September 09, 2019

Case Brief: U.S. Supreme Court Upholds Virginia Ban on Uranium Mining

Jerry Bonanno

In June, the U.S. Supreme Court upheld Virginia’s ban on uranium mining in an unusual 3-3-3 decision. Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894 (2019). The petitioners in the case sought to use conventional mining techniques to remove uranium ore from a site located near Coles Hill, Virginia, and mill the extracted uranium to produce “yellowcake” for sale to uranium enrichment facilities. The waste or “tailings” produced by the milling process would also be managed near the mining site. Id. at 1900. 

Virginia law, however, flatly bans uranium mining in the Commonwealth. The petitioners challenged the ban, asserting that it was preempted by the Atomic Energy Act (AEA). Both the district court and a divided panel of the U.S. Court of Appeals for the Fourth Circuit disagreed with the petitioners, holding that Virginia’s mining ban was not preempted by the AEA. The Supreme Court granted certiorari in May of 2018. Virginia Uranium, Inc. v. Warren, 138 S.Ct. 2023 (2018).

Lead Opinion

The lead opinion announcing the judgment of the Court, authored by Justice Gorsuch and joined by Justices Thomas and Kavanaugh, described the petitioners argument as “contend[ing] that the AEA . . . unseats state uranium mining regulations . . . under the doctrines of both field and conflict preemption.” Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1901 (2019). Justice Gorsuch laid the foundation, explaining that the lead opinion “examin[ed] . . . arguments about the AEA’s preemptive effect . . . looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation.” Id. at 1901.

Justice Gorsuch began his assessment of the petitioners’ claims by examining the Nuclear Regulatory Commission’s (NRC’s) authority to regulate conventional uranium mining. Specifically, the Justice pointed out that the AEA “grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining.” Id. at 1902 (emphasis in original). Instead, uranium mining on private land is outside of the NRC’s jurisdiction, which arises “at the mill, rather than at the mine.” Id. at 1902 (quoting In re Hydro Resources, Inc., 63 NRC 510, 512 (2006)).

After discussing the NRC’s lack of jurisdiction over conventional uranium mining, the lead opinion turned to section 274 of the AEA, which allows the NRC to relinquish its regulatory authority over certain radioactive materials to the states. The states may regulate these materials for the purpose of protecting “the public health and safety from radiation hazards.” Id. At the same time, the lead opinion explained that section 274 mandates that the NRC retain its regulatory authority over certain activities, such as the construction and operation of nuclear power facilities.

Next, the lead opinion turned to a pivotal provision in subsection 274(k), which states: “Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Importantly, Justice Gorsuch explained that Virginia Uranium’s argument relied upon an interpretation of subsection (k) that “demands displacement of any state law (touching mining or any other subject) if that law was enacted for the purpose of protecting the public against radiation hazards.” Id. at 1092–93. And, as the dissenting opinion pointed out, “it is conceded that the mining ban was adopted because of radiological safety concerns about milling and tailings.” Id. at 1919. Thus, if Virginia Uranium’s reading of subsection (k) was correct, it would follow that the mining ban would be preempted.

But the lead opinion took a different view. Justice Gorsuch read section 274 as doing “nothing to extend the NRC’s power to activities, like mining, historically beyond its reach.” Id. at 1902. Further, the “activities” referred to in subsection (k) that could continue to be regulated by the states “for purposes other than protection against radiation hazards” were limited to those activities reserved to the federal government and referenced in section 274 (e.g., construction and operation of nuclear power plants). Stated differently, Justice Gorsuch reasoned “only state laws that seek to regulate the activities discussed in [section 274] without an NRC agreement . . . may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety.” Id. at 1903. Thus, according to the lead opinion, the purpose of Virginia’s mining ban was not relevant to the preemption inquiry.

Justice Gorsuch also distinguished the present case from the Court’s decision in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n. 461 U.S. 190 (1983) (Pacific Gas). Id. 1903–04. There, the Court reviewed a state law banning the construction of new nuclear power plants, and upheld the law “only after observing that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards.” Id. at 1904 (citing Pacific Gas, at 209). The lead opinion pointed out that Pacific Gas addressed a situation where the state law in question was regulating an activity—construction of a nuclear power plant—that was expressly reserved to the NRC in subsection 274(c). Thus, in that case, the ban on construction of nuclear power facilities “risk[ed] being subjected to an inquiry into its purposes under subsection (k).” Id. at 1904.

But the lead opinion did not stop at distinguishing the facts of Pacific Gas from the present case. Going further, Justice Gorsuch questioned the wisdom of the Court’s decision to examine legislative purpose in Pacific Gas. Responding to the dissent’s argument that the law in Pacific Gas did not directly implicate an activity covered by section 274, Justice Gorsuch characterized the application of the exacting inquiry of legislative purpose undertaken in Pacific Gas in this case as “a doubtful extension of a questionable judicial gloss,” and asserted that the Court’s later cases confirmed the restraint exercised in the lead opinion. Id. at 1905 (discussing Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) and English v. General Elec. Co., 496 U.S. 72 (1990)). Justice Gorsuch completed the lead opinion’s examination of field preemption by describing “the costs to cooperative federalism and individual liberty” that would be invited by the Court inquiring too hastily into state legislative purpose in preemption cases. Id. at 1906–07.

On conflict preemption, the lead opinion described the Petitioners’ claim as suggesting that Virginia’s mining ban functions as an inappropriate “obstacle to the accomplishment and execution of the full purposes of the objectives of Congress.” Id. at 1907. Expressing reservations about elevating “abstract and unenacted [federal] legislative desires above state law,” Justice Gorsuch rejected the petitioners’ obstacle preemption argument concluding:

The only thing a court can be sure of is what can be found in the law itself. 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.

