Conservative Justices divide in case upholding Virginia’s ban on uranium mining

Last year, I wrote about the case of Virginia Uranium, Inc. v. Warren, which the Supreme Court had just agreed to hear. The issue was whether the Atomic Energy Act preempts a state law (a ban on uranium mining) that on its face regulates an activity within its jurisdiction (uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (the milling of uranium and the management of the resulting tailings).

The stakes in this case are high. As I noted, 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.

Today, the Supreme Court ruled that Virginia’s law banning uranium mining in the Commonwealth is not preempted. The vote was 6-3.

The division of the Court is interesting. Justice Gorsuch wrote an opinion in favor of the Commonwealth that was joined by Justices Thomas and Kavanaugh. He wrote:

Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activities on private lands within their borders. It is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write.

Justice Gorsuch declined to speculate about the intent behind the Virginia ban. He called “trying to peer inside legislators’ skulls” a “fraught enterprise,” and opted in favor of “limit[ing] ourselves to trying to glean legislative purposes from the statutory text. . .”

Justice Ginsburg, in a concurring opinion joined by fellow liberals Kagan and Sotomayor, said she agreed with much of what Gorsuch wrote. However, she balked at Gorsuch’s Scaliaesque language about the perils of inquiring into legislative motive — language that Ginsburg said (incorrectly, I think) “sweeps well beyond the confines of this case.”

Chief Justice Roberts wrote the dissent. He was joined by Justices Breyer and Alito.

Roberts accused the majority of answering the wrong question. The issue, he wrote, is not whether the field of uranium mining safety is preempted under the Atomic Energy Act. That field is not preempted, as the majority concluded. Rather the issue is whether a state can purport to regulate a field that is not preempted (uranium mining safety) as an indirect means of regulating other fields that are preempted (safety concerns about uranium milling and tailings which occur after the mining of uranium).

Roberts found the answer to that question “straightforward.” “Under our AEA precedents, a state law is preempted not only when it ‘conflicts with federal law,’ but also when its purpose is to regulate within a preempted field.”

Roberts illustrated the point this way:

[E]ven though a State may generally regulate its roads, it may not shut down all of the roads to a nuclear power plant simply because it disagrees with the NRC’s nuclear safety regulations. Here, because Virginia has not even disputed that its uranium mining ban was “grounded in” its “nuclear
safety concerns” about uranium milling and tailings, the company’s preemption claim should not have been dismissed.

Accordingly, a thorough inquiry into the purpose/intent of the legislation is necessary in cases like this one, whatever one’s qualms about such analysis as a general matter. Otherwise, said Roberts, “so long as the State is not boneheaded enough to express its real purpose in the statute, the State will have free rein to subvert Congress’s judgment on nuclear safety.”

I have always been of two minds about this case. However, I am persuaded by the Chief Justice’s opinion that the preemption claim should not have been dismissed.