Virginia Uranium Inc. v. Warren

In the 1980s, a uranium deposit was discovered in Pittsylvania County, Virginia, on private land owned by Coles Hill and Bowen Minerals. Uranium is valuable but faces many regulations based on environmental safety. The Virginia General Assembly issued a temporary ban on uranium mining that would supposedly last until a suitable policy was written to regulate the practice, and the Coal and Energy Commission would research the topic in the meantime. In 1985, the Coal and Energy Commission finished their review, concluding that the benefits of uranium mining outweighed the potential risks, and advised the State of Virginia to lift the temporary ban provided it regulated the industry heavily. Since this was simply advice and not a mandate, Virginia had no obligation to lift and ban and did not, leading to ban still being in effect today. Now, obviously the property owners, now Virginia Uranium Inc., will not abandon this discovered wealth without a legal battle. In 2015, the company sued the Commonwealth of Virginia, making the case that the Atomic Energy Act of 1954, a federal law, supersedes the ban by the state, legalizing mining with its own regulations. After being struck down by a Virginia district court and the US Court of Appeals, Virginia Uranium Inc. awaits a ruling from the Supreme Court.

The federal law, the Atomic Energy Act of 1954 (AEA), and it's intent and interpretation is central to understand this case. After the rise of nuclear power in the United States, the law regulates civilian and military uses of nuclear materials. The Nuclear Regulatory Commission enforces the AEA. Being questioned is whether the AEA includes nuclear materials on non-federal land and materials that are still in the ground. The Virginia General Assembly does not have pre-existing uranium regulations of their own but contends that the AEA does not apply in this case and gives the right of a uranium ban to the state.

Virginia Uranium Inc. first began their case in 2015 suing the Commonwealth of Virginia in the United States District Court for the Western District of Virginia. The court dismissed the argument that the AEA preempts the ban on the grounds that the federal law is irrelevant to non-federal deposits. Furthermore, they ruled that the Congressional intent of the AEA was to leave the regulatory power of non-federal land to the states. Virginia Uranium then appealed to the US Court of Appeals Fourth Circuit, which affirmed the decision of the Virginia court. The Fourth Circuit also added a rejection to the argument that Virginia’s uranium ban contradicts the intent of the federal law. The company then petitioned to the Supreme Court on April 21, 2017, and awaits a ruling.

The Virginia General Assembly summarizes the defense of the mining ban based on the idea that the industry would “threaten job security for the region”. They still describe the action as a moratorium, indicating that they still regard the ban as temporary. It is also claimed that this concern is a legitimate interest of the state and is not preempted by the AEA. Evidence provided for this claim can be found in the text of the Atomic Energy Act, where it states that materials “prior to removal from its place in nature” is left to regulation by the states. The Nuclear Regulatory Commission has declined to regulate activities in the past that they deemed as outside the scope of federal authority. To enforce this point further, Virginia’s argument quotes New York v. United States , “No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the state to regulate”. Driving home the reality of the AEA and the state right to regulate non-federal land seems to be Virginia’s strongest argument.

The weakness of the stance from the Commonwealth of Virginia is the nature of the uranium mining ban, which shows laziness, negligence, and arbitrary government. It seems bizarre to refer to this ban as a moratorium when completely different elected officials were deciding the case in the 1980s. Obviously, they rejected the advice of the Coal and Energy Commission and threw the “moratorium” into the dust bin for the next thirty-five years at the expense of Virginia Uranium Inc. The excuses in the argument summary state that the ban is “largely because of concerns that the mining industry would threaten job security for the region”. All entrepreneurship at any point in time influences changes in the labor market, yet Virginia does not ban new businesses. Furthermore, it feels tyrannical that the ban was made ex post facto the uranium was discovered, showing that there is no rule of law for nuclear materials, but regulation “as they go”. In a sense, they banned uranium because the landowners found it. Public choice theory should tell us that the state has a vested interest in expanding its power and usurping the value of the uranium for themselves.

Based on a legal argument of the AEA, Virginia Uranium Inc.’s argument brings up a ruling from English v. General Electric Co., which says that “A State may not regulate ‘for the protection of the public health and safety from radiation hazards’ arising from the milling of uranium ore and the storage of uranium tailings unless the NRC approves its regulatory program and enters an agreement vesting the State with regulatory authority”. Their reasoning is that Virginia must have a regulatory agreement approved by the NRC, which enforces the rules of the AEA. Without an agreement, the state may only “regulate activities for purposes other than protection against radiation hazards”. Therefore, the petitioners reason that since Virginia’s ban is partially justified by the protection from radiation hazards, the ban cannot stand without approval from the NRC. With the reasoning and post rulings cited, it is shown that determining Congressional intent of the AEA is more complicated than Virginia thinks. This inconsistency in rulings surrounding the AEA provides a strong defense for the uranium company.

A possible weakness of Virginia Uranium Inc.’s argument is its overcomplication. In the Supreme Court, it will be much easier to rule in favor of state’s rights d on the Tenth Amendment of the Constitution. Mining regulation is not mentioned in the Constitution and it can be reasoned that it automatically is left for the states.

For the Supreme Court, Virginia Uranium Inc. seems to leave a decision between individual liberty and states rights’. The arguments that the plaintiffs and Commonwealth of Virginia have presented each bear proof of Supreme Court rulings on the Atomic Energy Act that appear contradictory. The minute details of Congressional intent of the law provide confusing arguments. A more simplified Supreme Court ruling can rely upon the Tenth Amendment, however, this could invalidate the entire AEA. It is most likely that the ruling will favor one of the two justifications regarding the intent of the AEA, and leave legal guidance moving forward. If Virginia wins this case, the correct answer to the question of legal uranium mining lies in the Virginia state constitution.