Id. at 1908. Thus, the lead opinion affirmed the Fourth Circuit’s judgement.

Concurring Opinion

The concurring opinion, authored by Justice Ginsburg and joined by Justices Sotomayor and Kagan, agreed that Virginia’s mining ban is not preempted by the AEA. Specifically, Justice Ginsburg agreed with much of the lead opinion, citing to pages 1901–05, however she described the lead opinion’s description of the “perils of inquiring into legislative motive” as “sweep[ing] well beyond the confines of this case” and, thus, inappropriate for inclusion in an opinion speaking for the Court. Id. at 1910. Justice Ginsburg also took issue with the lead opinion’s questioning of the Court’s obstacle preemption (i.e., conflict preemption) doctrine, finding such criticism unnecessary because the petitioners’ arguments did not hold up under the existing doctrine. Id.

Those differences aside, on field preemption the concurring opinion was largely aligned with the lead opinion. For example, Justice Ginsburg agreed with Justice Gorsuch’s reading of section 274 of the AEA—concluding that, by its terms, the “nonradiological purposes” limitation in subsection 274(k) only limited the state’s authority to regulate activities that the NRC also had authority to regulate. Id. at 1912–13. Thus, an inquiry into the purpose of the Virginia mining ban was not compelled by the AEA.

Further, like the lead opinion, Justice Ginsburg was not convinced that the Court’s decision in Pacific Gas demanded a different result. Justice Ginsburg distinguished Pacific Gas from the instant case, pointing out that Pacific Gas dealt with at state ban on the construction of nuclear power plants—an activity clearly within the NRC’s authority to regulate. Thus, in that case, an inquiry into whether the ban was enacted for purposes other than radiation protection was appropriate under subsection 274(k). Id. at 1913–14.

Justice Ginsburg was also not persuaded by the solicitor general’s arguments that Virginia’s ban is preempted because it serves as a pretext for regulating the radiological hazards associated with milling and the storage of tailings, which are NRC-regulated activities. Id. at 1914. After distinguishing the case law relied upon by the solicitor general, which dealt with an express preemption provision in the Federal Meat Inspection Act, Justice Ginsburg concluded that “[a] state law regulating an upstream activity within the State’s authority is not preempted simply because a downstream activity falls within a federally occupied field.” Id. at 1915.

After addressing the field preemption claims, Justice Ginsburg examined and rejected each of the petitioners’ conflict preemption claims. The concurring opinion’s dismissal of conflict preemption claims essentially reinforced that this case involved an activity—uranium mining on private land—that is not regulated by the NRC; reiterated that there is no federal policy of promoting nuclear energy “at all costs;” and stressed that the Commonwealth had not actually attempted to regulate the radiological safety of milling or tailing storage.

Thus, Justices Ginsburg, Sotomayor, and Kagan concurred in the Court’s judgement.

Dissenting Opinion

The dissenting opinion, authored by Chief Justice Roberts and joined by Justices Breyer and Alito, asserted that the issue in this case—which the lead opinion failed to analyze—was not whether regulation of uranium mining is preempted by the AEA. Rather, in Chief Justice Roberts’ view, the question presented was “whether a State can purport to regulate a field that is not preempted (uranium mining safety) as an indirect means of regulating other fields that are preempted (safety concerns about uranium milling and tailings).” Id. at 1916 (emphasis added).

Specifically, Chief Justice Roberts explained that the petitioners’ theory of the case was that Virginia’s mining ban was actually motivated by concerns over milling and the storage of tailings, not uranium mining. Further, the dissenting opinion characterized the Court’s AEA precedents as standing for the proposition that “[b]ecause the Federal Government has occupied the entire field of nuclear safety concerns, a state law that is grounded in [such] safety concerns falls squarely within the preempted field.” Id. at 1917 (internal quotation marks omitted). Since the Commonwealth had not offered rationale for its mining ban other than concerns over the safety implications of milling and management of tailings, Justice Roberts concluded that this should have “made for an easy case.” Id.

Chief Justice Roberts also argued that the lead opinion had backed away from the Court’s precedent in Pacific Gas. Specifically, the dissenting opinion asserted that ban on construction of nuclear power plants at issue in Pacific Gas did not actually regulate the preempted field because “it did not regulate the manner in which nuclear power plants may be constructed or operated, which is a field preempted by the AEA.” Id. at 1918. Rather, Chief Justice Roberts explained that the ban at issue in Pacific Gas “purposed to address the antecedent question whether new plants should be constructed at all.” Id. Thus, the dissenting opinion concluded that here, like in Pacific Gas, an inquiry into the rationale or purpose of the Commonwealth’s mining ban was appropriate.

Conclusion

Given the 3-3-3 split, it will undoubtedly take some time to sort out the precise contours of the Court’s holding in Virginia Uranium. Under the Supreme Court's test in Marks v. United States, 430 U.S. 188 (1977) for determining the holding from fractured decisions, the holding of the Court that binds lower courts is the narrowest ground upon which a majority of Justices joining in the judgment agreed. While the issue will almost certainly be litigated, it seems that the holding in Virginia Uranium will limit examination of state motives to those situations where the state law in question is directly regulating or “comes close to trenching on the core federal powers reserved to the federal government by the AEA.” Id. at 1904.

The AEA does, however, specify that the NRC may regulate uranium mining on federal land and provides for the purchase or seizure of private land through the exercise of eminent domain. Id.

 

    Jerry Bonanno

    Jerry Bonanno serves as associate general counsel for the Nuclear Energy Institute (NEI). The views expressed in this article are solely those of the author and do not necessarily represent the positions of the Nuclear Energy Institute or the nuclear industry.