Petition for Writ of Certiorari — Va. Uranium, Inc. v. Warren, 138 S. Ct. 293 (2017) (No. 16-1275)

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Supreme Court of the Anited States

VIRGINIA URANIUM, INC., et ai.,

Petitioners,

JOHN WARREN, et ai.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES J. COOPER

Counsel of Record

MICHAEL W. KIRK

JOHN D. OHLENDORF

Cooper & Kirk, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

ccooper@cooperkirk.com

Counsel for Petitioners

April 21, 2017

COCKLE LEGAL BRIEFS (800, 220 6961

WWW COC KLELEGALBRIEFS COM

QUESTION PRESENTED

This Court has held that the Atomic Energy Act

(“AEA”) “occupiels] the entire field of nuclear safety

concerns,” Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 212 (1983),

and it has “defined the preempted field, in part, by ref-

erence to the motivation behind [a challenged] state

law,” English v. General Elec. Co., 496 U.S. 72, 84

(1990). In accordance with these precedents, the Tenth

Circuit has held that “a state cannot use its authority”

over activities indisputably subject to State regulation

as a pretextual “means of regulating radiological haz-

ards” arising from activities entrusted by the AEA to

the Nuclear Regulatory Commission (“NRC”). Skull

Valley Band of Goshute Indians v. Nielson, 376 F.3d

1247-48 (10th Cir. 2004). Accord, e.g., Entergy Nuclear

Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 416 (2d

Cir. 2013). In contrast, the divided panel below held

that so long as a challenged state law “does not [on its

face] purport to regulate an activity within the [AEA]’s

reach,” courts may not “conduct a pretext analysis” to

“decipher whether the legislature was motivated” by

radiological safety concerns.” App.14a, 15a, 18a.

The question presented is:

Does the AEA preempt a state law that on its face

regulates an activity within its jurisdiction (here ura-

nium mining), but has the purpose and effect of regu-

lating the radiological safety hazards of activities

entrusted to the NRC (here, the milling of uranium

and the management of the resulting tailings)?

PARTIES TO THE PROCEEDING

Petitioners Virginia Uranium, Inc., Cole Hill, LLC,

Bowen Minerals, LLC, and Virginia Energy Resources,

Inc. were the plaintiffs before the District Court and

the plaintiffs-appellants in the Court of Appeals.

Respondents John Warren, in his official capacity

as Director of the Virginia Department of Mines, Min-

erals and Energy, Bradley C. Lambert, in his official

capacity as Deputy Director of the Virginia Depart-

ment of Mines, Minerals and Energy, and James P.

Skorupa, in his official capacity as Director of the Vir-

ginia Department of Mines, Minerals and Energy’s Di-

vision of Mineral Mining, were defendants before the

District Court and defendants-appellees in the Court

of Appeals. Conrad Spangler, the former Director of the

Virginia Department of Mines, Minerals and Energy,

was also initially docketed by the Court of Appeals as

an appellee, but the current director, John Warren, was

substituted in his place on January 5, 2016, pursuant

to Fep. R. App. P. 43(c)(2).

ili

CORPORATE DISCLOSURE STATEMENT

Virginia Uranium, Inc., has as its sole parent cor-

poration Virginia Energy Resources, Inc., located at

675 West Hastings Street, Suite 611, Vancouver, Brit-

ish Columbia, Canada, V5B 1N2. Virginia Energy Re-

sources, Inc., joins in this Petition, and its corporate

affiliations are listed below. No other publicly held cor-

poration owns 10% or more of Virginia Uranium, Inc.’s

stock.

Coles Hill, LLC, has no parent corporation, and

there is no publicly held corporation that owns 10% or

more of its stock.

Bowen Minerals, LLC, has no parent corporation,

and there is no publicly held corporation that owns

10% or more of its stock.

Virginia Energy Resources, Inc., has no parent cor-

poration. Sprott Resource Corp., located at Royal Bank

Plaza, South Tower, 200 Bay Street, Suite 2750, P.O.

Box 90, Toronto, Ontario, Canada, M5J 2J2, and En-

ergy Fuels, Inc., located at 2 Toronto Street, Suite 500,

Toronto, Ontario, Canada, M5C 2B6, are the sole pub-

licly held corporations that own 10% or more of its

stock.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..............................04. x

OPINIONS BELOW........0..............cccceceeceeceeeeeeeeees 1

I ee l

CONSTITUTIONAL PROVISIONS AND STAT-

REST ie RE AS EET SS 1

un eutaiiaeeinnamas 2

I aa ae nea alecle 6

I. Domestic Production and Use of Uranium

and the Coles Hill Deposit......................... 6

Il. The AEA’s Regulatory Framework............ 8

Ill. Virginia’s Ban on Uranium Mining........... 10

IV. Proceedings Below...................:ccccccceeseeeeees 13

REASONS FOR GRANTING THE WRICT............ 20

I. The Decision Below Directly Contravenes

This Court’s Precedents and Creates a

Conflict in the Circuits.............................. 20

A. The Decision Below Contravenes This

Court’s Holdings in PG&E and Eng-

SEIN csdesnioneiciuieaiiisisiahadehbaienesibaemsliattametabeiiuabumsaiticus 22

B. The Decision Below Conflicts with

the Tenth Circuit’s Holding in Skull

TINIE sats oeinteshiduniesincioiinlameetinebapeatienaliiiaiinends 25

C. The Decision Below Conflicts with the

Second Circuit’s Holding in Entergy ..... 31

TABLE OF CONTENTS — Continued

Page

II. Review Is Needed Because the Decision

Below Threatens Critically Important Eco-

nomic and National Security Interests......

APPENDIX

Opinion of the United States Court of Appeals

for the Fourth Circuit, Virginia Uranium, Inc.

v. Warren, No. 16-1005 (Feb. 17, 2017) .................

Opinion of the United States District Court for

the Western District of Virginia, Virginia Ura-

nium, Inc. v. McAuliffe, No. 4:15-cv-31 (Dec. 2,

SII insiadaeanitudihcnatannin cheteasehanienielchaiabinibdainnpldsdiaibbidbiosesiitia

Constitutional Provisions and Statutes Involved

eC I os cc caitecubecmiennesens ee

42 U.S.C.

TABLE OF CONTENTS

Page

TABLE. OF AUTHORITIES ........0.scccccccccessecesceees. x

OPINIONS BELOW.......... EO NIE A AEE Re AN oP 1

I i inn elie plete iia eeetitaladh 1

CONSTITUTIONAL PROVISIONS AND STAT-

RESET A SCD SESS ee 1

a a rn hana eneunniedenencedh 2

TIT ene eee Ae SEE TONE STEN 6

I. Domestic Production and Use of Uranium

and the Coles Hill Deposit......................... 6

Il. The AEA’s Regulatory Framework............ 8

Ill. Virginia’s Ban on Uranium Mining........... 10

MB LTS ET ERENT 13

REASONS FOR GRANTING THE WRI't............ 20

1. The Decision Below Directly Contravenes

This Court’s Precedents and Creates a

Conflict in the Circuits...................sccseeseees 20

A. The Decision Below Contravenes This

Court’s Holdings in PG&E and Eng-

RARER AE pts ELT OE td eins OM 22

B. The Decision Below Conflicts with

the Tenth Circuit’s Holding in Skull

RUSE arama tay Uo TERRE Me SE 25

C. The Decision Below Conflicts with the

Second Circuit’s Holding in Entergy ..... 31

TABLE OF CONTENTS -— Continued

Page

Il. Review Is Needed Because the Decision

Below Threatens Critically Important Eco-

nomic and National Security Interests...... 33

a aie andniinonnepamenioumennls 39

APPENDIX

Opinion of the United States Court of Appeals

for the Fourth Circuit, Virginia Uranium, Inc.

v. Warren, No. 16-1005 (Feb. 17, 2017) ................... la

Opinion of the United States District Court for

the Western District of Virginia, Virginia Ura-

nium, Inc. v. McAuliffe, No. 4:15-cv-31 (Dec. 2,

EER A RN ls SME AR eich ERR ED 53a

Constitutional Provisions and Statutes Involved

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42 US.C.

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TABLE OF CONTENTS — Continued

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TABLE OF CONTENTS — Continued

A ic anebeneenniieee

Act of Feb. 20, 1981, H.J. Res. 324, 1981 Va.

tina inbcdbivsnetsetdeunenniiaiaiplanaaddliianiidees

Act of Apr. 7, 1982, ch. 269, 1982 Va. Acts

Act of Feb. 24, 1983, ch. 3, 1983 Va. Acts 3.........

Complaint for Declaratory and Injunctive Relief,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

re racic crttcoreplensenminpidibalinat

Appendix to Combined Brief in Opposition to

Defendants’ Motion to Dismiss and in Support

of Plaintiffs’ Cross-Motion for Summary Judg-

ment, Virginia Uranium, Inc. v. McAuliffe, No.

An Agreement Between the United States Nu-

clear Regulatory Comm’n and the Common-

wealth of Va. for the Discontinuance of

Certain Comm’n Regulatory Auth. and Re-

sponsibility Within the Commonwealth Pur-

suant to Section 274 of the Atomic Energy Act

of 1954, As Amended (Mar. 18, 2009) .................

Excerpts from Brief for the United States as

Amicus Curiae, Nielson v. Private Fuel Stor-

age, LLC, No. 04-575 (U.S. Sept. 2005)...............

Excerpts from Petition for a Writ of Certiorari,

United States v. Eurodif, S.A., No. 07-1059

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Vill

TABLE OF CONTENTS - Continued

Excerpts from U.S. ENERGY INFO. ADMIN., 2015

UnrantuuM MKTG. ANNUAL REPORT (2016)............. 351la

Excerpts from U.S. Dep’T oF ENERGY, EXCESS

URANIUM INVENTORY MANAGEMENT PLAN

Si siiddincotbadslssdinstankcobdendphaaiidtabdabintadelotmantedsetateens 354a

Excerpts from Gov’T ACCOUNTABILITY OFFICE,

EXCESS URANIUM INVENTORIES (2011) ................. 362a

Excerpts from S. Rep. No. 1211 (1946).................. 372a

Excerpts from Hearings on H.R. 4280 Before the

H. Comm. on Military Affairs, 79th Cong.

URC aD sie ePID 115 AE SOY AUC eee MRO 375a

Excerpts from Hearing on the Nomination of

Rick Perry to be Sec’y of Energy Before the S.

Comm. on Energy & Nat'l Res., 115th Cong.

ea eecabileedian 378a

Excerpts from Hearing on the Nomination of Al-

lison MacFarlane to be Chairman of the Nu-

clear Regulatory Comm’n Before the S. Comm.

on Enu't & Pub. Works, 112th Cong. (2012)........ 383a

Excerpts from Hearing on the Administration’s

Quadrennial Energy Rev. Before the S. Comm.

on Energy & Nat. Res., 114th Cong. (2015)........ 386a

Letter from f[leana Ros-Lehtinen, Spencer

Bachus, Peter King, & Howard P. McKeon,

Members, U.S. House of Representatives, to

Timothy F. Geithner, Secretary, U.S. Dep’t of

ey I Is ER, SID rtccidcnnincccsinnernescepneeviie 390a

TABLE OF CONTENTS — Continued

Page

James Conca, America’s Navy: The Unsung

Heroes of Nuclear Energy, FORBES (Oct. 28,

SABE a FOIE Y cies tee ial, OO BO apes Dera RN EN 397a

TABLE OF AUTHORITIES

Page

CASES

Abraham v. Hodges,

255 F. Supp. 2d 539 (D.S.C. 2002)...........0.... cee. 37

English v. General Elec. Co.,

EE I WH IID iciecsd clidsbdiccossnsesttiadiniedecpscianmetdgeenmatail passim

Entergy Nuclear Vermont Yankee, LLC

v. Shumlin,

733 F.3d 393 (2d Cir. 2013) ............0....cesceccoees passim

Missouri v. Westinghouse Elec., LLC,

487 F. Supp. 2d 1076 (E.D. Mo. 2007)..................... 37

Nielson v. Private Fuel Storage, LLC,

ee Sk re Se rirectusinceencpnetnccdvnacienstenssidienna 5, 29

Nielson v. Private Fuel Storage, LLC,

I CS I I isasocccepcksnnncsttesioesaniineiaducideninania 5

Northern States Power Co. v. Prairie Island

Mdewakanton Sioux Indian Cmty.,

781 F. Supp. 612 (D. Minn. 1991).............00.000000..... 37

Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm'n,

Se PINE icdceonisscadntsactiesanigurkastententade passim

Pacific Legal Found. v. State Energy Res.

Conservation & Dev. Comm'n,

659 F.2d 903 (9th Cir. 1981)................ eee eens 4, 33

Silkwood v. Kerr-McGee Corp.,

es I i aicintcicevinidniictinsievopieianemadial 10, 24, 27

Skull Valley Band of Goshute Indians v. Nielson,

376 F.3d 1223 (10th Cir. 2004).................0.c00e passim

TABLE OF AUTHORITIES — Continued

Page

United Nuclear Corp. v. Cannon,

553 F. Supp. 1220 (D.R.1. 1982) .............-ccceeee BT

United States v. Eurodif S.A.,

inc cssnsnsennccsosnnocsoversoses 36

Virginia Uranium, Inc. v. McAuliffe,

147 F. Supp. 3d 462 (W.D. Va. 2015) ..............0 14

Virginia Uranium, Inc. v. Warren,

848 F.3d 590 (4th Cir. 2017)..................... s+. passim

STATUTORY AND REGULATORY PROVISIONS

28 U.S.C.

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ITI a cchcdstedebrerweesecebecnesesncecceccotsccncosceseosees 13

42 U.S.C.

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TTI iainicccidncnetissspscesiesseeeessecsnceceosetsccovocousonses 8

I eegtsias an ensconnbascnsnecencesesencensces 38

itso sicdmennesnsstncntsocencsccseceseonccessccosseonses 9

a sis naresetasteasesinccseresnssncssececocooceononrees 9

SINT a si censsntusenctinnietsoonvevartavcseuececcoccoseseouen 31

sas ssmnssesnonpenonenneecesscccosovensens 22

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xil

TABLE OF AUTHORITIES — Continued

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§ D111(a)-(b).........esccceeeeeeeeseeeennenenenererenseeseteeneneneeeeases 9

§ DBOU(D) .........cccceccccccssccessceesersserceosssserscrseeeseseneseoens 37

§ DLOGb-Bl a) ...........ceseeessessreeeeeeeeseeenensensteneeersnenes 7, 34

§ PIGSD-G(a) ..........ceceececeeeesereeeencenernerenteeceeeeeersneees 7, 34

10 CLER. Pt. 40, App. A........ccccccceeteeeeeeeeeeeeeeeere nen nneenes 10

Act of Feb. 24, 1983, ch. 3, 1983 Va. Acts 3...............-. 29

Act of Apr. 7, 1982, ch. 269, 1982 Va. fe 10

VA. CODE § 45.1-283 ..........c..::cccecsereeerereeerereereesnerenreeees 11

Atomic Energy: Hearings on H.R. 4280 Before

the H. Comm. on Military Affairs, 79th Cong.

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PETITION FOR WRIT OF CERTIORARI

Virginia Uranium, Inc., et al. (“Petitioners”) re-

spectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit.

+. —

OPINIONS BELOW

The panel opinion of the Court of Appeals is re-

ported at 848 F.3d 590 and reproduced at App. 1a. The

order of the District Court granting Respondents’ mo-

tion to dismiss is reported at 147 F. Supp. 3d 462 and

reproduced at App.53a.

JURISDICTION

The Court of Appeals issued its judgment on Feb-

ruary 17, 2017. This Court has jurisdiction under 28

US.C. § 1254(1).

-¢

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The relevant portions of Article VI of the United

States Constitution; Atomic Energy Act, Title 42,

Chapter 23 of the United States Code; Title 10, Part 40

of the Code of Federal Regulations; Title 45.1 of the

Virginia Code; and the Acts of the General Assembly of

the Commonwealth of Virginia are reproduced at

App.83a.

. Qe

INTRODUCTION

The Commonwealth of Virginia has banned the

mining of the largest deposit of uranium in the United

States. Because the ban — as the Commonwealth has

itself conceded for purposes of this case — was moti-

vated by concerns about the radiological safety of ac-

tivities regulated by the federal government pursuant

to the Atomic Energy Act (“AEA”), it is preempted un-

der this Court’s precedents and the uniform body of

lower-court case law applying them. But a divided

panel of the Fourth Circuit declined “to follow the

paths forged by [its] sister circuits” in those cases,

App.16a, instead upholding Virginia’s ban based on a

flawed approach to preemption under the AEA that

runs directly contrary to this Court’s precedent and

the previous decisions of “each Court of Appeals [to

have] address|ed] the issue,” App.42a (Traxler, J., dis-

senting). Because the panel opinion below creates a di-

vision of authority over an issue of profound national

importance — the basic allocation of regulatory power

over atomic energy and radiological safety and access

to a strategically critical national resource — this Court

should grant review and reverse the Fourth Circuit’s

decision.

Recognizing that the production and use of atomic

energy is “vital to the common defense and security”

and must therefore “be regulated in the national inter-

est,” 42 U.S.C. § 2012(a), (c), Congress “has occupied

the entire field of nuclear safety concerns, except the

limited powers expressly ceded to the states.” Pacific

Gas & Elec. Co. v. State Energy Res. Conservation &

Dev. Comm’n (“PG&E”), 461 U.S. 190, 212 (1983). In

particular, States may regulate activities that fall

within the purview of the Act only “for purposes other

than protection against radiation hazards.” 42 U.S.C.

§ 2021(k) (emphasis added). A state regulation of such

activities that is “grounded in [radiological] safety con-

cerns falls squarely within the prohibited field.”

PG&E, 461 US. at 213.

