Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate

by Emily Hammond

June 18, 2019

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

Monday's judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts' dissent would have used evidence of state legislative purpose to find that Virginia's ban was pre-empted. Overall, Monday's opinions likely presage important battles to come on the matter of legislative purpose as the court's composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.

The facts of the case, presented in more detail in my argument preview, involve the largest uranium deposit in the United States, located in Virginia. In 1983, the state placed a moratorium on uranium mining on private lands, which all the parties before the Supreme Court agreed is a matter for state regulation. Yet the Atomic Energy Act gives to the Nuclear Regulatory Commission sole authority to regulate the closely related radiological safety of uranium milling and tailings management. These activities present considerable risks, and Virginia Uranium argued that Virginia's true motive in banning uranium mining was to regulate the safety of milling and tailings. The district court and U.S. Court of Appeals for the 4th Circuit refused to look beyond the face of Virginia's moratorium, and Monday, six justices agreed.

Like the lower courts, Gorsuch hewed closely to the statutory language in his lead opinion. The AEC includes express language providing that NRC authority arises only after uranium has been removed from natural deposits, and it contains different express language permitting NRC to regulate uranium mining on federal land. A separate section of the statute that permits limited cooperative federalism for regulating radiological hazards contains a savings clause — and Gorsuch rejected a strained reading of that clause that would have left Virginia unable to regulate mining on private land.

Moreover, Gorsuch emphasized that the NRC has long maintained that it has no authority under the AEA to regulate uranium mining on private land; were the court to read the savings clause as Virginia Uranium asked, neither the state nor the federal government could regulate the unique risks of uranium mining. Referring to Justice Antonin Scalia's famous language from Whitman v. American Trucking Associations Inc., Gorsuch concluded: "Talk about squeezing elephants into mouseholes."

All the opinions contended with an important prior decision involving pre-emption and the AEA, Pacific Gas & Electric Co. v. Energy Resources Commission. There, the Supreme Court upheld a California moratorium on new nuclear power plants within the state until the United States developed a means of disposing of spent nuclear fuel. That opinion, ...

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