Judge upholds Virginia’s uranium ban in property rights case

Virginia Attorney General Mark Herring. (Ned Oliver/Virginia Mercury)
Virginia Attorney General Mark Herring. (Ned Oliver/Virginia Mercury)

A Wise County and City of Norton Circuit Court judge on Thursday upheld the constitutionality of Virginia’s 38-year-old uranium mining moratorium on the grounds that while the ban does deprive its owners of property rights, the state has a compelling interest to do so.

“Even the highest rights cannot be used in a vacuum; we are not solitary creatures,” wrote Judge Chadwick Dotson in his opinion. “Our actions impact those around us, and sometimes those actions must be hemmed in so as to protect otherwise.”

To rule otherwise, Chadwick concluded, “would be untenable.”

The case comes over a year after the U.S. Supreme Court ruled that Virginia had a right to ban uranium mining

In that case Virginia Uranium, Inc. filed a suit against the state concerning its desire to mine the largest known uranium deposit in the U.S., which is located in Pittsylvania County. The company claimed the state could not ban uranium mining because the U.S. Atomic Energy Act gave the Nuclear Regulatory Commission sole regulatory control over that activity. The Supreme Court disagreed: Writing for the majority, Justice Neil Gorsuch declared that “Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activities on private lands within their borders.”

The case decided Thursday took a different tack in attempting to strike down Virginia’s ban, arguing that the moratorium unconstitutionally took Virginia Uranium’s private property, had no compelling governmental interest and by being overly expansive took more of the company’s property than was necessary. 

Dotson agreed that under the state Constitution, the ban does “damage” Virginia Uranium’s property. 

“Absent the mining moratorium, the mineral estate is estimated to be worth at least $427 million, whereas with the mining moratorium, the mineral estate is worth exponentially less,” he conceded.

Nevertheless, the judge found the ban justified by the risks of uranium mining to human health and safety and the environment, particularly with regard to the storage of radioactive tailings and their potential impacts on water supply. 

 “There really can be no argument that a moratorium on uranium mining, which is an inherently dangerous activity with potentially dangerous interdict effects, achieves the Commonwealth’s rightful duty to protect the public from injury and to protect the health, safety, and welfare of the citizenry,” he concluded. “… There is substantial and justifiable fear of irreparable harm if uranium mining were to be allowed in this Commonwealth.”

Virginia Attorney General Mark Herring, who has defended the ban on numerous occasions, said in a statement Thursday afternoon, that the decision “once again affirms that Virginia is well within its right to regulate mining activities in the Commonwealth.”