Last year, I wrote that public interest advocates should view environmental federalism as an opportunity to promote state-law environmental protections. At the time, the U.S. Supreme Court had just upheld a state-law ban on uranium mining. In Virginia Uranium v. Warren, the Supreme Court rejected a mining industry claim that Virginia’s conservation law was preempted by the federal Atomic Energy Act. Justice Neil Gorsuch authored the plurality opinion, joined by Justices Clarence Thomas and Brett Kavanaugh. Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan concurred in the Court’s judgment only. In rejecting the preemption claim, Justice Gorsuch outlined a limited view of the Supremacy Clause. “Invoking some brooding federal interest or appealing to a judicial policy preference,” he wrote, “should never be enough to win preemption of a state law.” Environmental groups heralded Virginia Uranium as a major victory. The question now is whether Justice Gorsuch’s plurality opinion in that case points the way toward a broader strategy for environmental activists. Will state-centric environmentalism have some staying power? Three decisions from the Supreme Court’s latest term—Atlantic Richfield, County of Maui, and Cowpasture River Preservation Association—are beginning to give us some clues.
Cale Jaffe, Federalism and Environmental Advocacy, The Regulatory Review (July 23, 2020).