Divided Supreme Court Upholds Virginia’s Ban on Uranium Mining

June 18, 2019 Updated: June 18, 2019

WASHINGTON—A fractured Supreme Court handed environmentalists a victory June 17 at the expense of the nuclear power industry, upholding Virginia’s 37-year-old ban on uranium mining in the state.

Virginia Attorney General Mark R. Herring, a Democrat, told reporters the ruling was a “big win for the health and safety of Virginians and our environment.”

“The Supreme Court has now confirmed that we are well within our rights as a state to decide that a risky, potentially dangerous activity like uranium mining is not for us,” he said in a press release.

Making things complicated, two blocs of three justices each agreed on the end result in the case, but differed in their reasoning. A third bloc filed a dissenting opinion. Justice Neil Gorsuch wrote the judgment of the court in Virginia Uranium Inc. v. Warren. Justices Clarence Thomas and Brett Kavanaugh joined in the opinion.

The company’s CEO, Walter Coles, issued a statement to the media.

“We continue to think that Virginia’s uranium mining ban is both unlawful and unwise, and we are reviewing other options for challenging the Commonwealth’s confiscation of Virginia Uranium’s mineral estate,” Coles said.

The Trump administration sided in the case with the company.

After the opposition to nuclear power unleashed by the nuclear reactor accident at Three Mile Island in Pennsylvania in 1979, which resulted in no deaths or proven adverse impact on human health, the Virginia General Assembly approved a law in 1982 that allowed uranium exploration but imposed a one-year prohibition on mining. The ban was made permanent the next year.

In the case before the Supreme Court, Virginia Uranium argued that the federal Atomic Energy Act, or AEA, takes precedence over the state mining ban, and gave the Nuclear Regulatory Commission substantial authority over the milling, transfer, use, and disposal of uranium, as well as the construction and operation of nuclear power plants.

“But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders,” Gorsuch wrote.

“Nor do we see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives. And we are hardly free to extend a federal statute to a sphere Congress was well aware of, but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan filed an opinion concurring in the judgment, but didn’t accept some of Gorsuch’s reasoning. Gorsuch’s examination of the motives of state lawmakers “sweeps well beyond the confines of this case,” Ginsburg wrote.

Chief Justice John Roberts filed a dissenting opinion in which Justices Samuel Alito and Stephen Breyer joined. The court failed to address the correct question and took on “an argument that no one made,” Roberts wrote.

“The question we agreed to address 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),” Roberts wrote.

“And on that question, our precedent is clear: The AEA prohibits state laws that have the purpose and effect of regulating preempted fields,” he wrote.

This means the estimated 119 million pounds of uranium ore in economically stagnant Pittsylvania County, Virginia, will remain unharvested unless the state lifts the mining ban. The ore was valued at approximately $7 billion in 2011 but is worth less today.