Supreme Court Hears Arguments About Virginia’s Uranium Mining Ban

The U.S. Supreme Court.

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The case concerns whether the ban is prohibited by federal law.

WASHINGTON — The U.S. Supreme Court on Monday heard arguments in a case that could determine if a decades-old state ban on uranium mining in Virginia runs afoul of a federal atomic energy law.

Virginia Uranium, Inc. v. Warren pits companies with interests in a massive deposit of uranium ore against the state. Central to the case is the Atomic Energy Act, which guides the authority states do and do not have over uranium mining, and other nuclear energy matters.

But the dispute also concerns broader issues that have to do with the federal preemption of state laws, including how courts should consider what motivated state lawmakers to enact a law, versus what the final text of law actually says and does.

The Trump administration has taken a position in favor of the companies that brought the case and U.S. Solicitor General Noel Francisco argued in court Monday that if the Virginia law stands as is, it would provide an avenue for states to hinder uranium mining.

Uranium is a radioactive metal that serves as fuel for nuclear power plants and is also used to manufacture atomic weapons.

Under the Atomic Energy Act, the federal Nuclear Regulatory Commission is tasked with regulating safety concerns that have to with the “milling,” or processing, of mined uranium ore, and the safe handling and storage of leftover waste, or “tailings.”

But the law does not forbid states from imposing regulations on the actual mining of the ore itself—the part of the process that Virginia first banned in 1982.

“The federal government does not regulate uranium mining,” Toby Heytens, the state’s solicitor general, argued before the court. “For that reason, Virginia’s inherent sovereign ability to control something as fundamental as what material gets pulled out of the ground remains fully intact.”

“Its ban should not be preempted," he added.

The companies challenging the law, however, argue that state lawmakers were moved to enact the ban due to safety and environmental concerns over milling and tailings.

For instance, they say in a court brief that lawmakers who supported continuing the ban, after a bill was introduced to lift it in 2013, were driven by fears that mine tailings could contaminate downstream drinking water supplies in other parts of the state.

The companies own a deposit of about 119 million pounds of uranium ore beneath the ground in Pittsylvania County, in south central Virginia, near the North Carolina border. This site, known as Coles Hill, is said to be the nation’s largest known uranium deposit.

Questions About Purpose

On Monday, the justices focused some of their key lines of inquiry on how courts should assess and weigh the purpose, or intent, behind the law, as opposed to taking it at face value.

“Suppose Virginia had said ‘we think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining,’” Justice Ruth Bader Ginsburg said to the attorney arguing for the companies, Charles Cooper. “I take it you would lose, right?”

“I would lose, your honor, yes,” Cooper replied. If, he added, that was the state's "genuine purpose."

Chief Justice John Roberts also pressed Cooper on this aspect of the case. “What if the legislation is written to protect against mining hazards and of the, I don’t know, 60 members of the legislature, 20 of them say this is a great way to keep nuclear energy out of the state?”

“What is the purpose of that legislation?” Roberts continued. “Still to protect against mining hazards, or do you look behind it and it says, well, a third of them thought it was a good way to keep nuclear power out?” He added: “How do you analyze that question?”

Cooper responded, in part, by saying the courts “can’t accept simply as written what the state may say in terms of what the purpose is.” And said in a situation like the case at hand, they would “have to look behind” to see if the legislature is motivated by trying to block radiation hazards that are beyond the state's authority to regulate.

Justice Sonia Sotomayor asked whether this could potentially mean deposing every member of a state legislature. Cooper said it would not, that there were other possibilities, such as scrutinizing the text of a law, and examining legislative records and historical context.

Following up, Justice Elena Kagan asked Cooper if he would concede that this could mean courts could rule differently on identical laws from two different states, if the legislative history were different.

It could, Cooper acknowledged.

Justice Brett Kavanaugh questioned the attorney about what sort of framework the court might use to analyze situations like this.

“How is this going to work?” he asked.

Cooper said in his reply that if a plaintiff “can demonstrate that the prohibited purpose”—in this case regulating milling and tailings—“was a motivating factor” behind a law, the state has to show it would have been enacted even in the absence of that factor.

