Does the Atomic Energy Act preempt Virginia’s ban on uranium mining where that ban on its face regulates an activity falling under state jurisdiction but could potentially regulate radiological safety hazards falling under federal jurisdiction?
This case asks the Supreme Court to discern the scope of the Atomic Energy Act of 1954 (“AEA”) and determine whether the federal law preempts a state ban on uranium mining. The AEA regulates nuclear materials and facilities in order to promote the safe development and use of atomic energy. Virginia Uranium contends that the AEA preempts a Virginia state ban on uranium mining. The Commonwealth of Virginia counters that the AEA is silent on uranium deposits situated on nonfederal land. The outcome of this case has broad implications for the United States’ nuclear industry, national security, and national economy, as well as the future of the preemption doctrine.
Questions as Framed for the Court by the Parties
Does the AEA preempt a state statute that on its face regulates an activity within the regulatory jurisdiction of the States (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities within the jurisdiction of the Nuclear Regulatory Commission (here, the milling of uranium ore after it is mined and the management of the resulting uranium tailings)?
Shortly after the second World War, Congress enacted the Atomic Energy Act of 1954 (the “AEA”), which regulates both civilian and military uses of nuclear materials in the United States and promotes the safe use of atomic energy. The AEA empowers the Nuclear Regulatory Commission (“NRC”) to enforce its provisions, many of which govern the use radiological materials, such as uranium.
Uranium is a major source of fuel for nuclear power plants, and it is essential to the construction of nuclear warheads. In the early 1980s, a uranium deposit was discovered on land owned by Coles Hills, LLC and Bowen Minerals, LLC in Pittsylvania County, Virginia. The deposit is still the largest known uranium deposit in the United States. Soon after discovery of the deposit, the Virginia General Assembly issued a ban on uranium mining. This moratorium remained in place while the state Coal and Energy Commission (“the Commission”) investigated the potential negative effects on public health and the environment that uranium mining might have. In 1985, the Commission issued a report concluding that the benefits of uranium mining in Virginia outweighed its potential hazards, and consequently advised Virginia to lift the ban—on the condition that the state legislature implement tight regulations of the uranium mining industry. However, the ban remains in effect in Virginia today.
In 2015, Virginia Uranium, Inc., alongside additional private corporations (“Virginia Uranium”), sued Commonwealth of Virginia officials including John Warren, director of Mines, Minerals, and Energy (“the Commonwealth”), in the United States District Court for the Western District of Virginia, urging the court to hold that the AEA preempts the state ban on uranium. Virginia Uranium sought an injunction that would force the Commonwealth to permit uranium mining. The district court dismissed Virginia Uranium’s complaint and held that the AEA’s regulations do not apply to “nonfederal” uranium deposits, and that the AEA therefore does not preempt the state ban. In addition, the district court found that the ban did not frustrate the congressional purpose underlying the AEA, since the federal law did not contemplate the mining of uranium deposits that fell outside the scope of federal regulations, such as the ones found in Virginia. Virginia Uranium subsequently appealed to the United States Court of Appeals for the Fourth Circuit.
The Fourth Circuit affirmed the district court’s dismissal and echoed the lower court’s conclusion that the AEA only regulates uranium mining on federal lands, and not mining that occurs on state land. While the Fourth Circuit acknowledged that the AEA prescribes guidelines for the storage of uranium byproduct, it emphasized that the language of the Commonwealth’s mining ban did not mention these storage activities, and the court refused to inquire into the state’s legislative intent. Finally, the Fourth Circuit rejected Virginia Uranium’s argument that the ban served as an impediment to the AEA’s core objectives, holding that the ban was not an obstacle to the implementation of the AEA’s various regulatory purposes.
FEDERAL PREEMPTION OF STATE LAW
According to Virginia Uranium, the AEA, not Virginia state law, regulates the broad field of radiological safety, and as a result, the AEA preempts the Virginia ban on uranium mining. Virginia Uranium argues that a textual reading of the AEA, which is codified at 42 U.S.C. § 2021 (“Section 2021”), only allows states to regulate radiological safety matters such as uranium mining on the condition that they enter into an agreement with the NRC. Under these agreements, Virginia Uranium maintains, the NRC effectively transfers its jurisdictional authority to the State, allowing it to regulate source materials like uranium. Without the existence of such an agreement, Virginia Uranium claims, states can only regulate radiological materials for purposes other than the protection of the public from the dangers of radiation. Regulation for the purpose of public health and safety, Virginia Uranium argues, is a field occupied entirely by the federal government. In support of this claim, Virginia Uranium points to both the text of the AEA and to the Supreme Court’s unanimous decision in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, (“PG&E”), which established federal law’s jurisdictional occupation of “the entire field of nuclear safety concerns.”
