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SUPREME DECISION

In multi-faceted case that defies political stereotypes, highest court in land to hear arguments on uranium mining moratorium

  • 7 min to read
In multi-faceted case that defies political stereotypes, highest court in land to hear arguments on uranium mining moratorium

CHATHAM — Cruising down along the gravel roads, sparsely populated farmland lined either side of the path as Walter Coles Sr. navigated around 3,000 acres of land — 1,000 of which belonging to him and the other 2,000 to his company, Virginia Energy Resources.

At the start of the ride along, Coles stopped the white work truck twice within a few hundred yards of his own home. First, the truck paused where a uranium deposit on the southern portion of his land begins, and second, where a second deposit to the north on his property begins.

Between the two deposits, initial estimates predicted there could be 119 million pounds of uranium ore embedded in granite beneath the surface — the largest known domestic uranium deposit.



Any attempts to retrieve the ore have been on hold for decades, however, due to Virginia’s controversial moratorium on uranium mining.

On Monday, that moratorium’s legality is set to be debated in the U.S. Supreme Court.

Justices serving on the highest court in the land will hear arguments in Virginia Uranium, Inc. vs. Warren — a complex case that legal experts say will ultimately turn on preemption and environmental law while also dipping into federalist principles as a state rights battle.

36 years and counting

The Supreme Court case is the latest attempt by a group to apply for the right to mine ore situated about 6 miles northeast of Chatham, the seat of Pittsylvania County.

Beneath a clouded gray sky on Thursday, Coles delved into history of the ore’s discovery and the extensive process undergone by Canadian uranium companies in the late 1970s to determine if the concentration of uranium at the Coles Hill deposit was worth mining.

“People don’t realize this, but uranium is everywhere,” Coles said, standing along the border of the north deposit. In the air, the ocean, the water we drink — his list went on.

“It’s not harmful in most cases,” he said. “Nor is it economically recoverable.”

Therefore, a reading from a Geiger counter — a device used to detect radiation — was only the start for determining if mining in Pittsylvania County was practical. Holes were drilled, samples pulled, lab tests run — all to decide whether mining had the potential to be profitable.

The deposit is estimated at 119 million pounds and its worth once was valued at $10 billion, according to The Washington Post, which noted that the price of uranium does fluctuate. It is the largest known uranium deposit in the United States.

Despite the rumors, he said, the deposits’ discovery was not accidental.

“A lot of hard work and resources actually went into finding the ore body,” said Coles.

For Pittsylvania County supervisor and Mount Airy native Charles Miller, whispers of uranium had entered the public sphere when he was just a pre-teen. From there, he said, the talk only grew louder.

Once the companies confirmed the deposits’ worth, appeals were made to Virginia’s General Assembly in the early 1980s to begin the application process to mine the ore — up until this point, there had never been a precedence set for mining uranium in the state.

John Watkins represented Powhatan as a Republican Virginia senator starting in 1982, when the issue came before the commonwealth and the moratorium on mining was enacted to allow government bodies to study it.

Initially, that moratorium was meant to last one year but was extended indefinitely in 1983 to allow more time for additional studies and public hearings.

By the time recommendations were made to allow the Virginia Department of Mines, Minerals and Energy to accept applications in 1985, with legislation that offered stringent mining regulations, the price of the ore had dipped, the companies’ interest diminished and the legislators shifted their attention to other issues.

The moratorium still stood.

For the next two decades, Miller said, interest in the subject remained spotty until the mid-2000s.

At that point, Virginia Energy Resources and Virginia Uranium, Inc. were formed by Coles and backed by Canadian energy companies to push for legislators to again look at lifting the moratorium.

His lobbying efforts led to some support and proposed legislation, but none were successful.

Watkins, still a senator at the time, agreed with Coles’ appeal and proposed the final legislative attempt to end the moratorium in 2013. His legislation included a comprehensive list of regulations specifically for uranium mining, on top of those Virginia already had for any type of mining operation.

But the bill died before leaving his committee, not garnering enough support, he said.

After former Gov. Terry McAuliffe, a Democrat, announced in 2014 he would strike down any attempt to lift the moratorium on uranium mining, Coles’ took his case to the only branch of government left — the judiciary — with a lawsuit against Virginia.

All lower courts have upheld the state’s moratorium up to this point.

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Ahead of Monday's Supreme Court argument hearing, Water Coles drives around the 3,000 acres owned by himself and his company, Virginia Energy Resources, Inc., saying the mass of largely agricultural land provides a clear buffer between his proposed mining operation and other property.

The arguments

Proponents of the mining moratorium argue the potential environmental hazards create a public safety risk, adding that mining could damage the perception of Pittsylvania County and hamper economic development.

A wide range of groups like the Southern Environmental Law Center, Roanoke River Basin Association and the Danville-Pittsylvania Chamber of Commerce have most recently cited their support for the moratorium in friend-of-the-court briefs submitted to the Supreme Court.

In a statement by the local chamber of commerce, they cited concerns over the lingering uncertainty of whether uranium mining could take place safely at Coles Hill.

“While considering possible economic benefits of such an industry, the board still has significant concerns surrounding the potential impact of uranium mining and milling on existing businesses and the region’s ability to attract, retain and grow jobs,” the chamber’s board of directors said in the statement.

