# Petition for Writ of Certiorari — Va. Uranium, Inc. v. Warren, 138 S. Ct. 293 (2017) (No. 16-1275) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0744%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2017 ## Text Supreme Court of the Anited States ° VIRGINIA URANIUM, INC., et ai., Petitioners, v. 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 i 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)? ii 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. iv 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 Vv 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. iV 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 Vv 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 ee en, ss euemdetnnnevaniibouseiieiil 83a 42 US.C. TEE aca idceiaidieiaeinl 83a | EELS Rn cece nee Pen 84a STII dcccietcbagkachinsinnonshesseussseiminenimnnsenaianiapbenseall 85a AE REESE ae RO Reece eincter fer EOP CRSA OO ee DER Ot 86a SIs cnitiia ia dibaiat ipdinaiecddaebndpnebinbbanimineiaieedbenbenlell 90a III i sasiekiasssissiiesiciestiaisisabaiguhiakanseansnataanehabatuaeneeaadl 90a Sissel si ccdod adceiiciaenenieiasnaivesieniaicatdiinblekuicsheatabananeail 103a ST atisachisisdireqchghbidiincsibionebestiehinaghiiadiniiciaamiobagae 107a vi TABLE OF CONTENTS — Continued Page ESE aaa arc ORO See MOOT Roi 108a ES ETE aE: ah Ree ee 109a SSE A ER ee ae ed eR tee be 110a ae cea ee Se Ene E Ben lila Ee er el tem Ee PAS fo 112a ESTER EEE Ne me ae er Basle ar ae SS 113a STRESS Seven Wc eee nai Le 113a BEERS ST ae AA ae Sere RS OF ie, Ne! 11l4a SETS LRA PPM OR LRAT sO 116a (EET aT LT ERR Me BPA KE MOL Tk 118a ETE CE RIA AEM ee 5 123a RES STE ERIC SE MT KIL AAS RAE 126a RE Pe ea A Sn PEE Ce 130a SEE ES SEAR Rey et Nae ROR TEE. 130a | RN Nee aS Pinte: See eas F 13la ESRI Wee Ab Sap nee hc kerk tata ROPE 123a ERE Poa LO tra Ro Se ea 132a ERR Leer e CE a 133a SEED Ra eee Ove eel, Fs 134a SEER TE Pa ae eee IE eee 135a i siptoanarnuis 136a VA. CODE § 45.1-161.292:30 00000... eeeeeeceseeeees 168a Pe a 168a vill 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. pn 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 I Hs iidassatet tale tinatinbsasasipsteecenaushosteedaedisaadele 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 1x 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 x 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 xi 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. IT Nia enidadtesnsnenbeeteenrerensecnceetesessceseseseoeues 1 ITI a cchcdstedebrerweesecebecnesesncecceccotsccncosceseosees 13 42 U.S.C. RTT alin cecctincsicstsnnionseventsccseconseesccesesccecesens 3 ST aicinlscicenestinnsithsoreccstersacccaccanteveseecseneees 3 TTI iainicccidncnetissspscesiesseeeessecsnceceosetsccovocousonses 8 I eegtsias an ensconnbascnsnecencesesencensces 38 itso sicdmennesnsstncntsocencsccseceseonccessccosseonses 9 a sis naresetasteasesinccseresnssncssececocooceononrees 9 SINT a si censsntusenctinnietsoonvevartavcseuececcoccoseseouen 31 sas ssmnssesnonpenonenneecesscccosovensens 22 Ei caanniceipeanencssncesecscerseevocoes passim xil TABLE OF AUTHORITIES — Continued Page § DOGS...........ccccescececcessscsersecsecseseeescesserssssacssenessarssenes 37 S DOTB.........ccceccescccccccccersnceceersresssessenonsssssacoossssesssscnns 37 § D092... ne ceeccecesscseeseceeeeeeeeeeeenenncnecesssesenseseneeseeens 9, 37 § DOQS..............0eeeceeccesesereeeeeeseeeeerensenssansncecsrssesesasanaeas 37 S DVL. ..........cereessescccccvercccencesessssscssesscecsesccseecesessoonons 37 § D111(a)-(b).........esccceeeeeeeeseeeennenenenererenseeseteeneneneeeeases 9 © BUBG..............ceccercccsscescorcereccssessercesssrscsevessssecercesenees 37 § 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. BOE CRIED q..ncncecccnccccceccccecsercevesccnssossssosonsosensosososscsoooes ) SB Bmw, NO. TO-1BL1 .....cccccsccoccsscecccscescesccsscccsecesssceescceses i) 1 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. e 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 2 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” 3 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 4 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). 5 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. 6 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. 7 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 8 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 9 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 10 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: 11 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, 12 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. 13 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 14 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. 15 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. 16 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 17 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 18 “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 19 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 20 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 21 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 22 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. 23 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 24 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). 25 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 26 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 27 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 28 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” 29 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). 30 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 31 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, 32 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 33 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). 