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Justice Department asks Supreme Court to lift Va.’s mining ban / April 18, 2018

The Trump administration is asking the Supreme Court to overturn Virginia’s moratorium on uranium mining.

The Justice Department filed a brief earlier this month with the high court arguing that the state’s ban on uranium mining runs counter to federal law governing the regulation of radiological hazards.

The question raised by the Justice Department brief submitted by Trump Solicitor General Noel Francisco, is whether the federal Atomic Energy Act (AEA) preempts Virginia’s mining ban.

“The radiological safety of milling and tailings management is subject to exclusive federal oversight,” the 28-page brief asserts. If Virginia imposed the mining moratorium to address safety concerns over the milling of uranium — as the department suggested the state has done — “Virginia’s moratorium is preempted.”

The news of the admininistration’s involvement was first reported by E&E News, an industry trade publication for the energy and environment sector.

The Virginia General Assembly first enacted the mining moratorium in 1982 and extended the law indefinitely a year later due to environmental and other concerns associated with both uranium mining and milling. Milling is the processing of uranium ore into yellowcake to serve as fuel for nuclear fission.

Support for the uranium mining ban has been strongest in southern Virginia and Hampton Roads, which draws drinking water from Lake Gaston, downstream from the Coles Hill mine site near Chatham.

Efforts to lift the state mining ban have been undertaken several times by VUI, so far unsuccessfully. In an ongoing federal court challenge, VUI argues that the state has usurped the authority of the Nuclear Regulatory Commission, which generally regulates the milling of uranium ore.

In February, the Richmond-based 4th Circuit Court of Appeals ruled in favor of Virginia, albeit in a split decision by a panel of justices. The 4th Circuit ruled that state leaders as defendants were immune from litigation and that Virginia was the “paramount proprietor” of resources within its jurisdiction.

Since that decision, VUI has asked the Supreme Court to take up the issue. In October of last year, justices asked the Solicitor General to file briefs responding to Virginia Uranium’s position.

The April 9 filing by Francisco — a Trump appointee — goes on to call the 4th Circuit Court’s ruling a “cramped view” of the Atomic Energy Act. The brief argues that the appeals court decision conflicts with a prior Supreme Court ruling and decisions in other circuit courts.

Virginia Uranium argues that radiological safety of milling and tailings management is a matter of federal, not state oversight.

The Trump administration is urging the Supreme Court to take up Virginia Uranium’s case because it is “important and likely to recur in other nuclear safety contexts.”

It takes the votes of four justices for the Supreme Court to take up the case; Virginia has urged the justices to let the 4th Circuit ruling stand.

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