The Commonwealth’s prohibition of uranium de-

velopment transgresses the limits imposed by the

AEA. While the AEA generally leaves to the States the

authority to regulate the mining of uranium, the stat-

ute prohibits such regulation if its purpose is “protec-

tion against radiation hazards,” § 2021(k), arising from

activities the AEA has placed in the regulatory pur-

view of the Nuclear Regulatory Commission (“NRC”).

Here, all agree that the AEA vests the NRC with the

exclusive power to regulate the radiological safety of

both the milling of uranium ore and the safe handling

and storage of the leftover “tailings.” And the overrid-

ing purpose and motivation behind the Common-

wealth’s mining ban have nothing to do with mining,

but are instead based on Virginia’s concerns about the

radiological safety of milling and tailings manage-

ment. Because Virginia’s ban is thus “grounded in [ra-

diological] safety concerns” relating to activities that

are within the jurisdiction of the NRC, it “falls squarely

within the prohibited field,” and it cannot stand.

PG&E, 461 US. at 213.

As Judge Traxler recognized in dissent below, this

conclusion follows directly from each one of the Court

of Appeals decisions that have previously dealt with a

State’s attempt to indirectly regulate the radiological

safety of activities committed to the NRC’s superin-

tendence by pretextually regulating an activity within

state jurisdiction. In Skull Valley Band of Goshute In-

dians v. Nielson, 376 F.3d 1223 (10th Cir. 2004), for ex-

ample, the Tenth Circuit struck down Utah’s attempt

to prevent the storage of spent nuclear fuel within the

State by, inter alia, banning the transportation of that

material on key state roads and preventing local gov-

ernments from providing basic municipal services, like

police and fire protection or water access, to any facil-

ity built to store the fuel. The fact that these laws on

their face pertained only to “matters that have been

traditionally regulated by local governments” was ir-

relevant, the Tenth Circuit held, because under this

Court’s decision in PG&E “a state cannot use its au-

thority to regulate law enforcement and other similar

matters as a means of regulating radiological hazards”

entrusted to federal care. Id. at 1247-48. See also En-

tergy Nuclear Vermont Yankee, LLC v. Shumlin, 733

F.3d 393, 415-23 (2d Cir. 2013); Pacific Legal Found. v.

State Energy Res. Conservation & Dev. Comm’n, 659

F.2d 903, 922-23 (9th Cir. 1981), aff’d, PG&E, 461 US.

190 (1983).

Utah petitioned this Court for review of the Tenth

Circuit's decision in Skull Valley, and the Court asked

the Solicitor General to express the views of the United

States. Nic/son v. Private Fuel Storage, LLC, 543 US.

1047 (2005). In contrast to the panel majority in this

case, the Solicitor General explained that this Court’s

precedents confirm “that part of ‘the pre-empted field

is defined by reference to the purpose of the state law.’”

Brief for the United States as Amicus Curiae at 12,

Nielson v. Private Fuel Storage, LLC (No. 04-575) (Nov.

2005), App.316a (quoting English v. General Elec. Co.,

496 U.S. 72, 84 (1990)). Because Utah did “not dispute

that the purpose of the [challenged] provisions is to

prevent the transportation and storage of” materials

regulated exclusively by the NRC, id. at 17, App.322a

(quotation marks omitted), the Solicitor General con-

cluded that the Tenth Circuit had “applied well-estab-

lished legal principles governing ... preemption,”

App.313a, and further review was unwarranted. The

Court denied certiorari. Nielson v. Private Fuel Stor-

age, LLC, 546 U.S. 1060 (2005).

The panel majority in this case refused “to look

past [the challenged] statute’s plain meaning to deci-

pher whether the legislature was motivated” by radio-

logical safety concerns relating to uranium milling and

tailings storage, App.14a, even though the Common-

wealth itself conceded this was in fact its purpose,

App.29a (Traxler, J., dissenting). Instead, the court

held that it need not conduct “a pretext analysis to as-

certain a legislature’s true motive” to determine the

preemptive scope of the AEA. App. 15a.

The decision below directly contravenes this

Court’s holdings tying the boundaries of the field

preempted by the AEA to the State’s purpose, and it

creates a Circuit split on this critical issue. The ruling

below also has profoundly dangerous implications for

the scope of federal authority over atomic energy and

radiological safety generally, and it frustrates the pur-

poses and objectives of the AEA by blocking private de-

velopment, under the close regulation of the NRC, of

the Nation’s largest deposit of uranium at a time when

the United States must depend upon foreign sources

for 94 percent of its uranium supply — much of which

comes from Russia or its client states.

This Court should grant the writ.

STATEMENT

I. Domestic Production and Use of Uranium

and the Coles Hill Deposit

Nuclear reactors powered by uranium generate

about 20 percent of the electricity consumed in the

United States — all without significant production of

greenhouse gases. App.202a. Uranium is also critical

to national security. It is a necessary ingredient, of

course, in our arsenal of nuclear weapons, App.4a, and

it powers our Nation’s fleet of over 80 nuclear subma-

rines and aircraft carriers, App.397a.

The United States has an acute economic and

strategic interest in securing a domestic supply of ura-

nium. Indeed, federal legislation gives the Secretary of

nergy “a continuing responsibility for the domestic

uranium industry to encourage the use of domestic

uranium,” in furtherance of “the national need to avoid

dependence on imports” of the material. 42 U.S.C.

S$ 2296b-3(a), 2296b-G(a). But notwithstanding this

“national need,” 94 percent of the uranium used to sup-

ply the Nation’s atomic energy needs is imported.

App.353a. Even more troubling, 17 percent of those im-

ports come from Russia, and another 22 percent come

from Russia-allied states Kazakhstan and Uzbekistan.

App.352a.

As the United States emphasized before this

Court in a 2008 case involving i nports of low-enriched

uranium, ensuring the domestic supply of uranium is

thus “a matter of compelling importance to U.S. na-

tional security interests.” Petition for Writ of Certio-

rari at 30, United States v. Eurodif, S.A., No. 07-1059

(Feb. 2008), App.347a. Relying on Russian-controlled

sources of uranium would not only “leave the Russian

Federation as the predominant supplier of enriched

uranium for domestic electricity generation,” it also

“threatens the United States’ ability to produce mate-

rials critical to military operations.” Jd. at 31, App.349a.

Petitioners own a deposit of approximately 119

million pounds of uranium ore that lies beneath the

Coles Hill estate in Pittsylvania County, Virginia.

App.201a. It is the largest known deposit of uranium

in the United States and one of the largest in the

world. Jd. Mining that uranium would be an economic

boon for the region, creating an estimated 1,052 an-

nual jobs and generating nearly $5 billion of net reve-

nue for local businesses. App.202a.

Conventional uranium production involves three

basic processes: mining, milling, and tailings manage-

ment. First, the uranium ore must be extracted from

the ground. The uranium ore must then be milled or

processed into usable form. An on-site uranium mill

grinds the uranium ore into a sand, which is then run

through either an acidic or alkaline solution to sepa-

rate the pure uranium from the waste rock commonly

known as “tailings.” The uranium is then concentrated

into “yellowcake,” which is commercially sold and

shipped off-site for enrichment. App.203a. Finally, the

tailings, which remain radioactive, must be perma-

nently secured in a tailings management facility.

App.204a.

II. The AEA’s Regulatory Framework

Shortly after the dawn of the atomic age, Congress

enacted the AEA in 1946 with the twin purposes of “en-

courag[ing] the private sector to become involved in

the development of atomic energy for peaceful pur-

poses,” PG&E, 461 U.S. at 207, and ensuring that the

“processing and utilization” of uranium is “regulated

in the national interest and in order to . . . protect the

health and safety of the public,” 42 U.S.C. § 2012(d).

Accordingly, the AEA, as amended, vests the NRC with

authority to establish regulatory limits and controls

necessary to ensure against the radiological safety

hazards posed by the domestic production of nuclear

energy, including the development of uranium.

The AEA requires an NRC license for the transfer,

delivery, or possession of “source material,” which is de-

fined to include uranium, 42 U.S.C. § 2014(z), only “af-

ter removal from its place of deposit in nature.” 42

U.S.C. § 2092. At the outset, Congress chose not to reg-

ulate uranium mining itself because it concluded that

(i) ordinary mining itself does not pose serious radio-

logical hazards; and (ii) regulation of uranium mining

would undermine Congress's policy of encouraging the

development of atomic energy by discouraging ura-

nium mining and prospecting. S. Rep. No. 79-1211, at

18 (1946), App.373a; see also Atomic Energy: Hearings

on H.R. 4280 Before the H. Comm. on Military Affairs,

79th Cong. 125 (1945), App.376a.

Of particular relevance to the issues in this case,

the Act grants the NRC exclusive regulatory jurisdic-

tion over the radiological safety of uranium milling

and tailings management. The Act requires that any-

one who wishes to “transfer or receive in interstate

commerce, manufacture, produce, transfer, acquire,

own, possess, import, or export” any radioactive “by-

product material” — specifically defined to include “the

tailings or wastes produced by the extraction or con-

centration of uranium” — must first receive a license

from the NRC. 42 U.S.C. §§ 2014(e)(2), 2111(a)-(b). And

the NRC has promulgated detailed and extensive reg-

ulations governing the design, construction, and oper-

ation of a tailings management facility, designed to

block the pathways through which radioactive ele-

ments might be exposed to the surrounding environ-

ment. 10 C.F.R. Pt. 40, App. A.

The provision of the Act that is at the heart of this

case permits States, with narrow exceptions, to regu-

late “activities,” including activities committed to the

NRC’s regulatory jurisdiction, but only “for purposes

other than protection against radiation hazards.” 42

U.S.C. § 2021(k) (emphasis added). Congress has long

premised this policy on its conclusion that the NRC

“was more qualified to determine what type of safety

standards should be enacted in this complex area.”

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 250 (1984).

This Court has thus repeatedly held that the federal

government has “occupied the entire field of nuclear

safety concerns.” PG&E, 461 U.S. at 212. The scope of

this preempted field extends to any state regulation

that is enacted and enforced for the purpose of protect-

ing against radiation hazards relating to an activity

within the NRC’s regulatory authority, such as ura-

nium milling and tailings storage, even where the ac-

tivity the State seeks to regulate is otherwise within

the State’s traditional police powers.

Ill. Virginia’s Ban on Uranium Mining

In 1982, shortly after the Coles Hill deposit was

discovered, the Virginia General Assembly enacted a

temporary moratorium on uranium mining. Act of Apr.

7, 1982, ch. 269, 1982 Va. Acts 426, App.170a. A year

later, the ban was effectively made permanent:

Notwithstanding any other provision of law,

permit applications for uranium mining shall

not be accepted by any agency of the Common-

wealth prior to July 1, 1984, and until a pro-

cram for permitting uranium mining is

established by statute.

Va. CovE § 45.1-283.

Though Section 45.1-283 is literally phrased as a

ban on “uranium mining,” id., the public record leaves

no doubt that the mining ban was and is motivated by

radiological safety concerns related to uranium milling

and tailings management activities — matters that all

agree are within the exclusive regulatory jurisdiction

of the NRC and are thus beyond the State’s authority.

Indeed, in the same 1983 Act that extended the mining

“moratorium” indefinitely, the Virginia Legislature

simultaneously created an official working-group — the

Uranium Administrative Group (“UAG”) — which it di-

rected to conduct an in-depth “evaluation of the costs

and benefits” of uranium development, App.178a, in-

cluding specifically a number of potential radiological

safety concerns arising out of milling and tailings man-

agement activities, App.184a-85a (directing UAG to

analyze, inter alia, the “reagents and processing mate-

rials to be used” in milling operations, the “quantity

and quality of liquid and solid wastes,” the “quantity

and characteristics of the tailings,” the “method of dis-

posal,” and the potential “atmospheric releases and the

methods for controlling such releases”). The Act thus

makes clear that while the operative language of the

ban may have referred only to mining — the first,

necessary step in the mining, milling, tailings storage

sequence ~— its overriding purpose was to bar milling

and tailings management operations based on con-

cerns about the radiological safety of those activities.

When the Commonwealth formally reconsidered

the ban on uranium development from 2008 to 2013,'

its ultimate refusal to permit uranium mining was

again grounded squarely in radiological safety con-

cerns about milling and tailings management. The ev-

idence of this is overwhelming. To take a single

example, 31 members of the General Assembly issued

public statements expressing their opposition to lifting

the ban, and every single one cited radiological health

and safety concerns; all but two of them referenced

fears that uranium tailings would contaminate the wa-

ter. App.239a-97a.

In short, the Commonwealth enacted and has

maintained the ban on uranium mining based predom-

inantly, if not exclusively, on its view that NRC regula-

tion of uranium milling and tailings management

operations is not sufficiently robust to protect against

radiation hazards.

' Beginning in the late 1980s, the price of uranium plum-

meted, exploiting the Coles Hill deposit was not economically vi-

able, and as a result no further action was taken until the price

rebounded. From 2008 to 2013, Petitioners attempted to convince

the Commonwealth to repeal the ban. While the Commonwealth

produced several new studics reevaluuting the issue, and legisla-

tors introduced a bill that would have lifted the ban. opponents of

uranium development succeeded in keeping the ban in place.

IV. Proceedings Below

1. After the legislative effort to repeal the ban

failed. Petitioners filed a complaint in the Western Dis-

trict of Virginia, seeking to enjoin enforcement of the

Commonwealth's ban on the ground that it is

preempted by the AEA. The District Court had juris-

diction over the action under 28 U.S.C. § 1331.

Petitioners alleged that the purpose of the ura-

nium mining ban was to protect against radiological

safety hazards related to milling and tailings manage-

ment. App.216a, 222a, 232a. The defendants — Re-

spondents here — moved to dismiss the complaint for

failure to state a claim, and thus conceded for purposes

of their motion that the purpose of the ban was indeed

to protect against radiation hazards arising from mill-

ing and tailings operations. Respondents conceded

that the AEA gives the NRC exclusive regulatory ju-

risdiction over the radiological safety of uranium mill-

ing and tailings activities, but argued that the State

has unfettered authority to regulate uranium mining,

even where, as here, the purpose of the prohibition

against mining is actually to prohibit milling and tail-

ings operations on the basis of radiological safety con-

cerns. Petitioners cross-moved for summary judgment,

arguing that the text of the AEA and this Court’s deci-

sions in PG&E and later cases compelled the conclu-

sion that the ban was preempted. Petitioners’

summary judgment motion was supported by over 700

pages of exhibits demonstrating that the overriding

purpose of the mining ban was to bar the milling of

uranium ore and the storage of tailings in the Com-

monwealth.

The District Court granted the Commonwealth's

motion to dismiss and denied Petitioners’ cross-motion

for summary judgment. App.53a. The court held that

Virginia’s ban on uranium mining was not preempted

because “(t]he AEA institutes no permitting regime re-

specting nonfederal uranium deposits’ conventional

mining and does not otherwise regulate nonfederal

uranium deposits or their conventional mining.”

App.68a. The court deemed it entirely irrelevant that

“the General Assembly enacted {the uranium mining

ban] out of concern for uranium (and, therefore, radio-

logical) safety,” App.69a, because the Commonwealth

“asserted the right to act,” as a formal matter, only on

an “activity or material” — uranium mining — over

which “the AEA is silent and confers no authority,”

App.78a.

The court held that “there is no occasion to inquire

into [the ban’s] purpose.” Jd. PG&E’s clear statements

to the contrary, the court concluded, were nonbinding

dicta that the court was free to ignore. “Rather than

... extrapolating Pacific Gas & Electric Co.’s dicta and

selecting among the opinion’s (at times) seemingly-in-

consistent language, this Court will adhere to the

surer conclusion by scrutinizing the statutes uniquely

before it and addressing their interaction under intel-

ligible and longstanding principles of preemption.”

App.79a.

2. Adivided panel of the Fourth Circuit affirmed.

App.la-20a. The panel majority acknowledged that

Section 2021(k) of the AEA. as construed by this Court

in PG&E, “prohibits states from regulating, for [radio-

logical] safety reasons, activities that are in any way

regulated by the federal government under the Atomic

Energy Act.” App.11la (quotation marks omitted). And

the majority further conceded that “uranium milling

and tailings storage are ‘activities’ under Section

2021(k) because they are regulated by the NRC,” and

“states may therefore not regulate them except for pur-

poses other than protection against radiation haz-

ards.” App.13a-14a.? Moreover, the majority accepted

the Commonwealth’s concession (at least for purposes

of the motion to dismiss) that the purpose of the ban

on uranium mining was to prohibit uranium milling

and tailings storage activities based on radiological

safety concerns. App.10a (“the Commonwealth con-

cedes that it lacks a non-safety rationale for banning

uranium mining”). In short, the majority conceded all

* The majority also addressed whether “uranium mining” it-

self, as opposed to milling and tailings storage, “is an ‘activity’ un-

der Section 2021(k) of the Atomic Energy Act. which ... states

cun't regulate ... for the purpose of protecting against radiation

hazards.” App.8a. The majority ultimately concluded that mining

is not such an activity. App.13a. But that issue does not merit this

Court's review, nor is it necessary to resolve in order to reach the

question presented here, because all agree that milling and tatl-

ings management are “‘activities’ under Section 2021(k!” that

States may not regulate for radiological safety reasons, App.13a.

and it is these activities that, by Virginia’s own admission, its ban

deliberately targets.

of the elements of field preemption under the AEA, and

that should have been the end of the case.

Nevertheless, the majority held that it need not in-

quire into the purpose of Virginia’s mining ban.