34 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 35 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 36 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 37 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 38 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). * 39 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 at Ge & , & | Ree nm ee 83a 42 U.S.C. Be FTE crcniecsntsnensonductetonsstaiianmensmainannasanaaiaennn 83a | RARE TE 84a OF Fe cessicosesnsiess v - 7 ‘ > 7 7 — df Ee, jt '4 soc" . he a -~ —— ~ —— ae et ee . = —— - As a candidate for governor, I’ve laid out a comprehen- sive plan to meet our future energy needs and reduce Virginia’s dependence on foreign oil. ... While I be- lieve nuclear power should be part of a comprehensive approach to energy here in the commonwealth, I also strongly believe that the moratorium on uranium min- ing should remain in place until scientists determine that uranium mining does not pose a risk to the health and safety of any Virginian. The climate of Southside Virginia poses particular challenges to the safe mining of uranium. Because it often rains, there is a risk that radioactive material produced by uranium mining and processing could leach into groundwater. If such leaching occurred, it could contaminate water supplies and endanger Vir- ginians all over Southside, from Danville to Virginia Beach. . .. As your governor, I will ensure that our en- ergy future is not only plentiful and clean, but also safe for all Virginians. Senator Creigh Deeds, Letter, MARTINSVILLE BULLETIN, Nov. 1, 2009, attached to Ohlendorf Decl. as Exhibit 56. Creigh Deeds said Wednesday that if he is elected gov- ernor in November, he expects to fulfill the state’s com- mitment to complete the widening of U.S. 58 across southern Virginia. ... He also said he supports the study of uranium mining in Pittsylvania County but “the proof threshold is high” to allow such mining in the commonwealth. 246a “I don’t see how you can mine uranium in any area of Virginia. There’s too much rainfall. How do you de- velop a liner and cap that will protect tailings from contaminating the groundwater?” asked Deeds, who formerly lived in Danville. Ginny Wray, Deeds: Transportation, Cooperation Are Key, MARTINSVILLE BULLETIN, May 28, 2009, attached to Ohlendorf Decl. as Exhibit 57. Deeds said that energy independence is a part of our national security so he believes in a comprehensive ap- proach, and nothing should be taken off the table. He said, though, that he is not convinced that we have the technology to make such mining safe. Deeds said, when the issue came up in committee, he asked two questions, one he knew the answer to and the other he didn’t. The questions were: 1. What about the terrain in Pittsylvania County has changed? 2. What about the science has changed? The answer to question #1, which Deeds already knew, was nothing. The terrain is such that the mining may very well contaminate the groundwater and not just in Pittsylvania County. The problem could very well ex- tend beyond, down to Hampton Roads. As for #2, he would like to see a study done by the Na- tional Academy of Sciences. . . . The other issue is that of radioactive waste. Deeds was quite concerned about this, saying that radioactivity lasts forever, and even if 247a the technology exists to clean it up — which he was very skeptical of this being the case — the stigma of having radioactive waste in an area may be too much to over- come. Unless the technology exists to make uranium mining safe, I think I understood Deeds’ position to be that he would not support it. Sen. Creigh Deeds Talks Sense on Uranium Mining, SOUTHSIDE VIRGINIA AGAINST URANIUM MINING (Aug. 7, 2009), attached to Ohlendorf Decl. as Exhibit 58. Shaul Ueatain endl ke ecaalioas Glider mauelecbont We cannot embark on any legislation that could result in endangering our water supply. Virginia Beach worked too hard for too long to make sure the Lake Gaston pipeline came to fruition. Any actions that could possibly jeopardize our water supply must be re- jected. Voter Guide 2013 — House of Delegates 82nd District, THE VIRGINIAN-PILOT, Oct. 27, 2013, attached to Ohlen- dorf Decl. as Exhibit 59. One notable bill that was scheduled to be heard in last week’s meeting of the Agriculture, Conservation and Natural Resources Committee was a measure that would have lifted Virginia’s 30-year moratorium on uranium mining. Our climate is distinctly different 248a than that of most locations where uranium is currently mined, and I believe that lifting the ban could have posed serious threats to the Southside Virginia water table and resulted in other significant environmental concerns. After counting the votes of members of the Agriculture, Conservation and Natural Resources members, including mine, the patron of the legislation decided to strike the bill, laying the issue to rest for this session. Senator Adam Ebbin, Medicaid Expansion, Transpor- tation and Uranium Ban, MOUNT VERNON PATCH, Feb. 5, 2013, attached to Ohlendorf Decl. as Exhibit 60. Environmental groups have been critical of uranium mining because of concerns over a radioactive byprod- uct known as “tailings,” a sand-like substance left over after the uranium is milled. Some legislators say they are concerned that the radioactive byproduct could flow downstream into the Hampton Roads area. That means Pittslvania County could see the economic ben- efits while the Hampton Roads area has to deal with the pollution. “I don’t want to sell the public health at any price,” said state Sen. Adam Ebbin (D-30). “We should be serious about other kinds of economic development besides dirty energy.” Michael Lee Pope, Uranium Money Spreads Across Vir- ginia in Radioactive Debate, ALEXANDRIA GAZETTE PACKET, Nov. 27, 2012, attached to Ohlendorf Decl. as Exhibit 61. The proposed Coles Hill wu uranium site in Pittsylvania County is located about a mile from the 1 Banister River, which flows on through Halifax County, eventu- ally into Buggs Island Lake. The Banister is part of the Roanoke River Basin and this river has been named as one of the 2011 10 most endangered rivers in the United States because of its proximity to the proposed mine... . I had the privilege of speaking to an ecology class at Halifax County High School concerning some of the dangers of uranium mining. I hope that I was able to alert them to be vigilant on this issue. Delegate James E. Edmunds II, Letter to the Editor, CHATHAM STAR-TRIBUNE, Apr. 11, 2012, attached