(Posted May 21, 2018) The Supreme Court of the United States this morning grants certiorari to review a Fourth Circuit ruling involving Virginia’s moratorium on uranium mining. The appeal is Virginia Uranium, Inc. v. Warren.

In the late 70s, shortly after discovery of a huge uranium lode in Pittsylvania County, the General Assembly commissioned a study to determine whether the material could be mined without undue risk to the Commonwealth and its citizens. The legislature enacted a one-year mining moratorium in 1982, pending receipt of the commission’s report. The next year, it extended the moratorium indefinitely. Two years later, a divided commission report recommended lifting the moratorium, but the legislature never did so.

The owner of the site didn’t press the matter, because the relatively low price of uranium didn’t justify the expense of extracting it. But about ten years ago, that price spiked upward, making it economically feasible to mine the ore. The owners sought legislative action to end the moratorium, but the 2013 General Assembly didn’t pass that bill. The owner then went to U.S. District Court, contending that the Virginia act was preempted by federal law.

The district court dismissed the suit, holding that preemption didn’t apply because the Nuclear Regulatory Commission doesn’t regulate uranium mining – just the processing of mined material and the storage of nuclear waste (“milling or tailing storage”). The Fourth Circuit affirmed.

At the petition stage, the Supreme Court called for the views of the Solicitor General. The Solicitor submitted an amicus brief supporting the mine owner’s request for certiorari, and today the Justices agree to consider the appeal on the merits. It is far too late for this case to make the OT17 argument docket; after briefing, the Court will likely receive oral argument late this year, and issue its decision in the first half of 2019.

This appeal will present a classic preemption question. When Congress passes legislation that “occupies the entire field” is a given area, there is “no room left” for states to act in that field. Preemption can be express, where Congress states that it is superseding all contrary state laws, or implied, where preemption takes place as a practical matter without a specific statement to that effect. The Justices will decide in this appeal whether, in regulating milling and tailing storage, Congress effectively preempted the rest of the uranium field, too.