Fundamental principles of the preemption doctrine, Virginia Uranium claims, prevent state regulation of nuclear safety once Congress has designated such regulation as falling under the federal field. For example, Virginia Uranium notes, one tenet of federal conflict preemption holds that a state law conflicts with federal law if it acts as an obstacle to Congress’s purpose in enacting the federal law. Virginia Uranium argues that by delegating nuclear safety regulation to the federal government, Congress sought to encourage the peaceful development of atomic power without potential interference from state or local governments, and to protect the public from hazards associated with radiological materials or technology. Virginia’s ban, Virginia Uranium concludes, represents an obstacle to Congress’s clear purpose of the safe promotion of nuclear power. Virginia Uranium also implies that federal courts have historically recognized this purpose by delegating regulatory power in the nuclear context to federal authorities.
John Warren, in his capacity as the Director of the Virginia Department of Mines, Minerals and Energy, along with additional Virginia state energy officials (“the Commonwealth”), counters that the AEA does not address, state regulation of uranium mining, and therefore cannot preempt the state regulation. In particular, the Commonwealth claims, Section 2021, which Virginia Uranium focuses on, has nothing to say about state power over uranium. Furthermore, the Commonwealth argues that the field of preempted activities delineated by the AEA only bears on regulation that occurs after uranium has been removed from the earth. Thus, the Commonwealth contends that Congress has explicitly limited federal authority in this area to post-mining regulation, so a mining ban remains unaffected by the federal law. To interpret the law to apply to uranium mining itself would be to improperly expand the field of preemption, the Commonwealth argues. The prevailing trend since the beginning of the nuclear age, the Commonwealth continues, has been to increase, rather than limit, states authority with respect to nuclear development.
The Commonwealth also relies heavily on statutory interpretation, claiming that rather than limit states’ regulatory authority, Section 2021(k) in fact preserves state authority because it prohibits courts from inferring federal preemption from the Section 2021’s other provisions. Therefore, the Commonwealth asserts, Virginia retains its regulatory power over untouched uranium unless and until a federal law alters or limits such power. Section 2021 of the AEA, the Commonwealth stresses, prescribes no such alterationThe Commonwealth also addresses Virginia Uranium’s reliance on PG&E, accusing the petitioners of omitting key language form that case. According to the Commonwealth, P&GE concluded that a state ban on “nuclear construction,” a category of activities including the development of nuclear facilities, was preempted by federal law. The Commonwealth distinguishes “nuclear construction,” which has always been subject to exclusively federal regulation, from uranium mining, and subsequently argues that PG&E’s finding that state nuclear construction was preempted by federal law has no bearing on the facts of this case.
SUBJECTIVE PURPOSE BEHIND STATE LAW
Virginia Uranium highlights language in the AEA that prohibits certain state regulatory purposes—not just specific activities. In particular, Virginia Uranium claims, the federal law prohibits states from engaging in any activity that has the purpose of protecting the public from radiological harms. Virginia Uranium points to what it characterizes as strong evidence that the Virginia mining ban was motivated by the Commonwealth’s interest in radiological safety, such as a detailed state safety study that was commissioned alongside the ban’s enactment. In addition, Virginia Uranium argues, the Commonwealth itself conceded that the purpose behind the uranium ban was, in fact, the protection of the public from safety hazards associated with radioactive materials. The lower courts ignored this concession regarding the purpose of the ban, Virginia Uranium continues, and instead erroneously focused on the activities which the ban purported to regulate.
In any event, Virginia Uranium claims, states will rarely enact laws that purport to regulate activities outside their own jurisdiction, and as a result, courts should focus on states’ true motivation for the laws, rather than merely their stated purpose. According to Virginia Uranium, then, because the state’s purpose in enacting the ban was to protect the public from radiological safety hazards, the ban attempts to regulate a purpose that falls squarely within the NRC’s exclusive jurisdiction. As a result, Virginia Uranium contends, the ban is preempted by the AEA. Finally, Virginia Uranium draws parallels between its urging of the court to scrutinize the Virginia legislature’s intent in order to ascertain the law’s purpose, and a long line of Equal Protection cases in which “a legislature’s improper motive itself [was] cause for courts” to invalidate a law.
The Commonwealth counters that Virginia Uranium wrongly assumes that the purpose of a state law is an easily identified, standalone fact, as opposed to a complex legal question that the Supreme Court has previously declined to answer. The Commonwealth relies on precedent to argue that courts, and particularly appellate courts, are not permitted to go on fact-finding investigations in order to determine the true purpose behind a state law. Furthermore, the Commonwealth claims, proceeding along the lines of a purpose-driven inquiry could lead to anomalous, unpredictable results, in which one state law might be preempted by the AEA while another, nearly identical state law might not, simply because the law’s authors differed in their alleged intentions. . The Commonwealth also suggests that a purpose-driven inquiry would ultimately be ineffective, since a legislature could simply repass an invalid law by changing its stated motive for the law. With respect to Virginia Uranium’s analogy to Equal Protection cases, the Commonwealth responds that the comparison is erroneous because even in an Equal Protection context, merely alleging an improper purpose is not enough to invalidate a law. Finally, the Commonwealth disputes Virginia Uranium’s charge that the Commonwealth “conceded” to the uranium ban’s public health purpose, suggesting that the accusation is ambiguous to the point of being baseless. Even if the respondents had offered such a concession, the Commonwealth claims, it would have no bearing on the outcome of this case, since the ban does not fall within the array of activities preempted by the AEA.
