Metropolitan Digital

The Conversation

  • Written by Cale Jaffe, Assistant Professor of Law and Director, Environmental and Regulatory Law Clinic, University of Virginia

Virginia has the authority to ban uranium mining[1] under state law, even as the federal government regulates the processing of nuclear fuel under the Atomic Energy Act[2], the Supreme Court has ruled.

Neil Gorsuch, joined by the court’s longest-serving and newest conservatives – Clarence Thomas and Brett Kavanaugh – rejected the idea that Congress’ plan for nuclear enrichment could override Virginia’s decision to prohibit uranium mining altogether. On that point, these three conservatives were in sync with three of the court’s liberals, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. This remarkably diverse coalition agreed that the “Commonwealth’s mining ban is not preempted[3]” by federal authority. Chief Justice John Roberts filed a dissent.

I have been involved in this case[4], Virginia Uranium, Inc. v. Warren, 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[5], an environmental advocacy organization that had raised grave concerns about a proposed uranium mine[6] near the city of Danville.

All three of the opinions published in Virginia Uranium, Inc. v. Warren[7] are likely to prove significant in future environmental battles – both in the courts and in the court of public opinion.

On one level, the justices sketched out the court’s evolving views on the proper balance between federal regulatory power and the rights of states in setting their own policies. Their opinions also challenged some common assumptions about how grassroots environmental advocates can pull together winning political coalitions.

Inverting the states’ rights divide

Conventional wisdom holds that conservatives have excelled at getting judges[8] who support states’ rights on the bench. These judges are broadly seen as distrustful of large federal bureaucracies and enthusiastic about a Tenth Amendment precept[9] that the national government is one of limited powers. Any power not explicitly granted to Congress or the president is, according to the Bill of Rights, “reserved to the states respectively, or to the people.”

So you might have expected all five of the court’s conservative justices to side with the Commonwealth of Virginia and reject an application of the Atomic Energy Act[10] that would extend federal administrative power into an area of traditional state control.

Likewise, you might have guessed that all four liberal justices would have questioned Virginia’s motives in enacting a 1982 moratorium that, according to the uranium mining industry[11], was allegedly designed to circumvent federal law.

But Gorsuch’s and Ginsburg’s separate, concurring opinions in the uranium case show how difficult the political calculus can be.

While Gorsuch’s lead opinion charted a conservative tack by emphasizing states’ rights, Ginsburg followed a different path that leaned heavily on defending legal precedents.

She also pushed back on the right’s recent interest in revisiting settled case law[12]. Roberts’s dissent is equally important, even though it only garnered two additional votes, from Stephen Breyer, the most moderate member of the liberal camp, and Samuel Alito, a conservative.

Roberts staked out an ideological middle ground between Gorsuch and Ginsburg. Echoing concerns Breyer raised during oral argument[13], he looked at the “purpose and effect” of Virginia’s mining ban to consider whether the Commonwwealth’s concerns interfered with Congress’ actions.

The Supreme Court's Virginia uranium ruling hints at the limits of federal power No joke: Everyone in this photo besides Chief Justice John Roberts joined together to uphold Virginia’s uranium mining ban. AP Photo/J. Scott Applewhite[14]

Economic interests

In its lawsuit, Virginia Uranium claimed that its proposed mining site, about 220 miles southwest of Washington, D.C., could generate US$4.8 billion[15] in net revenue for Virginia businesses.

Uranium oxide, commonly known as yellowcake[16], 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.

Green groups[17] seized on a report published by the National Academy of Sciences, Engineering, and Medicine[18], 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[19] opposed the mining project, out of concern about the potential harm to agriculture, tourism and other economic development opportunities.

The state of the law

Under the Atomic Energy Act[20], states retain jurisdiction over conventional uranium mining. The federal government lacks authority over uranium ore “prior to removal from its place of deposit in nature[21],” when it is milled into yellowcake.

