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Supreme Court upholds Virginia’s decades-old ban on uranium mining

James Motley of Chatham, Va., herds cows in 2012. Motley, a lifelong dairyman, was concerned about the impact of the mining site. (Ryan Stone for The Washington Post)

The Supreme Court on Monday upheld Virginia’s ban on uranium mining in a fight over an untapped deposit thought to be the largest in the United States.

The high court, in a 6-to-3 judgment, sided with the state and its right to regulate the industry. The majority concluded that federal law does not preempt Virginia’s decades-old ban.

“Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders,” wrote Justice Neil M. Gorsuch, who was joined by Justices Clarence Thomas and Brett M. Kavanaugh. “It is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write.”

Three other justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, concurred with the overall judgment but said Gorsuch’s analysis related to exploring the motives of state lawmakers “sweeps well beyond the confines of this case.”

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The Virginia General Assembly has been wary of mining the uranium since the issue was raised in the early 1980s.

Leery after the 1979 nuclear accident at Three Mile Island in Pennsylvania, the legislature passed a law in 1982 permitting uranium exploration but imposing a one-year ban on mining. It extended the ban indefinitely in 1983.

Virginia Attorney General Mark R. Herring (D) called the decision a “big win for the health and safety of Virginians and our environment.”

“The Supreme Court has now confirmed that we are well within our rights as a state to decide that a risky, potentially dangerous activity like uranium mining is not for us,” he said in a statement.

The case centered on approximately 119 million pounds of uranium ore beneath an old plantation just north of the Virginia-North Carolina border. It was valued in 2011 at roughly $7 billion, though prices have fallen since then.

When uranium prices rose steeply in the early 2000s, Walter Coles and another local family formed Virginia Uranium to renew the project. They abandoned the legislative route after 2013, when newly elected governor Terry McAuliffe (D) promised to veto any effort to lift the uranium ban. After that, the company — now part of a Canadian holding firm — focused on a court challenge.

The case divided the rural community in Pittsylvania County that suffered after the collapse of its furniture, textile and tobacco industries. Some residents hoped the company would bring new jobs and generate billions in revenue for local businesses. Others feared that environmental destruction would deter new businesses. The city of Virginia Beach, whose water supply is fed by the county’s Roanoke River, lobbied against the mine.

Supreme Court to consider Virginia uranium case that divides a rural county

The company argued in court that the state could not use a ban on mining, which is within its jurisdiction, as a ruse to get at concerns about production of uranium and storage of radioactive waste, which are the province of the federal Nuclear Regulatory Commission.

The Trump administration sided with the company and against the state exercising what it considers its sovereignty.

If legislators acted because of concerns about radiological safety, opponents said, that could violate the Atomic Energy Act, which says federal regulators, not states, have that responsibility.

In the lead opinion Monday, Gorsuch said the position advocated by the company probably would have meant that both the states and federal government would have been barred from regulating uranium mining.

“The possibility that both state and federal authorities would be left unable to regulate the unique risks posed by an activity as potentially hazardous as uranium mining seems more than a little unlikely,” he wrote.

In her concurring opinion, Ginsburg rejected the company’s warning of dire consequences if all 50 states enact such a ban. The federal government, she wrote, can still develop uranium on public land and acquire private deposits.

Chief Justice John G. Roberts Jr., writing in dissent, said the lead opinion had addressed the wrong question and defeated “an argument that no one made.”

“The question we agreed to address is whether a state can purport to regulate a field that is not preempted (uranium mining safety) as an indirect means of regulating other fields that are preempted (safety concerns about uranium milling and tailings),” wrote Roberts, who was joined by Justices Stephen G. Breyer and Samuel A. Alito Jr.

In a statement Monday, the company called the ruling a disappointment.

“We continue to think that Virginia’s uranium mining ban is both unlawful and unwise, and we are reviewing other options for challenging the Commonwealth’s confiscation of Virginia Uranium’s mineral estate,” Coles, Virginia Uranium’s president and chief executive, said in a written statement.

The Justice Department declined to comment.

The decision Monday upheld a 2-to-1 ruling from a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond. The appeals court said it was not up to the courts to “decipher” Virginia’s reasoning and look for a violation.

Environmentalists applauded the holding from the high court’s majority.

“We have long supported Virginia’s decision to protect its communities from the environmental and economic risks of uranium mining,” Mark Sabath, a lawyer with the Southern Environmental Law Center, which submitted a friend-of-the-court brief in defense of the ban, said in a written statement. “We are pleased that the Court respected that decision and recognized that it was one for Virginia to make.”

The case is Virginia Uranium Inc. v. Warren.

Laura Vozzella contributed to this report.

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