As Heytens argued his case for the state, Justice Stephen Breyer said it’s not unusual for courts to scrutinize a statute’s purpose. “We have a dozen ways of looking at purpose,” he said.

“So what’s wrong with looking at purpose here?”

“When you say don’t look at purpose, there I get off the boat because I think that’s our job as a court,” he added.

Responding, Heytens said in this case “it does not matter the purpose for which Virginia has chosen to forbid mining” because Congress didn’t choose to regulate it under the circumstances.

Justice Neil Gorsuch touched on the complications that could arise trying to divine a legislator’s reasons for enacting a law, noting that the state statute in question delves into a host of issues.

“Could a rational legislator have done this only for concern about mining? Maybe,” he said. “If I’m going to start going down the road of what’s in somebody’s head and subjective intentions of even an imaginary, hypothetical, reasonable legislator, I don’t know.”

“We absolutely agree with you,” said Heytens.

“Because this is not an area that’s regulated by the federal government at all, you don’t do any sort of purpose analysis,” he added.

‘Road Map’ For Undermining Industry?

As Francisco, the U.S. solicitor general, made the federal government’s argument in support of the companies’ case, Gorsuch at one point interjected and said that “maybe Congress should have preempted in mining, instead of just starting with milling, but it didn’t.”

“Yeah,” Francisco replied.

“Why isn’t that the end of the case?” the justice then asked.

Francisco pointed to the Supreme Court’s decision in 2012 in the National Meat Association v. Harris case, where the court ruled a California law requiring slaughterhouses to immediately euthanize livestock that could not walk was preempted by a federal statute.

The court made clear in that case, he said, that the state couldn’t use its authority over meat sales to “reach into and indirectly regulate” slaughterhouse operations.

If the Fourth Circuit Court of Appeals’ 2-1 ruling in favor of Virginia in the uranium case were to hold, Francisco said, it would give “state and local governments a road map for undermining a multibillion-dollar industry”—a reference to the mining sector interests in play.

After noting a 2004 10th Circuit Court of Appeals decision in the case Skull Valley Band of Goshute Indians v. United States, Francisco suggested a state could shut down nuclear activities by designating roadways to related facilities off limits to commercial trucks.

Breyer at one point noted that a legislature might think of “a thousand ways” to stop uranium tailings from ending up in its state, without targeting the mine waste directly with regulations.

Francisco said that, in the instance of uranium mining, if a state put forward a plausible rationale for a law like the one in Virginia, one that was not related to safety concerns about mining and tailings, and that rationale was not ruled out by the text of the statute, legislative history, or historical context, “then I think the state wins.”

Here, he said, the burden of proof would be on those challenging state law. “If they cannot establish that the principal or predominant purpose of this law was impermissible, then they lose.”

No Milling Without Mining

Kavanaugh, who during his time on the U.S. Court of Appeals for the District of Columbia Circuit gained a reputation as someone who often ruled in favor of limiting federal environmental regulations, pressed Heytens on the distinction between mining and milling.

“When you’re regulating mining, you’re always regulating milling because you have the two together,” said Kavanaugh, who joined the Supreme Court last month. “The two are interlinked in a way that I’m not sure you can disaggregate in the way you’re doing.”

Heytens responded saying it would be possible to have “a metaphysical debate about whether you can separate mining and milling.”

Kavanaugh pushed back. “In the real world, it’s not separated,” he said.

Cooper in his closing argument turned back to these remarks by Kavanaugh, saying that uranium cannot be milled unless it is mined.

Outside the court after the arguments, Virginia Attorney General Mark Herring said he was optimistic the justices would uphold the mining ban and said digging for the ore threatens to mar the environment in a region seeking to grow tourism and diversify its economy.

“This is something that Virginians have said they do not want,” he said. “It’s well within Virginia’s right to decide whether to have it.”

Bill Lucia is a Senior Reporter for Government Executive's Route Fifty and is based in Washington, D.C.

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