Sitting at his kitchen table, Miller said he worries about the long-term effects if any leaks from the mines or tailing (radioactive ore residue) holding facilities were to travel downstream.

He said he didn’t want a repeat of the thalidomide sleeping pill crisis of 1950s and 60s, in which pregnant women were told the drug was safe but ultimately resulted in the malformed limbs of thousands of babies born worldwide.

The cost of public health consequences often falls on a locality, he said.

With his 13 grandchildren in mind, Miller said, “I wouldn’t want one of my grandchildren to come up with this debt on their shoulders.”

Coles said his company plans to use the best practices for mining and tailing storage. All of it would be in accordance with the Nuclear Regulatory Commission’s “strict” guidelines, he said.

A few of his examples were no open pits, no above-grade tailing storage and no material kept on a flood plain.

After all these years, Coles said he draws motivation from his desire to offer the community a viable new industry, create local jobs drawing from the region’s workforce programs and contribute to scientific research.

“We think it’s the right thing to do,” he said. “We think that the benefits far outweigh the downside of any negative components.”

All of Coles’ neighboring property owners have told him they support the venture, he said, with many even investing in the uranium company.

Virginia Uranium spokeswoman Julie Rautio and Coles said they’re hoping “the opposition can look beyond the practices in the 1950s and 1960s,” noting that the technology has advanced in that time.

Some people, like Watkins, may not take a stance on the safety of mining, and instead focusing on whether people should at least be allowed to apply for a permit.

Without any ties to the uranium mining industry, Watkins said, “I think it’s matter of they should be allowed to submit a permit application for mining, and it works from there.”

The responsibility would then fall on the government bodies charged with assessing the quality of the applications and the risks associated with each project rather than avoiding the issue altogether under a moratorium.

In court

The central question of the case is whether Virginia’s long-standing moratorium is preempted by the Atomic Energy Act, which is a federal law passed during the Cold War.

That act created the Nuclear Regulatory Commission — a federal body tasked with regulating nuclear materials and power plants.

Though the language of the moratorium and Atomic Energy Act aren’t in conflict explicitly, the petitioners — Virginia Uranium, Inc.; Cole Hill, LLC; Bowen Minerals, LLC; and Virginia Energy Resources, Inc. — believe they can prove the legislators’ motive behind the state’s ban nullifies it.

John Ohlendorf, an attorney for the law firm Cooper & Kirk, is one of the lawyers representing Virginia Uranium in the case come Monday.

When he joined the legal team, Ohlendorf said he was moved by Cole’s “compelling story and the obvious extent that he cared about the use of the land and developing the resource in a way that honors Virginia’s tradition of caring for the land and the environment.”

To him, the moratorium is an injustice to Cole. Ohlendorf believes it’s clear that the legislators’ motive at the time the ban was enacted in 1982 infringed on the powers given to the NRC to regulate the management and storage of tailings. Tailings are waste left behind after the uranium is extracted, a radioactive byproduct.

Even beyond the legislators, he goes on to say that much of the public debate from the 1980s circled around whether the tailings could enter the water supply versus taking the uranium from the ground.

“At no point in the legislative discussion in this issue were people talking about the actual mining of this ore body,” he said. “The hard questions about protecting radiological risks to health and safety is in the hands of who congress thought would be best to address those concerns. That’s the NRC.”

In response, the commonwealth argues that the petitioners are unable to prove that the radiological concerns cited during the enactment of the moratorium were “solely” directed toward tailing and not mining.

In its brief, Virginia states that Congress has the ability to take away the state’s ability to regulate conventional mining, but as the law stands that power remains with states. By default, the moratorium on mining is within the state’s right.

The highest court in the land

With the confirmation of Justice Brett Kavanugh in October, legal experts are watching the case closely as the uranium mining issue doesn’t fall neatly along ideological lines.

University of Virginia professor Cale Jaffe and Georgetown University law professor William Buzzbee both said the multi-faceted case defies political stereotypes.

“I think what is unique about this case is that conventional wisdom is often that regulated industries are often skeptical of a broad federal hand or a sweeping view of federal regulatory authority and organizations on the political left tend to be skeptical of deference to state authority,” said Jaffe.

In this case, the tables are turned as business owners search for “a sweeping view of federal law,” and environmental organizations argue for “a deference to state law,” he said.

Even in the general assembly, Watkins said, that mining was never a party issue.

“It was not Republicans versus Democrats,” he said, then added that he was glad it never became a polarized issue.

By confounding predictable ideological lines and touching an array of “hot button” issues, Buzzbee said he predicts the case may cause some cognitive dissonance for justices Neil Gorsuch and Kavanaugh. Both are Republican nominees of President Donald Trump.

“Ordinarily, they would probably wholly embrace the state,” he said. However, the judicial record of both justices in the lower courts show they’ve often sided with anti-regulatory and pro-business interests in their decisions.

“We’ll have to see which they view is more important,” said Buzzbee.

Though the argument hearing, the Supreme Court’s vote will not be announced until June or July.

Rautio and Coles said even then, if the moratorium was overturned, it could take another one to three years for the lower courts to decide how to apply the Supreme Court ruling.

Then, the permit application process would begin, meaning it would take several years for any mining to commence at Coles Hill, if the Nuclear Regulatory Commission and the other government bodies were to approve the permits.

Halle Parker reports for the Danville Register & Bee. Contact her at hparker@registerbee.com or (434) 791-7981.

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