The Supreme Court will decide in 2019 whether a Virginia law that bans uranium mining is preempted by the Atomic Energy Act, the U.S. law governing the processing and enrichment of nuclear material.

The case, Virginia Uranium, Inc. v. Warren, will require the court to interpret laws governing nuclear fuel production. But its most significant, long-term impact might be the glimpse it provides into the court’s view of the proper balance between federal regulatory power and the rights of states in setting their own policies.

I have been involved in this case in its various iterations for more than a decade. Before joining the faculty at the University of Virginia School of Law, I worked with the Southern Environmental Law Center, an environmental advocacy organization that had raised grave concerns about a proposed uranium mine near the city of Danville.

Inverting the states’ rights divide

Conventional wisdom holds that people on the political right distrust large federal bureaucracies and would rather allow state officials the freedom to regulate their own economies. Under this line of thinking, conservatives would be expected to side with the Commonwealth of Virginia and recoil at an intrusive application of the Atomic Energy Act that would prohibit the state from enforcing a ban on uranium mining in place since 1982.

Those on the liberal end of the spectrum, on the other hand, might be expected to see a strong federal hand as necessary to prevent states from deregulating and despoiling their own environments.

This case is one of several, recent environmental and public policy disputes to demonstrate how that thinking can be wrong.

Over the course of their political careers, conservative Republican Sens. Tom Cotton of Arkansas, Jim Inhofe of Oklahoma and Ted Cruz of Texas have each highlighted the 10th Amendment in advocating for a limited view of federal government power and deference to states’ rights. Yet all three of them signed on to an amicus brief in support of Virginia Uranium, Inc.‘s sweeping view of the Nuclear Regulatory Commission’s role in this instance.

On the flip side, environmentalists are gaining an appreciation for the value of state initiatives, like Virginia’s mining ban, which can provide a bulwark against environmental rollbacks from the Trump administration.

Before the Supreme Court, I co-authored, with former Virginia Attorney General Tony Troy, another amicus brief defending the state law. We filed it on behalf of six members of the Virginia General Assembly who represent affected communities and on behalf of local chambers of commerce; civic, trade and economic development associations; and municipalities.

Economic interests

Virginia Uranium claims that its proposed mining site, about 220 miles southwest of Washington, D.C., could generate US$4.8 billion in net revenue for Virginia businesses.

Uranium oxide, commonly known as yellowcake, can be enriched to produce the fuel that powers the nation’s nuclear reactors. But first it has to be extracted from the ground, which is a monumentally significant undertaking. Producing the 133 million pounds of yellowcake that the company thinks it can develop would require mining more than 267 billion pounds of raw ore, which is roughly 365 times the weight of the Empire State Building.

Green groups seized on a report published by the National Academy of Sciences, Engineering, and Medicine, which found that uranium mining increases the incidences of cancer, acidification of local waterways, and the emission of soot and smog-forming pollutants from industrial equipment.

Local businesses joined environmentalists in pushing back. The Danville Pittsylvania County Chamber of Commerce opposes the mining project, out of concern about the potential harm to agriculture, tourism and other economic development opportunities.

Agriculture and forestry-related industries provided the counties adjacent to the proposed mine site with an estimated $5.4 billion in total economic benefits in 2015, according to the Weldon Cooper Center for Public Service’s analysis.

Cognizant of the boom-and-bust nature of the uranium mining industry, economic development leaders in Southern Virginia have expressed fears that Virginia Uranium could leave behind a shuttered mine and a weakened local economy.

Under the Atomic Energy Act, states retain jurisdiction over conventional uranium mining. The federal government lacks authority over uranium ore “prior to removal from its place of deposit in nature,” when it is milled into yellowcake.

Virginia’s law speaks exclusively to state-controlled mining and bans only that activity. Mining proponents, however, insist that the state’s motive for enacting this ban was a concern about safety hazards associated with the storage of radioactive tailings from the milling process – issues traditionally addressed by the Nuclear Regulatory Commission.

The Supreme Court delves in

When the Supreme Court heard oral argument on the case, on Nov. 5, 2018, the court considered whether state legislators should be left free to prohibit mining if they find that the harms outweigh the benefits.

The justices also probed whether the Atomic Energy Act could effectively mandate mining at the state level to provide ore for federally regulated milling operations.

As they delved into these questions, it became clear that conventional assumptions about federal authority and states’ rights might not apply.

Justices Sonia Sotomayor and Elena Kagan, both liberal justices appointed by President Barack Obama, voiced a reluctance to infringe on a state’s traditional lawmaking authority – the kind of concern typically raised by judicial conservatives. To that point, Justice Neil Gorsuch approvingly referred to Kagan’s observations and suggested that his view of the case shared a similar skepticism.

Justice Brett Kavanaugh departed from conservative orthodoxy and appeared to call for a pragmatic interpretation of Virginia’s law. He asked whether state-controlled mining and federally regulated milling might be inextricably interconnected.

Justice Stephen Breyer, who reflected on his 24 years on the Supreme Court bench, observed that “every judge, as far as I know, including Justice Scalia, whom we used to talk about this, sometimes will look to a statute’s purpose” and depart from the plain text.

Both Kavanaugh’s and Breyer’s comments and questions hinted at an expansive view of the Nuclear Regulatory Commission’s purview.

But as Breyer implied, it might be the legacy of Justice Scalia that looms large when the court announces its decision. Gorsuch had kicked off oral argument by citing a Scalia opinion explaining why federal courts should avoid an inquiry into state motives.

That Kagan and Sotomayor were also interested in this narrower inquiry into state legislative action suggests that conventional wisdom about judicial philosophies might not hold in this case.

A ruling is expected before the end of June 2019.