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U. S. Supreme Court to Decide Fate of Virginia's Uranium Mining Ban

The owners of a huge deposit of uranium in Pittsylvania County want to mine it. But a long-standing Virginia ban on the process is stopping them.

On November 5th, they'll ask the United States Supreme Court to decide if that ban is constitutional.

So here’s the issue that will be before justices on the United States Supreme Court: Does Virginia have the right to regulate uranium mining? Or is that owned by the federal government?

This particular case turns everything you thought you knew about that argument upside down, according to Carl Tobias at the University of Richmond Law School. Tobias says the Trump administration is taking a position outside of the standard Republican playbook.

“It’s not arguing in terms of federalism but rather in terms of federal preemption," Tobias says. "And so it’s an unusual position for a Republican administration to be in arguing that federal supremacy should win out here.”

The Trump administration will have to persuade the justices to overturn the ruling of federal judge Albert Diaz that kept Virginia’s ban on uranium mining in place.“I think the state has a strong argument the other way in light of what Judge Diaz wrote in the Fourth Circuit. And so it could be a close question. I do think the justices’ interest was piqued by the solicitor general’s suggestion that the court take it up,” Tobias notes.

At issue: Virginia’s right to regulate.“That Virginia could, for environmental and safety and health reasons, regulate. Because Congress’ intent was not clear about the federal preemption issue,” Tobias explains.

Virginia legal expert Rich Kelsey says the state has an interest in regulating a product that could produce radioactive waste that would last for generations.“There is no outcry for uranium other than by the people who want to profit from it. And I don’t think this regulatory regime is going to overturn state law because there’s no mandate and need for the product.”

And Kelsey predicts that means one thing.“This is going to be a unanimous decision by the Supreme Court upholding the state’s right to regulate the uranium mining in this instance and finding that the statute does not give the interested party the relief it wants.”

Quentin Kidd, a political analyst at Christopher Newport University, says justices appointed by Republican presidents will be expected to side in favor of federal preemption. And justices appointed by Democratic presidents will be expected to rule in favor of states rights. That’s essentially upside down.“Does federal law kick in only after the uranium’s being mined or does that federal oversight kick in at the point that someone wants to mine uranium in a state?”

That's question justices will be expected to resolve in a way that might be counter to expectations.“If that decision is that it begins at the point at which a company requests a permit to mine than the commonwealth of Virginia will probably lose this case," Kidd surmises. "But if the Supreme Court says federal oversight begins at the point where the state grants the permit the the commonwealth of Virginia will probably win this case.”

The United States Supreme Court will take up the case of Virginia Uranium versus Warren on Monday, November 5th.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Michael Pope is an author and journalist who lives in Old Town Alexandria.
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