RICHMOND — The U.S. Supreme Court on Monday upheld Virginia’s authority to prohibit uranium mining on private property, which means the state can continue to bar mining at the nation’s largest uranium deposit in Pittsylvania County.
Virginia Uranium wants to mine raw uranium ore at a site that contains about 119 million pounds of uranium ore, but Virginia law has barred uranium mining for more than 30 years.
The company sued the state in federal court in 2015, arguing that the federal Atomic Energy Act pre-empts such state uranium mining laws and makes the Nuclear Regulatory Commission the regulating authority.
The Supreme Court agreed with the 4th U.S. Circuit Court of Appeals that while the Atomic Energy Act “affords the NRC considerable authority over the nuclear fuel life cycle,” it offers no indication that Congress sought to strip states of their power to regulate mining on private lands within their borders.
Wrote Justice Neil Gorsuch: “Virginia Uranium insists that the federal Atomic Energy Act pre-empts a state law banning uranium mining, but we do not see it.”
Virginia Attorney General Mark Herring hailed the decision.
“This is a big win for the health and safety of Virginians and our environment,” Herring said in a statement. “Our ban on uranium mining has protected our citizens, communities, local economies, and waterways for more than 30 years, and 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.”
Walter Coles Sr., president and CEO of Virginia Uranium Inc., said in a statement: “We 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.”
Gorsuch, joined by Justices Clarence Thomas and Brett Kavanaugh, found that the Atomic Energy Act “contains no provision expressly pre-empting state law.” He found that it grants the Nuclear Regulatory Commission “extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle” except for mining.
“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 ... indicating that state authority remains untouched,” Gorsuch wrote.
Justice Ruth Bader Ginsburg filed an opinion concurring in the judgment, joined by Justices Sonia Sotomayor and Elena Kagan. Ginsburg agreed with Gorsuch that the federal law does not pre-empt Virginia’s mining ban, but found that Gorsuch’s “discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case.”
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Stephen Breyer and Samuel Alito, in which he asserted that Gorsuch did not address the proper issue.
“Although one party will be happy with the result of today’s decision, both will be puzzled by its reasoning,” Roberts wrote. “That’s because the lead opinion sets out to defeat an argument that no one made, reaching a conclusion with which no one disagrees.”
Roberts said the issue the court agreed to take up is whether a state can regulate a field that is not in the province of the federal law — such as mining safety — in order to indirectly regulate aspects that do come under the federal law — such as safety concerns about uranium milling, the process of turning the mined substance into usable form, and the process of storing “tailings,” the leftover radioactive waste.
Coles, the Virginia Uranium president, has said the company intends to “construct and operate the safest and most modern uranium mining operation in the world.”
Environmental organizations oppose uranium mining in Virginia, which they contend has a climate that is too wet to safely manage radioactive tailings produced by the milling of uranium.
Virginia Beach, Norfolk and other cities in Hampton Roads also oppose uranium mining in Pittsylvania because of the potential contamination of drinking water they obtain from Lake Gaston, downstream of the proposed mining site.
In 1982, three years after the 1979 nuclear accident at Three Mile Island in Pennsylvania, Virginia legislators passed a law allowing uranium exploration but imposing a one-year ban on mining. It extended the ban indefinitely in 1983.