to Ohlendorf Decl. as Exhibit 62. A state wide fundraiser is being organized in hopes of raising $100,000 in opposition of uranium mining. Del- egate James Edmunds will host the fundraiser on his Halifax County farm this September.... “If we’re wrong with uranium mining we are wrong forever. There is no whoops we messed up there, you’ve ruined a lifestyle and generations of living in this part of the state, and I’m just not prepared to give that up yet,” he said. Delegate Organizing Anti-Uranium Fundraiser, WSET, June 28, 2012, attached to Ohlendorf Decl. as Exhibit 63. Delegate James Edmunds is taking a huge stand against uranium mining by hosting a fundraiser at his 250a home Sept. 15 in hopes of raising $100,000 to fight the ban to lift a 30-year state moratorium on uranium mining. ... He said it was important to keep the ban on uranium mining because of its impact on the public. “All the studies done on uranium mining have indi- cated that there is no 100 percent assurance that it can be done safely. The same thing can be said when you step outside in the morning, but the difference here is if we are wrong and our water, air, and soil get contam- inated, we’re wrong forever,” Edmunds said. He explained the upkeep of the uranium mine could become costly, and he questions where the money will come from to pay someone to monitor the uranium landfills that must be monitored forever after mining has begun. Edmunds said the stigma of uranium mining has al- ready hurt economic development and property value in the area. Danielle Vaughn, Delegate Raising Money to Keep Ban on Uranium Mining in Place, HALIFAX-GAZETTE- VIRGINIAN, July 31, 2012, attached to Ohlendorf Decl. as Exhibit 64. Bills introduced last week would lift a moratorium on uranium mining at the site here, known as Coles Hill. Political supporters say that the mining would bring economic benefits and that risks from radioactive wastes, or tailings, can be safely managed. Opponents fear the contamination of drinking water in case of an accident, and a stigma from uranium that would deter 25l1a people and businesses from moving to the area.... Delegate James E. Edmunds II, a Republican, said that in the event that radiation leaked into the groundwa- ter, his district would be one of the first affected. “There’s no waiting for a big rain to clean it up,” he said. “I’m not going to have that as my legacy.” Trip Gabriel, Rift Widens over Mining of Uranium in Virginia, N.Y. TIMES, Jan. 19, 2013, attached to Ohlen- dorf Decl. as Exhibit 65. [A] quintet of lawmakers — senators Frank Ruff of Clarksville and Don Merricks of Chatham, and dele- gates Tommy Wright, James Edmunds and Danny Marshall, representing communities from Lunenburg to Danville — wrote a letter to fellow legislators asking in no uncertain terms that any attempt to lift the mor- atorium be delayed. December 28, 2011 Dear Colleague, I hope each of you had a great Christmas and are look- ing forward to 2012! The National Academy of Sciences report on uranium mining has been released, following similar reports by Chmura Economics, the Danville Regional Foundation, Virginia Beach and others. ... The reports are long and detailed. Parts are dense and complex. What they are not is boring. These reports deserve to be read, par- ticularly the Academy’s sections on the risks to public health and the environment. ... The serious threats 252a that the Academy outlines deserve to be thoroughly ab- sorbed and extensively debated by the public and knowledgeable contributors before any decisions are made. . . .With respect to the reports themselves, a few observations are appropriate. All such reports are shaped around a set of guiding assumptions. In these cases, those assumptions include: e The establishment and use by the com- pany of internationally best practices in all ar- eas. e The use of best technology, whatever the cost. e The development and establishment and financing of a credible regulatory structure. e The assumption that there will be no con- sequential management failures, system or machinery failures, human error, external or unexpected events. Assumptions are just that, of course. There is no guar- antee that best practices will be utilized. There is no certainty that best technologies will be employed, par- ticularly if they prove to be significantly more expen- sive or constraining. Both the Academy and Chmura make it clear there is no state or federal regulatory scheme or expertise in place remotely sufficient to monitor or regulate this industry. An even larger concern is the inability to address ade- quately those events that are unknown and unknowa- ble as to time and circumstance. History teaches that human error and/or system failures are inevitable. The 253a unexpected happens. Design flaws show up after the fact. The Academy cannot predict what or when or how but anyone who has worked in complex industrial op- erations knows that things will go wrong. Mistakes oc- cur, hurricanes and earthquakes will happen. One only has to read the newspaper to see the catastrophic con- sequences of the failure of operations that were de- signed and operated and regulated by the best and the brightest. Three Mile Island, Chernobyl, the Chal- lenger, Fukushima, Union Carbide come quickly to mind — the question is not if these events will occur, but when and at what cost. It is notable that even assuming best practices and best technology and extensive regulation, the reports detail serious consequences to human health and the environment that can be expected. It is not difficult to conclude the Academy is sending clear warning signals that mining and processing uranium in a wet climate subject to flooding and extreme weather events in a densely populated area is a very, very bad idea... I close with the quote attributed to Paul Locke, chair- man of the Academy committee that produced the re- port.... “The report didn’t say you can mitigate all risks. It said you can mitigate some risks”. We are being asked to push through a proposal to lift a thirty-year old ban on an industry with an abysmal environmental record that, under the most optimistic assumptions, experts conclude the most that can be ex- pected is to reduce some of the quite serious risks to the health and welfare of the surrounding community. 