In our brief to the Supreme Court, we noted that Virginia had narrowly tailored its ban to avoid any conflict with that measure. The state’s moratorium exclusively restricts state-controlled mining and bans only that activity.

Even with the ban on the books, we explained that it still would be legal to process uranium ore under the federal regulatory regime, so long as that ore had been mined out-of-state and trucked into Virginia[22]. In a footnote, Ginsburg shared a similar observation[23]: “The mining ban at issue would not prevent uranium ore mined in North Carolina from being milled, and the resulting tailings stored, in the Commonwealth.”

In other words, Ginsburg focused on the real-world mechanics of how the ban would work.

Gorsuch[24], on the other hand, kept his eye on broader implications and questioned whether one of the court’s settled judicial doctrines should be retained.

Supreme Court precedent holds that a state’s law can be struck down if it creates an irreconcilable “obstacle” to carrying out a congressional objective. Gorsuch appeared to suggest that such an obstacle might exist when he described Virginia’s mining ban as a “roadblock” that prevents the mining company from even reaching the point where the federal Atomic Energy Act could “kick in.”

The mining company initiated this lawsuit “to overcome that obstacle,” he wrote. Instead of finding the Virginia statute to be preempted, however, Gorsuch found the “obstacle” itself suspect. It’s impossible to pin down, he suggested, without “piling inference upon inference about hidden legislative wishes” – something he refused to do.

Ginsburg was not amused. Gorsuch’s criticisms of judicial doctrine is “inappropriate in an opinion speaking for the Court” because it “sweeps well beyond the confines of this case.”

A roadmap for future advocacy

The farthest-reaching implications of Gorsuch’s discussion only garnered three votes. But it clearly indicated where the Court’s most conservative justices hope to take the law, staving off “the costs to … individual liberty[25]” if courts were to dissect a state’s legislative motives to find a conflict with a federal regulatory program.

Perhaps that points to a playbook for advocacy[26] on other federal actions that environmentalists might find objectionable, such as the Trump administration’s reversal of President Barack Obama’s climate change policies[27].

Environmentalists are, after all, gaining an appreciation[28] for the value of state initiatives, like Virginia’s mining ban, which can provide a bulwark against regulatory rollbacks.

Editor’s note: Portions of this article appeared in a related article published on Jan. 11, 2019[29].

References

  1. ^ authority to ban uranium mining (www.supremecourt.gov)
  2. ^ Atomic Energy Act (www.energy.gov)
  3. ^ Commonwealth’s mining ban is not preempted (www.supremecourt.gov)
  4. ^ involved in this case (www.law.virginia.edu)
  5. ^ Southern Environmental Law Center (www.southernenvironment.org)
  6. ^ proposed uranium mine (www.usatoday.com)
  7. ^ Virginia Uranium, Inc. v. Warren (www.supremecourt.gov)
  8. ^ conservatives have excelled at getting judges (theconversation.com)
  9. ^ Tenth Amendment precept (www.law.cornell.edu)
  10. ^ Atomic Energy Act (www.energy.gov)
  11. ^ uranium mining industry (www.supremecourt.gov)
  12. ^ right’s recent interest in revisiting settled case law (www.reuters.com)
  13. ^ Breyer raised during oral argument (www.supremecourt.gov)
  14. ^ AP Photo/J. Scott Applewhite (www.apimages.com)
  15. ^ US$4.8 billion (www.scotusblog.com)
  16. ^ known as yellowcake (www.nrc.gov)
  17. ^ Green groups (www.southernenvironment.org)
  18. ^ National Academy of Sciences, Engineering, and Medicine (www.nap.edu)
  19. ^ Danville Pittsylvania County Chamber of Commerce (www.godanriver.com)
  20. ^ Atomic Energy Act (www.epa.gov)
  21. ^ prior to removal from its place of deposit in nature (www.law.cornell.edu)
  22. ^ mined out-of-state and trucked into Virginia (www.supremecourt.gov)
  23. ^ Ginsburg shared a similar observation (www.supremecourt.gov)
  24. ^ Gorsuch (www.supremecourt.gov)
  25. ^ the costs to … individual liberty (www.supremecourt.gov)
  26. ^ playbook for advocacy (papers.ssrn.com)
  27. ^ President Barack Obama’s climate change policies (www.epa.gov)
  28. ^ gaining an appreciation (blogs.ei.columbia.edu)
  29. ^ Jan. 11, 2019 (theconversation.com)

