SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1275
_________________
VIRGINIA URANIUM, INC., et al.,
PETITIONERS
v. JOHN WARREN, et al.
on writ of certiorari to the united states
court of appeals for the fourth circuit
[June 17, 2019]
Justice Ginsburg, with whom Justice Sotomayor
and Justice Kagan join, concurring in the judgment.
Soon after discovery of a large deposit of
uranium ore in Virginia in the late 1970s, the Commonwealth banned
uranium mining. Petitioners (collectively, Virginia Uranium) now
seek to mine that deposit. They challenge the Commonwealth’s
uranium mining ban as preempted by the Atomic Energy Act (AEA or
Act), 42 U. S. C. §2011
et seq., either
because the ban intrudes on the federally occupied field of nuclear
safety, or because it obstructs realization of federal purposes and
objectives.
I reach the same bottom-line judgment as does
Justice Gorsuch: The Commonwealth’s mining ban is not preempted.
And I agree with much contained in Justice Gorsuch’s opinion. See
ante, at 4–10. But his discussion of the perils of inquiring
into legislative motive, see
ante, at 11–14, sweeps well
beyond the confines of this case, and therefore seems to me
inappropriate in an opinion speaking for the Court, rather than for
individual members of the Court. Further, Virginia Uranium’s
obstacle preemption arguments fail under existing doctrine, so
there is little reason to question, as Justice Gorsuch does, see
ante, at 14–16, whether that doctrine should be retained.
For these reasons, I join the Court’s judgment, and separately
state how I would resolve the instant controversy.
I
A
The production of nuclear fuel begins with
mining uranium, a radioactive metal. See
ante, at 1–2; Brief
for Former Nuclear Regulators as
Amici Curiae 7.
Conventionally, uranium ore is mined and then “milled”—crushed and
treated with chemicals that extract the usable ura- nium.
Ibid. The resulting concentrated uranium oxide, known as
yellowcake, is shipped elsewhere for conversion, enrichment, and
fabrication into fuel.
Ibid. Producing just a pound of
usable uranium requires milling hundreds or even thousands of
pounds of ore. H. R. Rep. No. 95–1480, pt. 1, p. 11
(1978). Milling thus generates vast quantities of “tailings”: Sandy
waste that is radioactive, contains toxic heavy metals,
ibid., and must “be carefully regulated, monitored, and
controlled,” U. S. NRC, Con- ventional Uranium Mills (rev. May 15,
2017), https://www
.nrc.gov /materials /uranium - recovery /extraction - methods /
conventional-mills.html (as last visited June 12, 2019). Milling
and tailings storage typically occur within 30 miles of the place
where uranium is mined.
Ibid.
The Federal Government regulates much of this
process, primarily to protect public health and safety from
radiation, but also for national security reasons.
English
v.
General Elec. Co.,
496 U.S.
72, 81–82 (1990);
Pacific Gas & Elec. Co. v.
State Energy Resources Conservation and Development Comm’n,
461
U.S. 190, 207, 211–212 (1983) (
PG&E). Under the AEA,
a federal license is required to,
inter alia, “transfer or
receive in interstate commerce” nontrivial quantities of “source
material,” including uranium ore, “after removal from its place of
deposit in nature,” §§2092, 2014(z). See also §§2091–2099.
Licensing requirements also apply to the production, possession, or
disposal of “byproduct material,” including tailings. See
§§2014(e), 2111–2114. Federal regulations govern, as well,
subsequent processes, including uranium enrichment and nuclear
power generation. See,
e.g., §§2131–2142.
The Federal Government does not regulate
conventional uranium mining on private land, having long taken the
position that its authority begins “at the mill, rather than at the
mine.”
In re Hydro Resources, Inc., 63
N. R. C. 510, 512–513 (2006); Brief for United States as
Amicus Curiae 4. See also
ante, at 4–6. And while the
Federal Government has exclusive authority over the radiation
hazards of milling and subsequent stages of the nuclear fuel cycle,
States may regulate these activities for other purposes. See §2018
(AEA does not affect state authority over “the generation, sale, or
transmission of electric power produced” by nuclear powerplants);
English, 496 U. S., at 81–82;
PG&E, 461
U. S., at 207, 211–212.
The AEA provides a means by which States may
take over federal responsibility for regulating the nuclear safety
aspects of milling and the disposal of tailings. See 42
U. S. C. §2021. In 1959, Congress amended the AEA to
“recognize the interests of the States in the peaceful uses of
atomic energy, and to clarify the respective responsibilities under
th[e] Act of the States and [federal authorities] with respect to
the regulation of byproduc[t and] source . . .
materials.” Act of Sept. 23, 1959, 73Stat. 688, as amended, 42
U. S. C. §2021(a)(1). The Nuclear Regulatory Commission
(NRC) and a State may agree for the former to devolve to the latter
authority to regulate source or byproduct materials “for the
protection of the public health and safety from radiation hazards.”