254a How on earth can a responsible person take that gam- ble? Tom McLaughlin, Holding Pattern, S. BoSTON NEws & RECORD & MECKLENBURG SUN, Jan. 25, 2012, attached to Ohlendorf Decl. as Exhibit 66. =m #72 = Sen: Joh an.S sR Edy yards The company that wants to mine uranium in Virginia is supporting a bill in the upcoming General Assembly calling for regulations to govern the proposed mining, according to lobbyists for Virginia Uranium. The move is widely seen by environmentalists and others as a way to authorize the mining while avoiding an up or down vote on the controversial project. .. Virginia state Sen. John Edwards, D-Roano..e, who opposes the mine, says the vote on regulations is an attempt to shift the focus away from a more difficult debate. “I can see how those who want to promote the uranium mine would rather argue over the details of regulation than the bigger question of can you do it safely and protect public health and safety, the question of should we do it at all,” Edwards says. Rose Ellen O’Connor, End Run: Supporters of Uranium Mining in Virginia Push Bill to Effectively Lift the Ban Without an Up or Down Vote, NATURAL RESOURCES NEwS SERVICE, Nov. 19, 2012, attached to Ohlendorf Decl. as Exhibit 67. DelaDavidtEnclin: — = — , 7 wer Me : — = : == = 2 Ye, & f = oa eiitgéd 4 are starting to heat up in Virginia over ura- nium mining. . . . In theory, I assume almost anything . * 292a can be done safely within certain assumptions and with enough money. The problem is that the assump- tions are frequently wrong. Humans have frequently proven to be very capable of under-estimating risk un- til after the facts. . . .One key issue is the safety of stor- ing the mining waste, waste that can get into drinking water and containing elements that have been linked to serious diseases. A critical question for me is what kind of storage is planned, whether than storage is fea- sible and whether it is safe. Some say the waste must be contained for one thousand years. Uranium itself is radioactive and highly toxic to human and environ- mental health. ... Mining a material that could per- manently destroy the Occoquan River and impair the drinking water for millions is a non-starter for me. It is unacceptable to me to subject anyone else to that kind of risk. Scott A Surovell, Uranium Mining: The Coming Battle in Virginia, MOUNT VERNON GAZETTE, July 15, 2011, at- tached to Ohlendorf Decl. as Exhibit 88. No, because our water supply from Lake Gaston is too important to the future of Virginia Beach. A potentially compromised water supply would cripple our economy and endanger our health for decades. 293a Voter Guide 2013 — House of Delegates 85th District, THE VIRGINIAN-PILOT, Oct. 27, 2013, attached to Ohlen- dorf Decl. as Exhibit 89. : a = =D el, Ron-Villan TAT A company wants to mine uranium in ok contvel Virginia. That would require the General Assembly lifting a state ban on the practice. What is your posi- tion on uranium mining in Virginia? I have worked to protect our city’s primary water source at Lake Gaston and will continue to oppose ef- forts to lift the ban on uranium mining. Election 2011 — Guide to Virginia House & Senate Races, THE VIRGINIAN-PILOT, Nov. 7, 2011, attached to Ohlendorf Decl. as Exhibit 90. Villanueva opposes lifting the state’s ban on uranium mining because of the risk to residents’ drinking water. Davis, Villanueva for the House, THE VIRGINIAN-PILOT, Oct. 16, 2013, attached to Ohlendorf Decl. as Exhibit 91. Al po re of lawmakers — oonaters Frank Ruff of Clarksville and Don Merricks of Chatham, and dele- gates Tommy Wright, James Edmunds and Danny Marshall, representing communities from Lunenburg to Danville — wrote a letter to fellow legislators asking 294a in no uncertain terms that any attempt to lift the mor- atorium be delayed. December 28, 2011 Dear Colleague, I hope each of you had a great Christmas and are look- ing forward to 2012! The National Academy of Sciences report on uranium mining has been released, following similar reports by Chmura Economics, the Danville Regional Foundation, Virginia Beach and others.... The reports are long and detailed. Parts are dense and complex. What they are not boring. These reports deserve to be read, par- ticularly the Academy’s sections on the risks to public health and the environment. ... The serious threats that the Academy outlines deserve to be thoroughly ab- sorbed and extensively debated by the public and knowledgeable contributors before any decisions are made. . . . With respect to the reports themselves, a few observations are appropriate. All such reports are shaped around a set of guiding assumptions. In these cases, those assumptions include: e The establishment and use by the com- pany of internationally best practices in all ar- eas. © The use of best technology, whatever the cost. e The development and establishment and financing of a credible regulatory structure. 295a e The assumption that there will be no con- sequential management failures, system or machinery failures, human error, external or unexpected events. Assumptions are just that, of course. There is no guar- antee that best practices will be utilized. There is no certainty that best technologies will be employed, par- ticularly if they prove to be significantly more expen- sive or constraining. Both the Academy and Chmura make it clear there is no state or federal regulatory scheme or expertise in place remotely sufficient to monitor or regulate this industry. An even larger concern is the inability to address ade- quately those events that are unknown and unknowa- ble as to time and circumstance. History teaches that human error and/or system failures are inevitable. The unexpected happens. Design flaws show up after the fact. The Academy cannot predict what or when or how but anyone who has worked in complex industrial op- erations knows that things will go wrong. Mistakes oc- cur, hurricanes and earthquakes will happen. One only has to read the newspaper to see the catastrophic con- sequences of