“An Odd Way to Read a Preemption Statute:” The Atomic Energy Act, Virginia Uranium, Inc. v. Warren, and the Dine Natural Resource Protection Act

By Colorado Law Student Erin Hogan

The history of uranium extraction within Navajo Nation is fraught with environmental and cultural conflict and controversy. Thousands of Navajo men worked in the uranium mines from 1944 until 1989, and the largest spill of radioactive material occurred on Navajo land in 1979. In 2005, the Navajo Council passed the Dińe Natural Resource Protection Act (DNRPA), banning all uranium mining and processing on Navajo land. Although Virginia Uranium, Inc. v. Warren, currently before the Supreme Court, questions the ability of state and local governments to regulate uranium, the DNRPA is firmly grounded in tribal sovereignty, economic concerns, and traditional Navajo law. It should remain on solid legal footing even if the Court accepts the plaintiffs’ claim that the Virginia state ban is preempted by the Atomic Energy Act (AEA).

The AEA gives the federal Nuclear Regulatory Committee (NRC) regulatory authority over the production and handling of source materials, byproducts, and waste. This includes uranium processing, storage, and transportation, the construction and operation of nuclear facilities, and in situ leaching, a technique which combines initial processing steps with extraction. However, the NRC has exclusive power only in the field of radiation safety; states are free to regulate such activities for “purposes other than protection against radiation hazards.” In the landmark Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission (PG&E), the Supreme Court held that this allowed California to regulate nuclear power plant construction for economic reasons, declining to second-guess its stated legislative purpose. Uranium mining, with the exception of in situ leaching, is regulated solely by tribal, state, and local governments, regardless of purpose. The NRC has expressly disavowed any authority over uranium mines, repeatedly affirming that their interest starts only when the ore leaves the ground.

The DNRPA mirrors this statutory scheme by distinguishing between uranium mining and uranium processing. It is thoroughly grounded in traditional Navajo beliefs, economic considerations, and principles of tribal sovereignty rather than radiation safety concerns. It starts by defining the “wise and sustainable use of . . . natural resources” as “a matter of paramount governmental interest . . . and a fundamental exercise of Navajo tribal sovereignty.” It then anchors the uranium ban in traditional Navajo law and culture: “the Fundamental Laws of the Diné . . . warn that certain substances . . . that are harmful to the people should not be disturbed, and the people now know that uranium is one such substance, and therefore . . . its extraction should be avoided as traditional practice and prohibited by Navajo law.”

Finally, the DNRPA discusses economic considerations, the ground on which the Court upheld California’s regulations in PG&E, finding that:

the mining and processing of uranium ore . . . has created substantial and irreparable economic detriments to the Nation and its people in the form of lands lost to permanent disposal of mining and processing wastes, lands left unproductive and unusable . . . surface water and ground water left unpotable . . . Navajo workers who lost thousands of person-years . . . as a result of their mining-induced illnesses and deaths . . . . The Navajo Nation Council finds that there is a reasonable expectation that future mining and processing of uranium will generate further economic detriments to the Navajo Nation.

These “detriments,” while linked to health and safety, are measurable in purely economic terms. It would be difficult to disentangle “radiation hazards” from economic, environmental, and cultural considerations, but the text of the DNRPA states its valid and permissible purposes without reference to radiation.

As the Court recognized in PG&E, “inquiry into legislative motive is often an unsatisfactory venture. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others.” A hunt for improper motive would be neither appropriate nor useful in this context, but it is just such an analysis that a mining company has asked the Supreme Court to undertake in Virginia Uranium, Inc. v. Warren.

In 1978, the largest known uranium deposit in the United States was discovered in Virginia, sparking citizen safety concerns and inspiring an indefinite state-wide moratorium on uranium mining.The Virginia ban does not extend to processing, transportation, or storage. No language about purpose or reference to radiation hazards appear in the ban as currently published, which states that “permit applications for uranium mining shall not be accepted by any agency of the Commonwealth . . . until a program for permitting uranium mining is established.” Such a program has yet to be established. Virginia Uranium claims that the ban is preempted as an impermissible attempt to regulate radiation hazards. After Virginia Uranium’s losses in the district and appellate courts, the Supreme Court heard oral argument on November 5, 2018.

As the NRC lacks authority over mining, legislative purpose would seem irrelevant: the AEA prohibits only regulation of enumerated activities for “protection against radiation hazards.” Virginia Uranium, however, claims that the ban on mining is a de facto ban on uranium processing and storage, both NRC-regulated activities.It further argues that the reference to “purpose” in AEA compels the Court to determine whether the “real” legislative purpose for the statute was permissible, and suggests an analysis of text and legislative history to decide whether it would have been enacted absent an impermissible concern with radiation safety. The argument was met with evident skepticism from the majority of the Justices, who expressed concern with the “methodological, epistemological, and federalism questions” raised by this approach to preemption.

The United States as amicus curiae advocated a more moderate approach, arguing that Virginia need only articulate a plausible, non-preempted rationale for the ban but had failed to do so. Were the Court to adopt this theory, it would likely be a narrow ruling; many states regulate uranium only under their general mining statutes, which have clearly non-radiation-related purposes. The DNRPA, however, is specific to uranium and goes farther than the Virginia ban by explicitly barring both mining and processing.

While at first glance it seems vulnerable, the DNRPA could likely stand under either preemption theory. It addresses mining and processing separately, indicating an intent to prohibit uranium mining as an independently undesirable activity. Even if the uranium processing ban was successfully challenged, the mining prohibition could stand, as it is specific to an activity unregulated by the NRC. Further, the long and well-documented history of uranium processing on Navajo land provides a strong economic argument against milling and tailings storage. The clear instruction of Dińe Natural Law to “to respect, preserve and protect” the land and other living beings is still more compelling.

As discussed above, the DNRPA articulates plausible, non-preempted purposes as required under the United States’ theory. Even should the Court adopt the petitioners’ pretextual analysis, the DNRPA rests on a firmer legal and historical base than Virginia’s ban. The environmental and economic impacts of uranium extraction on the Navajo Nation are sadly well-established, and questioning the validity of Dińe Natural Law would be misguided. Both text and the legislative history of the DNRPA strongly suggest that it would have been passed absent radiation hazard concerns. It should withstand preemption challenges, and could offer guidance to other tribal, state, or local governments seeking to regulate uranium extraction.

Erin Hogan is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review