§2021(b). “During the duration of such an agreement . . .
the State shall have authority to regulate the materials covered by
the agreement for the protection of the public health and safety
from radiation hazards.”
Ibid. Section 2021(c) prohibits the
NRC, however, from devolving its authority over “more dangerous
activities—such as nuclear reactors.” S. Rep. No. 870, 86th
Cong., 1st Sess., 8 (1959). Finally, and of critical importance to
this case, §2021(k) provides that “[n]othing in this section shall
be construed to affect the authority of any State or local agency
to regulate activities for purposes other than protection against
radiation hazards.”
B
In the late 1970s, uranium ore was discovered
under Coles Hill, an unincorporated community in Pittsylvania
County, Virginia. App. to Pet. for Cert. 216a. Totaling 119 million
pounds of uranium ore, the deposit is the Nation's largest.
Id., at 201a. See also 848 F.3d 590, 593 (CA4 2017) (case
below). After a private company began leasing mineral rights to the
deposit, the Virginia General Assembly directed the state Coal and
Energy Commission to study the effects on the environment and
public health of uranium exploration, mining, and milling.
H. J. Res. No. 324, 1981 Va. Acts p. 1404; App. to Pet. for
Cert. 216a.
The next year, the General Assembly authorized
ura- nium exploration but imposed a one-year moratorium on uranium
mining. 1982 Va. Acts ch. 269. The Assembly’s stated purpose was
“to encourage and promote the safe and efficient exploration for
uranium resources within the Commonwealth, and to assure
. . . that uranium mining and milling will be subject to
statutes and regulations which protect the environment and the
health and safety of the public.”
Ibid. The Assembly soon
extended the ban “until a program for permitting uranium mining is
established by statute.” 1983 Va. Acts ch. 3. The Commonwealth
has not established a permitting program, so the ban remains in
force.
A slowdown in construction of new nuclear
powerplants in the 1980s contributed to a “precipitous decline in
the price of uranium ore.”
Huffman v.
Western Nuclear,
Inc.,
486 U.S.
663, 666–667, and n. 5 (1988). Rising prices in the first
decade of the new millennium prompted renewed interest in mining
the deposit, and Virginia Uranium lobbied to have the ban repealed.
App. to Pet. for Cert. 222a; Brief for United States as
Amicus
Curiae 9.
When efforts to persuade the state legislature
proved unsuccessful, Virginia Uranium brought this suit seeking a
declaration that the ban is preempted by federal law and an
injunction requiring the Commonwealth to issue uranium mining
permits. App. to Pet. for Cert. 237a. Respondents, Virginia
Department of Mines, Minerals, and Energy officials (together, the
Commonwealth Defendants), moved to dismiss the complaint for
failure to state a claim, and the District Court granted the
motion.
Virginia Uranium, Inc. v.
McAuliffe, 147
F. Supp. 3d 462, 478 (WD Va. 2015).[
1] The Court of Appeals for the Fourth Circuit
affirmed, holding in principal part that because the Commonwealth’s
mining ban did not regulate an activity overseen by the NRC, there
was no need to consider the purposes for which the ban was imposed.
848 F. 3d, at 597–598. Given the importance of the issue, and
to resolve a division of authority among the Courts of Appeals, we
granted Virginia Uranium’s petition for a writ of certiorari.
Compare
id., at 594–599 (case below), with,
e.g.,
Skull Valley Band of Goshute Indians v.
Nielson,
376 F.3d 1223, 1246 (CA10 2004) (state laws grounded in nuclear
safety concerns are preempted).
II
Under the Supremacy Clause, the “Constitution,
and the Laws of the United States which shall be made in Pursuance
thereof,” are “the supreme Law of the Land.” Art. VI,
cl. 2. “Put simply, federal law preempts contrary state law.”