the failure of operations that were de- signed and operated and regulated by the best and the brightest. Three Mile Island, Chernobyl, the Chal- lenger, Fukushima, Union Carbide come quickly to mind — the question is not if these events will occur, but when and at what cost. It is notable that even assuming best practices and best technology and extensive regulation, the reports 296a detail serious consequences to human health and the environment that can be expected. It is not difficult to conclude the Academy is sending clear warning signals that mining and processing uranium in a wet climate subject to flooding and extreme weather events in a densely populated area is a very, very bad idea... I close with the quote attributed to Paul Locke, chair- man of the Academy committee that produced the re- port.... “The report didn’t say you can mitigate all risks. It said you can mitigate some risks”. We are being asked to push through a proposal to lift a thirty-year old ban on an industry with an abysmal environmental record that, under the most optimistic assumptions, experts conclude the most that can be ex- pected is to reduce some of the quite serious risks to the health and welfare of the surrounding community. How on earth can a responsible person take that gam- ble? Tom McLaughlin, Holding Pattern, S. BOSTON NEws & RECORD & MECKLENBURG SUN, Jan. 25, 2012, attached to Ohlendorf Decl. as Exhibit 66. Legislators representing districts that encircle a ura- nium deposit in Southside Virginia are asking their colleagues to abandon any effort in the 2012 session to end the state’s 30-year ban on mining the radioactive ore. ... “My main concern is I’m opposed to it regard- less of the reports,” Wright said. “Once our water sup- ply and our lakes are polluted, it’s too late.” 297a Southside Legislators: Keep State’s Uranium Mining Ban in 2012, RICHMOND TIMES-DISPATCH, Jan. 3, 2012, attached to Ohlendorf Decl. as Exhibit 92. 298a AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE COMMONWEALTH OF VIRGINIA FOR THE DISCONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY WITHIN THE COMMONWEALTH PURSUANT TO SECTION 274 OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED WHEREAS, The United States Nuclear Regulatory Commission (the Commission) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §2011 et seg. (the Act), to enter into agreements with the Governor of any State/ Commonwealth providing for discontinuance of the regulatory authority of the Commission within the Commonwealth under Chapters 6, 7, and 8, and Sec- tion 161 of the Act with respect to byproduct materials as defined in Sections 11le.(1), (3), and (4) of the Act, source materials, and special nuclear materials in quantities not sufficient to form a critical mass; and, WHEREAS, The Governor of the Commonwealth of Virginia is authorized under the Code of Virginia Sec- tion 32.1-235, to enter into this Agreement with the Commission; and, 299a WHEREAS, The Governor of the Commonwealth of Virginia certified on June 12, 2008, that the Common- wealth of Virginia (the Commonwealth) has a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the Commonwealth covered by this Agreement, and that the Commonwealth desires to assume regu- latory responsibility for such materials; and, WHEREAS, The Commission found on February 27, 2009 that the program of the Commonwealth for the regulation of the materials covered by this Agreement is compatible with the Commission’s program for the regulation of such materials and is adequate to protect public health and safety; and, WHEREAS, The Commonwealth and the Commission recognize the desirability and importance of coopera- tion between the Commission and the Commonwealth in the formulation of standards for protection against hazards of radiation and in assuring that Common- wealth and Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS, The Commission and the Commonwealth recognize the desirability of the reciprocal recognition of licenses, and of the granting of limited exemptions from licensing of those materials subject to this Agree- ment; and, WHEREAS, This Agreement is entered into pursuant to the provisions of the Act; 300a NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of the Commonwealth acting on behalf of the Commonwealth as follows: ARTICLE I Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the ef- fective date of this Agreement, the regulatory author- ity of the Commission in the Commonwealth under Chapters 6, 7, and 8, and Section 161 of the Act with respect to the following materials: 1. Byproduct materials as defined in Section 11e.(1) of the Act; 2. Byproduct materials as defined in Section 11e.(3) of the Act; 3. Byproduct materials as defined in Section 11e.(4) of the Act; 4. Source materials; and Special nuclear materials in quantities not sufficient to form a critical mass. ARTICLE II This Agreement does not provide for discontinuance of any authority and the Commission shall retain author- ity and responsibility with respect to: 1. The regulation of the construction and opera- tion of any production or utilization facility or any uranium enrichment facility; 301la The regulation of the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility; The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear materials waste as defined in the regulations or orders of the Commission; The regulation of the disposal of such other byproduct, source, or special nuclear materi- als waste as the Commission from time to time determines by regulation or order should, because of the hazards or potential hazards thereof, not be disposed without a li- cense from the Commission; The evaluation of radiation safety infor- mation on sealed sources or devices contain- ing byproduct, source, or special nuclear materials and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commis- sion; The regulation of byproduct material as de- fined in Section 11e.(2) of the Act; The regulation of the land disposal of byprod- uct, source, or special nuclear material waste received from other persons. 