VIRGINIA URANIUM, INC.; COLES HILL, LLC; BOWEN MINERALS, LLC; VIRGINIA ENERGY RESOURCES, INC., Plaintiffs - Appellants,
JOHN WARREN, in his official capacity as Director of the Virginia Department of Mines, Minerals and Energy; BRADLEY C. LAMBERT, in his official capacity as Deputy Director of the Virginia Department of Mines, Minerals and Energy; JAMES P. SKORUPA, in his official capacity as Director of the Virginia Department of Mines, Minerals and Energy's Division of Mineral Mining, Defendants-Appellees, and TERRY MCAULIFFE, in his official capacity as Governor of Virginia; MAURICE JONES, in his official capacity as Virginia Secretary of Commerce and Trade; MOLLY J. WARD, in her official capacity as Virginia Secretary of Natural Resources; DAVID K. PAYLOR, in his official capacity as Director of the Virginia Department of Environmental Quality; ROBERT J. WELD, in his official capacity as Regional Director of the Department of Environmental Quality's Blue Ridge Regional Office; MICHAEL DOWD, in his official capacity as Director of the Virginia Department of Environmental Quality's Air Division; MELANIE D. DAVENPORT, in her official capacity as Director of the Virginia Department of Environmental Quality's Water Permitting Division; JUSTIN WILLIAMS, in his official capacity as Director of the Virginia Department of Environmental Quality's Division of Land Protection and Revitalization, Defendants. THE NUCLEAR ENERGY INSTITUTE, Amicus Curiae, ROANOKE RIVER BASIN ASSOCIATION; DAN RIVER BASIN ASSOCIATION, Amici Supporting Appellees.
Argued: October 28, 2016
from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:15-cv-00031-JLK-RSB)
Charles J. Cooper, COOPER & KIRK, PLLC, Washington, D.C.,
Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.
Michael W. Kirk, John D. Ohlendorf, COOPER & KIRK, PLLC,
Washington, D.C., for Appellants.
R. Herring, Attorney General of Virginia, Rhodes B. Ritenour,
Deputy Attorney General, Jonathan Duncan Pitchford, Assistant
Attorney General, Matthew R. McGuire, Assistant Attorney
General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
William C. Cleveland, Caleb A. Jaffe, SOUTHERN ENVIRONMENTAL
LAW CENTER, Charlottesville, Virginia, for Amici Roanoke
River Basin Association and Dan River Basin Association.
Peter C. Meier, PAUL HASTINGS LLP, San Francisco, California;
Ellen C. Ginsberg, Jonathan M. Rund, Anne W. Cottingham,
NUCLEAR ENERGY INSTITUTE, Washington, D.C., for Amicus
Nuclear Energy Institute.
TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Uranium, Inc., Coles Hill, LLC, Bowen Minerals, LLC, and
Virginia Energy Resources, Inc. (collectively "Virginia
Uranium") appeal the district court's dismissal of
their complaint for failure to state a claim upon which
relief can be granted. Because we agree with the district
court that federal law does not preempt state regulation of
conventional uranium mining, we affirm.
federal Atomic Energy Act ("AEA" or
"Act") regulates several aspects of nuclear power
generation in the United States, including "source
material" such as uranium. 42 U.S.C. §§ 2011,
2014(z). The Nuclear Regulatory Commission ("NRC")
enforces the provisions of the Act. Id. §§
2201, 5801, 5841.
is the predominant source of fuel for nuclear power plants
and fissile material for nuclear warheads. Uranium ore can be
recovered from a deposit either through in situ leaching or
by conventional mining such as an open-pit or underground
removed from the ground, uranium ore is milled into a refined
product called "yellowcake." Yellowcake can be used
to make nuclear fuel, but the remaining unused material-known
as "tailings"-is radioactive and must be stored
early 1980s, a uranium deposit was discovered in Pittsylvania
County, Virginia on land owned by Coles Hill, LLC and Bowen
Minerals, LLC. Containing 119 million pounds of uranium ore,
the Coles Hill deposit was then (and remains) the largest
known uranium deposit in the United States.
