Virginia Uranium Inc., v. Warren

Whether the AEA preempts a state law that on its face regulates an activity within its jurisdiction but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the NRC?

Under the Atomic Energy Act (AEA), regulation over radiological safety of uranium milling and tailings management is exclusively held by the Nuclear Regulatory Commission (NRC). Further, the AEA prohibits state regulation of uranium mining activity where the purpose of the regulation is “protection against radiological hazards.” 42 U.S.C. § 2021(k). Petitioners argue that a 1983 ban by the state of Virginia on uranium mining violates this provision of the AEA, and is primarily motivated by concern about the safety of radiological hazards. The District Court dismissed the complaint by Petitioner, and the Fourth Circuit affirmed the decision of the lower court, stating that Virginia’s law was not preempted by the AEA, because the AEA does not pertain to nonfederal uranium deposits nor does it prohibit regulation of uranium milling and tailings storage for “protection against radiation hazards.” Virginia Uranium Inc, v. Warren, 848 F.3d 590, 593 (2017). The court further held that the AEA does not require state uranium deposits be conventionally mined. On appeal, Petitioner argues that the Fourth Circuit erred in declining to evaluate the ban beyond its plain meaning, and that the AEA preempts the ban for safety purposes. Petitioner further argues that such a ruling directly conflicts with decisions of the Second and Tenth Circuits on similar issues. See Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004). See also Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013).