302a ARTICLE III With the exception of those activities identified in Ar- ticle 11.1 through 4, this Agreement may be amended, upon application by the Commonwealth and approval by the Commission, to include one or more of the addi- tional activities specified in Article Il, whereby the Commonwealth may then exert regulatory authority and responsibility with respect to those activities. ARTICLE IV Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, re- quire that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear mate- rial shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission. ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 161b or 161i of the Act to issue rules, regulations, or orders to protect the com- mon defense and security, to protect restricted data, or to guard against the loss or diversion of special nuclear material. 303a ARTICLE VI The Commission will cooperate with the Common- wealth and other Agreement States in the formulation of standards and regulatory programs of the Common- wealth and the Commission for protection against haz- ards of radiation and to assure that Commission and Commonwealth programs for protection against haz- ards of radiation will be coordinated and compatible. The Commonwealth agrees to cooperate with the Com- mission and other Agreement States in the formula- tion of standards and regulatory programs of the Commonwealth and the Commission for protection against hazards of radiation and to assure that the Commonwealth’s program will continue to be compat- ible with the program of the Commission for the regu- lation of materials covered by this Agreement. The Commonwealth and the Commission agree to keep each other informed of proposed changes in their re- spective rules and regulations, and to provide each other the opportunity for early and substantive contri- bution to the proposed changes. The Commonwealth and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or oth- erwise be of regulatory interest. ARTICLE VII The Commission and the Commonwealth agree that it is desirable to provide reciprocal recognition of licenses 304a for the materials listed in Article I licensed by the other party or by any other Agreement State. Accordingly, the Commission and the Commonwealth agree to develop appropriate rules, regulations, and procedures by which such reciprocity will be accorded. ARTICLE VIII The Commission, upon its own initiative after reason- able notice and opportunity for hearing to the Com- monwealth, or upon request of the Governor of the Commonwealth, may terminate or suspend all or part of this agreement and reassert the licensing and regu- latory authority vested in it under the Act if the Com- mission finds that (1) such termination or suspension is required to protect public health and safety, or (2) the Commonwealth has not complied with one or more of the requirements of Section 274 of the Act. The Commission may also, pursuant to Section 274j of the Act, temporarily suspend ail or part of this agree- ment if, in the judgment of the Commission, an emer- gency situation exists requiring immediate action to protect public health and safety and the Common- wealth has failed to take necessary steps. The Commis- sion shall periodically review actions taken by the Commonwealth under this Agreement to ensure com- pliance with Section 274 of the Act which requires a Commonwealth program to be adequate to protect public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission’s program. 305a ARTICLE IX This Agreement shall become effective on March 31, 2009, and shall remain in effect unless and until such time as it is terminated pursuant to Article VIII. Done at Rockville, MD, in triplicate, this 4th day of March, 2009. FOR THE UNITED STATES NUCLEAR REGULATORY COMMISSION LRA/ Dale E. Klein, Chairman Done at Richmond, Virginia, in triplicate this 18th day of March, 2009. FOR THE COMMONWEALTH OF VIRGINIA LRA! Timothy M. Kaine, Governor 306a In the Supreme Court of the United States No. 04-575 DIANNE R. NIELSON, EXECUTIVE DIRECTOR, UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, ET AL., PETITIONERS Uv. PRIVATE FUEL STORAGE, L.L.C., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views of the United States. In the view of the United States, the petition for a writ of certiorari should be denied. STATEMENT Following a publicly-announced proposal by re- spondents, a private consortium of electric utilities and an Indian tribe, to develop a storage facility for spent nuclear fuel on Indian land in the State of Utah, the 307a State enacted a series of comprehensive and interre- lated statutes to ban or limit the storage and transpor- tation of spent nuclear fuel. The Tenth Circuit held that respondents’ challenge to those statutes was ripe for review and that most of the statutory provisions were preempted by the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seg. Those rulings are correct and do not warrant further review by this Court. 1. In the AEA, Congress vested the Nuclear Reg- ulatory Commission (NRC) with “exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession and use of nuclear materials. Upon these subjects, no role was left for the states.” Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 207 (1983) (citations omitted); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249-250 (1984). The AFA also preempts state laws that have a purpose to address “protection against radiation haz- ards,” 42 U.S.C. 2021(k), or that have a “direct and sub- stantial effect on the decisions made by those who build or operate nuclear facilities concerning radiolog- ical safety levels.” English v. General Elec. Co., 496 U.S. 72, 85 (1990). Spent nuclear fuel (SNF), which is highly radioac- tive, must periodically be removed from commercial nuclear reactors. Pacific Gas, 461 U.S. at 195-196. “While the AEA does not specifically refer to the stor- age or disposal of spent nuclear fuel, it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of such fuel.” Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 308a 2004). Pursuant to the AEA, the NRC has promulgated regulations providing a comprehensive procedure for the licensing of temporary SNF storage installations in order to ensure safe storage of the material. 