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| Fig. 1: Coles Hill sign. (Source: Wikimedia Commons) |
Petitioner Virginia Uranium, Inc., wants to mine raw uranium ore from a site near Coles Hill, Virginia. [1] (See Figs. 1 and 2.) The deposit, estimated at 119 million pounds, is the richest known deposit in the United States, and among the biggest worldwide. [2] However, Virginia law prohibits uranium mining within its borders. [3,4]
The company filed suit, alleging that, under the U.S. Constitutions Supremacy Clause, the Atomic Energy Act (AEA) preempts state uranium mining laws like Virginia's and ensconces the Nuclear Regulatory Commission (NRC) as the lone regulator in the field. [1] Both the District Court and the Fourth Circuit rejected the company's argument, finding that while the AEA affords the NRC considerable authority over the nuclear fuel life cycle, it offers no hint that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders. [1]
The Supreme Court of the U.S., ruled 6-3, that the AEA does NOT preempt Virginia state law banning uranium mining within its own borders.
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| Fig. 2: Uranium Ore. (Source: Wikimedia Commons) |
Justice Gorsuch in writing for the majority noted the AEA grants the NRC extensive and sometimes exclusive control over the nuclear fuel cycle EXCEPT for uranium mining with express reference arising from 42 U. S. C. 2092. [1] He wrote: "It is our duty to respect not only what Congress wrote but, as importantly, what it didn't write. [5] The NRC's regulatory powers only arise after [uranium's] removal from its place of deposit in nature." [1] For Cole's Hill as a land owned by a private entity to be subject to federal jurisdiction, the federal government must use eminent domain/takings or purchase it and make it federal land per 42 U.S.C. 2096. [1] Accordingly, only on federal lands may the NRC regulate uranium mining per 42 U.S.C. 2097. [1]
42 U.S.C 2021 allows the NRC to devolve some of its regulatory power to the states but not mining, which remains historically beyond its reach. [1]
42 U.S.C. 2021(k) explains that states remain free to regulate activities discussed in 2021 for purposes other than nuclear safety without the NRC's consent. [1] VA Uranium instead made the claim that 2021(k) expands the AEA's preemptive effect by displacing the Virginia uranium ban as being borne of the purpose of protecting the public from "radiation hazards." [1] However, the majority found that 2021(k) merely clarified that nothing in 2021 limited the states' ability to regulate activities subject to NRC control for other purposes. [1]
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| Fig. 3: Milled Uranium in Yellowcake form. (Source: Wikimedia Commons) - |
The majority characterized VA Uranium's desire to change the statute from "Nothing in this section shall be construed to affect the authority of any state or local agency to regulate activities only for purposes other than protection against radiation hazards" to "any State or local agency may regulate activities only for purposes other than protection against radiation hazards." [1]
Quoting another noteworthy case, Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001), the majority noted this is an example of "squeezing elephants into mouseholes." [1] That is, parties can't utilize vague statutory provisions to alter fundamental details of a regulatory scheme.
Finally, the court found that mining regulation on private land, being a province exclusive to the states, is borne of Congressional intent. Uranium is subject to NRC authority per the AEA once it has been extracted from the ground. In weighing the interest of nuclear power development in the U.S., the court noted that there exist other sources of domestic and foreign uranium. [1]
Dissenting opinion written by Chief Justice Roberts noted that processing uranium ore involves the three steps of (1) mining; (2) milling (Fig. 3); and (3) storing tailings (radioactive waste). [1] There is no question nor disagreement that there is no preemption of uranium mining safety ... . [1] However, the Virginia state ban on uranium mining has the de-facto purpose and effect of regulating the radiological safety hazards activities entrusted to the NRC by foregoing their possibility. [1] Per AEA precedents, state law is preempted when its purpose is to regulate within a preempted field. [1] In this case, Chief Justice Roberts notes that the entire field of nuclear safety falls within the province of federal regulation. [1] An example the dissent used is "though a state may generally regulate its roads, it may not shut down all the roads to a nuclear power plant simply because it disagrees with the NRC's nuclear safety regulations." [1] Virginia did not dispute its ban was borne of concerns for uranium milling and tailings, VA Uranium's preemption claim shouldn't have been dismissed. [5] (See Fig. 4.) State law that was grounded in nuclear safety concerns thus falls squarely in the prohibited field. [1] Should California have banned construction of nuclear plants because it wanted to regulate radiological safety, it would be preempted. [1]
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| Fig. 4: Generation of Uranium mill tailings. (Source: Wikimedia Commons) - |
Substantively, the dissenting opinion noted that domestic uranium production only counts for 10% of domestic nuclear power needs while imports come from geopolitical regions such as Russia, Kazakhstan, and Uzbekistan. [5] Chief Justice Roberts noted, "Given the critical role of uranium to the country's energy industry and national defense, the Chief Justice wrote, "the near complete reliance on foreign sources of uranium including substantial imports from Russia, Kazakhstan and Uzbekistan would seem to suggest just the opposite." [5]
For the foreseeable future, state bans on uranium mining within their own borders will be upheld by federal courts due to existing doctrine that states have the power to regulate mining within their own borders while the AEA's authority does not preempt state regulatory power. However, this legal skirmish between federal and state power masks a deeper battle: that of the state of nuclear power in the United States itself. Another recent case involving the 5th Circuit declared in the NRC's granting of licensing authority to store waste in an intermediate site away from reactors not designated as a national repository in Texas beyond the authority of the NRC as a major political question that rests within the province of direct Congressional action to solve. [6] The Coles Hill, VA site will remain undeveloped barring political developments within Virginia or the influence of geopolitics and economics.
© James Daniel. The author warrants that the work is the author's own and that Stanford University provided no input other than typesetting and referencing guidelines. The author grants permission to copy, distribute and display this work in unaltered form, with attribution to the author, for noncommercial purposes only. All other rights, including commercial rights, are reserved to the author.
[1] "Virginia Uranium v. Warren," U.S. Supreme Court, No. 16-1275, 587 U.S. ___ (2019).
[2] G. S. Schneider, "U.S. High Court to Take up Issue of Whether Virginia can ban a Uranium Mine," Washington Post, 21 May 18.
[3] T. Gabriel, "Rift Widens Over Mining of Uranium in Virginia," New York Times, 19 Jan 13.
[4] "Uranium Mining Permit Applications: Uranium Mining Deemed to Have Significant Effect on Surface," Va. Code Ann. § 45.2-2116 (2023).
[5] A. Liptak, "Supreme Court Upholds Virginia's Ban on Uranium Mining," New York Times, 17 Jun 19.
[6] "State of Texas vs. Nuclear Regulatory Commission," No. 21-60743 (5th Cir. 2023).
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