Hughes v.
Talen Energy Marketing, LLC, 578 U. S.
___, ___ (2016) (slip op., at 11).
This Court has delineated three circumstances in
which state law must yield to federal law.
English, 496
U. S., at 78–79. First, and most obvious, federal law operates
exclusively when Congress expressly preempts state law.
Ibid. Second, state law can play no part when “Congress has
legislated comprehensively to occupy an entire field of regulation,
leaving no room for the States to supplement federal law.”
Hughes, 578 U. S., at ___ (slip op., at 11) (internal
quotation marks omitted). Third, state law is rendered inoperative
when it “actually conflicts with federal law,”
English, 496
U. S., at 79, as when a private party cannot “comply with both
state and federal requirements,”
Merck Sharp & Dohme
Corp. v.
Albrecht, 587 U. S. ___, ___ (2019) (slip
op., at 2) (internal quotation marks omitted), or when state law
“creates an unaccept- able ‘obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,’ ”
Wyeth v.
Levine,
555 U.S.
555, 563–564 (2009) (quoting
Hines v.
Davidowitz,
312 U.S.
52, 67 (1941)). Whatever the category of preemption asserted,
“the purpose of Congress is the ultimate touchstone” in determining
whether federal law preempts state law.
Hughes, 578
U. S., at ___ (slip op., at 11) (internal quotation marks
omitted). Virginia Uranium invokes both field and obstacle
preemption; I address each in turn.
A
Virginia Uranium’s primary contention is that
Congress has occupied the field of nuclear safety regulation,
preempting state laws enacted because of concerns about the
radiation safety of federally regulated activities. Defining the
preempted field by reference to the purpose for which state laws
were enacted finds “some support in the text of the [AEA],”
English, 496 U. S., at 84, and, in particular,
§2021(k). Again, this provision states that “[n]othing in [§2021]
shall be construed to affect the authority of any State
. . . to regulate activities
for purposes other than
protection against radiation hazards.” (Emphasis added.)
Section 2021(k) presupposes federal preemption of at least some
state laws enacted to guard “against radiation hazards.” Virginia
Uranium and the dissent read this subsection to include within the
preempted sphere
all state laws motivated by concerns about
the radiation hazards of NRC-regulated activities. Brief for
Petitioners 35;
post, at 2. The Commonwealth Defendants
would exclude from federal foreclosure state laws directed to
activities not regulated by the NRC.
E.g., Tr. of Oral Arg.
33–34. The Commonwealth Defendants have the better reading of the
statute.
1
The Commonwealth has forbidden only
conventional uranium mining on private land, an activity all agree
is not federally regulated.
E.g., id., at 9–10, 17–18, 30.
The controlling AEA provision, §2092, triggers federal regulation
only when source material is “remov[ed] from its place of deposit
in nature.” Federal authorities have long read that provision to
preclude federal regulation of conventional uranium mining.
Ante, at 4;
supra, at 4. In contrast to the AEA’s
express provisions for uranium mining on public lands, §§2097–2098,
the Act is nearly silent about conventional uranium mining on
private lands. See
ante, at 4–6. Indeed, insofar as the Act
addresses private conventional mining, it does so to bar federal
regulators from obtaining reports about ore “prior to removal from
its place of deposit in nature.” §2095. Every indication, then, is
that Congress left private conventional mining unregulated. And if
Congress did not provide for regulation of private conventional
mining, it is hard to see how or why state law on the subject would
be preempted, whatever the reason for the law’s enactment.
2
Virginia Uranium’s argument to the contrary
rests on §2021(k), but that provision, correctly read, lends no
support for Virginia Uranium’s cause. By its terms, §2021(k)
addresses only state authority to regulate “activities” for
nonradiological purposes. Read in context of §2021 as a whole,
“activities” means activities
regulated by the NRC. See
§2021(c), (
l), (m), (
o);
ante, at 6 (§2021(k)
“might be described as a
non-preemption clause”).
The AEA’s context and history are corroborative.
