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Up & Atom

The US Supreme Court issued its decision on June 17 in the case of Virginia Uranium, Inc. v. Warren. The Court affirmed the decision of the US Court of Appeals for the Fourth Circuit, which held that the Atomic Energy Act does not preempt Virginia’s statutory prohibition on uranium mining. This decision is important to the nuclear industry because it considers the extent to which state and local governments may insert themselves into the field of radiological safety by enacting “bottleneck” laws purporting to regulate antecedent activities.

By way of background, a large deposit of uranium ore (thought to be the largest in North America) was discovered in southern Virginia. Shortly thereafter, Virginia imposed a moratorium on uranium mining. The landowners petitioned the courts to decide whether the Atomic Energy Act (AEA) preempts that moratorium. Virginia argued that the ban only regulates mining—an activity clearly within state jurisdiction. Petitioners claimed, however, that the ban was enacted due to Virginia’s disagreement with the US Nuclear Regulatory Commission’s (NRC) judgment that milling and tailings management activities (within federal jurisdiction) could be conducted safely.

Petitioners claimed the legislative purpose was relevant because 42 USC § 2021(k) says states may “regulate activities for purposes other than protection against radiation hazards.” Petitioners also argued their position was supported by the Supreme Court’s decision in Pacific Gas, which considered the purpose of a California law prohibiting nuclear plant construction.The US Solicitor General agreed with petitioners and further argued Virginia’s stated purpose of regulating mining was mere pretext for its underlying desire to regulate milling and tailings management.

Justice Neil Gorsuch announced the judgment of the court in a “lead opinion” joined by Justices Clarence Thomas and Brett Kavanaugh; Justice Ruth Bader Ginsburg filed a concurring opinion in which Justices Sonia Sotomayor and Elena Kagan joined; and Chief Justice John Roberts filed a dissenting opinion in which Justices Stephen Breyer and Samuel Alito joined. Both the lead opinion and the concurrence reject petitioners’ arguments, emphasizing that the statutory prohibition, on its face, only purports to regulate mining. Both opinions construe the language of 42 USC § 2021(k) narrowly; indeed, Justice Gorsuch says this provision “might be described as a non-preemption clause,” and rejects the notion that it might “expose every state law on every subject to a searching judicial inquiry into its latent purposes.” Both opinions also distinguish Pacific Gas: Justice Gorsuch, on the basis that nuclear plant construction “comes close to trenching on core federal powers,” whereas mining is “far removed from core NRC powers”; and Justice Ginsburg, on her view that the ban “targets” mining alone.

The lead opinion and the concurrence diverge, however, on the appropriateness of judicial inquiry into legislative purpose, generally. Justice Gorsuch appears to justify the Court’s holding on the second ground that such inquiry is disfavored (“this Court has long warned against undertaking potential misadventures into hidden state legislative intentions . . .”). Justice Ginsburg, on the other hand, argues this discussion is “inappropriate” because it “sweeps well beyond the confines of this case.” Notably, this split could signal future disagreements about the relevance of legislative—or executive—motive in other cases.

In a vigorous dissent, Chief Justice Roberts excoriates his colleagues by arguing they reached the wrong conclusion because they answered the wrong question:

Although one party will be happy with the result of today’s decision, both will be puzzled by its reasoning. That’s because the lead opinion sets out to defeat an argument that no one made, reaching a conclusion with which no one disagrees. Specifically, the opinion devotes its analysis to whether the field of uranium mining safety is preempted under the Atomic Energy Act, ultimately concluding that it is not. But no party disputes that. Rather, 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). And on that question, our precedent is clear: The AEA prohibits state laws that have the purpose and effect of regulating preempted fields.

The holding in this case could be of concern to the nuclear industry because it likely will be argued by anti-nuclear state and local governments to support efforts to circumvent the AEA and to regulate activities that are essentially “nuclear.” A bright spot for the industry may be that the lead opinion and the concurrence suggest they might have reached a different conclusion had the “target” of the state law been focused on “core” federal authorities that may not be delegated via the Agreement State program—in other words, regulation of nuclear power plant construction and operation.