App. 14a-15a. Observing that “[t]here are some areas of

law — such as actions arising under the Equa! Protec-

tion Clause of the Fourteenth Amendment” where “we

may conduct a pretext analysis to ascertain a legisla-

ture’s true motive,” the court reasoned that “this is not

such a case” because Petitioners have “not allege[d)

that the Virginia legislature acted with discriminatory

intent. ...” App.15a. Accordingly, because the Com-

monwealth’s statute facially bans only the mining of

uranium and “does not mention uranium milling or

tailings storage,” the majority declined “to look past

the statute’s plain meaning to decipher whether the

legislature was motivated to pass the ban by a desire

to regulate uranium milling [and] tailings.” App.14a.

The majority did not explain how blinding itself to

the Commonwealth’s motivation for the ban could be

reconciled with this Court’s clear, repeated holdings

that the AEA’s preemptive scope is “defined .. . by ref-

erence to the motivation behind the state law,” English,

496 U.S. at 84, and that a state regulation “grounded

in [radiological] safety concerns” thus “falls squarely

within the prohibited field,” PG&E, 461 U.S. at 213.

The majority also declined Petitioners’ urging that

it “follow the paths forged by our sister circuits in Skull

Valley ... and Entergy.” App.16a. The Second and

Tenth Circuits, in those cases, directly repudiated the

proposition that a court could, consistent with this

Court's precedents, “blindly accept the articulated pur-

pose of a state statute,” Entergy, 733 F.3d at 416

(brackets omitted), and permit a Stale to use its au-

thority over activities left within its jurisdiction “as a

means of regulating radiological hazards,” Skull Val-

ley, 376 F.3d at 1248. Both courts based their respec-

tive holdings that the state laws at issue were

preempted on the very “pretext analysis” that the

panel majority here refused to undertake. App. 15a.

While the majority asserted that both cases “are dis-

tinguishable” because the preempted state laws ex-

pressly “targeted” activities within the NRC’s

exclusive jurisdiction, App.16a, this purported distinc-

tion does not bear even minimal scrutiny. See infra at

27-33.

Finally, the majority concluded that the Common-

wealth’s ban was not preempted “as an obstacle to the

full implementation of the objectives of the Atomic En-

ergy Act,” reasoning that the ban could have “little ef-

fect” on the Act’s “stated purpose of promoting the safe

development and use of atomic energy.” App.18a, 19a.

That was so, according to the majority, because “over

ninety percent of the uranium used by the country’s

atomic energy industry is imported,” and in any event,

the AEA “allows the federal government to forcibly ex-

pand the production of domestic source material” by

taking, through eminent domain, any “real property

containing deposits” of uranium. App.19a. The major-

ity did not attempt to reconcile its conclusion with this

Court’s holding that, at least since 1954, Congress has

“determin[ed] that the national interest would be best

served if the Government encouraged the private sec-

tor to become involved in the development of atomic

energy for peaceful purposes under a program of fed-

eral regulation and licensing. .. .” PG&E, 461 US. at

207 (emphasis added).

3. Judge Traxler dissented. This Court’s opinions

in PG&E and English “make[] clear that the AEA

preempts state statutes enacted for the purpose of pro-

tecting against the radiological dangers of activities

the AEA regulates.” App.52a (Traxler, J., dissenting).

And “[blecause the Commonwealth has conceded at

this point in the litigation that its statute was enacted

for just that purpose, the Virginia statute clearly falls

within that prohibited field.” Jd. Indeed, Judge Traxler

noted that this conclusion follows a fortiori from

PG&E, where “California claimed that the moratorium

[at issue] was actually grounded on a non-safety con-

cern.” In contrast, “the Commonwealth makes no such

claim here. Rather, . . . the Commonwealth concedes . . .

that the moratorium is grounded on the Virginia legis-

lature’s concerns regarding the radiological safety of

uranium ore milling and tailings storage.” App.40a-

4la.

The majority departed from this Court’s prece-

dents and created a Circuit conflict, Judge Traxler con-

cluded, by refusing to consider whether the ban was

enacted for preempted purposes simply because “the

substance of Virginia’s law — a ban on conventional

uranium mining — does not conflict with the Act.”

App.39a. Judge Traxler explained that the same was

true of the law at issue in PG&E, yet the Court there

“held [that] a statute’s purpose can itself bring the

statute within the prohibited field.” App.39a (citing

JRE, 461 US. at 213; English, 496 US. at 84). Judge

Traxler further emphasized that, “|ulntil today, each

Court of Appeals addressing the issue since Pacific Gas

has held that state statutes enacted to protect against

the radiological dangers of activities the AEA regu-

lates are preempted regardless of whether the statutory

text reveals that purpose and regardless of whether the

statute expressly prohibits an activity the Act regu-

lates.” App.42a.

The Tenth Circuit’s decision in Skull Valley

squarely held that “regardless of the nature of the ac-

tivity the [challenged] provisions directly addressed,

the applicable preemption analysis ‘requires consider-

ation of the purpose of the allegedly preempted stat-

ute.’” App.43a (quoting Skull Valley, 376 F.3d at 1252

(emphasis added by Judge Traxler)). And the Second

Circuit in Entergy likewise struck down a Vermont law

based on “extra-textual indicia” showing “that radio-

logical safety concerns were the primary purpose for

the statute’s enactment” — despite a statement in “[t]he

text of the Vermont law” that “explicitly declared that

the statute was not grounded in nuclear safety con-

cerns.” App.45a, 46a (quotation marks omitted) (citing

Entergy, 733 F.3d at 417-22). Virginia’s ban falls within

the AEA’s preempted field, Judge Traxler concluded,

under “the very same principles.” App.47a.

Finally, Judge Traxler also would have held that

the Commonwealth’s ban is preempted as an obstacle

to the AEA’s purposes and objectives. The Act’s central

objective “was to ensure that . . . the power of the pri-

vate sector could be unleashed to develop nuclear en-

ergy.” App.47a. But “Virginia, not trusting that the

federal government has sufficiently protected against

the radiological dangers of uranium milling and tail-

ings management, has unilaterally sought to prevent

the involvement of the very private-sector forces that the

Act was designed to unleash.” App.47a-48a.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Directly Contravenes

This Court’s Precedents and Creates a

Conflict in the Circuits.

Notwithstanding this Court’s repeated instruction

that the AEA’s “pre-empted field” is defined, “in part,

by reference to the motivation behind [a challenged]

state law,” English, 496 U.S. at 84, the panel majority

below cast its refusal “to examine why the Common-

wealth chose to ban uranium mining” as “adher[ing] to

the edict that courts will not strike down an otherwise

constitutional statute on the basis of an alleged illicit

legislative motive,” App.15a (quotation marks omit-

ted). Focusing solely on “the Commonwealth’s two-sen-

tence moratorium on uranium mining,” the majority

emphasized that “the plain language of the Common-

wealth’s ban does not mention urauium milling or tail-

ings storage.” App.14a, 17a. And that, according to the

majority, was the end of the case: “[T]he Common-

wealth’s mining ban does not purport to regulate an

activity within the Act’s reach, and thus we need pro-

ceed no further.” App.17a-18a.

The panel majority thus refused “to engage in the

sort of pretext analysis” undertaken by other courts of

appeals “to decipher whether the legislature was moti-

vated to pass the ban by a desire to regulate uranium

milling or tailings storage.” App.14a, 17a. In so doing,

the majority blinded itself to several inconvenient

facts. First, it ignored the fact that the two-sentence

ban on uranium mining was just one part of a statu-

tory scheme that included a lengthy companion provi-

sion requiring an in-depth study of the radiological

safety issues associated with uranium milling and tail-

ings storage. Second, the majority ignored a trial court

record teeming with evidence that the genuine purpose

of the uranium mining ban was to protect the Com-

monwealth against the radiological hazards of ura-

nium milling and tailings storage. Finally, and most

remarkably, the majority blinded itself to the Common-

wealth’s admission (at least for purposes of its motion

to dismiss) that its true motivation for banning ura-

nium mining was to protect against the radiological

hazards of uranium milling and tailings storage. The

majority thus refused to engage in a “pretext analysis”

of the mining ban even in the face of the Common-

wealth’s admission that the ban was in fact a pretext.

The decision below simply cannot be squared with

the AEA or with this Court’s decisions interpreting it.

Nor can the majority's holding be reconciled with the

“Court of Appeals [decisions] addressing the issue

since Pacific Gas,” all of which have “held that state

statutes enacted to protect against the radiological

dangers of activities the AEA regulates are preempted

... regardless of whether the statute expressly prohibits

an activity the Act regulates.” App.42a (Traxler, J., dis-

senting). The Court should grant certiorari to resolve

the conflict in the circuits created by the decision below

on this question of overriding importance to our Na-

tion’s economic and national security.

A. The Decision Below Contravenes This

Court’s Holdings in PG&E and English.

The text of Section 2021(k) of the AEA authorizes

the States “to regulate activities,” including activities

within NRC’s regulatory jurisdiction, “for purposes

other than protection against radiation hazards.” 42

U.S.C. § 2021(k) (emphasis added).* Congress has thus

unambiguously demarcated the scope of the field

preempted by the AEA by reference to the “purposes”

that States may pursue when enacting regulations of

any such activity. See PG&E, 461 U.S. at 210.

This Court’s holding in PG&E cements this under-

standing of the AEA’s preemptive scope. In that case,

California had imposed a “moratorium” on the con-

struction of new nuclear power plants until such time

as a state commission determined that “there has been

* The AEA separately permits States to enter an “agree-

ment” with the NRC permitting them to regulate activities other-

wise subject to exclusive federal regulation, 42 U.S.C. § 2021(b),

but the Commonwealth’s agreement does not extend to uranium

milling or tailings management. App.298a, 301a.

developed . . .a demonstrated technology or means for

the disposal of high-level nuclear waste.” PG&E, 461

US. at 198. In analyzing the validity of that morato-

rium under the AFA, the Court recognized that the Act

did not directly preempt California’s moratorium in ex-

press terms, for it “does not at any point expressly re-

quire the States to construct or authorize nuclear

power plants or prohibit the States from deciding, as

an absolute or conditional matter, not to permit the

construction of any further reactors.” Jd. at 205.

The Court thus turned to the question whether the

State’s regulation “falls within the field that the fed-

eral government has preserved for its own exclusive

control.” Jd. at 204. Quoting Section 2021(k), the Court

held that “the distinction drawn [by the AEA] between

the spheres of activity left respectively to the federal

government and the states” turns on the purpose of the

State regulation. Jd. at 210. While “the States retain

their traditional responsibility in the field of regulat-

ing electrical utilities for determining questions of

need, reliability, cost and other related state concerns,”

the AEA’s text dictated “that the federal government

should regulate the radiological safety aspects in-

volved in the construction and operation of a nuclear

plant.” Id. at 205.

Accordingly, the Court held, “[a] state moratorium

on nuclear construction grounded in safety concerns

falls squarely within the prohibited field,” id. at 213,

even though a State prohibition on the construction of

nuclear power plants for any other reason would not

be preempted. “That being the case, it is necessary to

determine whether there is a non-safety rationale for

|California’s moratorium].” Jd. This Court ultimately

accepted the Ninth Circuit’s determination — based on

a review of the pertinent legislative history — that the

moratorium “was aimed at economic problems, not ra-

diation hazards,” id., and upheld the California stat-

ute.‘

Any doubt about the governing test adopted by

PG&E was eliminated by this Court’s subsequent

opinions. In English, this Court explicitly reaffirmed

PG&E’s holding that “the [AEA’s] pre-empted field is

defined by reference to the purpose of the state law in

question.” 496 U.S. at 84 (emphasis added); accord

Silkwood, 464 U.S. at 249. English emphasized that

courts must determine the law’s purpose “by reference

cet.

* The majority below read PG&E as foreclosing any “search-

ing scrutiny of legislative intent.” App. 15a, pointing to dicta in the

opinion describing the “inquiry into legislative motive” as “often

an unsatisfactory venture.” PG&E, 461 US. at 216; see App.15a.

But the statement from PG&E relied upon by the court below did

not sugyest that the State’s true purpose could be ignored; the

Court merely adverted to the difficulty of ascertaining it and to

the importance of affording some measure of latitude before con-

cluding that “a state has misused the authority left in its hands.”

461 US. at 216. Had the PC&E Court really adopted the panel

majority's stance of willful blindness to a State's genuine motive,

it obviously: (1) would not have erected a test that expressly turns

on whether the challenged law is “grounded in safely concerns,”

id. at 213; (2) would not have stated that “it is necessary to deter-

mine whether there is a non-safety rationale” for the challenged

ban or discussed, at length, the legislative history of the state law,

id. at 213-16; and (3) would have corrected Justice Blackmun’s

characterization of the Court’s opinion as adopting “the elusive

test of legislative motive,” id. at 229 (Blackmun, J., concurring in

part).

to the motivation behind the state law,” and in accord-

ance with “the state law's actual effect.” 496 U.S. at 84.

Thus, courts are not free to blind themselves, as did the

majority below, to evidence (let alone an admission)

that a state law’s truce purpose and effect is to “pro-

tect| | against radiation hazards” of activities that are

subject to regulation by the NRC pursuant to the AEA.

Id. (quoting 42 U.S.C. § 202 1(k)).

B. The Decision Below Conflicts with the

Tenth Circuit’s Holding in Skull Valley.

The Tenth Circuit’s opinion in Skull Valley is di-

rectly contrary to the decision below. The court in that

case struck down a variety of Utah laws designed to

prevent the storage of spent nuclear fuel (“SNF”)

within the State. Although the federal government has

exclusive authority over the radiological safety aspects

of SNF storage, Utah attempted to prevent its storage

within its borders by enacting a series of restrictions

that ostensibly regulated activities that were squarely

within the State’s police power. One provision barred

“counties from providing ‘municipal-type services,’ in-

cluding fire protection, garbage disposal, water, elec-

tricity, and law enforcement, to SNF transportation

and storage facilities within the county.” 376 F.3d at

1245.

It is difficult to conceive of an activity closer to the

heart of a State’s traditional police power — and more

remote from the activities regulated by the NRC — than

the provision of utilities, police and fire protection, and

sewer access. But because Utah’s regulation of those

activities was motivated by radiological safety con-

cerns related to an activity within the NRC’s regula-

tory jurisdiction, the Tenth Circuit concluded that this

regulation of ordinary municipal services fell within

the AEA’s preempted field.

Although it is true that the County Planning

Provisions address law enforcement, fire pro-

tection, waste and garbage collection and

other similar matters that have been tradi-

tionally regulated by local governments, that

fact does not trump the preemption analysis

that the controlling Supreme Court decisions

require us to undertake. Under that analysis,

we consider the purpose and effect of the state

law at issue, and, as a result, a state cannot

use its authority to regulate law enforcement

and other similar matters as a means of regu-

lating radiological hazards.

Id. at 1247-48 (emph » is added).

Another provision adopted by Utah took control of

“the only road permitting access to the [proposed spent

fuel storage] facility ... by designating it as a state

highway,” and then “requirled] the consent of the gov-

ernor and the state legislature” before any “company

engaged in the transportation or storage of SNF” was

allowed to drive on it. Jd. at 1252. The AEA, of course,

does not regulate the use of state roads, and ordinarily

it would not preempt the exercise of a State’s tradi-

tional police power over those roads. But that did not

stop the Tenth Circuit from striking this provision

down.

[Wle are required to follow the preemption

analysis set forth in Pacific Gas, Silkwood,

and English, which requires consideration of

the purpose of the allegedly preempted statute,

along with its effects. Here, the evidence cited

by the district court indicates that the Road

Provisions were enacted in order to prevent

the transportation and storage of SNF in

Utah. ... The record thus establishes that

the Road Provisions were enacted for reasons

of radiological safety and are therefore

preempted.

Id. (emphasis added) (citations omitted).

The panel majority below asserted that Skull Val-

ley is “distinguishable,” App.16a, because the Utah

laws struck down by the Tenth Circuit “surgically tar-

geted the transportation and storage of spent nuclear

fuel” — “an activity regulated by the NRC.” Jd. But Pe-

titioners have alleged, and Respondents concede at

least for purposes of the motion to dismiss before the

Court, that the ban on uranium mining likewise tar-

gets “uranium milling and uranium tailings manage-

ment” based on “the legislature’s radiological safety

concerns.” App.29a (Traxler, J., dissenting). On this

point, the two cases are on all fours.

The panel majority also contended that “unlike

Virginia’s ban on mining, all but two of the challenged

Utah laws specifically mentioned th{e] NRC-regulated

activity” — storage of SNF. App.16a. But this purported

distinction also fails to create any daylight between the

two decisions, for the Tenth Circuit also struck down

the two laws that did not mention SNF. And it did so

based on reasoning that directly repudiates the ap-

proach adopted below. Whereas the majority refused to

“look past the statute’s plain meaning to decipher

whether the legislature was motivated to pass the ban

by [preempted reasons],” App.l14a, the Tenth Circuit

rejected Utah's invitation to adopt that approach, rea-

soning instead that “the controlling Supreme Court de-

cisions require us to. . . consider the purpose and effect

of the state law at issue, and, as a result, a state cannot

use its authority to regulate law enforcement and

other similar matters as a means of regulating radio-

logical hazards.” Skull Valley, 376 F.3d at 1247-48. The

panel majority was thus simply wrong to suggest that

Skull Valley did not “engage in the sort of pretext anal-

ysis that Virginia Uranium presses here.” App.17a.

The majority below further suggested that even

though two of the Utah provisions did not “specifically

mention|]” any “NRC-regulated activity,” those laws

could be distinguished from Virginia’s mining ban be-

cause they “wiere] packaged with ... [other] regula-

tions targeting spent nuclear fuel directly.” App.16a.

But yet again, the same is true of Virginia’s law. The

1983 Act establishing the mining ban in its current

form was “packaged with” other provisions that “tar-

geted” uranium milling and tailings operations di-

rectly. As noted earlier, that Act created a state agency

and tasked it with studying milling and tailings on the

most granular level — from “the capacity of the mill”

and the type of “reagents and processing materials to

be used,” to the “size of the tailings disposal arca” and

its “hydrology, hydrogeology, and surficial and bedrock

geology” — so that it could produce a report detailing

“the costs and benefits” of lifting the ban. Act of Feb.

