The Supreme Court on Monday upheld Virginia's ban on uranium mining in a fight over an untapped deposit beneath an old plantation thought to be the largest in the United States.
The high court, in a 6-to-3 judgment, sided with the state and its right to regulate the industry. The majority concluded that federal law does not pre-empt Virginia's decades-old ban.
"Congress conspicuously chose to leave untouched the states' historic authority over the regulation of mining activities on private lands within their borders," wrote Justice Neil Gorsuch, who was joined by Justices Clarence Thomas and Brett Kavanaugh. "It is our duty to respect not only what Congress wrote but, as importantly, what it didn't write."
Three other justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, concurred with the overall judgment, but said Gorsuch's analysis of the motives of the state legislature "sweeps well beyond the confines of this case."
The Virginia General Assembly has been wary of mining the uranium since the issue was raised in the early 1980s.
Leery after the 1979 nuclear accident at Three Mile Island in Pennsylvania, the Legislature passed a law in 1982 permitting uranium exploration but imposing a one-year ban on mining. It extended the ban indefinitely in 1983.
Turning the uranium in the ground into usable material would involve several steps. First, the uranium ore would have to be mined from the ground. Next, the uranium would then need to be processed at a mill, where pure uranium is separated from waste rock. Then, the waste rock, called "tailings," which remain radioactive, would have to be securely stored.
The debate at the Supreme Court centered on Virginia's ability to regulate the first step in that process: mining. The Atomic Energy Act gives the Nuclear Regulatory Commission oversight over the other steps: processing the radioactive uranium and storing the radioactive waste that results.
Virginia Uranium argued that the state cannot ban uranium mining based on concerns about hazards connected with later steps.
Virginia Attorney General Mark Herring called the decision 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 statement.
Walter Coles, the president and chief executive officer of Virginia Uranium, said in a statement that the company is still studying the court's opinion but "obviously disappointed with the result."
"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," he said.
The case centered on approximately 119 million pounds of uranium ore beneath an old plantation just north of the Virginia-North Carolina border. It was valued in 2011 at roughly $7 billion, though prices have fallen since then.
When uranium prices rose steeply in the early 2000s, Coles and another local family formed Virginia Uranium to renew the project. They abandoned the legislative route after 2013, when then-newly elected Gov. Terry McAuliffe vowed to veto any effort to lift the uranium ban. After that, the company -- now part of a Canadian holding firm -- focused on a court challenge.
The company said the state could not use a ban on mining as a ruse to get at concerns about production of uranium and storage of radioactive waste.
The Trump administration sided with the company, and against the state exercising what it considers its sovereignty.
In his dissent Monday, Chief Justice John Roberts said the lead opinion had addressed the wrong question and defeated "an argument that no one made."
"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)," wrote Roberts, who was joined by Justices Stephen Breyer and Samuel Alito.
The decision Monday upheld a 2-to-1 ruling from a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond. The appeals court said it was not up to the courts to "decipher" Virginia's reasoning and look for a violation.
Environmentalists applauded the holding from the majority.
"We have long supported Virginia's decision to protect its communities from the environmental and economic risks of uranium mining," Mark Sabath, an attorney with the Southern Environmental Law Center, which submitted a friend of the court brief in defense of the ban, said in a written statement. "We are pleased that the Court respected that decision and recognized that it was one for Virginia to make."
The case is Virginia Uranium v. John Warren, 16-1275.
Information for this article was contributed by Ann E. Marimow, Robert Barnes and Laura Vozzella of The Washington Post and by Jessica Gresko and Denise Lavoie of The Associated Press.
Business on 06/18/2019