Virginia Ban on Uranium Mining Gets High Court Backing

This map shows the proposed location for the uranium mine and the surrounding rivers, which serve as a drinking water source for many communities. (Image via Southern Environmental Law Center)

WASHINGTON (CN) – Upholding a law that prohibits uranium mining in Virginia, the Supreme Court ruled 6-3 Monday that federal law does not pre-empt the state ban.

Virginia banned uranium mining in 1983, shortly after a Canadian company discovered a large deposit of the substance in the state’s Pittsylvania County. Lawmakers at the time prohibited mining uranium in the state “until a program for permitting uranium mining is established by statute.” 

With the deposit estimated to be worth $6 billion, a group of companies led by Virginia Uranium filed suit in 2015. Invoking the Atomic Energy Act, which gives the Nuclear Regulatory Commission broad authority over the production and disposal of uranium, the companies said Virginia’s ban was federally pre-empted.

A fractured majority of the Supreme Court rejected that argument Monday, saying the AEA did not take away states’ ability to decide what mining happens within their own borders.

“In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote, but, as importantly, what it didn’t write,” Justice Neil Gorsuch wrote for the court, joined by Justices Clarence Thomas and Brett Kavanaugh. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with the ultimate conclusion the three conservatives reached, but joined a separate opinion written by Ginsburg. 

Virginia Attorney General Mark Herring praised the court’s decision on Monday.

“This is a big win for the health and safety of Virginians and our environment,” Herring said in a statement. “Our ban on uranium mining has protected our citizens, communities, local economies, and waterways for more than 30 years, and the Supreme Court has now confirmed that we are well within our rights as a state to decide that a risky, potentially dangerous activity like uranium mining is not for us.”

To Gorsuch and his ideological partners, the issue for Virginia Uranium is that Congress did not touch state rights over mining issues when it passed the AEA. Gorsuch also scoffed at the company’s suggestion that the court should read deeply into the intents of both the state and federal lawmakers when determining whether the federal law pre-empts the state ban.

“The only thing a court can be sure of is what can be found in the law itself,” the 17-page lead opinion states. “And 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.”

Gorsuch went to great lengths in the opinion to warn of the dangers of reading into legislative intent, saying it is impossible to decide which of a potential multitude of motivations convinced a legislator to vote how he or she did on a specific bill.

“Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law’s passage and few of which are fully realized in the final product.”

This is where Gorsuch lost the liberal members of the court who otherwise agreed with his conclusion that the law should stand. In a 14-page opinion, Ginsburg called Gorsuch’s discussion of the troubles with looking at legislative intent “inappropriate in an opinion speaking for the court” and “well beyond the confines of this case.”

Instead, Ginsburg said Virginia’s ban on uranium mining should stand purely because the state has “the better reading of the statute.”

“Every indication, then, is that Congress left private conventional mining unregulated,” Ginsburg wrote. “And if Congress did not provide for regulation of private conventional mining, it is hard to see how or why state law on the subject would be preempted, whatever the reason for the law’s enactment.”

Charles Cooper, an attorney at Cooper & Kirk who represents Virginia Uranium, said the company is evaluating next steps.

“We are still studying the Supreme Court’s opinions, but we are obviously disappointed with the result,” Cooper said in a statement. “We continue to think that Virginia’s uranium-mining ban is both unlawful and unwise, and we are reviewing other options for challenging the commonwealth’s confiscation of Virginia Uranium’s mineral estate.”

The Virginia Attorney General’s Office did not immediately return a request for comment on the decision.

The dissenting opinion – penned by Chief Justice John Roberts and joined by Justices Stephen Breyer and Samuel Alito – says the majority resolved a question that nobody involved in the case asked.

For Roberts, the issue in the case was not whether the AEA pre-empts state laws on uranium-mining safety, but whether bans such as Virginia’s can stand even if they amount to an end-run around a federal law.

Roberts called it clear that Virginia enacted the ban not out of concern for the safety of the mining, but to effectively regulate the processing of the ore once it is out of the ground. While the AEA does not pre-empt state law on the first issue, Roberts said it does on the second.

Roberts argued that the court’s precedent thus requires tackling why Virginia passed the ban. To do otherwise would allow states to easily dodge federal authority.

“If a state disagrees with the AEA’s nuclear safety regulations and thus wants to block nuclear development within its borders, it has myriad ways to do so through its broad police powers,” Roberts wrote. “Under the rule adopted by the lead opinion and the concurrence, so long as the state is not boneheaded enough to express its real purpose in the statute, the state will have free rein to subvert Congress’ judgment on nuclear safety.”

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