Opinion analysis: Virginia’s moratorium on uranium mining is not pre-empted, but the role of legislative purpose remains open for debate
on Jun 17, 2019 at 6:43 pm
The Supreme Court has concluded that Virginia’s decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?
Today’s judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts’ dissent would have used evidence of state legislative purpose to find that Virginia’s ban was pre-empted. Overall, today’s opinions likely presage important battles to come on the matter of legislative purpose as the court’s composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.
The facts of the case, presented in more detail in my argument preview, involve the largest uranium deposit in the United States, located in Virginia. In 1983, the state placed a moratorium on uranium mining on private lands, which all the parties before the Supreme Court agreed is a matter for state regulation. Yet the Atomic Energy Act gives to the Nuclear Regulatory Commission sole authority to regulate the closely related radiological safety of uranium milling and tailings management. These activities present considerable risks, and Virginia Uranium argued that Virginia’s true motive in banning uranium mining was to regulate the safety of milling and tailings. The district court and U.S. Court of Appeals for the 4th Circuit refused to look beyond the face of Virginia’s moratorium, and today, six justices agreed.
Like the lower courts, Gorsuch hewed closely to the statutory language in his lead opinion. The AEC includes express language providing that NRC authority arises only after uranium has been removed from natural deposits, and it contains different express language permitting NRC to regulate uranium mining on federal land. A separate section of the statute that permits limited cooperative federalism for regulating radiological hazards contains a savings clause — and Gorsuch rejected a strained reading of that clause that would have left Virginia unable to regulate mining on private land.
Moreover, Gorsuch emphasized that the NRC has long maintained that it has no authority under the AEA to regulate uranium mining on private land; were the court to read the savings clause as Virginia Uranium asked, neither the state nor the federal government could regulate the unique risks of uranium mining. Referring to Justice Antonin Scalia’s famous language from Whitman v. American Trucking Associations Inc., Gorsuch concluded: “Talk about squeezing elephants into mouseholes.”
All the opinions contended with an important prior decision involving pre-emption and the AEA, Pacific Gas & Electric Co. v. Energy Resources Commission. There, the Supreme Court upheld a California moratorium on new nuclear power plants within the state until the United States developed a means of disposing of spent nuclear fuel. That opinion, which disavowed a focus on state legislative purpose, made a purpose-based inquiry anyway — a point that Virginia Uranium seized on. Gorsuch took the opportunity to rein in an expansive reading of PG&E. Gorsuch explained that PG&E involved a state’s potential intrusion into “core federal powers reserved to the federal government by the AEA,” whereas Virginia’s moratorium on mining focuses on an activity “far removed from NRC’s historic powers.” Given the serious implications for state sovereignty were the court to inquire into legislative purpose in this case, Gorsuch concluded, PG&E should not be extended.
Finally, Gorsuch’s opinion staked out some key points about the propriety of inquiring into state legislative purposes. According to Gorsuch, that kind of inquiry undermines democratic values because it incentivizes state legislatures to “resort to secrecy and subterfuge” rather than engage in open and rigorous debate. It further undermines uniformity with respect to pre-emption because it could mean that one state’s ban on uranium mining would not be pre-empted, while another with the same text but an impermissible purpose would fall. Additionally, Gorsuch reasoned, inquiries into purpose are flawed because it is unrealistic to ascribe a single purpose to a many-membered legislature.
Ginsburg’s opinion concurring in the judgment expressed concern about Gorsuch’s sweeping assertions about the perils of inquiring into legislative purpose. She largely agreed with Gorsuch’s statutory analysis, including the basis for distinguishing PG&E, and thought it appropriate to ground the decision only in the statutory text. Ginsburg declined to disavow any inquiry into state legislative purposes. Still, she rejected the argument that Virginia’s ban was a pretext for regulating the radiological safety of milling and tailings management, even though the ban makes it very unlikely that such activities will take place within the state’s borders. Distinguishing National Meat Association v. Harris, Ginsburg emphasized: “A state law regulating an upstream activity within the State’s authority is not preempted simply because a downstream activity falls within a federally occupied field.”
Roberts’ dissent criticized Gorsuch’s lead opinion for ducking the real issue, that is, whether the state could regulate a non-pre-empted field (uranium mining) as a pretext for regulating in a field that is pre-empted (uranium milling and tailings). Citing PG&E, Roberts stated that a state law is pre-empted “when its purpose is to regulate within a preempted field.” Like California in PG&E, Roberts charged, here Virginia has the obligation, once the pretextual argument is raised, to put forth a “nonsafety rationale” for its ultimate effect of targeting pre-empted activities. Roberts emphasized the pragmatic notion that “[s]tates may try to regulate one activity by exercising their authority over another.” The entire point of the purpose inquiry under the court’s AEA precedents, therefore, is to tease out which exercises of state regulatory power are pre-empted and which are not. To look only to the text of the statute, Roberts argued, invites evasion.
For followers of federalism and statutory analysis, it seems likely after Virginia Uranium that the justices’ approaches to the role of legislative purpose are in a state of flux. For followers of nuclear-licensing matters, this case is a significant addition to the family of AEA pre-emption decisions in its firm support of state authority despite pretextual motives.