24, 1983, ch. 3, 1983 Va. Acts 3, App.177a-89a.

Nor was the majority correct in asserting that Vir-

ginia’s ban “pales in comparison to Utah's comprehen-

sive scheme intended to keep spent nuclear fuel out of

the State,” App.17a — at least not with respect to the

comparative likelihood that the two laws would suc-

cessfully prohibit the disfavored activity in the state.

Mining uranium out of the ground is a necessary ante-

cedent to milling it and storing the resulting tailings —

no less than transporting SNF over the only road lead-

ing to the storage facility is a necessary antecedent to

storing it there. By banning the first activity in this

chain of events — uranium mining — Virginia has

achieved its objective — effectively banning uranium

milling and tailings management operations — even

though the regulatory safety aspects of those activities

are regulated exclusively by the NRC pursuant to the

AFA.

After the Tenth Circuit’s decision in Skull Valley,

Utah petitioned this Court for certiorari, and the Court

asked for the views of the Solicitor General on whether

review should be granted. Nielson v. Private Fuel Stor-

age, LLC, 543 U.S. 1047 (2005). The Solicitor General

“wholeheartedly endorsed the Tenth Circuit’s analysis

and took the view that certiorari should be denied.”

App.44a n.16 (Traxler, J., dissenting).

Specifically, the United States’ brief in this Court

rejected Utah’s argument that its “purpose in protect-

ing against radiation hazards does not bring the chal-

lenged legislation within the preempted field.” Brief

for the United States as Amicus Curiae at 12, Nielson

v. Private Fuel Storage, LLC (No. 04-575) (Nov. 2005),

App.316a. The United States reasoned that “there is no

basis for this Court to reconsider” its settled view “that

‘part of the pre-empted field is defined by reference to

the purpose of the state law.’” Jd. (quoting English, 496

US. at 84). The Solicitor General specifically addressed

the provisions of the Utah statute regulating the

State’s roads. Even though the AEA does not regulate

the use of State highways, the Solicitor General agreed

with the Tenth Circuit that the road provisions were

preempted because the State “dofes] not dispute that

the purpose of the[se] . . . provisions is to prevent the

transportation and storage of SNF in Utah,” and “the

legislative history ... confirms that they were based

on health and safety concerns.” Jd. at 17, App.322a

(quotation marks omitted). Accordingly, the Solicitor

General advised that “[fjurther review is not war-

ranted.” Jd. at 6, App.313a. The Court denied certio-

rari. 546 U.S. 1060 (2005).

The short of it is this: if the Fourth Circuit was

correct to conclude, based on the text of the Common-

wealth’s ban, that Virginia is merely regulating ura-

nium mining, then Utah was merely regulating roads

and municipal services, and the Tenth Circuit was

wrong to strike down its laws. But if the Tenth Circuit

was right that the AEA preempted the challenged

Utah laws because they “targeted the transportation

and storage of spent nuclear fuel,” App.1Ga, then the

Fourth Circuit was wrong to uphold the mining ban

because it was conceded for purposes of the motion to

dismiss before the court that the Virginia statute like-

wise targets uranium milling and tailings manage-

ment. There is simply no daylight between the two

cases.

C. The Decision Below Conflicts with the

Second Circuit’s Holding in Entergy.

The opinion below conflicts just as sharply with

the Second Circuit's decision in Entergy. In that case,

the Vermont Legislature had attempted to shut down

a nuclear power plant by adopting a statute providing

that “a nuclear energy generating plant may be oper-

ated in Vermont only with the explicit approval of the

General Assembly.” 733 F.3d at 403. Like the Califor-

nia moratorium at issue in PG&E, this statute on its

face regulated only “the generation, sale, or transmis-

sion of electric power produced through the use of

nuclear facilities,” activities over which the AEA ex-

pressly preserves state authority. 42 U.S.C. § 2018.

Moreover, the Vermont Legislature included in its

statute a declaration specifically stating that the Act’s

purpose was not grounded in radiological safety con-

cerns, but rather was designed to foster a “larger soci-

etal discussion of broader economic and environmental

issues relating to the operation of a nuclear facility in

the state. .. .” Entergy, 733 F.3d at 403. Under PG&E,

all agree that a state law enacted for these non-radio-

logical-safety reasons would not be preempted.

The Second Circuit, however, refused to defer to

the statute’s stated purpose:

We do not blindly accept the articulated pur-

pose of [a state statute] for preemption pur-

poses. If that were the rule, legislatures could

nullify nearly all unwanted federal legislation

by simply publishing a legislative committee

report articulating some state interest or pol-

icy — other than frustration of the federal ob-

jective — that would be tangentially furthered

by the proposed state law.

Id. at 416 (brackets in original) (quotation marks omit-

ted). Instead, PG&E “requires us to conduct a ...

searching review to determine whether a statute was

enacted based upon radiological safety concerns,” id., a

review that included scrutinizing “the statute’s legis-

lative history to determine if it was passed with an im-

permissible motive,” id. at 418. After closely reviewing

the available evidence of legislative motivation, which

revealed that “both state legislators and regulators”

had with “remarkable consistency ... expressed con-

cern about radiological safety and expressed a desire

to evade federal preemption,” the court concluded that

“radiological safety [was] the Vermont legislature’s pri-

mary purpose in enacting the statute.” Jd. at 420. Ac-

cordingly, it struck the statute down.

The decision below conflicts with Entergy’s analy-

sis at every turn. Whereas the Second Circuit refused

to end its “inquiry ... at the text of the statute” and

“blindly accept [its] articulated purpose,” id. at 416, the

panel majority here would not “look past the statute's

plain meaning to decipher” the legislature’s genuine

motivations, App.l4a. Where Entergy conducted a

“searching review to determine whether a statute was

enacted based upon [impermissible] concerns,” 733

F.3d at 416, the Fourth Circuit below “decline[d] to ex-

amine why the Commonwealth chose to ban uranium

mining,” reasoning that “this is not . . . a case” that re-

quires “a more searching scrutiny of legislative intent,”

App. 15a.°

II. Review Is Needed Because the Decision

Below Threatens Critically Important Eco-

nomic and National Security Interests.

“The stakes in this case are significant.” App.21la

(Traxler, J., dissenting). Uranium mined by Petitioners

would be used to fuel the generators that produce one-

fifth of our electricity, to power our military’s nuclear

submarines and aircraft carriers, and to maintain our

arsenal of nuclear weapons. The decision below thus

directly impedes both our Nation’s effort to achieve en-

ergy independence and our national security, and it

threatens to upset the equilibrium that has developed

* The decision below also conflicts with the approach adopted

by the Ninth Circuit — and affirmed by this Court — in PG&E it-

self, which likewise held that the field preempted by the AEA is

defined by the purpose of the state law in question. Pacific Legal

Found. v. State Energy Res. Conservation & Dev. Comm'n, 659 F.2d

903. 922 (9th Cir. 1981), aff'd, PG&E, 461 U.S. 190 (1983).

in the lower courts over the appropriate allocation of

authority over atomic energy more broadly. An issue of

such import must be settled by this Court.

1. At least since 1992, Congress has recognized

“the national need to avoid dependence on imports” of

uranium. 42 U.S.C. § 2296b-6(a). Accordingly, it has

been the policy of the United States for the Govern-

ment to take “a continuing responsibility for the do-

mestic uranium industry to encourage the use of

domestic uranium.” 42 U.S.C. § 2296b-3(a). The Secre-

tary of Energy is required to “report annually” to Con-

gress “on action taken with respect to the domestic

uranium industry,” to “encourage States and utility

regulatory authorities to take into consideration” the

national interest in a healthy domestic uranium indus-

try, and to annually “report to the Congress on the pro-

gress of the Secretary in encouraging actions by State

regulatory authorities” in furtherance of this interest.

Id. §§ 2296b-3(a), 2296b-6(a)-(b).

The United States has repeatedly reiterated the

vital importance of the domestic uranium industry to

the Nation’s energy policy. For instance, a 2011 report

by the Government Accountability Office emphasized

that “|a] healthy and reliable domestic uranium indus-

try is considered essential to ensuring that nuclear

power remains a viable option for supplying the na-

tion’s energy needs.” App.366a-67a. And the Depart-

ment of Energy has likewise _ reaffirmed its

“commit[ment] to the maintenance of a strong domes-

tic uranium industry.” App.357a. By blocking the de-

velopment of the largest natural deposit of uranium in

the United States, the opinion below seriously impedes

these goals.

The decision of the Fourth Circuit also threatens

serious harm to our national security by completely

foreclosing access to the largest uranium deposit in the

United States. As noted above, the United States must

currently rely upon imports for 94 percent of the ura-

nium it consumes, much of which comes from Russia

and its client states. App.352a, 353a. Numerous mem-

bers of Congress have repeatedly stressed that estab-

lishing a domestic source of uranium — and curbing our

reliance or Russian-controlled sources — is a critical

national security imperative. See App.381a (Statement

of Sen. Portman) (“being reliant on foreign countries

including Russia for uranium” is “a national security

issue”); App.383a (Statement of Sen. Barrasso) (indi-

cating that “domestic uranium production is preferable

to being dependent on importing foreign uranium

from countries like Russia”); App.387a (Statement of

Sen. Cassidy) (“national security issues at stake”);

App.390a (letter from Rep. Ros-Lehtinen, Rep. Bachus,

Rep. King, and Rep. McKeon) (Russian control over

uranium supply “could threaten to impair the national

security of the United States”).

2. The Solicitor General has emphasized to this

Court the critical importance of the domestic uranium

industry to the United States’ economic and national

security interests. In urging the Court to review a Fed-

eral Circuit decision in favor of foreign uranium

distributors in an anti-dumping case, the Solicitor

General represented that a reliable domestic uranium

supply was “a matter of compelling importance to U.S.

national security interests,” since uranium is “used to

fuel the government-owned nuclear reactors that

produce tritium, a radioactive isotope necessary to

maintain the U.S. nuclear arsenal,” and — once further

enriched — is also used to fuel “the U.S. Navy’s nuclear-

powered submarines and aircraft carriers.” Petition for

Writ of Certiorari at 30, United States v. Eurodif, S.A.,

No. 07-1059 (Feb. 2008), App.347a-48a. Moreover,

weakening the domestic uranium industry also

“threatens to increase the United States’ dependence

on foreign energy sources.” Jd. at 31, App.349a. The

Court granted certiorari and ultimately reversed the

Federal Circuit’s ruling in favor of the foreign uranium

distributors. United States v. Eurodif S.A., 555 US.

305, 322 (2009). It should grant review here, too, for

the stakes are no less important.

3. Finally, while the impact of this case on the

supply of domestic uranium is alone significant enough

to warrant this Court’s review, the consequences of the

decision below are likely to affect the entire nuclear in-

dustry. The approach to AEA preemption adopted by

the majority would allow state and local governments

to second-guess the NRC’s judgments on a broad range

of issues related to atomic energy and radiological

safety that Congress has committed to its regulatory

authority.

Section 2021(k), as interpreted by this Court in

PG&E, governs the allocation of federal and state au-

thority not only over the uranium industry, but also

over every other matter within the NRC’s regulatory

ambit — including the construction and operation of nu-

clear power plants, 42 U.S.C. § 2133, the storage of

spent nuclear fuel, id. $§ 2073, 2092, 2093, 2111,

9901(b), and the conduct of scientific and medical re-

search into atomic erergy and materials, 42 U.S.C.

$§ 2051, 2053. This case is not the first — nor is it likely

to be the last — in which state or local governments,

based on localist concerns or alarmism, seek to frus-

trate or ban these activities, contrary to the national

interest.

Since this Court’s decision in PG&E, the lower

courts have developed an approach to preemption — ex-

emplified by the decisions in Skull Valley and Entergy

— that largely protects the national interest, as super-

intended by the NRC, against localist interference. See,

e.gz., Entergy, 733 F.3d 393; Skull Valley, 376 F.3d 1223;

Missouri v. Westinghouse Elec., LLC, 487 F. Supp. 2d

1076, 1085-86, 1088 (E.D. Mo. 2007) (consent decree at-

tempting to regulate the radiological safety of nuclear-

site decommissioning preempted); Abraham v. Hodges,

255 F. Supp. 2d 539, 553 (D.S.C. 2002) (state executive

order “prohibiting the transportation of plutonium

within South Carolina” preempted); Northern States

Power Co. v. Prairie Island Mdewakanton Sioux Indian

Cmty., 781 F. Supp. 612, 613 (D. Minn. 1991), aff’d, 991

F.2d 458 (8th Cir. 1993) (striking down tribal ordinance

regulating the transportation of “various radioactive

materials necessary to [a nuclear] power plant’s oper-

ation to and from the plant”); United Nuclear Corp. v.

Cannon, 553 F. Supp. 1220, 1224, 1230-32 (D.R.I. 1982)

(invalidating state’s attempt to impose $10 million

bond requirement on company engaged in radioactive

site decommissioning).

The panel majority’s ruling upends this equilib-

rium. Under the approach adopted below, a state or city

may freely override the better judgment of the NRC

concerning the radiological safety of any activity Con-

gress has authorized that agency to regulate exclu-

sively merely by pretextually regulating a related

activity that is facially within the local government’s

jurisdiction. So long as such a law “does not purport to

regulate an activity within the [AEA]’s reach,” the

Fourth Circuit’s holding bars courts from “conduct{ing]

a pretext analysis to ascertain [the] legislature’s true

motive.” App.15a, 18a; but see Skull Valley, 376 F.3d at

1253. Under the approach adopted below, courts may

not “look past the statute’s plain meaning to decipher

whether the legislature was motivated” by radiological

safety concerns. App.14a; but see Entergy, 733 F.3d at

416. But Congress has entrusted the NRC alone to

make the expert judgments necessary to balance the

twin national interests in utilizing atomic energy to

advance vital national security and energy policies

while at the same time ensuring the “protect{ion of]

the health and safety of the public.” 42 U.S.C. § 2012(e).

CONCLUSION

For the reasons set forth above, the Court should

grant the petition for writ of certiorari.

April 21, 2017 Respectfully submitted,

CHARLES J. COOPER

Counsel of Record

MICHAEL W. KIRK

JOHN D. OHLENDORF

Cooper & Kirk, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

ccooper@cooperkirk.com

Counsel for Petitioners

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Fourth Circuit, Virginia Uranium, Inc.

v. Warren, No. 16-1005 (Feb. 17, 2017) .........0.00...... la

Opinion of the United States District Court for

the Western District of Virginia, Virginia Ura-

nium, Inc. v. McAuliffe, No. 4:15-cv-31 (Dec. 2,

ED watencccpsccniviedrvisenencesnenbosieineteiedeaiammenaaa nen 53a

Constitutional Provisions and Statutes Involved

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42 U.S.C.

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TABLE OF CONTENTS -— Continued

Page

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Va. Cops § 45.1-161.292:30 ................................ 168a

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Act of Feb. 20, 1981, H.J. Res. 324, 1981 Va.

ili

TABLE OF CONTENTS — Continued

Act of Apr. 7, 1982, ch. 269, 1982 Va. Acts

Act of Feb. 24, 1983, ch. 3, 1983 Va. Acts 3........

Complaint for Declaratory and Injunctive Relief,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

Es Ss i HD ekcccinccnnticdcnnscnsanepanietinaientennes

Appendix to Combined Brief in Opposition to

Defendants’ Motion to Dismiss and in Support

of Plaintiffs’ Cross-Motion for Summary Judg-

ment, Virginia Uranium, Inc. v. McAuliffe, No.

4:35 -CP-S1 Goagt. 11, BOIS) ...ccccscoccceccsccpcocescccccees

An Agreement Between the United States Nu-

clear Regulatory Comm’n and the Common-

wealth of Va. for the Discontinuance of

Certain Comm’n Regulatory Auth. and Re-

sponsibility Within the Commonwealth Pur-

suant to Section 274 of the Atomic Energy Act

of 1954, As Amended (Mar. 18, 2009) ................

Excerpts from Brief for the United States as

Amicus Curiae, Nielson v. Private Fuel Stor-

age, LLC, No. 04-575 (U.S. Sept. 2005)..............

Excerpts from Petition for a Writ of Certiorari,

United States v. Eurodif, S.A., No. 07-1059

NI IIIT actsdinctnishistensatncsiigeraniiendaliscbaesabantdl.

Excerpts from U.S. ENercy Inro. ADMIN., 2015

URANIUM MKTG. ANNUAL REPORT (2016)............

Excerpts from U.S. Dep’t or ENERGY, EXCESS

URANIUM INVENTORY MANAGEMENT PLAN

RASTER ES AC ea qundlinipssitinnioiguinies

TABLE OF CONTENTS — Continued

Page

Excerpts from Gov’ ACCOUNTABILITY OFFICE,

Excess URANIUM INVENTORIES (2011) ................. 362a

Excerpts from S. Rep. No. 1211 (1946).................. 372a

Excerpts from Hearings on H.R. 4280 Before the

H. Comm. on Military Affairs, 79th Cong.

Excerpts from Hearing on the Nomination of

Rick Perry to be Sec’y of Energy Before the S.

Comm. on Energy & Nat Res., 115th Cong.

