High Court to Probe Virginia Ban on Uranium Mining

WASHINGTON (CN) – The Supreme Court took up a case Monday where Virginia has barred mining companies from exploiting the country’s largest known uranium deposit.

Virginia Uranium brought the lawsuit here decades after the 1980s discovery of 119 million pounds of uranium ore in Pittsylvania County, Virginia. A decision on the case from the Fourth Circuit last year notes that the deposit is worth about $6 billion.

Though the state Coal and Energy Commission reported in 1985 that the benefits of uranium mining “outweighed the costs 26 to 1,” the Virginia General Assembly kept in place a moratorium on mining that they effected when the discovery first occurred.

The law calls for the ban to exist “until a program for permitting uranium mining is established by statute.”

In its 1985 report meanwhile the Commission reported that the state could lift the moratorium if it enacted laws to tightly regulate the industry and otherwise heeded the “essential specific recommendations … of the task force.”

Virginia’s moratorium remains effective even after state Senators John Watkins and Richard Saslaw sponsored a bill to create a licensing scheme for the issuance of uranium mining permits in January 2013. The bill was withdrawn after failing to face a vote.

Virginia Uranium and its parent company, Virginia Energy Resources, have been leasing the mineral estate in the meantime from two companies that own the land above the deposit, Coles Hill LLC and Bowen Minerals LLC.

They filed suit together in the Western District of Virginia and appealed to the Fourth Circuit when their case was dismissed 2-1 for failure to state a claim.

Though the companies contend that Virginia’s moratorium is federally pre-empted, the courts found that Congress has never shown an interest in supporting the conventional mining of nonfederal uranium deposits.

“Because conventional uranium mining outside of federal lands is beyond the regulatory ambit of the Nuclear Regulatory Commission, it is not an ‘activity’ under Section 2021(k) of the [Atomic Energy] Act,” the 2017 ruling by the Fourth Circuit says. “As a result, the district court was correct to hold that Virginia’s ban on conventional uranium mining is not preempted.”

Virginia Uranium also pointed to the stated purpose of the Atomic Energy Act: promoting the safe development and use of atomic energy. In arguing that Virginia’s ban created an obstacle to that congressional purpose, it asked the Fourth Circuit to “imagine what would become of Congress’s desire to encourage the development and use of uranium if all 50 states enacted similar legislation.”

The majority found the scenario unremarkable.

“For starters, over ninety percent of the uranium used by the country’s atomic-energy industry is imported, so state bans on domestic production would have negligible effect,” they wrote. “Moreover, as of 2015, eighteen domestic uranium recovery facilities — those that either use in situ leaching or are located on federal lands — are licensed by the [Nuclear Regulatory Commission] and thus beyond the reach of any state bans. Finally, if push comes to shove, the Atomic Energy Act allows the federal government to forcibly expand the production of domestic source material: The NRC may ‘purchase, condemn, or otherwise acquire … real property containing deposits of source material.’ In sum, Congress’s purposes and objectives in passing the act are not materially affected by the commonwealth’s ban on conventional uranium mining. The district court properly dismissed this case.”

Per its custom, the U.S. Supreme Court did not issue any comment Monday in taking up the latest appeal by Virginia Uranium.

The company is represented by Charles Cooper of Cooper & Kirk in Washington.

Virginia is represented by its Attorney General’s Office.

The U.S. solicitor general has intervened, as have the U.S. Chamber of Commerce and a group of lawmakers led by Sen. Tom Cotton. The lawmakers are represented by Sidley Austin attorney Gordon Todd, and the Chamber of Commerce by Kirkland & Ellis attorney Erin Murphy.

%d bloggers like this: