On June 17, 2019, the Supreme Court handed down a decision putting an end to Virginia Uranium Inc.'s efforts to mine uranium at the nation's largest known uranium deposit on private land in Pittsylvania County, Virginia.
After uranium was discovered in the county in the late 1970s, the Virginia General Assembly imposed a ban on uranium mining in the state "until a program for permitting uranium mining [wa]s established by statute." 1983 Va. A cts. ch. 3. No such program has ever been established in Virginia.
In the early 2000's, Virginia Uranium lobbied the Virginia legislature to repeal the ban and establish a program for permitting uranium mining, but was unsuccessful. Faced with failure at the state level, the company tried its luck in the federal courts, bringing a law suit against the state arguing that the federal Atomic Energy Act (AEA) preempted--and therefore invalidated--the Virginia law banning uranium mining there.
In essence, the company argued that, under the Constitution’s Supremacy Clause, the AEA preempts state uranium mining laws, establishing the Nuclear Regulatory Commission (NRC) as the sole regulator in the field.
A federal district court, federal court of appeals, and now the Supreme Court, disagreed, ruling that the AEA clearly gives the NRC authority over uranium milling, transfer, use, and disposal, as well as the building and operation of nuclear power plants. But, the Court held, "Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders."
Justice Gorsuch wrote the decision of the Court, and was joined by Justices Thomas and Kavanaugh. Justices Ginsburg, Sotomayor and Kagan joined in the judgment, while writing separately to state their disagreement with the scope of Gorsuch's analysis.
Should any other state choose to act to ban uranium mining within its borders, the decision in Virginia Uranium v. Warren will make it clear that they are within their authorty to do so. Further, this decision may be used by states to bolster their arguments, going forward, that they retain substantial authority over other natural resource extraction activities within their borders.