Authors: Cale Jaffe, Assistant Professor of Law and Director, Environmental and Regulatory Law Clinic, University of Virginia

Read more http://theconversation.com/the-supreme-courts-virginia-uranium-ruling-hints-at-the-limits-of-federal-power-115881

Metropolitan republishes selected articles from The Conversation USA with permission

Visit The Conversation to see more

Entertainment News

Phish’s 2018 Fall Tour to Conclude with Four Performances at MGM Grand Garden Arena

LAS VEGAS (May 15, 2018) – Phish, the American rock band known worldwide for its dedicated fan base, recently announced a 14-date Fall tour which will conclude in Las Vegas with four performances at...

Blane Ferguson - avatar Blane Ferguson

Dave Damiani and The No Vacancy Orchestra are “Bending The Standard”

Tina Sinatra, Dave Damiani & Landau Murphy Jr. celebrate 100 years of Frank Sinatra in Los Angeles There have been stories about independent filmmakers, but how about the independent big band...

Tom Estey - avatar Tom Estey

Billboard Chart-Topping Saxophonist VANDELL ANDREW Returns With New Single

From the vantage point of 30, his age and the name of his infectious, sensually grooving new full length album, Vandell continues to be fueled by the impressive roar of accolades and achievements th...

Metropolitan Digital - avatar Metropolitan Digital

Metropolitan Business News

Office Cleaner Takes Ownership of the Neglected Dishwasher

In an office that a dishwasher is being used communally, it is pretty difficult to set rules on how a certain appliance needs to be taken cared of. A dishwasher is a responsibility of no one until you...

News Company - avatar News Company

Amazing tips to become a successful trader

Everyone is working very hard to secure their financial freedom. Most of the people find it hard to support their family even after having a 9-5 day job. For this very reason, people often look for ...

News Company - avatar News Company

Best Practice For Young Professionals Working Through HR Internships

The industry of human relations is vitally important to the health and prosperity of a business.   Whether they are operating in textile manufacturing, accounting, sports, IT development or hospit...

News Company - avatar News Company

4 Easy Steps To Gaining SEO Momentum For Your Business

SEO (search engine optimisation) does not have to be a tiresome and overbearing exercise that diverts attention away from the core functions of a business.   SEO Shark affirms this as a smart and ...

News Company - avatar News Company

How to Manage An SEO Project On Limited Funds

SEO operators don’t need thousands upon thousands of dollars to become successful.   What SEO practitioners needs more than ever is the skills and diligence to identify problems that are acting a...

News Company - avatar News Company

An Introduction To Coworking For Australian Business Owners

Advancing technology is bringing with it great advantages in communications and networking, and to survive in business you need to keep up. With the rate at which everything changes these days, that...

News Company - avatar News Company

Holidays

New Baggage Regulations to Help Aussie Parents Travel with Infants

Travelling around the globe has never been easy, especially when infants tag along for the trip. One of the main issues that parents often have to deal with is the need to bring extra item...

News Company - avatar News Company

Maya Beach Opens to Tourists

Despite recent reports that Southern Thailand's famous Maya Beach will close for three months this year, in fact no decision to this effect has been made by Thai authorities. Phi Phi Nati...

Maevadi Rosenfeldt - avatar Maevadi Rosenfeldt

SKYN LAUNCHES GUIDE TO THE BEST PLACES TO GET INTIMATE

SKYN®, Australia’s best-selling condom*, today launches its very first SKYN® Places of Intimacy Guide.   Curated in partnership with GQ Magazine and Conde Nast, the Guide features 30 lux...

SKYN - avatar SKYN