Virginia’s uranium mining battle flips traditional views of federal and state power

The Supreme Court will decide in 2019 whether a Virginia law that bans uranium mining is preempted by the Atomic Energy Act, the U.S. law governing the processing and enrichment of nuclear material.

The case, Virginia Uranium, Inc. v. Warren, will require the court to interpret laws governing nuclear fuel production. But its most significant, long-term impact might be the glimpse it provides into the court’s view of the proper balance between federal regulatory power and the rights of states in setting their own policies.

I have been involved in this case in its various iterations for more than a decade. Before joining the faculty at the University of Virginia School of Law, I worked with the Southern Environmental Law Center, an environmental advocacy organization that had raised grave concerns about a proposed uranium mine near the city of Danville.

Inverting the states’ rights divide

Conventional wisdom holds that people on the political right distrust large federal bureaucracies and would rather allow state officials the freedom to regulate their own economies. Under this line of thinking, conservatives would be expected to side with the Commonwealth of Virginia and recoil at an intrusive application of the Atomic Energy Act that would prohibit the state from enforcing a ban on uranium mining in place since 1982.

Those on the liberal end of the spectrum, on the other hand, might be expected to see a strong federal hand as necessary to prevent states from deregulating and despoiling their own environments.

This case is one of several, recent environmental and public policy disputes to demonstrate how that thinking can be wrong.

Over the course of their political careers, conservative Republican Sens. Tom Cotton of Arkansas, Jim Inhofe of Oklahoma and Ted Cruz of Texas have each highlighted the 10th Amendment in advocating for a limited view of federal government power and deference to states’ rights. Yet all three of them signed on to an amicus brief in support of Virginia Uranium, Inc.‘s sweeping view of the Nuclear Regulatory Commission’s role in this instance.

On the flip side, environmentalists are gaining an appreciation for the value of state initiatives, like Virginia’s mining ban, which can provide a bulwark against environmental rollbacks from the Trump administration.

Before the Supreme Court, I co-authored, with former Virginia Attorney General Tony Troy, another amicus brief defending the state law. We filed it on behalf of six members of the Virginia General Assembly who represent affected communities and on behalf of local chambers of commerce; civic, trade and economic development associations; and municipalities.

Economic interests

Virginia Uranium claims that its proposed mining site, about 220 miles southwest of Washington, D.C., could generate US$4.8 billion in net revenue for Virginia businesses.

Uranium oxide, commonly known as yellowcake, can be enriched to produce the fuel that powers the nation’s nuclear reactors. But first it has to be extracted from the ground, which is a monumentally significant undertaking. Producing the 133 million pounds of yellowcake that the company thinks it can develop would require mining more than 267 billion pounds of raw ore, which is roughly 365 times the weight of the Empire State Building.

Green groups seized on a report published by the National Academy of Sciences, Engineering, and Medicine, which found that uranium mining increases the incidences of cancer, acidification of local waterways, and the emission of soot and smog-forming pollutants from industrial equipment.

Local businesses joined environmentalists in pushing back. The Danville Pittsylvania County Chamber of Commerce opposes the mining project, out of concern about the potential harm to agriculture, tourism and other economic development opportunities.

Agriculture and forestry-related industries provided the counties adjacent to the proposed mine site with an estimated $5.4 billion in total economic benefits in 2015, according to the Weldon Cooper Center for Public Service’s analysis.