10 C.F.R. Pt, 72. Congress addressed the permanent disposal of SNF (as well as high level radioactive waste) in the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq., which provides for the study and eventual devel- opment of a permanent geologic repository. Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1258-1262 (D.C. Cir. 2004). “As of 2003, nuclear reactors in the United States had generated approximately 49,000 metric tons of spent nuclear fuel. Most of this waste is currently stored at reactor sites across the country. * * * By the year 2035, the United States will have produced 105,000 metric tons of nuclear waste — approximately twice the current inventory.” Nuclear Energy Inst. v. EPA, 373 F.3d at 1258 (citations omitted). Facilities for the storage and disposal of SNF are therefore essential to sustain the viability of nuclear power as an energy source. Pacific Gas, 461 U.S. at 195196 & n.2. Since 1997, respondent Private Fuel Storage (PFS) has sought a license from the NRC to build and operate a temporary SNF storage facility on Utah land belonging to respondent the Skull Valley Band of Goshute Indians that is located southeast of Salt Lake City. Pet. App. 4a, 56a. The proposed facility would pro- vide storage capacity for utilities that seek offsite stor- age of the SNF, until such time as the permanent geologic repository is operational. Expressing specific 309a concern about the safety of PFS’s efforts, Utah passed a series of statutes between 1998 and 2001 that the courts below found were designed to block the pro- posed facility. Jd. at 5a, 37a, 47a, 49a-50a, 52a, 56a-57a, 63a. They are summarized briefly below. a. Utah’s Licensing Regulations. Part 3 of Utah’s Radiation Control Act requires a SNF storage facility that has been licensed by the NRC also to obtain a state license for construction and operation. Utah Code Ann. § 19-3-304. The licensing scheme requires exten- sive analysis of health and safety issues related to the storage of SNF, Jd. §§ 19-3-301(2)-(4), 19-3-304 to 19-3- 307. The applicant also must provide Utah’s Depart- ment of Environmental Quality (DEQ) with extensive information related to health and safety aspects of the proposed installation. Jd. § 19-3-305. The license may not be issued unless DEQ finds the information in the application sufficient to support a variety of specific findings related to the health and safety effects of the facility. Id. § 19-3-306. The applicant must satisfy DEQ, for example, that “the wastes will not cause or contribute to an increase in mortality, an increase in illness, or pose a present or potential hazard to human health or the environment.” Jd. § 19-3-306(3). The ap- plicant must also provide information on topics such as groundwater, security plans, quality assurance pro- grams, radiation safety programs, and emergency plans. Jd. § 19-3-305. All of those areas are regulated by the NRC under 10 C.F-R Part 72 in order to protect human health and safety and the environment. 310a Part 3 also imposes substantial application and li- censing fees. The applicant must pay a non-refundable “initial fee” of $5 million and thereafter “shall * * * pay an additional fee to cover the costs to the state associ- ated with review of the application, including costs to the state and the state’s contractors for permitting, technical, administrative, legal, safety, and emergency response reviews, planning, training, infrastructure, and other impact analyses, studies, and services re- quired to evaluate a proposed facility.” Utah Code Ann. § 19-3-308(1)(a) and (b). The applicant must also post a bond of “at least” $2 billion, or “a greater amount as determined * * * to be necessary to adequately respond to,” among other things, “any reasonably foreseeable releases.” Id. § 19-3-306(10) (emphasis added), b. Unfunded liability payment. Part 3 further re- quires the operator of an SNF storage facility to pay to the State an amount equal to 75% of the “unfunded po- tential liability” of the project. Utah Code Ann. § 19-3- 319(3Xa). That amount will be determined by DEQ based upon the health and economic costs expected to result from “a reasonably foreseeable accidental re- lease” of SNF. Id. § 19-3-301(5)(a). Under those provi- sions, the DEQ may require payment of an additional amount above the level of insurance that the NRC de- cides to require in ime project license. Pet. App. 44a- 45a. c. Revocation of limited liability. Part 3 also re- vokes statutory and common-law limited liability for 3lla officers, directors, and equity-interest owners of com- panies operating SNF storage facilities in Utah. Utah Code Ann. § 19-3-318. d. County planning requirements and the prohi- bition on providing municipal services. Utah’s legisla- tion also includes county planning requirements. Pet. App. 36a, 75a. Among other things, county govern- ments must either ban the storage and transportation of SNF, or adopt a comprehensive land use plan con- taining detailed information regarding the effects of any proposed SNF site upon public health and welfare. Utah Code Ann. § 17-27-301. The plan also must include “specific measures to mitigate the effects of high-level nuclear waste and greater than Class C ra- dioactive waste and guarantee the health and safety of the citizens of the state.” Id. § 17-27-301(3)(a)(iii). In addition, a county “may not provide, contract to pro- vide, or agree in any manner to provide municipal-type services * * * to any area under consideration for a storage facility or transfer facility for placement of high-level nuclear waste, or greater than Class C radi- oactive waste.” Id. § 17-34-1(3). e. Transportation provisions. Utah also enacted provisions related to roads and railroad crossings that may be needed for access to an SNF storage facility in Utah. Utah Code Ann. §§ 544-15, 72-3-301, 72-4- 125(4), 78-34-6(5); Pet. App. 8a-9a. One of the provi- sions divests the county of control over the only road providing access to PFS’s proposed SNF storage facil- ity, by designating the road a state highway. Utah Code 312a Ann. § 72-4-125(4); Pet. App. 8a. Another provision re- quires that, before a disputed