November 5, 2018
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
Virginia Uranium, Inc., wants to mine raw uranium ore from
a site near Coles Hill, Virginia, but Virginia law flatly
prohibits uranium mining in the Commonwealth. The company
filed suit, alleging that, under the Constitution's
Supremacy Clause, the Atomic Energy Act (AEA) preempts state
uranium mining laws like Virginia's and ensconces the
Nuclear Regulatory Commission (NRC) as the lone regulator in
the field. Both the District Court and the Fourth Circuit
rejected the company's argument, finding that while the
AEA affords the NRC considerable authority over the nuclear
fuel life cycle, it offers no hint that Congress sought to
strip States of their traditional power to regulate mining on
private lands within their borders.
The judgment is affirmed.
F.3d 590, affirmed.
Justice Gorsuch, joined by Justice Thomas and Justice
Ka-VANAUGH, concluded that the AEA does not preempt
Virginia's law banning uranium mining. Pp. 3-17.
(a) Virginia Uranium claims that the AEA is best read to
reserve to the NRC alone the regulation of uranium mining
based on nuclear safety concerns. But the AEA contains no
provision expressly preempting state law. More pointedly, it
grants the NRC extensive and sometimes exclusive authority to
regulate nearly every aspect of the nuclear fuel life cycle
except mining, expressly stating that the NRC's
regulatory powers arise only "after [uranium's]
removal from its place of deposit in nature," 42 U.S.C.
§2092. And statutory context confirms this reading: If
the federal government wants to control uranium mining on
private land, it must purchase or seize the land by eminent
domain and make it federal land, §2096, indicating that
state authority remains untouched. Later amendments to the
AEA point to the same conclusion. Section 2021 allows the NRC
to devolve certain of its regulatory powers to the States but
does nothing to extend the NRC's power to activities,
like mining, historically beyond its reach. And §2021(k)
explains that States remain free to regulate the activities
discussed in §2021 for purposes other than nuclear
safety without the NRC's consent. Virginia Uranium
contends instead that subsection (k) greatly expands the AEAs
preemptive effect by demanding the displacement of any state
law enacted for the purpose of protection the public against
"radiation hazards." But subsection (k) merely
clarifies that nothing in §2021 limits States'
ability to regulate the activities subject to NRC control for
other purposes. In addition, the company's reading would
prohibit not only the States from regulating uranium mining
to protect against radiation hazards but the federal
government as well, since the AEA affords it no authority to
regulate uranium mining on private land. Pp. 4-7.
(b) Virginia Uranium also submits that preemption may be
found in this Court's precedents, pointing to Pacific
Gas & Elec. Co. v. State Energy Resources Conservation
and Development Comm'n, 461 U.S. 190, which rejected
a preemption challenge to a state law prohibiting the
construction of new nuclear power plants after the Court
observed that it was enacted out of concern with economic
development, not for the purpose of addressing radiation
safety hazards. But Pacific Gas concerned a state
moratorium on construction of new nuclear power plants, and
nuclear plant construction has always been an area
exclusively regulated by the federal government. It is one
thing to inquire exactingly into state legislative purposes
when state law comes close to trenching on core federal
powers; it is another thing altogether to insist on the same
exacting scrutiny for state laws far removed from core NRC
powers. Later cases confirm the propriety of restraint in
this area. See, e.g., Silkwood v. Kerr-McGee Corp.,
464 U.S. 238; English v. General Elec. Co., 496 U.S.
72. This Court has generally treated field preemption as
depending on what the State did, not why it
did it. See, e.g., Arizona v. United States, 567
U.S. 387. And because inquiries into legislative purpose both
invite well-known conceptual and practical problems and pose
risks to federalism and individual liberty, this Court has
long warned against undertaking potential misadventures into
hidden state legislative intentions without a clear statutory
mandate for the project, see, e.g., Shady Grove
Orthopedic Associates, P. A. v. Allstate Ins. Co., 559
U.S. 393, 404-405. Pp. 7-14.
