WASHINGTON (CN) – Arguing the measure steps on the federal government's authority, an attorney for a group of companies that want to mine the largest uranium deposit in the United States urged the Supreme Court on Monday to toss out a Virginia law banning uranium mining.
Shortly after a Canadian company discovered the large uranium deposit in Virginia's Pittsylvania County, state lawmakers passed a ban on the mining of uranium "until a program for permitting uranium mining is established by statute."
The ban, passed in 1983, remains in effect.
Virginia Uranium brought the lawsuit decades after the discovery of 119 million pounds of uranium ore. A decision on the case from the Fourth Circuit last year, which upheld the dismissal of the lawsuit, notes that the deposit is worth about $6 billion.
The process of extracting uranium from the Earth is subject to layers of regulation, and the owners of the land claimed in a federal lawsuit filed in 2015 that Virginia’s law is pre-empted by a federal one that gives the federal government authority to regulate the milling of uranium ore and storage of the radioactive byproducts, which are known as tailings.
Charles Cooper, an attorney with the Washington, D.C. firm Cooper & Kirk who argued for the companies on Monday, said Congress drew the line for who has control over the regulation of uranium mining activity. Because the Virginia mining ban is motivated by concerns over the safety of the processing that occurs once the ore is out of the ground, federal law pre-empts the state's measure, he said.
"What the Congress asks the courts to do is to determine the purpose of a state regulation in this body of law from a state very creatively denying municipal services, such as fire and police, sewer, garbage, to restricting access on its public roads in order to use those sovereign powers in order to prevent coming into existence the regulatory power of the [Nuclear Regulatory Commission] in the first place," Cooper said.
Solicitor General Noel Francisco further explained that while the state could ban uranium mining if it concluded it wasn't safe, it does not fall within its authority to ban uranium processing based on the same justification.
He said if the court shied away from looking at the purpose of the regulation, it would give states a "road map" to undercut the uranium mining industry entirely.
But some of the justices were skeptical of how to best judge why a state enacted a particular law.
"Is this going to require deposing every single legislative member?" Justice Sonia Sotomayor asked.
Some of the justices, including Justice Elena Kagan, raised the specter of different states with identical laws receiving different treatment based on what the perceived purpose of each law might be.
"It seems to present real opportunities for gamesmanship as well, sort of bad incentives for a state," Kagan said. "Just cover over your purpose."
Virginia Solicitor General Toby Heytens told the justices they shouldn't worry themselves about what the Legislature intended to do with the law, because what it did was ban uranium mining, an activity over which the federal government has disclaimed authority.
"And we think the single clearest and completely dispositive decision by Congress in this case was the decision it made in 1946 that it reaffirmed in 1954 and has left undisturbed until the present day, that the federal government does not regulate uranium mining," Heytens said. "For that reason, Virginia's inherent sovereign ability to control something as fundamental as what material gets pulled out of the ground remains fully intact, its ban should not be pre-empted and this court should affirm."
But some of the justices remained stuck on this point. Justice Brett Kavanaugh, the court’s newest member, noted that uranium mining and uranium processing are inextricably intertwined, making it easy for a state to step into the federal government's regulatory space.
"Aren't the radiological safety issues posed by the milling far more than the mining?" Kavanaugh asked, referring to the processing of uranium ore. "I thought that was why you're concerned about the milling. To Justice Alito's point, it's a way to prohibit the milling, you can't do that – ‘let’s prohibit the mining, that way we prohibit the milling, which has the radiological safety concerns.’"
Justice Stephen Breyer saw similar potential for states to take circuitous routes to ban uranium ore processing using other means to avoid federal pre-emption.
"The imagination allows you to think of all kinds of things where they stop the tailing," Breyer said. "No one who works in a tailing plant can eat. All right? You know, that's not going to be a real law. But they can't eat, they can't have electricity in the plant, they can't build it in the first place because it's residential. You name it, they have authority in all kinds of places and all they have to do to stop the tailings is they use this other authority solely in order to stop the tailings.”
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