June 17, 2019

Supreme Court Decides Virginia Uranium, Inc. v. Warren

On June 17, 2019, the U.S. Supreme Court decided Virginia Uranium, Inc. v. Warren, concluding that Virginia may ban uranium mining within its borders because the federal Atomic Energy Act (AEA) does not preempt State mining regulations, regardless of the purpose for the regulation.

In the 1970s a large deposit of uranium ore was discovered in Virginia, and the State banned uranium mining within its borders. The AEA gives the Nuclear Regulatory Commission (NRC) “extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle.” The AEA also allows the NRC to reach agreements with States that “pass to the States some of its preexisting authorities to regulate various nuclear materials for the protection of the public health and safety from radiation hazards,” but the statute cautions that this devolution provision shall not “be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.”

However, the AEA grants the NRC regulatory authority only “after uranium’s removal from its place of deposit in nature.” As a result, “uranium mining lies outside the NRC’s jurisdiction, and the agency’s grip takes hold only at the mill, rather than at the mine.” The exception is that the NRC may regulate uranium mining on federal lands, and “if the federal government wants to control mining of uranium on private land,” the ACA allows the NRC to “purchase or seize the land by eminent domain.”

Against this regulatory backdrop, Virginia Uranium sought to mine uranium in Virginia, but first had to overcome the state’s mining ban. It sued claiming that the ban was preempted by the AEA because it was in reality an attempt to regulate radiation safety. The lower courts disagreed and upheld the ban.

The Supreme Court affirmed by a 6-3 vote. Justice Gorsuch’s opinion for a three-Justice plurality noted that “the AEA contains no provision preempting state law in so many words.” Moreover, since the statute does not authorize the NRC to regulate mining, preempting state efforts to do so would create a regulatory vacuum, which Congress was “more than a little unlikely” to have intended for “an activity as potentially hazardous as uranium mining.” The plurality further explained that, under the AEA, “only state laws that seek to regulate” activities within the NRC’s authority “may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety.” Since mining regulation is not within the NRC’s authority, Virginia’s purpose in enacting its ban was not relevant to the preemption analysis. Justice Ginsburg, in a separate three-Justice concurrence, agreed with these points and added that “[a] state law regulating an upstream activity with the State’s authority is not preempted simply because a downstream activity falls within a federally occupied field” such as nuclear safety.

The Chief Justice authored a dissenting opinion.

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