(c) Virginia Uranium alternatively suggests that that the AEA
displaces state law through so-called conflict preemption-in
particular, that Virginia's mining law stands as an
impermissible "obstacle to the accomplishment and
execution of the full purposes and objectives of
Congress," Hines v. Davidowitz, 312 U.S. 52,
67. But any "[e]vidence of pre-emptive purpose,"
whether express or implied, must be "sought in the
[statute's] text and structure." CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 664. Efforts to
ascribe unenacted purposes and objectives to a federal
statute face many of the same challenges as inquiries into
state legislative intent. The only thing a court can be sure
of is what can be found in the law itself. And the compromise
that Congress actually struck in the AEA leaves mining
regulation on private land to the States and grants the NRC
regulatory authority only after uranium is removed
from the earth. It is also unclear whether laws like
Virginia's might have a meaningful impact on the
development of nuclear power in this country given the other
available foreign and domestic sources of uranium. Pp. 14-17.
Justice Ginsburg, joined by Justice Soto may or and Justice
Ka-GAN, agreed with JUSTICE GORSUCH that the
Commonwealth's mining ban is not preempted but concluded
that his discussion of the perils of inquiring into
legislative motive sweeps well beyond the confines of this
case. Further, Virginia Uranium's obstacle preemption
arguments fail under existing doctrine, so there is little
reason to question whether that doctrine should be retained.
(a) The Commonwealth has forbidden conventional uranium
mining on private land. The AEA leaves that activity
unregulated. State law on the subject is therefore not
preempted, whatever the reason for the law's enactment.
(b) Section 2O2l(k) lends no support for Virginia
Uranium's cause. That provision is most sensibly read to
clarify that the door newly opened for state regulation of
certain activities for nuclear safety purposes left in place
pre-existing state authority to regulate activities for
nonradiological purposes. House and Senate Reports endorse
this reading of §2021 (k). Pp. 8-9.
(c) Virginia Uranium leans heavily on a statement in
Pacific Gas & Else. Co. v. State Energy Resources
Conservation and Development Comm'n, 461 U.S. 190,
that "the Federal Government has occupied the entire
field of nuclear safety concerns." Id., at 212.
But neither in that case nor in later decisions in its
wake-Silkwood v. Kerr-McGee Corp., A&A U.S. 238;
English v. General Elec. Co., 496 U.S. 72-did the
Court rest preemption on the purposes for which state laws
were enacted. Indeed, in all three, the Court held that the
laws at issue were not preempted. Moreover, the state law
involved in Pacific Gas addressed an
activity-construction of nuclear power plants-closely
regulated by the AEA. Inquiry into why the state law at issue
in that case was enacted was therefore proper under
§2021(k). The Commonwealth's mining ban, in
contrast, governs an activity not regulated by the AEA. Pp.
(d) The Solicitor General's argument-that the
Commonwealth's mining ban is preempted because it is a
pretext for regulating the radiological safety hazards of
milling and tailings storage-is unpersuasive. To the degree
the AEA preempts state laws based on the purposes for which
they were enacted, §2021(k) stakes out the boundaries of
the preempted field. National Meat Assn. v. Harris,
565 U.S. 452, distinguished. Pp. 10-11.
(e) Virginia Uranium and the United States also fail to show
that the mining ban creates an "unacceptable
'obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.'" Wyeth v.
Levine, 555 U.S. 555, 563-564. Pp. 12-14.
GORSUCH, J., announced the judgment of the Court and
delivered an opinion, in which THOMAS and KAVANAUGH, JJ.,
joined. GINSBURG, J., filed an opinion concurring in the
judgment, in which SOTOMAYOR and KAGAN, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which BREYER and Alito,
JUSTICE GORSUCH announced the judgment of the Court and
delivered an opinion, in which JUSTICE THOMAS and Justice
Uranium insists that the federal Atomic Energy Act preempts a
state law banning uranium mining, but we do not see it. True,
the AEA gives the Nuclear Regulatory Commission significant
authority over the milling, transfer, use, and disposal of
uranium, as well as the construction and operation of nuclear
power plants. But Congress conspicuously chose to leave
untouched the States' historic authority over the
regulation of mining activities on private lands within their
borders. Nor do we see anything to suggest that the
enforcement of Virginia's law would frustrate the AEAs
purposes and objectives. And we are hardly free to extend a
federal statute to a sphere Congress was well aware of but
chose to leave alone. In this, as in any field of statutory
interpretation, it is our duty to respect not only what
Congress wrote but, as importantly, what it didn't write.