Prior to enactment of §2021(k), the Federal Government and States
shared responsibility for most steps of the nuclear fuel cycle,
with the former regulating primarily for public health and safety,
and the latter regulating for economic and other nonradiological
purposes. See
supra, at 4. Section 2021 was designed “to
heighten the States’ role,”
PG&E, 461 U. S., at
209, by enabling federal regulators to cede their previously
exclusive authority over the nuclear safety of several lower risk
activities, §2021(b). Given this aim, §2021(k) is most sensibly
read to clarify that the door newly opened for state regulation
left in place pre-existing state authority “to regulate activities
for purposes other than protection against radiation hazards.” See
ante, at 5–6. The House and Senate Reports are explicit on
this point: Section §2021(k) was “intended to make it clear that
the bill does not impair the State[s’] authority to regulate
activities of [federal] licensees for the manifold health, safety,
and economic purposes other than radiation protection”; the bill
simply provides a means for States to obtain heretofore exclusively
federal authority to regulate these activities for “protection
against radiation hazards.” S. Rep. No. 870, 86th Cong., 1st
Sess., at 12; accord H. R. Rep. No. 1125, 86th Cong., 1st
Sess., 12 (1959). Nothing suggests that Congress “intended to cut
back on pre-existing state authority outside the NRC’s
jurisdiction.”
PG&E, 461 U. S., at 209–210. That
authority encompassed state laws regulating conventional uranium
mining, even if enacted because of concerns about the radiological
safety of postextraction, NRC-regulated steps in the nuclear fuel
cycle.
3
Virginia Uranium leans most heavily on a
statement in the Court’s
PG&E opinion: “[T]he Federal
Government has occupied the entire field of nuclear safety
concerns.” 461 U. S., at 212. But in neither
PG&E
nor in later decisions in its wake,
Silkwood v.
Kerr-McGee Corp.,
464 U.S.
238 (1984), and
English,
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 state laws at issue were not preempted. See
ante, at
7–10.
Moreover, without gainsaying that it may
sometimes be appropriate to inquire into the purpose for which a
state law was enacted,
PG&E calls for no such inquiry
here.
PG&E considered whether the AEA preempted a
California law conditioning approval to build new nuclear plants on
a finding that an adequate method existed for disposing of spent
nuclear fuel. 461 U. S., at 197–198. The Court upheld the law
because it was enacted out of concern for economic development, not
because of radiation safety hazards.
Id., at 205,
213–216.
It is unsurprising that the
PG&E
Court asked why the California law had been enacted. The State’s
law addressed construction of a nuclear powerplant, an activity
closely regulated by the Federal Government for nuclear safety
purposes. See 42 U. S. C. §§2021(c)(1), 2132–2142; 10 CFR
pt. 50 (2018). The Court therefore inquired whether the state law
was enacted, in §2021(k)’s words, “for purposes other than
protection against radiation hazards.” Here, in contrast, the
Commonwealth’s mining ban targets an exclusively state-regulated
activity. See
ante, at 8–10.[
2]
4
I am not persuaded by 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. See Brief for United States as
Amicus Curiae 28–30. To the degree the AEA preempts state
laws enacted for certain purposes, §2021(k) stakes out the
boundaries of the preempted field,
i.e., state laws that
apply to federally licensed activities and are driven by concerns
about the radiological safety of those activities. We have no
license to expand those boundaries.
The case on which the Solicitor General
primarily relies,
National Meat Assn. v.
Harris,
565 U.S.
452 (2012), does not counsel otherwise.
National Meat
concerned a set of California laws that “dictat[ed] what
slaughterhouses must do with pigs that cannot walk, known in the
trade as nonambulatory pigs.”
Id., at 455. The question
presented: Did California’s prescriptions conflict with the Federal
Meat Inspection Act’s express preemption of state law that imposed
requirements “in addition to, or different than those made under”
the Act? 21 U. S. C. §678. One of the California
provisions, a ban on the sale of meat or products from
nonambulatory pigs, regulated a subject outside the scope of the
Federal Meat Inspection Act.
National Meat, 565 U. S.,
at 463. The Court nevertheless concluded that the sale ban fell
within the scope of the Act’s express preemption clause because it
was intended to work together with other California provisions to
impose additional requirements on slaughterhouse operations.
Id., at 463–464.
National Meat is not controlling here. No
express preemption provision is involved. The mining ban sets no
safety standards for federally supervised milling or tailings
storage activities. True enough, the ban makes it far less likely,
though not impossible, that such activities will take place in the
Commonwealth.[
3] In that
regard, the Commonwealth’s mining ban is more aptly analogized to
state bans on slaughtering horses, upheld by courts of appeals and
distinguished in
National Meat from California’s
nonambulatory pig laws. Horse slaughtering bans,
National
Meat explained, “work[ed] at a remove from the sites and
activities that the FMIA most directly governs” by ensuring that
“no horses will be delivered to, inspected at, or handled by a
slaughterhouse, because no horses will be ordered for purchase in
the first instance.”
