May 10, 2019

Preemption and purpose: Virginia Uranium, Inc. v. Warren

Matthew E. Price and Max Minzner

The Atomic Energy Act creates a comprehensive federal scheme governing radioactive safety. Like many such schemes, the statute carves out and protects certain areas where states retain the authority to act, while empowering the federal government to regulate other areas. The statute, though, is unusual in that it makes preemption turn on the state’s purpose: Congress expressly preserved state authority to “regulate [even covered] activities for purposes other than protection against radiation hazards.” 42 U.S.C. § 2021(k) (emphasis added).

Virginia Uranium, Inc. v. Warren, 848 F.3d 590 (4th Cir. 2017), concerns a Virginia state law adopting a moratorium on uranium mining. The parties agreed that the Atomic Energy Act does not regulate uranium mining, leaving states to regulate that activity pursuant to their police powers. Despite that fact, the challenger (which owns a large uranium deposit) contends that the moratorium is preempted, because, although nominally addressing mining, the moratorium’s actual aim was to prevent radiation hazards arising from milling and tailings storage—activities that the statute does regulate. The case was argued at the U.S. Supreme Court in November 2018 and is now pending for decision.

One central question in the case concerns whether Virginia, despite having regulated only uranium mining, nevertheless intruded into a federal field because of its alleged purpose. According to Virginia, so long as it regulates activities outside the scope of the statute, its purpose is irrelevant. Section 2021(k) is merely a savings clause, preserving state regulation even of activities covered by the statute, except when enacted with an improper purpose. If the state is regulating an uncovered activity, such as mining, then there is no need to ask about purpose, because such state has not regulated in the federal field at all. Here, Virginia contends, the moratorium concerns only mining—not milling or tailings storage—and thus is lawful no matter what the purpose.

The challenger and the United States respond that, under the Atomic Energy Act, a state can intrude into the federal field even if it does not regulate there directly, by enacting otherwise permissible regulations with an impermissible purpose. This notion—that a state can intrude into a federal field even when the state does not regulate in that field—seems self-contradictory. A more apt framework would view the challenger and government’s argument as one about conflict preemption: Even if the state has regulated in its own field, that regulation may nevertheless be preempted if it creates an obstacle to achieving Congress’s regulatory goals. Yet conflict preemption was not a main focus of the briefing or argument.

To the extent Virginia’s purpose is nevertheless relevant to field preemption, a second question in the case is how to identify the state’s purpose—the forbidden one of protecting against radiation hazards, or a different, permissible purpose? One approach to that question is to attempt to assess the legislature’s actual motivation in enacting the legislation as a factual matter. Was the legislature motivated to regulate for a reason prohibited by the statute? Such an effort, however, is fraught. For one thing, there may be no answer to that question. Different legislators may view the law as serving different purposes; some legislators may have multiple purposes in mind when voting for a statute. In addition, evidence of the purpose may be lacking. Legislators are not required to disclose their purpose at all; and in many states, conventional sources of legislative history, such as committee reports, are unavailable. What is more, focusing on the legislature’s subjective purpose can lead to anomalous results: two identical statutes, with identical effects on federal interests, could be viewed differently depending on the legislature’s subjective purpose in adopting them. That is an odd approach to preemption.

A different approach is to ask the question hypothetically: could a rational legislator have had a purpose in enacting the law other than the one forbidden by the Atomic Energy Act? If so, then the statute would survive. This “rational basis” approach to purpose is similar to the analysis undertaken by the Supreme Court when assessing whether a state law was enacted with the purpose of discriminating against interstate commerce. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7, 471 n.15 (1981). At argument, the government seems to have favored this approach.

As things stand now, we’ll just have to wait, but not for long. A decision is expected by the end of June.

Matthew E. Price and Max Minzner

Matthew E. Price is a partner in Jenner & Block’s energy and appellate practices. His practice focuses on matters involving the relationship of state and federal authorityMax Minzner is a partner in Jenner & Block’s energy practice and a former general counsel of the Federal Energy Regulatory Commission.