Uranium thought its plan was pretty straightforward. First,
the company wanted to use conventional mining techniques to
extract raw uranium ore from a site near Coles Hill,
Virginia. Next, it intended to mill that ore into a usable
form. Typically performed at the mine site, milling involves
grinding the ore into sand-sized grains and then exposing it
to a chemical solution that leaches out pure uranium. Once
dried, the resulting mixture forms a solid "yellow
cake," which the company planned to sell to enrichment
facilities that produce fuel for nuclear reactors. Finally,
because the leaching process does not remove all of the
uranium from the ore, the company expected to store the
leftover "tailings" near the mine to reduce the
chances of contaminating the air or water.
putting the plan into action didn't prove so simple.
Pursuant to the AEA, ch. 724, 60 Stat. 755, 42 U.S.C.
§2011 et seq., the NRC regulates milling and
tailing storage activities nationwide, and it has issued an
array of rules on these subjects. See, e.g., 10 CFR
§40 et seq. (2018). None of those, though,
proved the real problem for Virginia Uranium. The company hit
a roadblock even before it could get to the point where the
NRC's rules kick in: State law flatly prohibits uranium
mining in Virginia. See Va. Code Ann.
§§45.1-161.292:30, 45.1-283 (2013); 848 F.3d 590,
593-594 (CA4 2017).
overcome that obstacle, Virginia Uranium filed this lawsuit.
The company alleged that, under the Constitution's
Supremacy Clause, the AEA preempts state uranium mining laws
like Virginia's and ensconces the NRC as the lone
regulator in the field. And because the NRC's regulations
say nothing about uranium mining, the company continued, it
remains free to mine as it will in Virginia or elsewhere.
the district court and a divided panel of the Fourth Circuit
rejected the company's argument. The courts acknowledged
that the AEA affords the NRC considerable authority over the
nuclear fuel life cycle. But both courts found missing from
the AEA any hint that Congress sought to strip States of
their traditional power to regulate mining on private lands
within their borders. Given the significance of the question
presented, we granted review. 584 U.S.__(2018).
Supremacy Clause supplies a rule of priority. It provides
that the "Constitution, and the Laws of the United
States which shall be made in Pursuance thereof," are
"the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any state to the Contrary
notwithstanding." Art. VI, cl. 2. This Court has
sometimes used different labels to describe the different
ways in which federal statutes may displace state
laws-speaking, for example, of express, field, and conflict
preemption. But these categories "are not rigidly
distinct." Crosby v. National Foreign Trade
Council, 530 U.S. 363, 372, n. 6 (2000) (internal
quotation marks omitted). And at least one feature unites
them: Invoking some brooding federal interest or appealing to
a judicial policy preference should never be enough to win
preemption of a state law; a litigant must point specifically
to "a constitutional text or a federal statute"
that does the displacing or conflicts with state law.
Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum
Corp., 485 U.S. 495, 503 (1988); see also 3 J. Story,
Commentaries on the Constitution of the United States
§1831, p. 694 (1st ed. 1833) ("the supremacy of the
laws is attached to those only, which are made in pursuance
of the constitution").
us, Virginia Uranium contends that the AEA (and only the AEA)
unseats state uranium mining regulations and that it does so
under the doctrines of both field and conflict preemption. We
examine these arguments about the AEA's preemptive effect
much as we would any other about statutory meaning, looking
to the text and context of the law in question and guided by
the traditional tools of statutory interpretation. Here, no
more than in any statutory interpretation dispute, is it
enough for any party or court to rest on a supposition (or
wish) that "it must be in there somewhere."
begin with the company's claim that the text and
structure of the AEA reserve the regulation of uranium mining
for the purpose of addressing nuclear safety concerns to the
NRC alone-and almost immediately problems emerge. Unlike many
federal statutes,  the AEA contains no provision preempting
state law in so many words. Even more pointedly, the statute
grants the NRC extensive and sometimes exclusive authority to
regulate nearly every aspect of the nuclear fuel life cycle
except mining. Companies like Virginia Uranium must
abide the NRC's rules and regulations if they wish to
handle enriched uranium, to mill uranium ore or store
tailings, or to build or run a nuclear power plant. See 42
U.S.C. §§2111(a), 2113(a), 2073. But when it comes
to mining, the statute speaks very differently, expressly
stating that the NRC's regulatory powers arise only
"after [uranium's] removal from its place
of deposit in nature." §2092 (emphasis added). As
the government itself has conceded, this means that
"uranium mining" lies "outside the NRC's
jurisdiction," Brief for United States as Amicus
Curiae 14, and the agency's grip takes hold only
"at the mill, rather than at the mine," In re
Hydro Resources, Inc., 63 N. R. C. 510, 512 (2006).
the text states, context confirms. After announcing a general
rule that mining regulation lies outside the NRC's
jurisdiction, the AEA carves out a notably narrow exception.