Virginia General Assembly reacted to this discovery by
calling for the state Coal and Energy Commission to
"evaluate the environmental effects . . . and any
possible detriments to the health, safety, and welfare of
Virginia citizens which may result from uranium exploration,
mining or milling." 1981 Va. Acts 1404. Before the
Commission completed its report, however, the General
Assembly imposed a moratorium (or "ban") on uranium
mining "until a program for permitting uranium mining is
established by statute." Va. Code Ann. § 45.1-283.
Commission ultimately reported to the Governor and General
Assembly in 1985 that the state could lift "the
moratorium on uranium development" if it followed
"essential specific recommendations . . . of the task
force" and enacted laws to tightly regulate the
industry. J.A. 534-38. The recommendations included limiting
public exposure to radiation, issuing mill and tailings
licenses in cooperation with the NRC, and regulating
hazardous waste. The benefits of uranium mining in Virginia,
the Commission found, "outweighed the costs 26 to
1." J.A. 543. Despite the Commission's
recommendation, the General Assembly did not move to lift the
January 2013, Virginia State Senators John Watkins and
Richard Saslaw sponsored a bill to create a licensing scheme
for the issuance of uranium mining permits. The bill was
never voted on, and was later withdrawn. To date, no such
program has been established, and the ban remains in effect.
in its efforts to mine the Coles Hill deposit, Virginia
Uranium brought suit in the United States District Court for
the Western District of Virginia, asking the court to declare
the ban preempted by federal law and issue an injunction
compelling the Commonwealth to grant uranium mining permits.
Defendant Commonwealth of Virginia officials (collectively
the "Commonwealth") moved to dismiss the
Plaintiffs' complaint, and Virginia Uranium moved for
summary judgment. The district court granted the
Commonwealth's motion and dismissed the complaint. The
court found that federal law (specifically the Atomic Energy
Act) "does not . . . regulate nonfederal uranium
deposits or their conventional mining." Virginia
Uranium, Inc. v. McAuliffe, 147 F.Supp.3d 462, 471 (W.D.
Va. 2015). Finding that the Act does not commit conventional
uranium mining to the NRC's authority, the district court
distinguished the instant case from Supreme Court precedent
requiring states to have a non-safety rationale to regulate
activities within the NRC's purview. The district court
further held that Virginia's ban "does not obstruct
the realization of Congress' purposes and objectives
behind the [Act]" because Congress "evinced no
purpose or objective that nonfederal uranium deposits be
conventionally mined." Id. at 477.
review de novo the district court's conclusion that the
Atomic Energy Act does not preempt Virginia's ban on
uranium mining. Epps v. JP Morgan Chase Bank, N.A.,
675 F.3d 315, 320 (4th Cir. 2012). State laws may be
preempted by federal law under the Supremacy Clause, which
provides that "[t]his Constitution, and the Laws of the
United States which shall be made in Pursuance thereof . . .
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding."
U.S. Const. art. VI, cl. 2.
first and fundamental question in any pre-emption analysis is
whether Congress intended to displace state law . . . ."
Wardair Canada, Inc. v. Fla. Dep't of Revenue,
477 U.S. 1, 6 (1986). Congressional intent to "supercede
state law . . . may be found from a scheme of federal
regulation so pervasive as to make reasonable the inference
that Congress left no room to supplement it, " otherwise
known as "field" preemption. Pacific Gas &
Elec. Co. v. State Energy Resources Conservation & Dev.
