When the Coles family explored mining the uranium in the 1980s, the Virginia legislature imposed a moratorium, citing fears of an unsightly mine and radioactive waste.
A few years ago, as the market for uranium picked up, Walter Coles formed a company to revive the project. But the state stood firmly opposed. So he challenged the moratorium in court, and after lower courts ruled against him, the U.S. Supreme Court agreed to consider the case.
The legal dispute spins off into directions as unexpected as finding uranium on an old Virginia plantation. It pits a state’s right to regulate industry against the federal government’s power to oversee matters of national interest. The Trump administration has sided with the company, and against the state exercising what it considers its sovereignty. The case also hinges on trying to intuit the true motives of Virginia legislators more than 30 years ago when they enacted the moratorium.
Locally, the issue inflames tensions in a community that badly needs jobs. Pittsylvania County, roughly midway along Virginia’s border with North Carolina, has suffered the collapse of its furniture, textile and tobacco industries.
Some local residents have invested in the Coles family’s mining company in hopes that it will bring new riches.
“It’d be the engine of economic growth here,” said Coles, 80, whose family owns about 20 percent of the company.
But others fear that destruction to the environment or the hint of radioactive waste could discourage new businesses from coming. A group of nearby economic development and government agencies signed on to a legal brief against the mine.
“It’s hard to get away from the stigma of what uranium associates itself with,” said Ben Davenport, who owns a major oil distributor and other businesses in the Pittsylvania County seat of Chatham. “The thing in the middle of all this is, you know, the Coles are good friends. It’s not easy being on opposite sides.”
A question of intent
Walter Coles grew up working in tobacco fields, the sixth generation of his family to farm on land granted to them in 1785. Thomas Jefferson signed one of the family’s land grants; President James Monroe commissioned an ancestor for the War of 1812.
His father learned of the uranium in the 1970s after scientists from Canada, looking for such deposits, researched the area’s geology. Over years of surveying and sampling, they found two major “ore bodies” — one north of the historic home and one south.
Though the deposit extends at least 1,500 feet below ground, one section surfaces along the old gravel road through the property.
“If you brought a Geiger counter and you walked in that ditch, it’d just go off the scale,” Coles said, as cows lowed in a nearby pasture.
The approximately 119 million pounds of uranium ore that lies there was valued in 2011 at roughly $7 billion. Prices have fallen since then, but it’s still a major haul.
The Virginia General Assembly has been skeptical of mining the uranium since the Coles family raised the issue in the early 1980s. Leery after the 1979 nuclear accident at Three Mile Island in Pennsylvania, the legislature passed legislation in 1982 permitting uranium exploration but imposing a one-year ban on mining. It extended the ban indefinitely in 1983.
When uranium prices rose steeply in the early 2000s, Coles and another local family formed Virginia Uranium Inc. to renew the project.
They abandoned the legislative route after 2013, when newly elected Gov. Terry McAuliffe (D) vowed to veto any effort to lift the uranium ban. After that, the company — now part of a Canadian holding company — focused on a court challenge, arguing that Virginia’s ban was preempted by the Atomic Energy Act.
The legal battle is not so much about whether Virginia can ban uranium mining, but why it decided to do so. Its motivation could conflict with federal law.
To understand that, it helps to know that there are three stages of uranium mining.
First, the ore containing uranium is extracted from the ground. Next, a mill grinds the ore into sand, which is run through a solution to separate the uranium from the waste rock commonly known as “tailings.” The uranium is then concentrated and dried into “yellowcake” for commercial sale.
Lastly, the tailings, which are radioactive, must be permanently stored in a secure facility.
The Atomic Energy Act gives the federal Nuclear Regulatory Commission the authority to regulate the second and third steps, but not the first — the extraction. States traditionally take the lead on mining decisions.
But Virginia Uranium says the sole reason for the ban, based on comments from legislators, was a concern over the radioactive waste, and thus the state was encroaching on areas left to federal regulators.
A panel of the U.S. Court of Appeals for the 4th Circuit disagreed. In a 2-to-1 ruling, it said that because mining is not covered by the AEA, it was not up to the courts to “decipher” Virginia’s reasoning and look for a violation. “We decline to examine why the Commonwealth chose to ban uranium mining, which it was plainly allowed to do,” Judge Albert Diaz wrote.
Besides, accepting the company’s broad interpretation of the law would mean that companies could mine uranium free of any government oversight, Diaz wrote.
But dissenting Judge William B. Traxler Jr. said courts did have to look at whether the ban was passed for impermissible reasons. “By unilaterally regulating against the dangers of uranium tailings under the pretext of regulating uranium mining, Virginia circumvented the Act’s requirements and frustrated Congress’s objectives,” he wrote.
In appealing the decision to the Supreme Court, the company’s lawyer, Charles Cooper, argued that allowing Virginia’s ban to stand would thwart the nation’s goal of having an adequate supply of nuclear fuel for power plants and national defense.
The Justice Department agreed with the company that Virginia had overstepped its area of authority.
U.S. Solicitor General Noel Francisco said in a brief to the Supreme Court that the company “credibly alleged that Virginia banned uranium mining for the purpose of guarding against the radiation hazards posed by uranium milling and tailings management, which are activities regulated under the AEA.”
Virginia Solicitor General Toby J. Heytens responded that “the authority to determine whether to permit a physically intrusive and destructive activity like mining lies at the heart of a state’s inherent power to regulate for the health and welfare of its citizens.”
He said there is no definitive way to determine the motivations of legislators who passed a ban more than 30 years ago. And, he said, it is likely to be for several reasons, such as a concern over the physical destruction of the land and a worry that the enterprise might be abandoned if uranium prices drop again.
The company said in its brief that mining the uranium would create an estimated 1,052 jobs and generate nearly $5 billion in revenue for local businesses. But a brief filed by legislators from southern Virginia says state and local governments envision an economy “focused on agriculture, tourism, motorsports, education, and other [complementary] industries. This path does not include a large uranium mine.”
'It's a hot button'
“This is not the panacea or the silver bullet that’s going to save the economy,” said state Sen. William M. Stanley Jr. (R), who represents the area. “If we have a big uranium pit where they’re digging uranium out of the ground, I think it would keep a lot of companies away.”
Two century-old boarding schools in Chatham — Hargrave Military Academy and Chatham Hall — worry that a mine might scare away prospective students. The city of Virginia Beach, whose water supply is fed by the county’s Roanoke River, has lobbied against the mine.
“It’s a hot button right here in the county,” said Robert Mills, a major dairy farmer in western Pittsylvania. “There’s no gray area. You’re either for it or against it.”
But Mills said he thinks much of the public fear is emotional overreaction. “I think Virginia Uranium should have the opportunity to work through the process and see if it can be mined safely, then you make your decisions,” he said.
That’s what Coles says he’s seeking. The project, he said, would not be nearly as big as most people think — a footprint of about 100 acres amid roughly 3,000 owned by his family and the company. Much of the family property is protected from development by a conservation easement. And Coles said his deeds protect the historic home from sale or development for 100 years.
Some in the community had lost track of the project and said they didn’t realize it was coming up for a big court decision. Yvonne Fitzgerald, owner of Von’s Salon on Main Street in Chatham, remembers five or six years ago when everyone was wearing T-shirts and displaying signs opposing the mine.
She’s still against it, Fitzgerald said, because she’s scared of it. But she added that the potential for an economic boost is hard to resist.
“I think it really would create jobs, and we need that,” she said. “But can we mine it safely?”