TWO VIRGINIA-CENTERED RULINGS FROM SCOTUS

(Posted June 17, 2019) Late June is always high season for opinions from the nation’s highest court. The Supreme Court of the United States clears its docket by the end of the term of all cases argued in that term. As this morning dawned, fully 24 appeals remained undecided from the 69 argued in October Term 2018. Today the Court hands down four, and two of those affect the Commonwealth.

Followers of Virginia politics have been eagerly awaiting the outcome of Virginia House of Delegates v. Bethune Hill, a challenge to district alignment in the House of Delegates. Last year, a divided three-judge panel ruled that several Virginia House districts were racially gerrymandered, and directed new districts to eliminate that.

In response, the Attorney General decided not to appeal the ruling, finding that an appeal “would not be in the best interest of the Commonwealth or its citizens.” The majority of the House felt that it would not be in their best interest to accept the ruling, so they (acting as the House, an intervenor in the trial proceedings) pursued this appeal.

By a 5-4 vote with what may prove to be a surprising lineup, the Supreme Court today dismisses the appeal, ruling that the House doesn’t have standing to pursue an appeal where the Commonwealth has decided against that course. Justice Ginsburg writes the opinion of the Court, and she’s joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. (Yes, you read that right.)

The Court begins by noting that Virginia law confers upon the Attorney General the power to provide all “legal service in civil matters for the Commonwealth, the Governor, and every state department,” etc. Thus, when the AG makes a legal judgment to pursue, or not pursue, a given course of action in civil litigation, our laws make that his choice alone.

The House contended that it had standing by virtue of the concrete harm it would suffer by a litigation loss here, but the Court today rules that that isn’t enough to establish Article III standing. Although the appealed ruling could – indeed, foreseeably will – affect the House’s composition, today’s majority holds that “the House as an institution has no cognizable interest in the identity of its members.” The majority concludes with this summary:

In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.

Justice Alito dissents. Writing for the Chief Justice and Justices Breyer and Kavanaugh, he concludes that the Virginia House meet the requirements of standing because it has  “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The dissent argues that districting “matters because it has institutional and legislative consequences.” (I hasten to point out that it does in Virginia, where each chamber of the General Assembly is almost equally divided. That might not be the case in, say, Kansas, where one party enjoys dominant supermajorities in both legislative chambers.) The dissent doesn’t come out and hold that the prior maps are permissible, because today’s holding doesn’t reach the merits of the gerrymandering challenge. The only issue today is whether the right litigant is before the courts.

Below, the three-judge panel directed new districts, and as a result of today’s ruling, those new lines are the ones under which Virginians will vote this November, when the entire General Assembly is up for election.

Today’s other Virginia-centric decision is Virginia Uranium, Inc. v. Warren. This appeal centers on an immense deposit of uranium ore in Southside Virginia, and the Commonwealth’s ban on mining it.

When the owners of land in Pittsylvania County learned that they had a ton of ore – actually, 60,000 tons of it – under their property, they began leasing mineral rights. The General Assembly, concerned about safety, authorized a study and then enacted a one-year moratorium on mining the ore. The next year, the legislature extended the moratorium indefinitely, “until a program for permitting uranium mining is established by statute.” No such statute has ever seen the light of day, so the original one-year ban is effectively permanent.

Virginia Uranium sued in federal court, claiming that Virginia’s ban on uranium mining ran afoul of the federal Atomic Energy Act, a comprehensive statute that, the petitioner claimed, wholly occupied the field of atomic-energy safety, thus preempting Virginia’s statute. The district court and the Fourth Circuit agreed, ruling in favor of the Commonwealth. The Robes at One First Street agreed to take a look.

Today, a highly fractured SCOTUS affirms the ruling below, upholding the mining ban. To understand why, let’s examine a few terms that are at the heart of uranium mining.

The first is familiar: Uranium ore is a metal that combines uranium with other metals. The process of getting that ore out of the ground is familiar to us: That’s mining.

Next, the order must be processed to separate the uranium from the other metals. That process is called milling, and involves crushing the raw ore to isolate the uranium in it. That process produces usable uranium that can be shipped off to be used in things like nuclear reactors.

But the milling process produces a waste product called tailings, and tailings are dangerous. Those have to be stored carefully, to avoid contamination of things like the local water supply.

The federal statute governs milling and transportation of uranium, but says nothing about mining. The issue here is whether Virginia can regulate that mining.

I mentioned that today’s ruling is fractured. Here’s the lineup: Justice Gorsuch writes a plurality opinion, joined by Justices Thomas and Kavanaugh. Justice Ginsburg files a concurring opinion, joined by Justices Sotomayor and Kagan. And the Chief Justice dissents, with Justices Breyer and Alito signing on. If you’ve been keeping track, that’s 3+3+3=9.

I’ll get right to the holdings without embellishing. The plurality notes that since federal law doesn’t address uranium mining, that leaves the matter to the states, so Virginia’s ban is permissible. Gorsuch also opines that the motivation for the act should be off-limits to judicial interpretation. Justice Ginsburg agrees with the first holding but not the second; she feels it’s entirely appropriate to inquire into what a legislature was trying to accomplish.

That leaves the chief, who insists that the first two opinions are addressing an issue over which there’s no dispute, and that wasn’t contained in the question presented here. We all know, he writes, that the federal statute doesn’t cover mining. The real question, he notes, is discrete from that: whether Virginia “may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and tailings).” This is the old question from law school: Can you do something indirectly that you can’t do directly? For the dissent, the answer is no, and Virginia’s end run around the preempted purpose of its regulation is impermissible.

The chief compares this with similar end runs, such as the idea of ending trash collection and fire protection for a nuclear facility as a means of pressuring for changes it wants, but cannot mandate. But a state “cannot use its authority to regulate law enforcement and other similar matters as a means of regulating radiological hazards.”

Thus, by a vote of 3 to 3 to 3, the Supreme Court affirms, handing Virginia a win and making all that uranium ore almost useless, at least for now. In case you’re wondering how this holding applies as precedent, the answer is that the first holding in the plurality opinion – the AEA’s text doesn’t preempt mining regulations – is The Law, because six justices voted for it. The second part of the plurality, discussing legislative motives, isn’t binding because only three justices voted for that.