While the U.S. Supreme Court’s decision won’t come out for months, the argument hearing instilled a feeling of optimism in those who support Virginia’s moratorium on uranium mining.
Pittsylvania County supervisor Charles Miller completed the five-hour drive to Washington, D.C., for the Monday hearing with county attorney Vaden Hunt.
The issue hits close to home for Miller as he represents the Banister District, where Coles Hill — the site of two uranium deposits believed to hold 119 million pounds of ore combined — is situated. It’s also where he has lived all his life, hearing about uranium since he was at least 11 years old.
Sitting in that historic square chamber, Miller said it was difficult for him to catch every word exchanged between the justices, petitioner and respondent from his seat in the far left corner.
From the tone and line of questioning that he did catch of the hour-long oral argument hearing of Virginia Uranium, Inc. v. Warren, Miller suggested there was “a bit of reluctance” to overturn Virginia’s moratorium.
“The mood of the justices that asked questions seemed to me to be more toward favoring Virginia’s position than not,” he said.
To him, it was as though they were leaning toward the state’s rights perspective.
A statement released by Virginia’s Office of the Attorney General within hours after the hearing offered a similar message.
Attorney General Mark Herring said the proceeding left him “more convinced” that upholding the ban was the right legal outcome, as well as “what’s best for the health, safety and well-being of Virginia’s citizens, environment and economy.”
“Virginia has decided not to take on the risk of uranium mining, and I am proud to defend that decision in front of the highest court in the land,” said Herring in the statement. “I’m optimistic that the Court will see that Virginia has the right to protect our people and our environment from a risky, unnecessary and unwanted uranium mine.”
On Thursday, attorney John Ohlendorf, who is part of Virginia Uranium, Inc.’s legal representation, said the petitioner’s team also is looking forward to hearing the outcome of the case.
“We thought a number of justices were receptive to our arguments, and we are eager to see the court’s decision,” he wrote in an emailed statement.
Monday’s hearing saw both parties’ decisions and arguments questioned by the justices, who legal experts say seemed perplexed by the complex case before them.
The question at hand was whether Virginia’s 30-year-old uranium mining moratorium was preempted by the Atomic Energy Act of 1954, a federal statute which created the Nuclear Regulatory Commission to regulate such nuclear activity as processing of uranium and running of power plants.
The act explicitly leaves the regulatory power over mining to the states, saying its power doesn’t begin until the material’s “removal from its place of deposit in nature.”
Similarly, the state’s moratorium only discusses its concern with mining — the act of digging up ore deposits — without any explicit mention of milling the ore, which is extracting the ore from the granite that holds it or storing tailings, the radioactive byproduct from the extraction process.
However, the petitioners — uranium companies Virginia Uranium, Inc.; Coles Hill, LLC; Bowen Minerals, LLC; and Virginia Energy Resources, Inc. — argue the motive of the ban must be taken into consideration. They point to the public discussion in 1982, when the moratorium was initially enacted, and say that milling and tailing storage were the largest concerns, which fall under the NRC’s jurisdiction.
Law professors Cale Jaffe and William Buzbee said Monday’s hearing ran with no more tension than normal, but the line of questioning appeared to suggest that the justices were uncertain of an outcome that could rule in favor of the petitioner.
“My reading on the questions was that I came out cautiously optimistic that the Virginia statute would be upheld, but of course there’s really no way to know,” said Jaffe, a professor of environmental law at the University of Virginia. Jaffe attended the hearing on Monday.
To Jaffe, the questions directed to the petitioner side — represented by attorney Charles Cooper and U.S. Solicitor General Noel Francisco — suggested the justices were searching for a way to practically standardize an approach to the issue.
Buzbee said the late justice Antonin Scalia built a line of cases that explained the problematic nature of resting a case on the motive of legislators.
“What do you do when there are sort of mixed motives and motives that cannot really be determined?” explained the Georgetown University law professor.
After reviewing the 75-page transcript, Buzbee said, “The questions and exchanges indicated all justices [who spoke] saw this as a potential problem for the petitioners.”
Of the nine justices, eight spoke during the hearing. Justice Clarence Thomas was the only one to remain silent, which is typical behavior for him.
Like in any case, Jaffe said the justices have to weigh what any decision would mean for future cases.
Jaffe said, “Appellate courts generally, the supreme court especially, are always mindful of how a rule of decision might be applied in later controversies.
“It’s never just about deciding that one particular case,” he continued. “It’s about what is the guiding rule that should govern whole classes of cases.”
Though neither Jaffe nor Buzbee could locate a compelling reason in the argument hearing that would signal hope for the petitioner’s case, both said it’s always difficult to discern the purpose behind a justice’s questions.
Often the statements they make, Buzbee said, are for each other rather than for the legal counsel.
“Normally, Supreme Court justices, when they ask questions, are actually trying to persuade their colleagues about how to view or frame the case,” he said. “I just did not see much in the way of the justices coming together on some rationale in favor of the petitioners.”
However, Buzbee noted that some justices seemed to empathize with the petitioner’s argument about the effect upholding the ban could have on the nuclear industry.
Jaffe also said Justice Stephen Breyer seemed to be searching for a way to create a rule of law that could be followed by focusing on the law’s purpose rather than motive.
In the next few months, the justices will discuss the case among themselves, come to a final decision and determine how to write the opinion before releasing it in the spring of 2019.
When the decision comes out, the moratorium will either be upheld with a vote in favor of the respondents or remanded to the lower courts to have them carry out the Supreme Court’s decision.
Neither Jaffe nor Buzbee said they had any guesses toward how the justices could choose to handle the case should it be remanded or how long it would take for the judicial proceedings to end.
“I think it’s a bit premature,” said Jaffe. Should the Supreme Court vote in the state’s favor, the issue will be settled in the courts.
Buzbee said no matter what happened in the hearing, the case is still up in the air.
He said, “It’s always hazardous to guess.”