Comm'n, 461 U.S. 190, 203-04 (1983) (internal
quotation marks omitted). State law may also be preempted as
in "conflict" with federal law when it "stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress." Id.
at 204 (citing Hines v. Davidowitz, 312 U.S. 52, 67
Uranium offers three reasons why the Atomic Energy Act
preempts Virginia's ban on uranium mining. First, it
urges that conventional uranium mining is an
"activity" under Section 2021(k) of the Act and
that the Commonwealth therefore may not regulate it out of
concern for radiological safety. Second, it contends that
even if uranium mining is not a regulated
"activity" under the Act, uranium-ore milling and
tailings storage are regulated activities, and because the
Virginia legislature intended to and does regulate those
activities, the ban is therefore preempted. Finally, Virginia
Uranium says that the ban is preempted because it's an
obstacle to the full implementation of the Act's
objectives. We address these arguments in turn.
begin with Virginia Uranium's claim that conventional
uranium mining is an "activity" under Section
2021(k) of the Atomic Energy Act, which in turn means that
states can't regulate such mining for the purpose of
protecting against radiation hazards.
2021 of the Act, entitled "Cooperation with States,
" outlines "the respective responsibilities . . .
of the States and the [Nuclear Regulatory] Commission with
respect to the regulation of byproduct, source, and special
nuclear materials." 42 U.S.C. § 2021(a). Subsection
(k) reserves to the states the right to "regulate
activities for purposes other than protection against
radiation hazards." Id. § 2021(k).
Pacific Gas, the Supreme Court interpreted this
provision as establishing the bounds of the Act's
preemptive reach. Specifically, the Court instructed that
"the test of pre-emption is whether the matter on which
the state asserts the right to act is in any way regulated by
the federal government." Pacific Gas, 461 U.S.
at 213 (internal citations omitted). If a state purports to
regulate an activity that is also regulated by the Act, a
court must "determine whether there is a non-safety
rationale" for the state rule. Id. If there is
not, then the state law is preempted.
Court in Pacific Gas addressed California
regulations imposing conditions on the construction of new
nuclear power plants in the state. Utilities seeking to
construct nuclear plants in California had to obtain
permission from the State Energy Resources and Conservation
Commission. Id. at 197. But the Commission would
only grant a permit to build if it determined that there was
"adequate capacity" for storage of spent fuel rods
and that the utility would provide "continuous, on-site,
full core reserve storage capacity." Id. at
197-98 (internal quotation marks omitted). In passing these
regulations, the California legislature denied that they were
"designed to provide protection against radiation
hazards" but instead were "adopted because
'uncertainties in the nuclear fuel cycle [made] nuclear
power an uneconomical and uncertain source of
energy.'" Id. at 199-200.
California regulations, the Court held, fell "squarely
within the prohibited field." Id. at
213. After considering arguments for
why the regulations might have been enacted for safety (as
opposed to economic) reasons, the Court opted against
"attempting to ascertain California's true
motive" and instead "accept[ed] California's
avowed economic purpose." Id. at 216. Because
the regulations had a non-safety rationale, the Atomic Energy
Act did not preempt them. Id.
the Commonwealth concedes that it lacks a non-safety
rationale for banning uranium mining but says that Section
2021(k) does not apply to the ban because conventional
uranium mining isn't an activity regulated by the NRC. To
test this contention, we assess whether the term
"activities" within Section 2021(k) of the Act
encompasses all activities states may regulate or merely, as
the Commonwealth contends, "activities regulated by the
[Nuclear Regulatory] Commission." Appellees' Br. at
Supreme Court addressed this precise question in Pacific
Gas and sided with the limited reading of Section
2021(k) pressed by the Commonwealth here. As we noted
earlier, there, the Court explained that "the federal
government has occupied the entire field of nuclear safety
concerns, " but the bounds of that field are measured by
looking to whether "the matter on which the state
asserts the right to act is in any way regulated by the
federal government." Pacific Gas, 461 U.S. at
212-13 (internal citations omitted); see also id. at
209-10 ("[S]ection  was not intended to cutback on
pre-existing state authority outside the NRC's
jurisdiction."). Section 2021(k) therefore prohibits
states from regulating, for safety reasons, activities that
are "in any way regulated" by the federal
government under the Atomic Energy Act. We agree with the
district court that conventional uranium mining is not such
explicitly grants the NRC authority to regulate uranium
mining on federal lands, but it says nothing about the
Commission's power to regulate conventional uranium
mining elsewhere. 42 U.S.C. § 2097. Section 2092 of the
Act requires individuals to obtain an NRC license to
"transfer, deliver, [or] receive possession of . . . any
source material after removal from its place of deposit
in nature." 42 U.S.C. § 2092 (emphasis added).
