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Supreme Court to hear uranium mining ban case
November 5, 2018

The United States Supreme Court agreed to consider a decades old ban on uranium mining in Virginia.

The case pits the Coles family against the state of Virginia over a uranium deposit on the former’s land that is said to be the largest ever found in the United States.

The deposit, estimated to be 119 million pounds, was discovered in the 1970s. In 1982, Virginia instituted a state-wide ban on uranium mining following the partial meltdown at Three Mile Island in Pennsylvania. The ban was extended indefinitely in 1983.

The Coles family formed Virginia Uranium to lobby lawmakers to loosen the restrictions. In 2015 Virginia Uranium began to focus on litigation and challenged the moratorium in court, and after lower courts ruled against him, the U.S. Supreme Court agreed to consider the case.

The Trump administration has sided with the company, and against the state exercising what it considers its sovereignty. The case also hinges on trying to intuit the true motives of Virginia legislators more than 30 years ago when they enacted the moratorium, the Washington Post reported.

The legal battle is not so much about whether Virginia can ban uranium mining, but why it decided to do so. Its motivation could conflict with federal law.

To understand that, it helps to know that there are three stages of uranium mining.

First, the ore containing uranium is extracted from the ground. Next, a mill grinds the ore into sand, which is run through a solution to separate the uranium from the waste rock commonly known as “tailings.” The uranium is then concentrated and dried into “yellowcake” for commercial sale.

Lastly, the tailings, which are radioactive, must be permanently stored in a secure facility.

The Atomic Energy Act (AEA) gives the federal Nuclear Regulatory Commission the authority to regulate the second and third steps, but not the first — the extraction. States traditionally take the lead on mining decisions.

But Virginia Uranium says the sole reason for the ban, based on comments from legislators, was a concern over the radioactive waste, and thus the state was encroaching on areas left to federal regulators.

A panel of the U.S. Court of Appeals for the 4th Circuit disagreed. In a 2-to-1 ruling, it said that because mining is not covered by the AEA, it was not up to the courts to “decipher” Virginia’s reasoning and look for a violation. “We decline to examine why the Commonwealth chose to ban uranium mining, which it was plainly allowed to do,” Judge Albert Diaz wrote.

Besides, accepting the company’s broad interpretation of the law would mean that companies could mine uranium free of any government oversight, Diaz wrote.

But dissenting Judge William B. Traxler Jr. said courts did have to look at whether the ban was passed for impermissible reasons. “By unilaterally regulating against the dangers of uranium tailings under the pretext of regulating uranium mining, Virginia circumvented the Act’s requirements and frustrated Congress’s objectives,” he wrote.

The company said in its brief that mining the uranium would create an estimated 1,052 jobs and generate nearly $5 billion in revenue for local businesses. But a brief filed by legislators from southern Virginia says state and local governments envision an economy “focused on agriculture, tourism, motorsports, education, and other [complementary] industries. This path does not include a large uranium mine.”
 

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