Excerpts from Hearing on the Nomination of Al-

lison MacFarlane to be Chairman of the Nu-

clear Regulatory Comm'n Before the S. Comm.

on Envt & Pub. Works, 112th Cong. (2012)........ 383a

Excerpts from Hearing on the Administration’s

Quadrennial Energy Rev. Before the S. Comm.

un Energy & Nat. Res., 114th Cong. (2015)........ 386a

Letter from Ileana Ros-Lehtinen, Spencer

Bachus, Peter King, & Howard P. McKeon,

Members, U.S. House of Representatives, to

Timothy F. Geithner, Secretary, U.S. Dep’t of

the Treasury (Oct. 5, 2010) .........0........ceceeeeeee eee 390a

James Conca, America’s Navy: The Unsung

Heroes of Nuclear Energy, FoRBES (Oct. 28,

EAR ARETE A SIERO R LL FST aS Tira ES 397a

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1005

VIRGINIA URANIUM, INC.; COLES HILL, LLC;

BOWEN MINERALS, LLC;

VIRGINIA ENERGY RESOURCES, INC.,

Plaintiffs-Appellants,

JOHN WARREN, in his official capacity as Director of

the Virginia Department of Mines, Minerals and En-

ergy; BRADLEY C. LAMBERT, in his official capacity

as Deputy Director of the Virginia Department of

Mines, Minerals and Energy; JAMES P. SKORUPA, in

his official capacity as Director of the Virginia Depart-

ment of Mines, Minerals and Energy’s Division of Min-

eral Mining,

Defendants-Appellees,

and

TERRY MCAULIFFE, in his official capacity as Gov-

ernor of Virginia: MAURICE JONES, in his official ca-

pacity as Virginia Secretary of Commerce and Trade:

MOLLY J. WARD, in her official capacity as Virginia

Secretary of Natural Resources; DAVID K. PAYLOR,

in his official capacity as Director of the Virginia De-

partment of Environmental Quality: ROBERT J.

WELD, in his official capacity as Regional Director of

the Department of Environmental Quality’s Blue

Ridge Regional Office; MICHAEL DOWD, in his offi-

cial capacity as Director of the Virginia Department of

Environmental Quality’s Air Division; MELANIE D.

DAVENPORT, in her official capacity as Director of the

Virginia Department of Environmental Quality’s Wa-

ter Permitting Division; JUSTIN WILLIAMS, in his of-

ficial capacity as Director of the Virginia Department

of Environmental Quality’s Division of Land Protec-

tion and Revitalization,

Defendants.

THE NUCLEAR ENERGY INSTITUTE,

Amicus Curiae,

ROANOKE RIVER BASIN ASSOCIATION;

DAN RIVER BASIN ASSOCIATION,

Amici Supporting Appellees.

Appeal from the United States District Court for the

Western District of Virginia, at Danville. Jackson L.

Kiser, Senior District Judge. (4:15-cv-00031-JLK-RSB)

Argued: October 28,2016 Decided: February 17, 2017

Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.

Aftirmed by published opinion. Judge Diaz wrote the

majority opinion, in which Judge [larris joined. Judge

Traxler wrote a dissenting opinion.

ARGUED: Charles J. Cooper, COOPER & KIRK,

PLLC, Washington, D.C., for Appellants. Stuart Alan

Raphael, OFFICE OF THE ATTORNEY GENERAL

OF VIRGINIA, Richmond, Virginia, for Appellees. ON

BRIEF: Michael W. Kirk, John D. Ohlendorf, COOPER

& KIRK, PLLC, Washington, D.C., for Appellants.

Mark R. Herring, Attorney General of Virginia, Rhodes

B. Ritenour, Deputy Attorney General. Jonathan Dun-

can Pitchford, Assistant Attorney General, Matthew R.

McGuire, Assistant Attorney General, Trevor S. Cox,

Deputy Solicitor General, OFFICE OF THE ATTOR-

NEY GENERAL OF VIRGINIA, Richmond, Virginia,

for Appellees. William C. Cleveland, Caleb A. Jaffe,

SOUTHERN ENVIRONMENTAL LAW CENTER,

Charlottesville, Virginia, for Amici Roanoke River Ba-

sin Association and Dan River Basin Association. Peter

C. Meier, PAUL HASTINGS LLP, San Francisco, Cali-

fornia; Ellen C. Ginsberg, Jonathan M. Rund, Anne W.

Cottingham, NUCLEAR ENERGY INSTITUTE,

Washington, D.C., for Amicus Nuclear Energy Insti-

tute.

DIAZ, Circuit Judge:

Virginia Uranium, Inc., Coles Hill, LLC, Bowen

Minerals, LLC, and Virginia Energy Resources, Inc.

(collectively “Virginia Uranium”) appeal the district

court’s dismissal of their complaint for failure to state

a claim upon which relief can be granted. Because we

agree with the district court that federal law does not

preempt state regulation of conventional uranium

mining, we affirm.

The federal Atomic Energy Act (““AEA” or “Act”)

regulates several aspects of nuclear power generation

in the United States, including “source material” such

as uranium. 42 U.S.C. §§ 2011, 2014(z). The Nuclear

Regulatory Commission (“NRC”) enforces the provi-

sions of the Act. Jd. §§ 2201, 580' %841

Uranium is the predominant source of fuel for nu-

clear power plants and fissile material for nuclear war-

heads. Uranium ore can be recovered from a deposit

either through in situ leaching or by conventional min-

ing such as an open-pit or underground mine.'

Once removed from the ground, uranium ore is

milled into a refined product called “yellowcake.” Yel-

lowcake can be used to make nuclear fuel, but the re-

maining unused material — known as “tailings” — is

radioactive and must be stored securely.

' In situ leaching is a process by which chemicals are

pumped through drilled wells into uranium deposits, altering the

ore and pumping a uranium solution back to the surface.

In the early 1980s, a uranium deposit was discov-

ered in Pittsylvania County, Virginia on land owned by

Coles Hill, LLC and Bowen Minerals, LLC. Containing

119 million pounds of uranium ore, the Coles FIill de-

posit was then (and remains) the largest known ura-

nium deposit in the United States.

The Virginia General Assembly reacted to this dis-

covery by calling for the state Coal and Energy Com-

mission to “evaluate the environmental effects .. . and

any possible detriments to the health, safety, and wel-

fare of Virginia citizens which may result from ura-

nium exploration, mining or milling.” 1981 Va. Acts

1404. Before the Commission coinpleted its report,

however, the General Assembly imposed a moratorium

(or “ban”) on uranium mining “until a program for per-

mitting uranium mining is established by statute.” Va.

Code Ann. § 45.1-283.

The Commission ultimately reported to the Gover-

nor and General Assembly in 1985 that the state could

lift “the moratorium on uranium development” if it fol-

lowed “essential specific recommendations ... of the

task force” and enacted laws to tightly regulate the in-

dustry. J.A. 534-38. The recommendations included

limiting public exposure to radiation, issuing mill and

tailings licenses in cooperation with the NRC, and reg-

ulating hazardous waste. The benefits of uranium min-

ing in Virginia, the Commission found, “outweighed

the costs 26 to 1.” J.A. 543. Despite the Commission’s

recommendation, the General Assembly did not move

to lift the moratorium.

In January 2013, Virginia State Senators John

Watkins and Richard Saslaw sponsored a bill to create

a licensing scheme for the issuance of uranium mining

permits. The bill was never voted on, and was later

withdrawn. To date, no such program has been estab-

lished, and the ban remains in effect.

Stymied in its efforts to mine the Coles Hill de-

posit, Virginia Uranium brought suit in the United

States District Court for the Western District of Vir-

ginia, asking the court to declare the ban preempted

by federal law and issue an injunction compelling the

Commonwealth to grant uranium mining permits.

The Defendant Commonwealth of Virginia offi-

cials (collectively the “Commonwealth”) moved to dis-

miss the Plaintiffs’ complaint, and Virginia Uranium

moved for summary judgment. The district court

granted the Commonwealth’s motion and dismissed

the complaint. The court found that federal law (spe-

cifically the Atomic Energy Act) “does not . . . regulate

nonfederal uranium deposits or their conventional

mining.” Virginia Uranium, Inc. v. McAuliffe, 147

F. Supp. 3d 462, 471 (W.D. Va. 2015). Finding that the

Act does not commit conventional uranium mining to

the NRC’s authority, the district court distinguished

the instant case from Supreme Court precedent requir-

ing states to have a non-safety rationale to regulate ac-

tivities within the NRC’s purview. The district court

further held that Virginia’s ban “does not obstruct the

realization of Congress’ purposes and objectives be-

hind the [Act]” because Congress “evinced no purpose

or objective that nonfederal uranium deposits be con-

yentionally mined.” Id. at 477.

This appeal followed.

II.

We review de novo the district court’s conclusion

that the Atomic Energy Act does not preempt Vir-

ginia’s ban on uranium mining. Epps v. JP Morgan

Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012).

State laws may be preempted by federal law under the

Supremacy Clause, which provides that “[t]his Consti-

tution, and the Laws of the United States which shall

be made in Pursuance thereof. . . shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

U.S. Const. art. VI, cl. 2.

“(The first and fundamental question in any pre-

emption analysis is whether Congress intended to dis-

place state law... .” Wardair Canada, Inc. v. Fla. Dep’t

of Revenue, 477 U.S. 1, 6 (1986). Congressional intent

to “supercede state law ... may be found from a

scheme of federal regulation so pervasive as to make

reasonable the inference that Congress left no room to

supplement it,” otherwise known as “field” preemption.

Pacific Gas & Elec. Co. v. State Energy Resources Con-

servation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983)

(internal quotation marks omitted). State law may also

be preempted as in “conflict” with federal law when it

“stands as an obstacle to the accomplishment and exe-

cution of the full purposes and objectives of Congress.”

Id. at 204 (citing Hines v. Davidowitz, 312 U.S. 52, 67

(1941)).

Virginia Uranium offers three reasons why the

Atomic Energy Act preempts Virginia’s ban on ura-

nium mining. First, it urges that conventional ura-

nium mining is an “activity” under Section 2021(k) of

the Act and that the Commonwealth therefore may not

regulate it out of concern for radiological safety. Sec-

ond, it contends that even if uranium mining is not a

regulated “activitv” under the Act, uranium-ore milling

and tailings storage are regulated activities, and be-

cause the Virginia legislature intended to and does

regulate those activities, the ban is therefore

preempted. Finally, Virginia Uranium says that the

ban is preempted because it’s an obstacle to the full

implementation of the Act’s objectives. We address

these arguments in turn.

We begin with Virginia Uranium’s claim that con-

ventional uranium mining is an “activity” under Sec-

tion 2021(k) of the Atomic Energy Act, which in turn

means that states can’t regulate such mining for the

purpose of protecting against radiation hazards. Sec-

tion 2021 of the Act, entitled “Cooperation with States,”

outlines “the respective responsibilities ... of the

States and the [Nuclear Regulatory] Commission with

respect to the regulation of byproduct, source, and spe-

cial nuclear materials.” 42 U.S.C. § 2021(a). Subsection

(k) reserves to the states the right to “regulate activi-

ties for purposes other than protection against radia-

tion hazards.” /d. § 2021(k).

In Pacific Gas, the Supreme Court interpreted this

provision as establishing the bounds of the Act’s

preemptive reach. Specifically, the Court instructed

that “the test of pre-emption is whether the matter on

which the state asserts the right to act is in any way

regulated by the federal government.” Pacific Gas, 461

U.S. at 213 (internal citations omitted). If a state pur-

ports to regulate an activity that is also regulated by

the Act, a court must “determine whether there is a

non-safety rationale” for the state rule. Jd. If there is

not, then the state law is preempted.

The Court in Pacific Gas addressed California reg-

ulations imposing conditions on the construction of

new nuclear power plants in the state. Utilities seek-

ing to construct nuclear plants in California had to ob-

tain permission from the State Energy Resources and

Conservation Commission. Id. at 197. But the Commis-

sion would only grant a permit to build if it determined

that there was “adequate capacity” for storage of spent

fuel rods and that the utility would provide “continu-

ous, on-site, full core reserve storage capacity.” Jd. at

197-98 (internal quotation marks omitted). In passing

these regulations, the California legislature denied

that they were “designed to provide protection against

radiation hazards” but instead were “adopted because

‘uncertainties in the nuclear fuel cycle [made] nuclear

10a

power an uneconomical and uncertain source of en-

ergy. ” Id. at 199-200.

The California regulations, the Court held, fell

“squarely within the prohibited field.” Jd. at 213.” After

considering arguments for why the regulations might

have been enacted for safety (as opposed to economic)

reasons, the Court opted against “attempting to ascer-

tain California’s true motive” and instead “accept|ed]

California’s avowed economic purpose.” Jd. at 216. Be-

cause the regulations had a non-safety rationale, the

Atomic Energy Act did not preempt them. /d.

Here, the Commonwealth concedes that it lacks a

non-safety rationale for banning uranium mining but

says that Section 2021(k) does not apply to the ban be-

cause conventional uranium mining isn’t an activity

regulated by the NRC. To test this contention, we as-

sess whether the term “activities” within Section

2021(k) of the Act encompasses all activities states

may regulate or merely, as the Commonwealth con-

tends, “activities regulated by the [Nuclear Regula-

tory! Commission.” Appellees’ Br. at 35.

The Supreme Court addressed this precise ques-

tion in Pacific Gas and sided with the limited reading

of Section 2021(k) pressed by the Commonwealth here.

As we noted earlier, there, the Court explained that

* As the district court in the instant case noted when discuss-

ing Pacific Gas. the construction of a nuclear power plant is an

activity “clearly committed to the NRC's regulatory authority.”

Virginia Uranium, 147 F. Supp. 3d at 476 (citing 42 U.S.C.

§ 2021(cX1)).

lla

“the federal government has occupied the entire field

of nuclear safety concerns,” but the bounds of that field

are measured by looking to whether “the matter on

which the state asserts the right to act is in any way

regulated by the federal government.” Pacific Gas, 461

US. at 212-13 (internal citations omitted); see also id.

at 209-10 (“[SJection [2021) was not intended to cut-

back on pre-existing state authority outside the NRC’s

jurisdiction.”). Section 2021(k) therefore prohibits

states from regulating, for safety reasons, activities

that are “in any way regulated” by the federal govern-

ment under the Atomic Energy Act. We agree with the

district court that conventional uranium mining is not

such an activity.

The Act explicitly grants the NRC authority to

regulate uranium mining on federal lands, but it says

nothing about the Commission’s power to regulate con-

ventional uranium mining elsewhere. 42 U.S.C. § 2097.

Section 2092 of the Act requires individuals to obtain

an NRC license to “transfer, deliver, jor] receive posses-

sion of ... any source material after removal from its

place of deposit in nature.” 42 U.S.C. § 2092 (emphasis

added). Importantly, the NRC reads this provision as

“precluding [Commission] jurisdiction over uranium

mining.” In re. Hydro Resources, Inc., 63 N.R.C. 510,

512-13 (2006). Similarly, the NRC justifies regulating

in situ mining by describing the method as “pro-

cessing” uranium, over which the Commission has au-

thority. Jd.

When Congress has not “directly spoken to the

precise question at issue,” we defer to a federal

10a

power an uneconomical and uncertain source of en-

ergy. ” Id. at 199-200.

The California regulations, the Court held, fell

“squarely within the prohibited field.” Jd. at 213.? After

considering arguments for why the regulations might

have been enacted for safety (as opposed to economic)

reasons, the Court opted against “attempting to ascer-

tain California’s true motive” and instead “acceptied]

California’s avowed economic purpose.” Jd. at 216. Be-

cause the regulations had a non-safety rationale, the

Atomic Energy Act did not preempt them. /d.

Here, the Commonwealth concedes that it lacks a

non-safety rationale for banning uranium mining but

says that Section 2021(k) does not apply to the ban be-

cause conventional uranium mining isn’t an activity

regulated by the NRC. To test this contention, we as-

sess whether the term “activities” within Section

2021(k) of the Act encompasses all activities states

may regulate or merely, as the Commonwealth con-

tends, “activities regulated by the [Nuclear Regula-

tory] Commission.” Appellees’ Br. at 35.

The Supreme Court addressed this precise ques-

tion in Pacific Gas and sided with the limited reading

of Section 2021(k) pressed by the Commonwealth here.

As we noted earlier, there, the Court explained that

? As the district court in the instant case noted when discuss-

ing Pacific Gas, the construction of a nuclear power plant is an

activity “clearly committed to the NRC's regulatory authority.”

Virginia Uranium. 147 F. Supp. 3d at 476 (citing 42 USC.

§ 2021(cX1)).

lla

“the federal government has occupied the entire field

of nuclear safety concerns,” but the bounds of that field

are measured by looking to whether “the matter on

which the state asserts the right to act is in any way

regulated by the federal government.” Pacific Gas, 461

US. at 212-13 (internal citations omitted); see also id.

at 209-10 (“[SJection [2021] was not intended to cut-

back on pre-existing state authority outside the NRC’s

jurisdiction.”). Section 2021(k) therefore prohibits

states from regulating, for safety reasons, activitics

that are “in any way regulated” by the federal govern-

ment under the Atomic Energy Act. We agree with the

district court that conventional uranium mining is not

such an activity.

The Act explicitly grants the NRC authority to

regulate uranium mining on federal lands, but it says

nothing about the Commission’s power to regulate con-

ventional uranium mining elsewhere. 42 U.S.C. § 2097.

Section 2092 of the Act requires individuals to obtain

an NRC license to “transfer, deliver, [or] receive posses-

sion of ... any source material after removal from its

place of deposit in nature.” 42 U.S.C. § 2092 (emphasis

added). Importantly, the NRC reads this provision as

“precluding [Commission] jurisdiction over uranium

mining.” In re. Hydro Resources, Inc., 63 N.R.C. 510,

512-13 (2006). Similarly, the NRC justifies reguiating

in situ mining by describing the method as “pro-

cessing” uranium, over which the Commission has au-

thority. Id.

When Congress has not “directly spoken to the

precise question at issue,” we defer to a federal

12a

agency's reasonable interpretation of a congressional

act that the agency is charged with administering.