On federal lands, the statute says, the NRC may
regulate uranium mining. §2097. And if the federal
government wants to control mining of uranium on
private land, the AEA tells the NRC exactly what to
do: It may purchase or seize the land by eminent domain and
make it federal land. §2096. Congress thus has
spoken directly to the question of uranium mining on private
land, and every bit of what it's said indicates that
state authority remains untouched.
amendments to the AEA point to the same conclusion. Some
years after the statute's passage, Congress added a
provision, currently codified in §2021, allowing the NRC
to devolve certain of its regulatory powers to the States.
Unsurprisingly, Congress indicated that the NRC must maintain
regulatory control over especially sensitive activities like
the construction of nuclear power plants. §2021(c). But
under §2021(b) the NRC may now, by agreement, pass to
the States some of its preexisting authorities to regulate
various nuclear materials "for the protection of the
public health and safety from radiation hazards." Out of
apparent concern that courts might (mis)read these new
provisions as prohibiting States from regulating any activity
even tangentially related to nuclear power without first
reaching an agreement with the NRC, Congress added subsection
"Nothing in this section [that is, §2021] shall be
construed to affect the authority of any State or local
agency to regulate activities for purposes other than
protection against radiation hazards."
2021, thus, did nothing to extend the NRC's power to
activities, like mining, historically beyond its reach.
Instead, it served only to allow the NRC to share with the
States some of the powers previously reserved to the federal
government. Even then, the statute explained in subsection
(k) that States remain free to regulate the activities
discussed in §2021 for purposes other than
nuclear safety without the NRC's consent. Indeed, if
anything, subsection (k) might be described as a
Uranium's case hinges on a very different construction of
subsection (k). The company suggests that, properly read, the
provision greatly expands the preemptive effect of the AEA
and demands the displacement of any state law
(touching on mining or any other subject) if that law was
enacted for the purpose of protecting the public against
"radiation hazards." And, the company adds,
Virginia's law bears just such an impermissible purpose.
view, this reading nearly turns the provision on its head.
Subsection (k) does not displace traditional state regulation
over mining or otherwise extend the NRC's grasp to
matters previously beyond its control. It does not expose
every state law on every subject to a searching judicial
inquiry into its latent purposes. Instead and much more
modestly, it clarifies that "nothing in this [new]
section "-a section allowing for the
devolution-by-agreement of federal regulatory authority-
should be construed to curtail the States' ability to
regulate the activities discussed in that same
section for purposes other than protecting against
radiation hazards. So only state laws that seek to regulate
the activities discussed in §2021 without an NRC
agreement-activities like the construction of nuclear power
plants-may be scrutinized to ensure their purposes aim at
something other than regulating nuclear safety. Really, to
accomplish all it wants, Virginia Uranium would have to
persuade us to read 13 words out of the statute and add 2
Nothing in this section shall be construed
to affect tho authority of any State or local agency
to may regulate activities only for purposes other than
protection against radiation hazards.
may be a statute some would prefer, but it is not the statute
consider what would follow from Virginia Uranium's
interpretation. Not only would States be prohibited from
regulating uranium mining to protect against radiation
hazards; the federal government likely would be barred from
doing so as well. After all, the NRC has long believed, and
still maintains, that the AEA affords it no authority to
regulate uranium mining on private land. Nor does Virginia
Uranium dispute the federal government's understanding.
Admittedly, if Virginia Uranium were to prevail here, the NRC
might respond by changing course and seeking to regulate
uranium mining for the first time. But given the
statute's terms, the prospects that it might do so
successfully in the face of a legal challenge appear gloomy.
Admittedly, as well, federal air and water and other
regulations might apply at a uranium mine much as at any
other workplace. But the possibility that both state and
federal authorities would be left unable to regulate the
unique risks posed by ...