Id., at 465, 467 (citing
Cavel
Int’l, Inc. v.
Madigan, 500 F.3d 551 (CA7 2007), and
Empacadora de Carnes de Fresnillo, S. A. de C. V.
v.
Curry, 476 F.3d 326 (CA5 2007)). The distinction drawn in
National Meat thus supports this conclusion: A state law
regulating an upstream activity within the State’s authority is not
preempted simply because a downstream activity falls within a
federally occupied field.[
4]
B
Nor is the Commonwealth’s mining ban preempted
as an “unacceptable obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.”
Wyeth, 555
U. S., at 563–564 (internal quotation marks omitted).
Together, Virginia Uranium and the United States identify four ways
in which the mining ban supposedly conflicts with federal purposes
and objectives. None carry the day.
First, Virginia Uranium contends that the mining
ban conflicts with the “delicate balance” federal law has struck
between promoting nuclear power and ensuring public safety. Brief
for Petitioners 55–56; see Brief for United States as
Amicus
Curiae 31–33. But the Federal Government does not regulate the
radiological safety of conventional uranium mining on private land,
so federal law struck
no balance in this area.
Second, Virginia Uranium contends that the
mining ban “
prohibit[s] the achievement of one of
Congress[’] ‘primary purpose[s]’: ‘the promotion of nuclear
power.’ ” Brief for Petitioners 56 (quoting
PG&E,
461 U. S., at 221).
PG&E, however, dismissed the
suggestion that Congress had a policy of promoting nuclear power
“at all costs.”
Id., at 222 (internal quotation marks
omitted). Given the absence of federal regulation in point, it is
improbable that the Federal Government has a purpose or objective
of promoting conventional uranium mining on private land. Cf.
ante, at 16.
Virginia Uranium warns of dire consequences if
all 50 States enact bans similar to the Commonwealth’s. Brief for
Petitioners 56–57. But, as the Court of Appeals explained, numerous
domestic uranium recovery facilities are federally regulated
(either because they sit on federal land or use unconventional
mining techniques) and are “thus beyond the reach of any state
bans”; and the AEA authorizes the Federal Government to develop
uranium deposits on public lands and to acquire private deposits.
848 F. 3d, at 599; see 42 U. S. C. §§2096–2097.
Federal purposes and objectives do not require judicial
supplementation of the AEA’s express provisions for maintaining the
uranium supply. Cf.
ante, at 17.
The dissent suggests that national security may
require further domestic uranium production.
Post, at 2,
n. 2. If the Executive Branch—which presumably knows more
about “the critical role of uranium to the country’s energy
industry and national defense,”
ibid.—agrees, it can arrange
for acquisition of the site by the United States, and then for
commencement of mining notwithstanding the Commonwealth’s ban. Yet
the site remains in private hands.
Third, Virginia Uranium argues that §2021
provides the sole means for States to regulate radiological safety
hazards resulting from milling and tailings storage, and that
Virginia has effectively regulated milling and tailings storage
without obtaining authority to do so through an adequate §2021
agreement. Brief for Petitioners 57–59 (citing
Gade v.
National Solid Wastes Management Assn.,
505 U.S.
88, 98–101 (1992)); see Brief for United States as
Amicus
Curiae 33–34. As explained, see
supra, at 7–9, 11,
Virginia has not regulated the radiological safety of tailings
storage; it has prohibited only an antecedent activity subject to
exclusive state authority.
Finally, the United States contends that
Virginia’s mining ban frustrates federal purposes and objectives by
“prevent[ing] the occurrence of” activities that Congress intended
the Federal Government to regulate. Brief for United States as
Amicus Curiae 31 (quoting 848 F. 3d, at 600 (Traxler,
J., dissenting)). But federal regulation of certain activities does
not mean that States must authorize activities antecedent to those
federally regulated. For example, federal regulation of nuclear
powerplants does not demand that States allow the construction of
such powerplants in the first place.
PG&E, 461
U. S., at 222.
* * *
For the reasons stated, I concur in the
Court’s judgment affirming the judgment of the Court of
Appeals.
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