EFFECT ON THE NUCLEAR POWER INDUSTRY AND STATE ECONOMY
The U.S. Chamber of Commerce (“the Chamber of Commerce”), writing in support of Virginia Uranium, argues that in Congress’s judgment, the federal government is best positioned to regulate nuclear safety, while states may better off making non-safety related decisions, such as ideal locations for nuclear plants. Because of its historic control over the nuclear industry, the federal government, the Chamber of Commerce continues, has more experience and expertise in nuclear technology than states do. The Chamber of Commerce points to several unique factors that it claims reinforce the federal government’s interest in maintaining control over the nuclear industry. For instance, the Chamber of Commerce stresses that nuclear power is crucial to national security measures and the maintenance of certain Navy submarines and aircraft carriers. The Chamber of Commerce also contends that federal oversight of nuclear technologies is necessary for the U.S. to meet its clean air goals. Finally, the Chamber of Commerce implies that states cannot be trusted to properly enforce nuclear regulations because they often yield to political pressure from local interest groups. Leaving policy up to the states, the Chamber of Commerce suggests, would therefore jeopardize the health of the national nuclear power industry. The Nuclear Energy Institute (“the NEI”) similarly argues, in support of Virginia Uranium, that a healthy, centralized nuclear industry is essential to national security. The NEI further suggests that the nuclear industry has a significant reliance interest on the federal government’s dominance of the field of nuclear safety regulations, and that the mining ban threatens to undermine the federal authority on which the industry has long relied.
Writing in support of the Commonwealth, the Virginia General Assembly, along with local trade organizations (“the General Assembly”), responds that Congress gives states the authority to restrict activities such as mining when those activities threaten to interfere with local economies. The General Assembly contends that the Commonwealth of Virginia established an economy built largely on the education, agriculture, tourism, and motorsports industries, and that a large, active uranium mine does not fit into the Commonwealth’s economic vision. The General Assembly associates uranium mining with a boom-to-bust cycle that does not align with the state’s economic development goals, and the General Assembly claims that state officials have signaled a preference for alternative, potentially more stable energy production processes, such as offshore drilling or wind or solar power. Beyond the industry makeup of the state economy, the General Assembly suggests that uranium mining’s inherent volatility would undermine the stability of local economies and create difficulties for small business owners. Businesses and local communities have relied on the uranium mining ban since it was first enacted in 1982, the General Assembly claims, and state economic development through industries like tourism and private school education progressed according to the assumption that the mining moratorium would remain in place. As a result, the General Assembly invokes the doctrine of laches to support its claim that federal preemption of the ban would be an inequitable result, given the state’s economic reliance on it for over thirty years.
STATE POLICE POWER AND THE PROTECTION OF PUBLIC HEALTH
Writing in support of Virginia Uranium, a coalition of former nuclear regulators (“the Former Regulators”) respond with a detailed account of federal regulatory schemes, implying that federal regulators’ experience and expertise can best protect the public from radiological hazards. In addition, the Former Regulators point to the NRC’s participation in the “international nuclear regulatory community,” suggesting that the federal government is better positioned than are state regulators to stay abreast of important developments in nuclear safety. Because of this continually updated knowledge base, the Former Regulators imply, the NRC and other federal regulators will more effectively protect Virginia residents from nuclear risks than would their state counterparts.
Writing in support of the Commonwealth, the Roanoke River Basin Association and additional river and environmental associations (“the Associations”) argue that the regulation of uranium is a clear example of the exercise of state police powers, since it has broad implications for the health of the state’s residents. The Associations point to potential dangers for both residents and the environment as indicators that mining is a “quintessential” activity that remains subject to state police powers. The only way federal laws could displace these police powers, the Associations claim, would be for Congress to assert a clear, manifest purpose for federal preemption. According to the Associations, no such purpose exists here, so Virginia retains its authority to regulate uranium mining.
- Timothy Cama, Supreme Court to Consider Challenge to Virginia Uranium Mining Ban, The Hill (May 21, 2018).
- Andrew Chung, U.S. Top Court Takes Up Challenge to Virginia Uranium Mining Ban, Reuters (May 21, 2018).
- Sara Reardon, Science and the Supreme Court: Cases to Watch in 2018, Nature (October 4, 2018).