Uranium mining and states rights

Four decades ago a massive uranium deposit was discovered in southern Virginia. This gave rise to one of my first assignments as a lawyer in private practice.

Various interests wanted badly to have the uranium mined, but environmentalists were dead set against it. Cissy Spacek, star of the film “Coal Miner’s Daughter,” attended a public hearing at which opposition was vehemently expressed.

My job was two-fold. First, help identify a consulting firm to study the impact of mining the uranium. My hope was to find an outfit that would likely find that the mining could proceed safely, and would do so in a way that maintained a high level of credibility with regulators and legislators. Second, I had to draft model legislation for the safe mining of uranium.

The state Coal and Energy Commission found in favor of permitting uranium mining if specific, tight safeguards were put in place. However, the legislature, which had banned mining activity pending the recommendations of the Commission, chose to maintain the ban notwithstanding those recommendations.

The ban has remained in place for more than 30 years. Efforts to repeal it have gone nowhere. In recent years, Democratic governors have said they would veto repeal legislation. They haven’t had to.

Now, the uranium mining interests are in court seeking to overturn the mining ban. They were unsuccessful in federal district court and in the Fourth Circuit Court of Appeals, where they lost on a split decision. However, the Supreme Court has just decided to hear the case.

My instinct is to take Virginia’s side. Not because I favor the mining ban, but because it strikes me that a state ought to be able to ban an activity on safety grounds if it so chooses.

It’s not that simple, though. The mining company, supported by the Trump administration Department of Justice, argues that the Atomic Energy Act gives the Nuclear Regulatory Commission the power to oversee all matters of radiological safety. Thus, states cannot ban mining due to fears over radiation.

Virginia responds that the Atomic Energy Act applies to the mining of uranium on federal lands. In Virginia, the property in question is privately owned.

The question the Supreme Court agreed to hear is “whether the Atomic Energy act preempts a state law “that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the NRC (here, the milling of uranium and the management of the resulting tailings)”.

The stakes are high. The uranium deposit in Virginia is said to be the richest known deposit in the U.S. and one of the richest in the world. It could be worth as much as $10 billion.

Moreover, there is a national security dimension to the matter. Uranium is the predominant source of fuel for nuclear power plants (which provide about 20 percent of our electricity) and fissile material for nuclear warheads.

It appears on a list, published by the Department of the Interior, of 35 minerals considered critical to U.S. economic and national security. The list is to be the initial focus of a multi-agency strategy being drawn up by the Department of Commerce in response to an executive order by President Trump to “break” the country’s dependence on foreign minerals. (We import about 94 percent of the uranium used by nuclear power plants). And who can forget how the Obama administration, led by Hillary Clinton, consented to a deal whereby Russia took control of a chunk of U.S. uranium?

The case is Virginia Uranium, Inc. v. Warren. You can read the Fourth Circuit opinions (the majority opinion by Judge Diaz and the dissent by Judge Traxler) here.

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