September 01, 2019

In Brief

John R. Jacus

Atomic Energy Act, preemption

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894 (2019).
The U.S. Supreme Court has upheld Virginia’s long-standing ban on uranium mining in a split decision, affirming the U.S. Court of Appeals for the Fourth Circuit’s 2017 opinion that the Atomic Energy Act (AEA) doesn’t give the U.S. Nuclear Regulatory Commission (NRC) authority over a uranium mining operation that isn’t located on federal land. Writing for a six-justice majority, Justice Gorsuch noted the AEA does not contain any provision preempting state law, and grants express authority to the NRC over all parts of the life cycle of nuclear fuel except mining. The Court also noted that Congress later amended the AEA to add a provision that provides that states remain free to regulate activities not directly under NRC jurisdiction as long as the purpose of that regulation is not nuclear safety, which is exclusively regulated by the NRC. Petitioner Virginia Uranium argued that such provision preempts any state law enacted in order to protect the public against “radiation hazards,” citing the Court’s 1983 decision in Pacific Gas & Electric v. State Energy Resources Conservation and Development Commission. In Pacific Gas & Electric, the high court held that states must have a non-safety rationale in order to regulate activities within the NRC’s authority. The Court disagreed, noting Pacific Gas & Electric dealt with a state law governing construction of nuclear power plants, something clearly within the NRC’s exclusive jurisdiction.

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