Nati Labor Relations Bd. v. Bluefield Hosp. Co., 821

F.3d 534, 542 (4th Cir. 2016) (citing Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44

(1984)). The Atomic Energy Act grants the NRC au-

thority to enforce and promulgate rules under the Act.

42 U.S.C. § 2201. Federal law is silent on conventional

uranium mining outside of federal lands, and the NRC

reads this gap in the Act’s language to mean that the

Commission lacks the power to regulate it.

This interpretation is reasonable in the context of

the Act. Congress explicitly gave the NRC power to

regulate conventional uranium mining on federal

lands and to govern what happens to source material

“after its removal from its place of deposit in nature.”

Id. §§ 2902, 2907 (emphasis added). We think it logical

to assume that, by expressly granting the NRC some

authority over source material, Congress did not in-

tend to implicitly grant broader authority. See Barn-

hart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)

(explaining that the canon of expressio unius est exclu-

sio alterius may apply where “it is fair to suppose that

Congress considered the unnamed possibility and

meant to say no to it”).

Additionally, the power to regulate mining — in-

cluding uranium mining — has traditionally been re-

served to the states. See In re Hydro Resources, 63

N.R.C. at 513. We assume that is where it remains un-

less Congress evinces a “clear and manifest purpose”

to supersede “the historic police powers of the States.”

l3a

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Med-

sronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Nothing

in the AEA indicates that Congress meant for the NRC

to displace the states in regulating conventional ura-

nium mining — the Act is silent on the matter.

Indeed, accepting Virginia Uranium’s more expan-

sive reading of Section 2021(k)’s preemptive reach

would mean that entities could mine free of govern-

ment oversight. The states could not regulate and, on

the NRC’s (reasonable) view of the Act, it too would be

a passive spectator. That cannot be the law. Rather, be-

cause conventional uranium mining outside of federal

lands is beyond the regulatory ambit of the Nuclear

Regulatory Commission, it is not an “activity” under

Section 2021(k) of the Act. As a result, the district court

was correct to hold that Virginia’s ban on conventional

uranium mining is not preempted.

Virginia Uranium next contends that, even if con-

ventional uranium mining is not an “activity” under

Section 2021(k) of the Act, uranium-ore milling and

tailings storage are such activities. Because the ban,

according to Virginia Uranium, impermissibly at-

tempts to regulate and has the effect of prohibiting

those activities for nuclear safety reasons, it is pre-

empted.

We agree that uranium milling and tailings stor-

age are “activities” under Section 2021(k) because they

~ are regulated by the NRC, and states may therefore

l4a

not regulate them except for purposes other than pro-

tection against radiation hazards. See 42 U.S.C.

§§ 2021, 5842, 7918-19; 10 C.F._R. § 40.3; see also supra

Part IL.A. But the plain language of the Common-

wealth’s ban does not mention uranium milling or tail-

ings storage. Va. Code Ann. § 45.1-283 (“[Plermit

applications for uranium mining shall not be accepted

by any agency of the Commonwealth. . . .”).

In the face of this telling omission, Virginia Ura-

nium argues that no one “would want to undertake the

pointless expense of constructing a mill and tailings-

management complex in Virginia and transporting

out-of-state uranium [ore] into the Commonwealth.”

Reply Br. at 20. Given this economic reality, Virginia

Uranium urges us to look past the statute’s plain

meaning to decipher whether the legislature was mo-

tivated to pass the ban by a desire to regulate uranium

milling or tailings storage. We decline the invitation.

In Pacific Gas, the Court warned against the “un-

satisfactory venture” of “inquiry into legislative mo-

tive.” 461 U.S. at 216 (citing United States v. O’Brien,

391 US. 367, 383 (1968)). The Court reasoned that,

when dealing with provisions such as Section 2021(k)

that allow states to enact laws for some purposes but

not others, it is “pointless” for courts to invalidate stat-

utes that may then be reenacted with a different mo-

tive. Id. Rather, “it should be up to Congress to

determine whether a State has misused the authority

left in its hands.” Id. And even if motive inquiry were

useful, the Court noted that legislative intent is often

impossible to discern because “[wlhat motivates one

l5a

legislator to vote for a statute is not necessarily what

motivates scores of others to enact it.” Id.

There are some areas of law — such as actions aris-

ing under the Equal Protection Clause of the Four-

teenth Amendment — where a Icgislature’s improper

motive itself is cause for courts to find a law unconsti-

tutional. In those cases, we may conduct a pretext

analysis to ascertain a legislature’s true motive. See,

vg. United States v. Windsor, 133 S. Ct. 2675, 2693

(2013)(striking down an act of Congress because it was

“motived by an improper animus”); North Carolina

State Conference of NAACP v. McCrory, 831 F.3d 204,

220 (4th Cir. 2016) (A law is invalid under the Equal

Protection Clause if a “discriminatory purpose was .. .

a motivating factor” or if “the legislature enactled] a

law ‘because of,’ and not ‘in spite of, its discriminatory

effect.” (internal citations omitted)). We do so in those

contexts because a more searching scrutiny of legisla-

tive intent is needed in order to avoid the “circum-

ventilon] [of] a federally protected right.” Gomillion v.

Lightfoot, 364 U.S. 339, 347 (1960).

But this is not such a case. Because Virginia Ura-

nium does not allege that the Virginia legislature acted

with discriminatory intent, we adhere to the edict that

courts “will not strike down an otherwise constitu-

tional statute on the basis of an alleged illicit legisla-

tive motive,” and we decline to examine why the

Commonwealth chose to ban uranium mining, which it

was plainly allowed to do. O’Brien, 391 U.S. at 383.

16a

Virginia Uranium urges us to follow the paths

forged by our sister circuits in Skull Valley Band of

Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir.

2004), and Entergy Nuclear Vermont Yankee, LLC uv.

Shumlin, 733 F.3d 393 (2d Cir. 2013). While the courts

there did strike down state laws as preempted under

the AEA, the cases are distinguishable.

In Skull Valley, Plaintiffs challenged a host of

Utah laws that, while facially within the state’s police

powers, surgically targeted the transportation and

storage of spent nuclear fuel. 376 F.3d at 1228-30.

Spent nuclear fuel storage, the Tenth Circuit found, is

an activity regulated by the NRC. /d. at 1242. More-

over, unlike Virginia’s ban on mining, all but two of the

challenged Utah laws specifically mentioned this

NRC-regulated activity. Jd. at 1245-51, 1253-54.

One subset of changes to Utah’s laws purported to

focus solely on transportation by designating certain

local roads near the site of a proposed spent nuclear

fuel storage facility as “statewide public safety interest

highways” and turning control over them to the state.

Id. at 1251-52. But even this change in the law was

packaged with two other transportation regulations

targeting spent nuclear fuel directly. The first called

for state resolution of “disputes arising out of the re-

quest to construct a railroad crossing made by an en-

tity engaged in [spent nuclear fuel] storage and

transportation,” and the second required the “consent

of the governor and the state legislature before the De-

partment of Transportation [could] grant a right of

17a

way to a company engaged in the transportation or

storage of [spent nuclear fucl].” Jd.

Not surprisingly, the Tenth Circuit felt no need to

engage in the sort of pretext analysis that Virginia

Uranium presses here to hold that Utah was purport-

ing to govern an NRC-regulated activity. Indeed, the

Commonwealth’s two-sentence moratorium on ura-

nium mining (an activity not regulated by the NRC)

pales in comparison to Utah’s comprehensive scheme

intended to keep spent nuclear fuel out of the state by

any means.

The Second Circuit's decision in Entergy, on the

other hand, is a straightforward application of Pacific

Gas. Vermont law required the “explicit approval of the

General Assembly” in order to operate a nuclear en-

ergy plant within the state. Entergy, 733 F.3d at 403.

The Second Circuit sought to determine the Vermont

legislature’s intent only after holding that the chal-

lenged law regulated an “activity” — the operation of

nuclear power plants — within the meaning of Section

2021(k) of the Atomic Energy Act. Jd. at 415. Applying

Pacific Gas, it was then the court’s duty to determine

whether the state was “impermissibl{y] motiv{ated]”

by nuclear safety concerns. Jd. at 418-19.

) The Second Circuit held that “the Vermont Legis-

lature was improperly motivated by concerns relating

to radiological safety in enacting” the challenged law,

and therefore, the statute was “preempted on its face

by the Atomic Energy Act.” Jd. at 422. In contrast, the

18a

Commonwealth’s mining ban does not purport to reg-

ulate an activity within the Act’s reach, and thus we

need proceed no further.

Finally, Virginia Uranium contends that the Com-

monwealth’s ban on conventional mining is preempted

as an obstacle to the full implementation of the objec-

tives of the Atomic Energy Act. We will find state laws

preempted as in conflict with federal law if the state

law “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). But

we do not easily find preemption; rather we start with

“the assumption that the historic police powers of the

States [are not] superseded by [Federal law] unless

that was the clear and manifest purpose of Congress.”

Wyeth, 555 U.S. at 565 (quoting Medtronic, 518 US. at

485).

Determining whether a state law “stands as an ob-

stacle” to federal law is a two-step process. First, we

determine Congress’s “significant objective[s]” in pass-

ing the federal law. Williamson v. Mazda Motor of

America, Inc., 562 U.S. 323, 330 (2011). We then turn

to whether the state law stands “as an obstacle to the

accomplishment of a significant federal regulatory ob-

jective.” Id. (internal citations omitted).

Here, the parties do not dispute the Atomic Energy

Act’s stated purpose of promoting the safe develop-

ment and use of atomic energy. 42 U.S.C. § 2012; see

19a

also Pacific Gas, 461 U.S. at 221 (“There is little doubt

that a primary purpose of the [Act] was, and continues

to be, the promotion of nuclear power.”). Virginia Ura-

nium claims that the Commonwealth has created an

obstacle to that Congressional purpose by banning

uranium mining outright. It asks us to “imagine what

would become of Congress’s desire to encourage the de-

velopment and use of uranium if all 50 states enacted

similar legislation.” Appellants’ Br. at 56.

In fact, this hypothetical nationwide web of min-

ing bans would have little effect. Why? For starters,

over ninety percent of the uranium used by the coun-

try’s atomic-energy industry is imported, so state bans

on domestic production would have negligible effect.

Moreover, as of 2015, eighteen domestic uranium re-

covery facilities ~ those that either use in situ leaching

or are located on federal lands — are licensed by the

NRC and thus beyond the reach of any state bans. Fi-

nally, if push comes to shove, the Atomic Energy Act

allows the federal government to forcibly expand the

production of domestic source material: The NRC may

“purchase, condemn, or otherwise acquire ... real

property containing deposits of source material.” 42

U.S.C. § 2096. In sum, Congress’s purposes and objec-

tives in passing the Act are not materially affected by

the Commonwealth’s ban on conventional uranium

mining. The district court properly dismissed this case.

20a

LIT.

For the reasons given, we affirm the district

court’s judgment.

AFFIRMED

TRAXLER, Circuit Judge, dissenting:

At issue in this case is Virginia’s right to ban

the mining of uranium because of radiological safety

concerns regarding uranium milling and tailings man-

agement. While Virginia’s apprehension is certainly

understandable, in my view Congress has taken away

a state’s ability to limit mining for this particular rea-

son.

Under the federal Atomic Energy Act of 1954 (the

“Act” or the “AEA”), see 42 U.S.C. § 2011 et seq., as

amended, the federal government assumed responsi-

bility for establishing a regime to make the develop-

ment of nuclear energy safe enough that the powerful

forces of the private sector could be unleashed to de-

velop that energy to the maximum extent possible. The

Supreme Court in Pacific Gas held that Congress in-

tended that the federal government would exc/usively

occupy the field of radiological safety concerns regard-

ing the activities the Act regulates and, indeed, that

this exclusivity is central to the Act’s objectives. If Vir-

ginia sought to limit the occurrence of AEA-regulated

activities based on its own radiological safety concerns

— and Virginia has not disputed that it did — that action

2Zla

represents a clear encroachment into the preempted

field.

Virginia’s foray into this prohibited field would

also thwart the Act’s objectives. The AEA allows states

to assume limited aspects of the authority of the Nu-

clear Regulatory Commission (“NRC”), but only if the

NRC has approved the state’s regulatory program, and

Virginia has not obtained any authority to regulate

uranium mining or tailings management. By refusing

to respect the regulatory regime the NRC established

regarding these activities, and by instead unilaterally

attempting, based on its own safety concerns, to pre-

vent the occurrence of these very activities that

Congress was attempting to support, Virginia has frus-

trated Congress’s objectives.

For both of these reasons, I believe that the district

court erred in dismissing this action, and I respectfully

dissent from the majority’s contrary disposition.

A.!'

The stakes in this case are significant. Uranium is

the predominant fuel source for nuclear power plants,

which, in 2015, produced approximately 20% of our

country’s electricity. See U.S. Energy Information Ad-

ministration/Frequently Asked Questions, https://www.

' On review of the grant of a motion by the defendants to

dismiss for failure to state a claim, we view the allegations in the

complaint in the light most favorable to the plaintiffs.

22a

eia.gov/tools/faqs/faq.cfm?id=427&t=3 (last visited,

Jan. 20, 2017) (saved as ECF opinion attachment). In

2015, approximately 94% of the uranium used in those

plants was imported. See U.S. Energy Information Ad-

ministration/Nuclear & Uranium/Uranium Marketing

Annual Report, http://www.eia.gov/uranium/marketing

(last visited, Jan. 20, 2017) (saved as ECF opinion at-

tachment). Uranium is also the fissile material used

for nuclear warheads.

The Coles Hill uranium deposit is the largest nat-

ural deposit of uranium in the United States and one

of the largest in the world. The deposit, discovered in

the early 1980s, includes approximately 119 million

pounds of uranium ore, worth between $5 and $6 bil-

lion. Coles Hill, LLC, and Bowen Minerals, LLC, own

the land above the deposit. Although they retain a roy-

alty interest, they lease the mineral estate to Virginia

Uranium, which is owned by Virginia Energy Re-

sources.

In light of the Coles Hill deposit’s geological prop-

erties, the uranium there would likely need to be ex-

tracted by conventional mining. Once mined, the

* In situ leaching is another method of extracting uranium

from the ground. That process “involves leaving the ore where it

is in the ground, and recovering the minerals from it by dissolving

them and pumping the pregnant solution to the surface where the

minerals can be recove:eu. Consequently there is little surface

disturbance and no tailings or waste rock generated.” World Nu-

clear Association/Information Library/Nuclear Fuel Cycle/Mining

of Uranium/In Situ Leach Mining of Uranium, http://www.world-

nuclear.org/information-library/nuclear-fuel-cycle/mining-of-

uranium/in-situ-leach-mining-of-uranium.aspx (last visited Jan.

23a

uranium would need to be milled into usable form.

Typically, this occurs at the mining site. A mill grinds

the ore into sand, which in turn is run through an

acidic or alkaline solution to separate the uranium

from the waste, or “tailings.” The uranium is then con-

centrated and dried into “yellowcake,” the final prod-

uct that is commercially sold and shipped off-site for

enrichment. Because the tailings continue to have

most of their naturally occurring radioactivity, they

would need to be stored securely in order to prevent

any radioactive materials from escaping into the envi-

ronment.

The federal government first authorized civilian

application of atomic power with the Atomic Energy

Act of 1946 (the “1946 Act”). See Pacific Gas & Elec. Co.

uv. State Energy Res. Conservation & Dev. Comm’n (“Pa-

cific Gas”), 461 U.S. 190, 206 (1983). Under the 1946

Act, the federal government possessed a monopoly on

nuclear technology. See English v. General Elec. Co.,

496 U.S. 72, 80 (1990).

20, 2017). Critically, however, for uranium to be obtained from the

land by that method, “the orebody needs to be permeable to the

liquids used, and located so that they do not contaminate ground-

water away from the orebody.” Jd. And “[b]ecause of the geology in

the Commonwealth of Virginia, it is very unlikely that lin situ re-

covery| can be used to extract uranium” from the Coles Hill de-

posit or anywhere else in Virginia. J.A. 209; see J.A. 230 (similar).

24a

In 1954, the AEA replaced the 1946 Act and

marked the beginning of private development of nu-

clear power. The AEA “stemmed from Congress’ belief

that the national interest would be served if the Gov-

ernment encouraged the private sector to develop

atomic energy for peaceful purposes under a program

of federal regulation and licensing.” /d. at 81. Indeed,

the Act itself states that its goal is “to encourage wide-

spread participation in the development and utiliza-

tion of atomic energy for peaceful purposes to the

maximum extent consistent with the common defense

and security and with the health and safety of the pub-

lic.” 42 U.S.C. § 2013(d) (emphasis added). To this end,

the Act was designed “to insure that nuclear technol-

ogy [would] be safe enough for [such] widespread de-

velopment and use.” Pacific Gas, 461 U.S. at 213.

Under the AEA, Congress gave the Atomic Energy

Commission (“AEC”) — now the NRC* — “exclusive au-

thority to license the transfer, delivery, receipt, acqui-

sition, possession, and use of all nuclear materials.”

English, 496 U.S. at 81. The Act specifically provides

that anyone wishing to “transfer or receive in inter-

state commerce, manufacture, produce, transfer, ac-

quire, own, possess, import, or export” any radioactive

“byproduct material” — a term now defined to include

* In 1974, Congress enacted the Energy Reorganization Act,

which abolished the AEC and transferred its licensing and regu-

latory responsibilities to the NRC. See Duke Power Co. v. Carolina

Envtl. Study Grp., Inc., 438 US. 59, 63 n.1 (1978); 42 ULS.C.

§§ 5801(c), 5814. This legislation, “also expanded the number and

range of safety responsibi)‘ties under the NRC’s charge.” English

v. General Elec. Co., 496 U.S. 72, 81 (1990).

