriarch of the family and CEO of Virginia Energy Resources, said his family has owned the land at the center of the controversy since 1785.

For the most of the years since then, the land has been used for tobacco and subsistence farming, and Coles said his family members that settled the land persevered “in what was more or a less a desolate part of the country at that point and time.”

But when Canadian geologists from the Marline Corporation realized the geology of the Coles’ land matched that of uranium-rich soil to the north, they came to town, armed with helicopters and Geiger counters, and began to collect rock samples for testing.

But that’s not to say their activity caused much excitement among the landowners. Coles, who was away from the land at the time, said his family members saw the discovery of riches beneath their feet and simply one more chapter in a long saga.

“We’d been here for generations,” he said in an interview with Courthouse News. “This was just one step forward.”

But before the Coles and their Canadian benefactors could begin the process of removing the uranium from the ground, state legislators intervened.

Retired state Senator John Watkins, who supported the development of the mine, recalled that when the question of developing the mine came before him and his colleagues in the Virginia General Assembly, “they just didn’t want it.”

The 1983 moratorium includes a provision stating it will remain in place, “until a program for permitting uranium mining is established by statute.”

Cole all but abandoned attempts to reverse the General Assembly’s decision until 2013, when the market for uranium started to heat up.

Once again, however, a majority of state lawmakers opposed the mine proposal.

In doing so, many of them cited a 2012 study by the National Academy of Sciences that concluded mining faced “steep hurdles” that mining proponents would have to overcome if such development was ever going to come to pass.

Among these is Virginia’s sparse to nonexistent regulatory history when it comes to uranium mining and processing.

James Edmunds, the Republican Delegate whose district includes the Coles’ land, told reporters he “didn’t want [his] legacy to be a uranium mine,” and in short order, the renewed momentum behind the project was gone.

Coles blames environmental activists for the defeat of the mining proposal both in the early 1980s and again in the 2010s.

He said the groups were able to convince lawmakers and many in the general public that uranium mining is a dangerous activity with dire consequences.

He believes otherwise.

“It’s not like the 1930s and ’40s, where there was less regulation,” he said. “Environmentalists would use this historic practice to object to uranium mining, but we talked about new technologies that had made it safer.” But the push back continues. In a brief filed in the Supreme Court by the Roanoke River Basin, a regional environmental group supporting the ban, said the health effects for both humans and the Earth should play a part in the Supreme Court’s decision making process.

“Independent of the radiological safety concerns associated with uranium milling and tailings management — which occur after the extraction of uranium ore from the ground — the mining process presents its own set of serious risks to human health and the environment, due to the presence of radiological and non-radiological chemicals in ore deposits, mine water, and waste rock,” the group said.

But, environmental concerns aren’t actually the focus of the argument that’s about to transpire before the High Court.

The 2015 lawsuit filed by the Coles focuses instead on the state’s ability to limit the mining in the first place.

“The question is, what’s the purpose of the law,” said John Ohlendorf, the Cooper & Kirk attorney representing the Coles. “The purpose shows it to be pretextual regulation of something that federal law exclusively controls; in this case the process of milling and maintaining tailings.”

Ohlendorf said the Atomic Energy Act, signed into law in the 1950s to govern the use of nuclear material across the country, supersedes state law on the matter. And while the state’s law specifically addresses permits on “mining,” something the federal law doesn’t mention by name, Congress intended the law to encompass every part of the uranium life-cycle.

“The way Congress wrote the Atomic Energy Act, [the states] can’t pretextually regulate those activities, the mining, and that’s exactly what the ban is doing,” he said, noting the Nuclear Regulatory Commission is actually the final say on any uranium mining in the US.

This argument failed to sway U.S Circuit Judge Albert Diaz, an Obama appointee to the Fourth Circuit, who wrote the opinion upholding the ban two years ago.

“Federal law is silent on conventional uranium mining outside of federal lands,” Diaz wrote. “And the NRC reads this gap in the Act’s language to mean that the Commission lacks the power to regulate it.”

Virginia Attorney General Mark Herring agrees. His office is defending the ban on behalf of the Virginia Department of Mines, Minerals and Energy, the named defendant in the case.

“The General Assembly has had a moratorium in place for more than three decades, and it’s our right as a state to decide whether or not we want this potentially risky mining to happen in our communities,” Herring said in a statement sent to Courthouse News. “The fact is, Southside Virginia and the Virginia General Assembly have spoken loud and clear: Virginia doesn’t want uranium mining and Virginia doesn’t need uranium mining.”

Still, Coles and Watkins see not exploiting the deposit as a major misstep for Virginia and the country as a whole.

“Anytime you deny mankind the ability to advance technology you deny the future,” the retired state senator said. “We have very little control over what the future may bring and most of it is from things seen and unseen.”

Coles claims the economic benefits to what he called an otherwise depressed region are also a selling point for their cause. Manufacturing moved out of the area decades ago, and he sees the mine and processing plant that would be built alongside it as a rare opportunity to inject jobs and money into the region.

If they win, Coles hopes this argument will sway a historically resistant public, and he’s cognizant of the time it would take to turn the earth below his feet into money in his bank account.

“There’s a lot out there that’s not being talked about much that makes people like our company optimistic for the future over the next 10-20 years,” he said. “And the fact is this uranium deposit isn’t going anywhere. It’s going to be available as the economic environment requires it.”

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