petition for a railroad crossing filed by an entity engaged in SNF storage may be resolved, the Governor and the state legislature must concur in the decision — a requirement that is im- posed only on entities engaged in SNF storage. Utah Code Ann. § 54-415(4)(b); Pet. App. 8a." 2. Respondents challenged Utah’s statutes in the United States District Court for the District of Utah, arguing, inter cilia, that they were preempted by the AFA. In July 2002, the district court issued an order holding that respondents had standing to sue, that their claims were ripe for review, and that the relevant statutes were preempted by the AEA. Pet. App. 54a- 77a. 3. The court of appeals affirmed. Pet. App. la- 53a. The court held that respondents’ preemption claims were ripe for review because the question of preemption is predominately legal and therefore fit for judicial resolution. Jd. at 23a-24a. The court also rea- soned that postponing review would impose a substan- tial hardship on the parties. Jd. at 24a. On the merits, the court affirmed the district court’s holding that the ' Utah also passed certain provisions that require drug and alcohol testing of employees of »ompanies engaged im SNF storage and authorize litigation to determine water rights in areas under consideration for SNF storage. The district court rejected re- spondents’ Commerce Clause challenge to those provisions, Pet. App. 77a-80a, and that ruling was not appealed. Jd. at 5a. 313a challenged statutes regulated in the area of nuclear safety and therefore were preempted. Jd. at 25a-53a. DISCUSSION The court of appeals applied well-established legal principles governing ripeness and preemption to the unique circumstances of this case and concluded that Utah’s statutory scheme is preempted. That decision is correct, and does not conflict with any decisions of this Court or any court of appeals. Further review is not warranted. A. The Ripeness Question Does Not Merit Re- view * * * B. The Court Of Appeals’ Application Of Field Preemption Principles To The Circumstances Of This Case Does Not Merit Review On the merits of the preemption issue, petitioners argue that the court of appeals’ decision violates the standards for facial preemption of state law, because respondents allegedly have not shown that the state laws are invalid in all of their applications. Pet. 13. Pe- titioners thus fault the courts below for not determin- ing whether any of the laws could be validly applied to serve interests other than the regulation of radiologi- cal safety. Pet. 19-27. But this is not a case where gen- erally applicable safety laws are preempted as applied 31l4a to a federally-preempted field, like nuclear safety reg- ulation. 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 operation of the proposed facility based on radiation hazard concerns. In light of those factual determinations, the decision to find the entire statutory scheme preempted on its face is correct. Moreover, the case-specific determination of the lower courts does not merit this Court’s review and is correct in any event. 1. “[S)tate law is pre-empted where,” inter alia, “it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively.” Eng- lish, 496 U.S. at 79. When Congress so intends, it is said to have preempted the “field,” zbid., and thus a state law addressed specifically to the pre-empted field is in- valid on its face, i.e., in all of its applications. “When the federal government completely occupies a given field or an identifiable portion of it, * * * the test of [field] pre-emption is whether ‘the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’” Pacific Gas, 461 U.S. at 212-213 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236 (1947)). Congress has preempted the field of nuclear safety regulation. Pacific Gas, 461 U.S. at 212-213; English, 496 U.S. at 82. As the Court has explained, “|s]tate safety regulation is not preempted only when it 315a conflicts with federal law[;] [rlather, the federal gov- ernment has occupied the entire field of nuclear safety concerns.” Pacific Gas, 461 U.S. at 212. Thus, the AEA preempts any state legislation that falls within “the field of nuclear safety concerns.” Jd. at 212-213; accord id. at 208 (“the safety of nuclear technology [is] the ex- clusive business of the federal government”). For those reasons, petitioners err in relying on California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 588-589 (1987), in which the Court held that a state permitting scheme was not facially preempted because it was possible that the scheme could be implemented as an exercise of permissible environmental regulation. That decision did not in- volve any issue of field preemption, and thus sheds no light on the question presented in this case. Id. at 589 (noting that field preemption was “concededly not the case”). Moreover, the Court emphasized that the allegedly preempting federal regulations specifically contemplated state regulation in the field of environ- mental protection, which is, of course, a contemplation at odds with any theory of field preemption. /d. at 583-589. Here, by contrast, the federal government ex- clusively regulates the field of nuclear safety and the “licens[ing] [of] the transfer, delivery, receipt, acquisi- tion, possession, and use of nuclear materials.” Pacific Gas, 461 U.S. at 207.° ° For similar reasons, petitioners err in relying on lower court decisions that declined to find a law preempted in areas of the law other than the field of nuclear safety. Pet. 28-29. None of 316a 2. In this case, the court of appeals carefully re- viewed Utah’s statutory scheme and determined that it was targeted to and regulated exclusively in the preempted field of nuclear safety. The Tenth Circuit specifically found that Utah’s statutes were motivated by concerns about nuclear safety and directly ad- dressed the field of radiation hazards. Pet. App. 37a, 47a, 49a-50a, 52a. Although petitioners argue that Utah’s purpose in protecting against radiation hazards does not bring the challenged legislation within the preempt [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0744%3A02. Public record. Not legal advice.