25a

“the tailings or wastes produced by the extraction or

concentration of uranium” — is required to obtain a li-

cense from the NRC.* 42 U.S.C. §§ 2111(a), 2014(e)(2);

see 42 U.S.C. § 2111(b). Pursuant to these statutes, the

NRC has promulgated detailed regulations designed to

ensure the radiological safety of uranium milling and

tailings management.® See 10 C.F.R. Pt. 40, App. A.

In 1959, Congress amended the Act to allow states

to assume limited aspects of the NRC’s regulatory au-

thority if certain conditions are satisfied. See English,

496 U.S. at 81. Specifically, the NRC may “enter into

agreements with the Governor of any State” in order

“to regulate the materials covered by th agreement

for the protection of the public health and safety from

radiation hazards.” 42 U.S.C. §§ 2021(b). However, the

NRC may enter into such an agreement only after en-

suring that the state’s program is “compatible” with

* The Act’s original language did not specifically include ura-

nium tailings within the commission’s licensable jurisdiction.

However, the Uranium Mill Tailings Radiation Control Act of

1978 (the “UMTRCA”) added uranium tailings to the definition of

“byproduct material” in order to “clarifly|” and “reinforce[|” the

NRC’s authority over operating mills’ production and disposal of

such tailings. H.R. Rep. No. 95-1480, at 13 (1978); see Pub. L. No.

95-604, 92 Stat. 3021.

° The Act did not seek to regulate conventional uranium min-

ing on nonfederal lands, apparently because Congress did not per-

ceive that the mining itself posed serious radiological risks and

Congress recognized the necessity of encouraging independent

prospecting. See S. Rep. No. 79-1211, at 18-19 (1946); see also

Atomic Energy: Hearings Before the Committee on Military Af-

fairs on H.R. 4280, 79th Cong. 125 (1945) (testimony that ura-

nium is not dangerous “itself, without applying to it some

industrial process”).

26a

the otherwise applicable federal regulations and “is ad-

equate to protect the public health and safety with re-

spect to the materials covered by the . . . agreement.”

42 U.S.C. § 2021(d)(2).

In 2009, Virginia entered into a limited agreement

with the NRC, under which Virginia would assume the

authority to regulate the radiological hazards of

“source material” — which includes uranium and ura-

nium ore — and most byproduct material. 74 Fed. Reg.

14821, 14822-23 (Apr. 1, 2009). However, the agree-

ment explicitly excluded uranium tailings. See id.; 42

U.S.C. § 2014(e)(2). Thus, the NRC retained exclusive

authority to regulate the radiological dangers pertain-

ing to uranium milling and tailings management.

In 1982, soon after the discovery of the Coles Hill

deposit, the Virginia legislature imposed an emergency

moratorium on uranium mining and subsequently ex-

tended the emergency moratorium into an indefinite

ban. See Va. Code § 45.1-283.° Although the ban nomi-

nally addresses uranium mining, in actuality, it was

® Virginia requires anyone wishing to engage in mineral

mining in the state to obtain a mining permit from the Depart-

ment of Mines, Minerals and Energy. See Va. Code § 45.1-181. Ad-

ditionally, to operate a mineral mine in Virginia, one must first

obtain a Mine Safety permit. See Va. Code § 45.1-161.292:30. Vir-

ginia’s initial, emergency moratorium prohibited any agency from

accepting permit applications for uranium mining prior to July 1,

1983. See 1982 Va. Acts ch. 269. And, the extension continued that

27a

concerns of the radiological safety of uranium milling

and tailings management that motivated the legisla-

ture to act.’ The legislature banned uranium mining

only as a means to prevent milling and tailings man-

agement from occurring in Virginia.

The legislature considered lifting the ban between

2008 and 2013 but ultimately decided against doing so.

Virginia Uranium, Inc., Coles Hill, LLC, Bowen

Materials, LLC, and Virginia Energy Resources, Inc.

(collectively, “Virginia Uranium”) filed this suit for de-

claratory and injunctive relief against several govern-

mental defendants (collectively, “the Commonwealth’).

Virginia Uranium alleges that the AEA preempts Vir-

ginia’s ban under two theories. First, it claims that, by

enacting the AEA, Congress intended that the federal

government would exclusively occupy the field of radi-

ological safety concerns regarding the activities the

AEA regulates. Virginia Uranium claims that the min-

ing ban is grounded primarily in Virginia’s radiological

safety concerns regarding two such activities: the mill-

ing of the uranium that would be mined in Virginia if

mining were permitted, and the storage of the tailings

that would result. In light of this purpose of protecting

restriction “until a program for permitting uranium mining is es-

tablished by statute.” 1983 Va. Acts ch. 3, Va. Code § 45.1-283. No

such program has yet been established.

’ The primary concern was that uranium tailings could con-

taminate the drinking water supply.

28a

against the radiological dangers associated with these

two AFA-regulated activities, Virginia Uranium main-

tains that Virginia’s ban encroaches upon the very

field that Congress intended the federal government to

occupy exclusively.

Second, Virginia Uranium contends that the min-

ing ban does not respect the balance Congress struck

regarding the objectives of promoting uranium devel-

opment and ensuring health, safety, and envirenmen-

tal protection. Virginia Uranium maintains that the

Act contemplates that uranium development will not

be barred on the basis of concerns regarding the radi-

ological dangers of regulated activities, so long as the

federal regulations applying to those activities are sat-

isfied. Virginia Uranium alleges that Virginia’s ura-

nium mining ban effectively operates as a ban on

storing uranium tailings even though Virginia does not

have the federal government’s permission to regulate

that activity. Thus, Virginia Uranium claims that the

ban is preempted as an obstacle to the full implemen-

tation of the Act’s objectives.®

Virginia Uranium seeks a declaration that the

AKA preempts Va. Code § 45.1-283. It also requests an

injunction forbidding the Commonwealth from adher-

ing to § 45.1-283 and requiring it to process permit ap-

plications for uranium mining. The Commonwealth

* Virginia Uranium also alleges that it is “physically impos-

sible to develop uranium in Virginia and simultaneously comply

with both federal law, which regulates but allows the storing of

uranium tailings, and Virginia’s law, which effectively bans stor-

ing uranium tailings.” J.A. 47.

29a

moved to dismiss the complaint for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). The Commonwealth

did not then — and does not now — dispute Virginia Ura-

nium’s allegation that § 45.1-283 is actually grounded

in the legislature’s radiological safety concerns regard-

ing uranium milling and uranium tailings manage-

ment.’ Nor has it ever disputed that uranium milling

and tailings management are activities that the Act

regulates. Nevertheless, it argued that because § 45.1-

283 does not directly prevent those activities but only

directly bans uranium mining — albeit as a means of

preventing the AFKA-regulated activities — the ban is

not preempted.

Virginia Uranium opposed the Commonwealth's

motion to dismiss and filed a cross-motion for summary

judgment, attaching hundreds of pages of materials

that Virginia Uranium maintained demonstrated, as a

matter of law, that Virginia’s ban on mining was a pre-

text for its true goal of preventing uranium milling and

tailings management.

The district court granted the Commonwealth’s

motion, ruling that the ban is not preempted even as-

suming that the Virginia legislature’s actual purpose

* The Commonwealth acknowledges that it “conceded the

truth of [Virginia Uranium’s] claims about legislative motive .. .

for purposes of their Rule 12(b\6) motion.” Appellees’ brief at 15

n.68. It argues, however, that its concession did not extend beyond

the motion to dismiss and that had that motion “not been granted,

the district judge would have had discretion to give [the Common.

wealth] ‘an opportunity to properly . . . address the facts’ asserted

by [Virginia Uranium].”/d. (quoting Fed. R. Civ. P. 56(e\(1)).

30a

was to protect against the radiological dangers associ-

ated with uranium milling and tailings management.

See Virginia Uranium, Inc. v. McAuliffe, 147 F. Supp.

3d 462 (W.D. Va. 2015). The district court reasoned that

because the AKA does not regulate conventional min-

ing of uranium ore on nonfederal lands, Virginia was

free to ban uranium ore mining as a means of prevent-

ing uranium milling and tailings management, in or-

der to avoid the radiological dangers associated with

those AEA-regulated activities. See id. at 471-77. Thus,

the court concluded that the ban did not encroach upon

the field reserved exclusively for the federal govern-

ment. See id.

For similar reasons, the court also concluded that

the ban was not preempted under the doctrine of con-

flict preemption because it did not frustrate “the ac-

complishment and execution of the full purposes and

objectives of Congress” regarding the “promotion of nu-

clear power.” Id. at 477 (internal quotation marks

omitted). In this regard, the court reasoned primarily

that the Act “evinced no purpose or objective that non-

federal uranium deposits should be conventionally

mined.”"° Jd. And the court suggested that the federal

government was free to condemn the property if it

wished to have the uranium therein conventionally

—_—-——

'° The court further concluded that the ban did not “conflict

|] with Congress’ judgment that [on-site milling and mill-tailings

management] may proceed.” Virginia Uranium, Inc. v. McAuliffe,

147 F. Supp. 3d 462, 477 (W.D. Va. 2015). The court also rejected

Virginia Uranium’s claim that it was impossible for Virginia Ura-

nium to comply with both the AEA and the Virginia ban. See id.

at 477 n.18.

sla

mined. See id. at 477 n.20 The court also determined

that Virginia did not circumvent the requirements

Congress put in place for states to assume regulation

of uranium milling and tailings management because

Virginia’s statute did not purport to regulate those ac-

tivities. See id. at 472-73, 477 n.19.

Having decided to dismiss the action, the court de-

nied as moot Virginia Uranium’s summary judgment

motion. See id. at 478.

II.

Virginia Uranium argues that the district court

erred in dismissing its action. I agree.

We review de novo the grant of a motion to dismiss

for failure to state a claim. See U.S. Airline Pilots Ass’n

v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). In

so doing, “we must accept as true all of the factual al-

legations contained in the complaint.” Anderson v.

Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (in-

ternal quotation marks omitted). 'To survive dismissal,

the complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Bell Ati.

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Under the Supremacy Clause, “the Laws of the

United States ... shall be the supreme Law of the

Land... any Thing in the Constitution or Laws of any

state to the Contrary notwithstanding.” U.S. Const. art.

32a

VI., cl. 2. Accordingly, “Congress may . . . pre-empt, i.e.,

invalidate, a state law through federal legislation.”

Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015).

It may do so by express statutory language, or it may

do so implicitly, “either through ‘field’ pre-emption or

‘conflict’ pre-emption.” Jd. Congress engages in field

preemption when it has intended “to foreclose any

state regulation in the area,” regardless of any incon-

sistency between the state regulation and federal

standards. Arizona v. United States, 132 S. Ct. 2492,

2502 (2012). Conflict preemption occurs when “compli-

ance with both federal and state regulations is a phys-

ical impossibility,” Florida Lime & Avocado Growers,

Ine. v. Paul, 373 U.S. 132, 142-43 (1963), or when state

law “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

The Supreme Court in Pacific Gas established the

legal analysis that governs this appeal, and I believe it

is important to review the Court’s reasoning in some

detail. In Pacific Gas, the Court considered whether

the AEA preempted a California statute imposing a

moratorium on nuclear plant construction in Califor-

nia until a state commission found that adequate facil-

ities and means of disposal of spent nuclear fuel were

available. See Pacific Gas, 461 U.S. at 198. The plain-

tiffs (“the Utilities”) maintained that the moratorium

was enacted based on the California legislature’s

safety concerns regarding the radiological dangers of

33a

operating nuclear reactors in the absence of any strat-

egy for the long-term storage of spent nuclear fuel. See

id. at 196-97, 204. They advanced three arguments

that the moratorium was preempted: First, because

the moratorium was grounded in nuclear safety con-

cerns it fell within an exclusively federal field; second,

the moratorium and the judgments underlying it con-

flicted with the decisions that Congress and the NRC

had made regarding nuclear waste disposal; and third,

the moratorium “frustrate|d| the federal goal of devel-

oping nuclear technology as a source of energy.” Jd. at

204.

The Court began its preemption analysis by ob-

serving that the Act did not “expressly require the

States to construct or authorize nuclear power plants

or prohibit the States from deciding, as an absolute or

conditional matter, not to permit the construction of

any further reactors.” Jd. at 205. The Court therefore

turned to the question of field preemption and, specif-

ically, the scope of the AEA’s preempted field as it

would relate to a state ban on construction of nuclear

powerplants. The Court noted that the Utilities had

maintained that Congress had intended to “preserve

the federal government as the sole regulator of all mat-

ters nuclear.” Jd. The Court did not view the exclusive

federal field as being quite that broad, however. Ra-

ther, the Court observed that Congress had intended

roles for both the federal government and the states:

Congress ... intended that the federal gov-

ernment should regulate the radiological

safety aspects involved in the construction

34a

and operation of a nuclear plant, but that the

States [would] retain their traditional respon-

sibility in the field of regulating electrical util-

ities for determining questions of need,

reliability, cost and other related state con-

cerns.

Id.

The Court then turned its focus to the challenged

California statute. The Court noted initially that “the

statute does not seek to regulate the construction or

operation of a nuclear powerplant,” which would have

been clearly impermissible given that the Act specifi-

cally regulates the manner in which nuclear plants

must be constructed and operated. Id. at 212; see id.

(noting “the NRC’s exclusive authority over plant con-

struction and operation”). On the other hand, the

Court rejected the argument of the defendants (collec-

tively, “California”) that “although safety regulation of

nuclear plants by states is forbidden, a state may com-

pletely prohibit new construction until its safety con-

cerns are satisfied by the federal government.” Jd. The

Court reasoned that it is not the case that “[s]tate

safety regulation is ... preempted only when it con-

flicts with federal law. Rather, the federal government

has occupied the entire field of nuclear safety concerns,

except the limited powers expressly ceded to the

states.”'' Jd. (emphasis added); see also 42 US.C.

'' The Court reiterated this analysis in English. The lawsuit

at issue there included a state-law cause of action for intentional

infliction of emotional distress brought by an employee of a nu-

clear-fuels production facility against her employer. See English,

35a

§ 2021(k) (“Nothing 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.”).

In light of the Court’s conclusions regarding the

scope of the preempted field, the Court reasoned that

“lal state moratorium on nuclear construction

grounded in safety concerns [would] fallij] squarely

within” it. Pacific Gas, 461 U.S. at 213. The Court

added that a statute based on such concerns would also

be preempted for the two other reasons the Utilities

advanced. First, “a state judgment that nuclear power

is not safe enough to be further developed would con-

flict directly with the countervailing judgment of the

—

496 U.S. at 77-78. The employee’s claim arose out of actions her

employer allegedly took against her in retaliation for her nuclear-

safety complaints. See id. at 76. The Court considered whether the

AEA preempted the employee’s state-law cause of action under

the doctrine of field preemption. See id. at 80-86. The English

Court explained that the Pacific Gas Court had defined “part of

the pre-empted field ... by reference to the purpose of the state

law.” Id. at 84. The Court concluded that because “the state tort

law at issue ... [was] not motivated by safety concerns,” the por-

tion of the preempted field defined by statutory purpose was “not

relevant.” Jd. Nevertheless, the English Court also concluded that

a separate part of the preempted field consisted of laws that “have

some direct and substantial effect on the decisions made by those

who build or operate nuclear facilities concerning radiological

safety levels.” Jd. at 85. In the end, the Court determined that the

effect of the state claim on the nuclear safety “decisions made by

those who build or operate nuclear facilities” was “neither direct

nor substantial enough to place petitioner’s claim” in that part of

the preempted field either. Jd.

36a

NRC, that nuclear construction may proceed notwith-

standing extant uncertainties as to waste disposal.” Jd.

(citation omitted). And second, “[a| state prohibition on

nuclear construction for safety reasons” would be

preempted because it would “be in the teeth of the

|Act’s] objective to insure that nuclear technology be

safe enough for widespread development and use.” Jd.

Even though the text of the moratorium itself did

not demonstrate that the statute was preempted, given

the Court’s conclusion that a prohibition on the con-

struction of nuclear powerplants would be preempted

if grounded in nuclear safety concerns, the Court de-

cided that “it [wa]ls necessary to determine whether

there [was] a non-safety rationale for {the statute].” Jd.

Turning to that question, the Court noted that

“California has maintained ... that [its moratorium]

was aimed at economic problems, not radiation haz-

ards.” Id. And the Court discussed legislative history

supporting California’s claim. See id. at 213-14. The

Supreme Court observed that the Ninth Circuit, rely-

ing on this legislative history, had determined that the

California legislature was indeed motivated by eco-

nomic considerations rather than safety concerns. See

id. at 214. And, the Court noted that its “general prac-

tice is to place considerable confidence in the interpre-

tations of state law reached by the federal courts of

appeals.” /d. (citing Mills v. Rogers, 457 U.S. 291, 306

(1982), and Bishop v. Wood, 426 U.S. 341, 346 (1976)).

The Court then proceeded to discuss four consid-

erations that the Utilities and amici had identified as

37a

indicia that the Ninth Circuit’s determination was in-

correct and that the California legislature had actually

been motivated by safety concerns. See id. at 214-16.

Although the Court downplayed the persuasiveness of

each of the four, it nonetheless acknowledged that they

were “subject to varying interpretation.” Jd. at 216.

Nevertheless, in addition to the inconclusiveness of

these indicia, the Court identified two other reasons

why it would accept the Ninth Circuit’s determination

regarding the California legislature’s motivation ra-

ther than “becom|[ing] embroiled” itself in the inquiry.

