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State's Ban on Uranium Mining Upheld by U.S. Supreme Court

Cooling towers at the Three Mile Island nuclear power plant in Middletown, Pa., Monday, May 22, 2017.

Cooling towers at the Three Mile Island nuclear power plant in Middletown, Pa., Monday, May 22, 2017. AP Photo/Matt Rourke

 

Connecting state and local government leaders

The Virginia case involved questions about legislative intent and the power states have under an atomic energy law.

A federal atomic energy law does not override Virginia’s state ban on uranium mining, the U.S. Supreme Court ruled 6-3 on Monday, with half of the justices in the majority taking a skeptical stance on judicial inquiries into the motivations state legislators have for passing laws.

Virginia Uranium, Inc. v. Warren pitted companies that want to mine a massive deposit of uranium beneath the ground in Pittsylvania County, near Virginia’s southern border, against the state. Virginia lawmakers first approved a ban on uranium mining in 1982.

The plaintiffs in the case argued the mining moratorium should not be allowed because it strayed into areas overseen by the federal government under the Atomic Energy Act.

But the state countered that the act does not cover conventional uranium mining on nonfederal lands and that it was therefore free to regulate, or prohibit, uranium mining as it sees fit.

Like a federal district court, and a divided panel of the 4th U.S. Court of Appeals, the Supreme Court on Monday rejected the arguments Virginia Uranium made and sided with the state.

“Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders,” says the court’s lead majority opinion, written by Justice Neil Gorsuch.

Gorsuch said he did not “see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives” and that “we are hardly free to extend a federal statute to a sphere Congress was well aware of but chose to leave alone.”

Justices Clarence Thomas and Brett Kavanaugh signed onto the opinion.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed the mining ban was not preempted by the federal law, but said that Gorsuch went too far in his discussion about the risks of courts delving into legislators’ motivations when they enact certain policies.

Virginia’s Attorney General Mark Herring called the ruling “a big win for the health and safety of Virginians and our environment.”

“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,” he added.

Virginia Uranium said in a statement Monday that company officials are “still studying the Supreme Court’s opinions, but we are obviously disappointed with the result.”

“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 company added.

Lisa Soronen, executive director of the State and Local Legal Center, noted that the case centered on “an arcane part of an arcane law” and suggested the ruling is unlikely to have dramatic implications for most future cases involving federal preemption of state laws.

“It doesn’t seem like it moves the preemption ball in any particular direction, in any sort of definitive way,” she said. “Just because it comes up in such a narrow context.”

The Trump administration took a position in favor of the companies that brought the case. U.S. Solicitor General Noel Francisco argued in court last November that if the Virginia law were allowed to stand, it would provide an avenue for states to hinder uranium mining.

Uranium is a radioactive metal that serves as fuel for nuclear power plants and is used to manufacture atomic weapons. The Virginia site, known as Coles Hill, is said to be the nation’s largest known uranium deposit, containing an estimated 119 million pounds of the ore.

Under the Atomic Energy Act, the federal Nuclear Regulatory Commission, or NRC, is tasked with regulating safety matters that have to do with the “milling,” or processing, of mined uranium ore, and the safe handling and storage of leftover waste, or “tailings.”

A key argument the companies challenging Virginia’s law made was that while the state’s ban was on mining, lawmakers were moved to enact the prohibition due to concerns about hazards from milling and tailings, which fall under the purview of federal regulators.

Here the companies turned to a 1983 Supreme Court opinion in another Atomic Energy Act case involving questions of preemption—Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission.

That dispute had to do with whether California overstepped its authority by blocking the construction of new nuclear power plants.

Virginia Uranium pointed out that the court upheld the law in the California case only after taking into account that the state enacted it for economic reasons, rather than to address safety concerns that were up to the federal government to oversee, Gorsuch’s opinion explains.

But the justice goes on to highlight differences between Pacific Gas and the Virginia case.

“It is one thing to do as Pacific Gas did and inquire exactingly into state legislative purposes when state law prohibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers,” his opinion says.

It’s another thing, he adds, to “impose the same exacting scrutiny on state laws prohibiting an activity like mining far removed from the NRC’s historic powers.”

Gorsuch later elaborates on the problems he sees with federal courts liberally scrutinizing the intentions of state lawmakers, saying that doing so would threaten to stifle deliberation in legislatures and encourage “secrecy and subterfuge.”

“In Virginia Uranium’s vision as well, federal courts would have to allow depositions of state legislators and governors, and perhaps hale them into court for cross-examination at trial about their subjective motivations in passing a mining statute,” Gorsuch added.

Ginsburg wrote that while she reached the same “bottom-line judgment” as Gorsuch, that the state’s ban is not preempted by federal law, his discussion about the “perils of inquiring into legislative motive” extends “well beyond the confines of this case.”

The State and Local Legal Center submitted an amicus brief supporting the state in the Virginia Uranium case. The brief was filed on behalf of the National Conference of State Legislators, the National League of Cities and the International City/County Management Association.

It outlined a number of reasons why it would be a bad idea for courts to explore the subjective intent of state legislators when trying to determine if a law should be preempted.

“The argument that we wanted, we kind of got too much of it,” Soronen said. “Justice Gorsuch goes on and on and on about the problems associated with trying to figure out what legislators intended,” she added. “He goes on to the point that he loses justices.”

Chief Justice John Roberts wrote a dissenting opinion in the case and was joined by Justices Stephen Breyer and Samuel Alito, saying that the ruling by the majority “sets out to defeat an argument that no one made, reaching a conclusion with which no one disagrees.”

Roberts says that no party disputes that the Atomic Energy Act does not preempt states from regulating uranium mining safety.

The question the court agreed to address, he wrote, is whether a state can claim regulatory powers it does have under the federal law to indirectly regulate areas where it is preempted.

In this case that would be Virginia’s authority to regulate mining safety and how that relates to regulating uranium millings and tailings, and the radiation safety concerns that come with them.

“Because Virginia has not even disputed that its uranium mining ban was ‘grounded in’ its ‘nuclear safety concerns’ about uranium milling and tailings, the company’s preemption claim should not have been dismissed,” the chief justice writes.

He says that in Pacific Gas, California was able to put forward a “nonsafety rationale,” in justifying its ban on nuclear power plants, whereas Virginia didn’t do the same. “That should have been the end of the story, at least at this stage of the litigation,” he added.

Roberts warns that Monday’s decision leaves a path for states to block nuclear development. “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’s judgment on nuclear safety,” he wrote.

“AEA preemption cannot turn on the label a State affixes to its regulations,” he added. “That approach would simply invite evasion.”

Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.

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