Importantly, the NRC reads this provision as "precluding
[Commission] jurisdiction over uranium mining." In
re. Hydro Resources, Inc., 63 N.R.C. 510, 512-13 (2006).
Similarly, the NRC justifies regulating in situ mining by
describing the method as "processing" uranium, over
which the Commission has authority. Id.
Congress has not "directly spoken to the precise
question at issue, " we defer to a federal agency's
reasonable interpretation of a congressional act that the
agency is charged with administering. Nat'l Labor
Relations Bd. v. Bluefield Hosp. Co., 821 F.3d 534, 542
(4th Cir. 2016) (citing Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, 467 U.S. 837, 842-44 (1986)). The
Atomic Energy Act grants the NRC authority to enforce and
promulgate rules under the Act. 42 U.S.C. § 2201.
Federal law is silent on conventional uranium mining outside
of federal lands, and the NRC reads this gap in the Act's
language to mean that the Commission lacks the power to
interpretation is reasonable in the context of the Act.
Congress explicitly gave the NRC power to regulate
conventional uranium mining on federal lands and to govern
what happens to source material "after its
removal from its place of deposit in nature."
Id. §§ 2902, 2907 (emphasis added). We
think it logical to assume that, by expressly granting the
NRC some authority over source material, Congress did not
intend to implicitly grant broader authority. See
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)
(explaining that the canon of expressio unius est
exclusio alterius may apply where "it is fair to
suppose that Congress considered the unnamed possibility and
meant to say no to it").
the power to regulate mining-including uranium mining-has
traditionally been reserved to the states. See In re
Hydro Resources, 63 N.R.C. at 513. We assume that is
where it remains unless Congress evinces a "clear and
manifest purpose" to supersede "the historic police
powers of the States." Wyeth v. Levine, 555
U.S. 555, 565 (2009) (quoting Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485 (1996)). Nothing in the AEA
indicates that Congress meant for the NRC to displace the
states in regulating conventional uranium mining-the Act is
silent on the matter.
accepting Virginia Uranium's more expansive reading of
Section 2021(k)'s preemptive reach would mean that
entities could mine free of government oversight. The states
could not regulate and, on the NRC's (reasonable) view of
the Act, it too would be a passive spectator. That cannot be
the law. Rather, because conventional uranium mining outside
of federal lands is beyond the regulatory ambit of the
Nuclear Regulatory Commission, it is not an
"activity" under Section 2021(k) of the Act. As a
result, the district court was correct to hold that
Virginia's ban on conventional uranium mining is not
Uranium next contends that, even if conventional uranium
mining is not an "activity" under Section 2021(k)
of the Act, uranium-ore milling and tailings storage are such
activities. Because the ban, according to Virginia Uranium,
impermissibly attempts to regulate and has the effect of
prohibiting those activities for nuclear safety reasons, it
agree that uranium milling and tailings storage are
"activities" under Section 2021(k) because they are
regulated by the NRC, and states may therefore not regulate
them except for purposes other than protection against
radiation hazards. See 42 U.S.C. §§ 2021,
5842, 7918-19; 10 C.F.R. § 40.3; see also supra
Part II.A. But the plain language of the Commonwealth's
ban does not mention uranium milling or tailings storage. Va.
Code Ann. § 45.1-283 ("[P]ermit applications for
uranium mining shall not be accepted by any agency of the
Commonwealth . . . .").
face of this telling omission, Virginia Uranium argues that
no one "would want to undertake the pointless
expense of constructing a mill and tailings-management
complex in Virginia and transporting out-of-state uranium
[ore] into the Commonwealth." Reply Br. at 20. Given
this economic reality, Virginia Uranium urges us to look past
the statute's plain meaning to decipher whether the
legislature was ...