Supreme Court upholds Virginia uranium mining ban

Tuesday, 18 June 2019

In 2017 the US Court of Appeals for the 4th Circuit rejected Virginia Uranium Inc's argument that the AEA gives the Nuclear Regulatory Commission (NRC) exclusive power to regulate uranium milling and tailings-management activities and therefore pre-empts state uranium mining laws like Virginia's. The company, which wants to mine uranium from a site near Coles Hill in Virginia, then petitioned the Supreme Court to consider the ruling. The federal government also filed a brief urging the Supreme Court to take up the case.

The Supreme Court in May 2018 agreed to consider the question of whether the AEA pre-empts a state law "that on its face regulates an activity within its jurisdiction" (uranium mining), but has the "purpose and effect" of regulating radiological safety hazards of activities that are the responsibility of the NRC (the milling of uranium and the management of the resulting tailings).

The Supreme Court argued the case in November 2018 and has now announced it affirmed the earlier court decision. Three of the Supreme Court's nine judges dissented.

The AEA generally prohibits states from regulating issues relating to radiation safety that are governed by the NRC. However Supreme Court Associate Justice Neil Gorsuch - with the concurrence of Associate Justices Clarence Thomas and Brett Kavanaugh - said the AEA "contains no provision expressly pre-empting state law", and noted that the although the AEA grants the NRC "extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining" it expressly states that NRC's regulatory powers arise only after uranium is mined.

"If the federal government wants to control uranium mining on private land, it must purchase or seize the land by eminent domain and make it federal land," Gorsuch said. Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with Gorsuch that the mining ban was not pre-empted but said his discussions on legislative motive were "well beyond the confines of this case".

Virginia Uranium said yesterday it was still studying the Supreme Court's opinions, but was "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 said.

Daniel Deeb, an environmental partner at Chicago law company Schiff Hardin, said the main difference in opinion between the Supreme Court judges appeared to centre on the extent to which they believed courts should assess the state legislative purpose when considering pre-emption under the AEA.

"The majority find AEA simply does not express pre-emption of state uranium mining laws and advise of the perils of trying to assess any hidden state legislative purpose when a state law, such as that now at issue, is far removed from core NRC powers," he said.

Deeb said the dissenting judges - Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Samuel Alito - found the Virginia statute to be pre-empted by the AEA under the rationale of precedent.

"Roberts' analysis is perhaps summed up by his quip: 'Under the rule adopted by the majority, so long as a state is not boneheaded enough to express its real purpose in the statute, the state will have free reign to subvert Congress's judgement on nuclear safety'," he said, quoting directly from the published opinions.

The Coles Hill uranium deposit in Pittsylvania County was first discovered in 1978 and 2008 NI 43-101 figures showed it to contain measured resources of 3260 tU and indicated resources of 42,800 tU. Its owner, Virginia Energy Inc, describes it as the largest undeveloped uranium deposit in the USA. Virginia Energy's ownership in Coles Hill is held through its subsidiary, Virginia Uranium.