- Moratorium has prevented uranium mining in state for almost four decades
- Argument hinges on exclusive federal authority over nuclear safety regulation
- Inconsistent state laws could create disruption, uncertainty in nuclear industry
The Nuclear Energy Institute this week asked the United States Supreme Court to overturn a lower court’s judgement that effectively upholds a decades-long ban on uranium mining in Virginia.
NEI’s argument emphasizes the need to maintain the established separation of federal and state regulatory authority over nuclear activities, and to ensure that states do not enact legislation with the purpose of addressing nuclear safety concerns—whether that purpose is stated or unstated.
“The comprehensive federal regulatory framework that Congress has established over the past 60 years undergirds the continued viability of the nuclear industry,” NEI Vice President, General Counsel and Secretary Ellen Ginsberg said.
State laws that would upend or frustrate that framework would not only threaten the continued availability of commercial nuclear power, but also discourage investment in new nuclear technologies and undermine national security.
Congress carefully balanced the federal government’s exclusive control over nuclear regulation and when states may regulate, she added.
“Congress drew a bright line, as otherwise states could impose inconsistent safety standards, creating disruption, uncertainty, and higher costs for industry and consumers. If courts allow state regulation of radiological safety so long as the regulation’s language makes no mention of that goal and regulates indirectly, Congress’ careful balance would be undone.”
The case concerns the as-yet undeveloped Coles Hill site in southern Virginia’s Pittsylvania County, where the “largest known uranium ore deposit in the United States” was discovered in the late 1970s. The Virginia General Assembly, while allowing some exploration of the site in 1982, also imposed a one-year moratorium on uranium mining and extended the ban indefinitely the following year.
Significantly, the 1983 moratorium legislation created a working group to consider the risk that radionuclides generated by uranium mining, ore milling and management of byproduct material or “tailings” could contaminate the environment.
A 2008 attempt by Coles Hill property owner Virginia Uranium Inc. to seek legislative relief from the moratorium was unsuccessful. The company sued in federal district court in 2015, asking the court to declare the mining ban preempted by federal law. The court dismissed the suit on the grounds that the moratorium only bars traditional mining, which is not regulated by the U.S. Nuclear Regulatory Commission. However, the court acknowledged Virginia Uranium’s allegation that the moratorium in fact rested on “radiological safety concerns” associated with uranium ore milling and management of mine tailings, which are federally regulated activities.
A 2017 appeal was also rebuffed when the U.S. Court of Appeals for the Fourth Circuit refused to look at whether the moratorium was explicitly motivated by an attempt to target NRC-regulated milling and mine tailings. The appeals court echoed the previous court’s finding that states are indeed precluded by the Atomic Energy Act of 1954 (AEA) from regulating such activities, but upheld the ban on the argument that the moratorium legislation did not explicitly mention those activities.
In April 2018, the U.S. Solicitor General filed an amicus brief supporting review by the U.S. Supreme Court on the question of whether the AEA preempts state laws that ban certain activities within their jurisdiction (e.g., conventional uranium mining) when those laws are grounded in radiological safety concerns about related federally-regulated activities (milling and tailings management).
NEI’s July 26 amicus curiae filing in support of Virginia Uranium in the Supreme Court argues that judicial decisions over the past 60 years have confirmed the federal preemption line drawn by Congress that precludes states from regulating radiological safety aspects of nuclear energy development and generation.
NEI is asking the Supreme Court to overturn the appeals court’s judgment that allowed the state to infringe on the exclusive federal authority over the safety of processing uranium. The lower court’s rationale, if adopted widely, could allow states to open a back door to regulating nuclear safety, undermining the NRC’s long established regulatory framework by imposing separate and potentially inconsistent safety standards, NEI argues.
“Preserving the exclusivity of the extensive federal regulatory regime governing radiological risks is necessary to maintain the legal and economic stability on which the nuclear industry continues to depend,” NEI’s brief states.
“Stability is beneficial not only to the industry. Nuclear power is the nation’s largest source of carbon-free power, and a healthy nuclear industry is vital to our national security. Preserving the existing federal regulatory framework thus supports both the advancement of clean energy and our national security.”
The Supreme Court is expected to hear arguments in the fall.