Id. The Court noted first that “inquiry into legislative

motive is often an unsatisfactory venture” considering

that individual legislators do not necessarily all have

the same motivation for voting to enact particular

legislation. Jd. And the Court noted as well that sec-

ond-guessing the Ninth Circuit’s inquiry into whether

California was motivated by safety concerns “would be

particularly pointless” considering that Congress spe-

cifically allowed the states to decide against construct-

ing new nuclear powerplants for economic reasons. See

id. The Court observed that states inclined not to allow

new nuclear powerplants could easily disallow plants

on that basis and that Congress would be free to revoke

this authority if it decided that states were abusing it

by offering perpetual economic considerations as the

reason for restrictions that are actually grounded in

safety concerns. See id. The Court therefore accepted

the Ninth Circuit’s determination — and California’s

representation — that the state legislature had been

motivated primarily by economic considerations ra-

ther than safety concerns. See id. Consequently, the

38a

Court held that “the statute lies outside the occupied

field of nuclear safety regulation.” Id.

The Court then turned to the Utilities’ other two

preemption arguments. The Court concluded that

there was no conflict between the California legisla-

ture’s judgment, for economic reasons, that nuclear

plants should not be built because “[t]he NRC’s impri-

matur ... indicates only that it is safe to proceed with

such plants, not that it is economically wise to do so.”

Id. at 218.

Regarding the argument that the moratorium

frustrated the “Act’s purpose to develop the commer-

cial use of nuclear power,” id. at 220, the Court

acknowledged that “the promotion of nuclear power”

was indeed “a primary purpose” of the Act. Jd. at 221.

However, the Court also recognized that the Act was

not designed to “promotle] ... nuclear power .. . ‘at all

costs.’” Id. at 222. Rather, “the legal reality remains

that Congress . . . left sufficient authority in the states

to allow the development of nuclear power to be slowed

or even stopped for economic reasons.” Id. at 223 (em-

phasis added). Because the Court had accepted the

Ninth Circuit’s determination that California’s mora-

torium was in fact enacted for economic reasons rather

than reasons of safety, the Court concluded that the

moratorium did not frustrate the Act’s purposes and

thus was not preempted for that reason either. See id.

39a

The analysis in Pacific Gas demonstrates, both for

reasons of field preemption and conflict preemption,

that the district court erred in dismissing Virginia

Uranium’s action.

|. Field P i

I begin with field preemption. Just as was true of

California’s moratorium in Pacific Gas, see 461 U.S. at

212, the substance of Virginia’s law — a ban on conyen-

tional uranium mining — does not conflict with the Act,

which does not regulate conventional mining on non-

federal lands. Nevertheless, as Pacific Gas held, a stat-

ute’s purpose can itself bring the statute within the

prohibited field. See Pacific Gas, 461 U.S. at 213; see

also English, 496 U.S. at 84 (noting that Pacific Gas

defined “part of the preempted field . . . by reference to

the purpose of the state law”); North Carolina ex rel.

Cooper v. TVA, 615 F.3d 291, 303 (4th Cir. 2010) (“[T]he

\Pacific Gas| Court explained that when Congress

chose to give the [NRC] control over issues relating to

nuclear safety, it completely occupied the field of nu-

clear safety regulations.”); cf Oneok, Inc., 135 S. Ct. at

1599-1600 (holding that whether the Natural Gas Act

(NGA) preempts a particular state law turns on “the

target at which the state law aims”; rejecting the dis-

sent’s contention that that |sic] the Court should in-

stead “focus . . .on ‘what the State seeks to regulate . . .

, not why the State seeks to regulate it’” (emphasis in

original)). Thus, as in Pacific Gas, “it is necessary to

40a

determine whether there is a non-safety rationale” for

the ban.’? Pacific Gas, 461 U.S. at 213.

Unlike in Pacific Gas, wherein California claimed

that the moratorium was actually grounded on a non-

safety concern, the Commonwealth makes no such

claim here. Rather, at this stage of the litigation, the

Commonwealth concedes the truth of Virginia Ura-

nium’s allegation that the moratorium is grounded

on the Virginia legislature’s concerns regarding the ra-

diological safety of uranium ore milling and tailings

Citing English, the Commonwealth asserted during oral

argument that regardless of the purpose of a state statute, it falls

in the preempted field only if its effect is sufficiently direct and

substantial. But this argument plainly conflates the two separate

parts of the preempted field that English described. See English,

496 US. at 84 (“[E]ven as the [Pacific Gas| Court suggested that

part of the pre-empted field is defined by reference to the purpose

of the state law in question, it made clear that another part of the

field is defined by the state law’s actual effect on nuclear safety.”

(emphasis added)). Under Pacific Gas, any state statute grounded

in protecting citizens from the radiological dangers of activities

regulated by the Act is preempted, regardless of the statute’s ef-

fect.

The Commonwealth also relied at oral argument on Sil/kwood

v. Kerr-McGee Corp., 464 U.S. 238 (1984). In Silkwood, the Court

considered, as is relevant here, “whether a state-authorized

award of punitive damages arising out of the escape of plutonium

from a federally licensed nuclear facility [was] preempted . . . be-

cause it” fell within the “forbidden field” of laws “regulating the

safety aspects of nuclear energy.” Jd. at 240-41. The Court con-

cluded that Congress had not intended that such state remedies

would be preempted and that Congress had indeed “assumed that

persons injured by nuclear accidents were free to utilize existing

state tort law remedies.” Jd. at 252. Because Silkwood did not con-

cern a law claimed to have been enacted to protect against radio-

logical dangers, it is no help to the Commonwealth here.

Ala

storage. The Commonwealth also does not dispute that

these two activities are regulated under the Act. See

42 US.C. §$§ 2014(e)(2), (z), 2092, 2111(a), 2114(a).

Thus, under the reasoning of Pacific Gas, because the

Virginia statute was grounded in nuclear safety con-

cerns, it “falls squarely in the prohibited field,” and is

preempted for that reason.'* Pacific Gas, 461 US. at

213.

'S The Commonwealth argues that legislation grounded in

radiological safety concerns regarding an activity that the Act does

not regulate, such as the taking of X-rays, would not be preempted.

There is no reason to address that issue in this case, however,

given that the activities that the Commonwealth concedes were

the focus of the legislature’s concern — uranium milling and tail-

ings management — are regulated by the Act.

'’ The district court concluded, and the Commonwealth ar-

gues, that Pacific Gas is distinguishable from the present case be-

cause Virginia’s ban concerns an activity the Act does not regulate

— uranium mining — while the moratorium challenged in Pacific

Gas “regulated an activity that [was] clearly committed to the

NRC’s regulatory authority.” Virginia Uranium, Inc., 147 F. Supp.

3d at 476. But the district court’s conclusion that the California

moratorium regulated an activity that the Act also regulated is

directly at odds with the Pacific Gas Court’s own view: Pacific Gas

specifically explained that the California moratorium did “not

seek to regulate the construction or operation of a nuclear power-

plant.” 461 U.S. at 212 (emphasis added).

The district court also described the relevant analysis in Pa-

cific Gas as nonbinding dicta, see Virginia Uranium, 147 F. Supp.

3d at 476, a view that even the Commonwealth appropriately does

not appear to embrace. “Dictum is statement in a judicial opinion

that could have been deleted without seriously impairing the an-

alytical foundations of the holding — that, being peripheral, may

not have received the full and careful consideration of the court

that uttered it.” Pittston Co. v. United States, 199 F.3d 694, 703

(4th Cir. 1999) (internal quotation marks omitted). The analysis

42a

Until today, each Court of Appeals addressing the

issue since Pacific Gas has held that state statutes en-

acted to protect against the radiological dangers of ac-

tivities the AKA regulates are preempted regardless of

whether the statutory text reveals that purpose and re-

gardless of whether the statute expressly prohibits an

activity the Act regulates."°

In Skull Valley Band of Goshute Indians v. Niel-

son, 376 F.3d 1223 (10th Cir. 2004), for example, the

Tenth Circuit considered whether the AEA preempted

several Utah statutes. Most relevant here were

statutes that took control of “the only road permitting

leading up to, and including, the Court’s conclusion that the Cali-

fornia moratorium would be preempted if it were determined to

be grounded on safety concerns is a central part of the Supreme

Court's opinion. And even if it were dicta, which it is not, we would

still be bound to follow it considering the obvious importance of

the analysis to the opinion. See United States v. Fareed, 296 F.3d

243, 247 (4th Cir. 2002) (explaining that lower federal appellate

courts are “bound by Supreme Court dicta almost as firmly as by

the Court's outright holdings”).

'® Of course, the Ninth Circuit in Pacific Gas itself also rec-

ognized that the California moratorium before the court would be

preempted if it were enacted for nuclear safety purposes. See Pa-

cific Legal Found. v. State Energy Res. Conservation & Dev.

Comm'n, 659 F.2d 903, 922-23 (9th Cir. 1981), aff’d sub nom. Pa-

cific Gas & Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190 (1983). It was for that reason that the Court

of Appeals undertook to “inquire whether |the moratorium was]

aimed at radiation hazards.” Jd. at 923. After a detailed analysis

of the applicable statute and the history behind its enactment, the

court concluded that the moratorium was “directed towards pur-

poses other than protection against radiation hazards.” Id. at 925.

The Supreme Court in Pacific Gas, in turn, accepted the Ninth

Circuit’s determination. See Pacific Gas, 461 U.S. at 214-16.

43a

access to the [proposed spent nuclear fuel storage] fa-

cility .. by designating it a state highway” and then

“requiring the consent of the governor and the state

legislature before” any “company engaged in the trans-

portation or storage of” spent nuclear fuel was allowed

to drive on it (the “Road Provisions”). Jd. at 1251-52. As

was true of the statute in Pacific Gas, and as is true of

the Virginia statute challenged in the present case, the

Road Provisions did not directly prohibit any activities

regulated by the Act. In fact, the conduct the provisions

directly addressed concerned transportation, a cate-

gory traditionally subject to local control. Neverthe-

less, the Tenth Circuit recognized that regardless

of the nature of the activity the provisions directly

addressed, the applicable preemption analysis “re-

quires consideration of the purpose of the allegedly

preempted statute.” /d. at 1252 (emphasis added).

As for what the actual purpose was, the court

noted comments by the sponsoring legislator and the

governor indicating that the provisions’ purpose was to

protect Utah citizens against the hazards of storage

and transportation of nuclear waste by preventing

those activities from occurring in Utah. See id. Observ-

ing that “Utah officials [did] not attempt to contest any

of this evidence” and that it was unlikely that they

could, the court concluded that “[tjhe record . . . estab-

lishes that the Road Provisions were enacted for rea-

sons of radiological safety and are_ therefore

preempted.” Jd.

44a

The court also conducted a similar analysis of pro-

visions that “prohibitled] counties from providing ‘mu-

nicipal-type services,’ including fire protection,

garbage disposal, water, electricity, and law enforce-

ment, to [spent nuclear fuel] transportation and stor-

age facilities within the county.” Jd. at 1245. The court

rejected the argument that provisions affecting these

types of services were not preempted because such ser-

vices “have been traditionally regulated by local gov-

ernments.” Jd. at 1247. Rather, the court concluded

that despite the fact that the subjects that the law di-

rectly addressed were traditionally left to local govern-

ments to regulate, “a state cannot use its authority to

regulate law enforcement and other similar matters as

a means of regulating radiological hazards.”'® Jd. at

1248 (emphasis added).

Valley was distinguishable from the present case because the

Road Provisions were designed to prevent an activity regulated

by the Act, nuclear waste storage. And the district court distin-

guished Skull Valley on the same basis. See Virginia Uranium,

Inc., 147 F. Supp. 3d at 473 n.13 (“The statute [in Skull Valley]

plainly targeted nuclear-waste facilities and only ‘regulate[d] law

enforcement and other similar matters as a means of regulating

radiological hazards.’”). This is not a valid distinction, however,

considering that the Virginia statute was also designed to prevent

— or at least significantly reduce the occurrence of — activities reg-

ulated by the Act, uranium milling and tailings management.

It is worth noting as well! that, as the Supreme Court consid-

ered a petition for writ of certiorari in Skull Valley, the Court in-

vited the Solicitor General to express the United States’ views.

The Solicitor General wholeheartedly endorsed the Tenth Cir-

cuit’s analysis and took the view that certiorari should be denied.

See Nielson v. Private Fuel Storage, L.L.C., 2005 WL 2985709, at

45a

The Second Circuit in Entergy Nuclear Vermont

Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013),

engaged in a similar analysis, holding that the AEA

preempted a Vermont law requiring that nuclear

plants in Vermont can be operated only with the legis-

lature’s explicit approval. See id. at 414, 422. As with

the statutes in Pacific Gas and the present case, the

substance of the restriction the Vermont law imposed

did not conflict with the AEA. See Pacific Gas, 461 U.S.

at 212. Nevertheless, the court recognized that “a law

enacted for thle] purpose” of protecting against radio-

logical dangers would “fall|] squarely within the pro-

hibited field.” Entergy, 733 F.3d at 415. Consequently,

the court reasoned that, as in Pacific Gas, it was “‘nec-

essary to determine whether there is a non-safety ra-

tionale’ for” the statute. Jd. (quoting Pacific Gas, 461

U.S. at 213).

The text of the Vermont law explicitly declared

that the statute was not grounded in nuclear safety

concerns. See id. at 415-16. Nevertheless, the court

noted that its “inquiry [into the legislature’s motiva-

tion} does not end at the text of the statute.” Jd. at 416.

*10, 13 (U.S. Nov. 4, 2005) (“Here, the lower courts found that the

entirety of the series of interrelated laws at issue here were tar-

geted specifically to regulate the safety aspects of the proposed

waste facility and were designed to halt the construction and op-

eration of the proposed facility based on radiation hazard con-

cerns. In light of those factual determinations, the decision to find

the entire statutory scheme preempted on its face is correct. .. .

|(Wihen a State enacts legislation based upon ‘nuclear safety con-

cerns, the laws are preempted without the need to demonstrate

their effect.” (quoting Pacific Gas, 461 U.S. at 212-13)).

46a

The court observed that, were the text determinative,

“legislatures could nullify nearly all unwanted federal!

legislation by simply publishing a legislative commit-

tee report articulating some state interest or policy —

other than the frustration of the federal objective —

that would be tangentially furthered by the proposed

state law.” /d. (internal quotation marks omitted); see

also id. (“We .. . decline Vermont’s invitation to apply

an analytic framework akin to ‘rational basis review,’

which would preclude us from identifying the true pur-

pose of a statute as required by Pacific Gas and would

allow states to implement a ‘moratorium on nuclear

construction grounded in safety concerns [that] falls

squarely within the prohibited field.’” (quoting Pacific

Gas, 461 U.S. at 213)). The court therefore proceeded to

review various extra-textual indicia concerning the

legislature’s motivation for enacting the statute. See

id. at 417-21. In the end, the Court of Appeals agreed

with the district court that radiological safety concerns

were the “primary purpose” for the statute’s enact-

ment, even if individual legislators may have acted for

other reasons as well. Jd. at 420; see id. at 420-22. The

court thus concluded that the statute was preempted.

See id. at 422. See also Vermont Yankee Nuclear Power

Corp. v. Entergy Nuclear Vt. Yankee, LLC, 683 F.3d

1330, 1347 (Fed. Cir. 2012) (“|A] state law related to

nuclear power is preempted if it ... is motivated by

safety concerns.”); United States v. Manning, 527 F.2d

828, 836 (9th Cir. 2008) (“The [Act] preempts {state

law] if... the purpose of the [state law] is to regulate

against radiation hazards.”); United States v. Ken-

tucky, 252 F.3d 816, 823 (6th Cir. 2001) (“[T]he AEA

AZva

preempts any state attempt to regulate materials cov-

ered by the Act for safety purposes.”).

I would apply the very same principles that ani-

mated the decisions in all of these cases and hold that

Virginia Uranium has successfully alleged a claim un-

der the doctrine of field preemption.

2. io

In addition to being preempted for falling within

the prohibited field, the Virginia statute is also

preempted under the doctrine of conflict preemption

because it “stands as an obstacle to the accomplish-

ment and execution of the full purposes and objectives

of Congress.” Hines, 312 U.S. at 67. As the Supreme

Court explained in Pacific Gas, “|t|here is little doubt

that a primary purpose of the . . . Act was, and contin-

ues to be, the promotion of nuclear power.” 461 U.S. at

221; see also 42 U.S.C. § 5801. More specifically, an ob-

jective of the Act was to ensure that the development

of nuclear energy would be sufficiently safe that the

power of the private sector could be unleashed to de-

velop nuclear energy “to the maximum extent con-

sistent with the common defense and security and

with the health and safety of the public.” 42 U.S.C.

§ 2013(d); see English, 496 U.S. at 80-81; Pacific Gas,

461 U.S. at 213. It is hard to imagine how Virginia’s

mining ban, grounded on safety concerns regarding the

radiological dangers the federal government is charged

with regulating, would not be found to frustrate those

objectives. Virginia, not trusting that the federal

48a

government has sufficiently protected against the ra-

diological dangers of uranium milling and tailings

management, has unilaterally sought to prevent the in-

volvement of the very private-sector forces that the Act

was designed to unleash. Such an attempt would “be in

the teeth of the ... Act’s objective to insure that |the

development of nuclear source material is} safe enough

for widespread development and use — and [would be]

preempted for that reason” as well." Pacific Gas,

461 U.S. at 213; see Northern States Power Co. v. Min-

nesota, 447 F.2d 1143, 1153-54 (8th Cir. 1971) (“Con-

gress vested the AEC with the authority to resolve

the proper balance between desired industrial pro-

gress and adequate health and safety standards. ...

Were the states allowed to impose stricter stan-

dards... , they might conceivably be so overprotective

in the area of health and safety as to unnecessarily

stultify the industrial development and use of atomic

energy for the production of electric power.”), aff'd, 405

U.S. 1035 (1972).

'T The district court concluded that there was no conflict be-

tween the Virginia legislature’s judgment and that of Congress

and the NRC because the ban reached only conventional mining

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