Environmental Clinic Brief Defends Virginia’s Uranium Mining Ban

The Environmental and Regulatory Law Clinic at the University of Virginia School of Law has collaborated with former Virginia Attorney General Anthony F. Troy to file an amicus brief with the U.S. Supreme Court defending Virginia’s ban on uranium mining.

The brief was drafted by Assistant Professor Cale Jaffe ’01, the clinic’s director; Troy, a partner with the law firm Eckert Seamans in Richmond; and Patrick Callahan, also with Eckert Seamans.

Written on behalf of Southern Virginia lawmakers and local business and community organizations, the brief responds to Virginia Uranium Inc. v. Warren, a case that considers whether a federal nuclear energy program enacted by Congress can be applied to pre-empt a state law on mining.

The case centers on a large uranium deposit in Pittsylvania County known as the Coles Hill Deposit. The mining company believes the ore body could be worth nearly $5 billion, although the coalition of legislators and civic associations filing the amicus brief disputes that claim. The coalition worries that a large mining project would harm ongoing economic development efforts aimed at promoting agriculture, education, and tourism in and around the city of Danville.

State lawmakers passed a ban on uranium mining in Virginia in 1982. The owners of the deposit, including Virginia Energy Resources Inc. and a subsidiary, Virginia Uranium Inc., argue that the federal Atomic Energy Act should be read to pre-empt the state’s moratorium on uranium mining. They allege that the mining ban was motivated by concerns over radiation hazards associated with the milling and processing of nuclear fuel, which would be regulated by the Nuclear Regulatory Commission under federal law.

The state and the clinic counter that Virginia’s moratorium is outside of federal purview because the Atomic Energy Act explicitly limits federal authority to “after [uranium’s] removal from its place of deposit in nature,” and thus does not cover conventional uranium mining on nonfederal land.

Troy emphasized that the “motives of a legislative body of a sovereign state should not be suspect, especially attempting to discern motives of a General Assembly in 1983, three and a half decades ago.”

Jaffe said that the case has given students in the clinic a great opportunity to watch a debate on environmental law and federalism play out.

“We’re seeing that views on core federalism questions have not aligned as the students might have expected,” he said. “Our clients, along with local environmental groups, are siding with the Indiana and Texas attorneys general in defending the commonwealth’s authority. Meanwhile, the mining company is arguing for an expansive view of federal regulatory power, which is an uncommon stance for a regulated industry to take.”

Jaffe has become an expert on concerns associated with uranium mining and made a presentation on the subject to the National Academy of Sciences in 2012.

The petitioners originally filed suit in 2015 after the mining companies unsuccessfully lobbied state lawmakers to reverse the ban. UVA Law students working under the clinic’s previous director, Professor Jon Cannon, aided the Southern Environmental Law Center ahead of the case being heard by the Fourth U.S. Circuit Court of Appeals, which upheld Virginia’s ban last year.

Students in the clinic have had the opportunity to study the case in depth, including a review of briefs filed on behalf of the commonwealth by Professor Toby Heytens ’00, who is currently on leave from the Law School to serve as Virginia’s Solicitor General.

Heytens will argue on behalf of the state Nov. 5 at the Supreme Court.