Supreme Court Grants Cert. in Virginia Uranium Mining Case

On May 21, the Supreme Court granted certiorari in the case of Virginia Uranium, Inc. v. Warren. The petition for certiorari filed by Virginia Uranium, Inc. asked the court to decide whether the Atomic Energy Act (AEA) preempts state law that regulates activity within the state’s jurisdiction on its face, but has the effect of regulating radiological safety hazards of activities within the purview of the Nuclear Regulatory Commission (NRC). Virginia Uranium filed the cert. petition after the Fourth Circuit ruled in favor of Warren. The case has been placed on the calendar for the October 2018 term.

Back in the early 1980s, a uranium deposit was discovered in Pittsylvania County, Virginia. The Virginia General Assembly then asked the State Coal and Energy Commission to evaluate environmental effects, health, and safety related to uranium mining and exploration. Before the report was produced, the General Assembly imposed a moratorium on uranium mining until a statutory program for such mining could be enacted. The Commission released a report in 1985 stating that the moratorium could be lifted as long as specific regulations (limiting public exposure, issuing licenses in cooperation with the NRC, and regulating hazardous waste) were followed and strict laws regulating the industry were passed. The Commission concluded that the benefits to the state outweighed the costs 26 to 1. However, the General Assembly did not lift the moratorium and the only progress made was the proposal of a licensing bill back in 2013.

Virginia Uranium first brought a case in the Western District of Virginia, asking the court to declare the moratorium preempted by the AEA and issue an injunction requiring state officials to issue permits for uranium mining. In Virginia Uranium, Inc. v. McAuliffe, 147 F. Supp. 3d 462 (W.D. Va. 2015), the District Court held that the state moratorium did not intrude on the AEA; in fact, the AEA does not regulate uranium deposit permitting on non-federal land, therefore, Virginia has the right to act. Virginia Uranium appealed and the Fourth Circuit held in Virginia Uranium, Inc. v. Warren, 848 F. 3d 590 (4th Cir. 2017) that conventional uranium mining is not an activity regulated under the AEA and that the Congressional purpose in passing the AEA, namely the safety and development of atomic energy, is not materially affected by the Virginia law.

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