SUPREME COURT

Justices uphold Va. ban on uranium development

Virginia can continue prohibiting uranium development within its borders.

The Supreme Court issued a split opinion today that the state's decades-old extraction ban does not conflict with federal law that puts the U.S. government in charge of safety oversight for uranium and other radiological materials.

The decision is a defeat for Virginia Uranium Inc., a company with its eye on a southern Virginia site that holds what it calls the largest untapped uranium deposit in the country. The company has been fighting the state's policy for years and gained the support of the Trump administration last year.

Virginia Uranium filed suit in 2015, arguing that the 1982 prohibition goes beyond mining, a state issue, and extends to uranium ore processing, or milling, a federal issue. The Atomic Energy Act of 1954 gives the Nuclear Regulatory Commission exclusive oversight over radiation safety issues.

State officials countered that lawmakers established the ban for a variety of reasons well within Virginia's authority. During oral arguments in November, several justices appeared uncomfortable with trying to discern the exact motives of state lawmakers (E&E News PM, Nov. 5, 2018).

"True, the AEA gives the Nuclear Regulatory Commission significant authority over the milling, transfer, use, and disposal of uranium, as well as the construction and operation of nuclear power plants," Justice Neil Gorsuch wrote.

"But Congress conspicuously chose to leave untouched the States' historic authority over the regulation of mining activities on private lands within their borders," he concluded. "Nor do we see anything to suggest that the enforcement of Virginia's law would frustrate the AEA’s purposes and objectives."

Justices Clarence Thomas and Brett Kavanaugh joined in the opinion. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with the conclusion but issued a separate opinion laying out a different analysis.

Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito dissented.

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