Virginia Uranium, Inc. v. Warren , 204 L. Ed. 2d 377 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VIRGINIA URANIUM, INC., ET AL. v. WARREN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 16–1275. Argued November 5, 2018—Decided June 17, 2019
Petitioner Virginia Uranium, Inc., wants to mine raw uranium ore from
a site near Coles Hill, Virginia, but Virginia law flatly prohibits ura-
nium mining in the Commonwealth. The company filed suit, alleging
that, under the Constitution’s Supremacy Clause, the Atomic Energy
Act (AEA) preempts state uranium mining laws like Virginia’s and
ensconces the Nuclear Regulatory Commission (NRC) as the lone
regulator in the field. Both the District Court and the Fourth Circuit
rejected the company’s argument, finding that while the AEA affords
the NRC considerable authority over the nuclear fuel life cycle, it of-
fers no hint that Congress sought to strip States of their traditional
power to regulate mining on private lands within their borders.
Held: The judgment is affirmed.
848 F.3d 590, affirmed.
JUSTICE GORSUCH, joined by JUSTICE THOMAS and JUSTICE KA-
VANAUGH, concluded that the AEA does not preempt Virginia’s law
banning uranium mining. Pp. 3–17.
(a) Virginia Uranium claims that the AEA is best read to reserve to
the NRC alone the regulation of uranium mining based on nuclear
safety concerns. But the AEA contains no provision expressly
preempting state law. More pointedly, it grants the NRC extensive
and sometimes exclusive authority to regulate nearly every aspect of
the nuclear fuel life cycle except mining, expressly stating that the
NRC’s regulatory powers arise only “after [uranium’s] removal from
its place of deposit in nature,” 42 U.S. C. §2092. And statutory con-
text confirms this reading: If the federal government wants to control
uranium mining on private land, it must purchase or seize the land
by eminent domain and make it federal land, §2096, indicating that
2 VIRGINIA URANIUM, INC. v. WARREN
Syllabus
state authority remains untouched. Later amendments to the AEA
point to the same conclusion. Section 2021 allows the NRC to devolve
certain of its regulatory powers to the States but does nothing to ex-
tend the NRC’s power to activities, like mining, historically beyond
its reach. And §2021(k) explains that States remain free to regulate
the activities discussed in §2021 for purposes other than nuclear
safety without the NRC’s consent. Virginia Uranium contends in-
stead that subsection (k) greatly expands the AEA’s preemptive effect
by demanding the displacement of any state law enacted for the pur-
pose of protection the public against “radiation hazards.” But subsec-
tion (k) merely clarifies that nothing in §2021 limits States’ ability to
regulate the activities subject to NRC control for other purposes. In
addition, the company’s reading would prohibit not only the States
from regulating uranium mining to protect against radiation hazards
but the federal government as well, since the AEA affords it no au-
thority to regulate uranium mining on private land. Pp. 4–7.
(b) Virginia Uranium also submits that preemption may be found
in this Court’s precedents, pointing to Pacific Gas & Elec. Co. v. State
Energy Resources Conservation and Development Comm’n, 461 U.S.
190, which rejected a preemption challenge to a state law prohibiting
the construction of new nuclear power plants after the Court ob-
served that it was enacted out of concern with economic development,
not for the purpose of addressing radiation safety hazards. But Pacif-
ic Gas concerned a state moratorium on construction of new nuclear
power plants, and nuclear plant construction has always been an
area exclusively regulated by the federal government. It is one thing to
inquire exactingly into state legislative purposes when state law
comes close to trenching on core federal powers; it is another thing al-
together to insist on the same exacting scrutiny for state laws far re-
moved from core NRC powers. Later cases confirm the propriety of
restraint in this area. See, e.g., Silkwood v. Kerr-McGee Corp., 464
U.S. 238; English v. General Elec. Co., 496 U.S. 72. This Court has
generally treated field preemption as depending on what the State
did, not why it did it. See, e.g., Arizona v. United States, 567 U.S.
387. And because inquiries into legislative purpose both invite well-
known conceptual and practical problems and pose risks to federal-
ism and individual liberty, this Court has long warned against un-
dertaking potential misadventures into hidden state legislative in-
tentions without a clear statutory mandate for the project, see, e.g.,
Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559
U.S. 393, 404–405. Pp. 7–14.
(c) Virginia Uranium alternatively suggests that that the AEA dis-
places state law through so-called conflict preemption—in particular,
that Virginia’s mining law stands as an impermissible “obstacle to
Cite as: 587 U. S. ____ (2019) 3
Syllabus
the accomplishment and execution of the full purposes and objectives
of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67. But any
“[e]vidence of pre-emptive purpose,” whether express or implied,
must be “sought in the [statute’s] text and structure.” CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 664. Efforts to ascribe unenacted
purposes and objectives to a federal statute face many of the same
challenges as inquiries into state legislative intent. The only thing a
court can be sure of is what can be found in the law itself. And the
compromise that Congress actually struck in the AEA leaves mining
regulation on private land to the States and grants the NRC regula-
tory authority only after uranium is removed from the earth. It is al-
so unclear whether laws like Virginia’s might have a meaningful im-
pact on the development of nuclear power in this country given the
other available foreign and domestic sources of uranium. Pp. 14–17.
JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR and JUSTICE KA-
GAN, agreed with JUSTICE GORSUCH that the Commonwealth’s mining
ban is not preempted but concluded that his discussion of the perils
of inquiring into legislative motive sweeps well beyond the confines of
this case. Further, Virginia Uranium’s obstacle preemption argu-
ments fail under existing doctrine, so there is little reason to question
whether that doctrine should be retained. Pp. 1–14.
(a) The Commonwealth has forbidden conventional uranium min-
ing on private land. The AEA leaves that activity unregulated. State
law on the subject is therefore not preempted, whatever the reason
for the law’s enactment. Pp. 7–8.
(b) Section 2021(k) lends no support for Virginia Uranium’s cause.
That provision is most sensibly read to clarify that the door newly
opened for state regulation of certain activities for nuclear safety
purposes left in place pre-existing state authority to regulate activi-
ties for nonradiological purposes. House and Senate Reports endorse
this reading of §2021(k). Pp. 8–9.
(c) Virginia Uranium leans heavily on a statement in Pacific Gas &
Elec. Co. v. State Energy Resources Conservation and Development
Comm’n, 461 U.S. 190, that “the Federal Government has occupied
the entire field of nuclear safety concerns.” Id., at 212. But neither
in that case nor in later decisions in its wake—Silkwood v. Kerr-
McGee Corp., 464 U.S. 238; English v. General Elec. Co., 496 U.S.
72—did the Court rest preemption on the purposes for which state
laws were enacted. Indeed, in all three, the Court held that the laws
at issue were not preempted. Moreover, the state law involved in Pa-
cific Gas addressed an activity—construction of nuclear power
plants—closely regulated by the AEA. Inquiry into why the state law
at issue in that case was enacted was therefore proper under
§2021(k). The Commonwealth’s mining ban, in contrast, governs an
4 VIRGINIA URANIUM, INC. v. WARREN
Syllabus
activity not regulated by the AEA. Pp. 9–10.
(d) The Solicitor General’s argument—that the Commonwealth’s
mining ban is preempted because it is a pretext for regulating the ra-
diological safety hazards of milling and tailings storage—is unper-
suasive. To the degree the AEA preempts state laws based on the
purposes for which they were enacted, §2021(k) stakes out the
boundaries of the preempted field. National Meat Assn. v. Harris,
565 U.S. 452, distinguished. Pp. 10–11.
(e) Virginia Uranium and the United States also fail to show that
the mining ban creates an “unacceptable ‘obstacle to the accomplish-
ment and execution of the full purposes and objectives of Congress.’ ”
Wyeth v. Levine, 555 U.S. 555, 563–564. Pp. 12–14.
GORSUCH, J., announced the judgment of the Court and delivered an
opinion, in which THOMAS and KAVANAUGH, JJ., joined. GINSBURG, J.,
filed an opinion concurring in the judgment, in which SOTOMAYOR and
KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which
BREYER and ALITO, JJ., joined.
Cite as: 587 U. S. ____ (2019) 1
OpinionofofGthe
Opinion Court
ORSUCH, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1275
_________________
VIRGINIA URANIUM, INC., ET AL., PETITIONERS v.
JOHN WARREN, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2019]
JUSTICE GORSUCH announced the judgment of the Court
and delivered an opinion, in which JUSTICE THOMAS and
JUSTICE KAVANAUGH join.
Virginia Uranium insists that the federal Atomic Energy
Act preempts a state law banning uranium mining, but we
do not see it. True, the AEA gives the Nuclear Regulatory
Commission significant authority over the milling, trans-
fer, use, and disposal of uranium, as well as the construc-
tion and operation of nuclear power plants. But Congress
conspicuously chose to leave untouched the States’ historic
authority over the regulation of mining activities on pri-
vate lands within their borders. Nor do we see anything to
suggest that the enforcement of Virginia’s law would
frustrate the AEA’s purposes and objectives. And we are
hardly free to extend a federal statute to a sphere Con-
gress was well aware of but chose to leave alone. In this,
as in any field of statutory interpretation, it is our duty to
respect not only what Congress wrote but, as importantly,
what it didn’t write.
2 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
I
Virginia Uranium thought its plan was pretty straight-
forward. First, the company wanted to use conventional
mining techniques to extract raw uranium ore from a site
near Coles Hill, Virginia. Next, it intended to mill that ore
into a usable form. Typically performed at the mine site,
milling involves grinding the ore into sand-sized grains
and then exposing it to a chemical solution that leaches
out pure uranium. Once dried, the resulting mixture
forms a solid “yellowcake,” which the company planned to
sell to enrichment facilities that produce fuel for nuclear
reactors. Finally, because the leaching process does not
remove all of the uranium from the ore, the company
expected to store the leftover “tailings” near the mine to
reduce the chances of contaminating the air or water.
But putting the plan into action didn’t prove so simple.
Pursuant to the AEA, ch. 724, 60 Stat. 755, 42 U.S. C.
§2011 et seq., the NRC regulates milling and tailing stor-
age activities nationwide, and it has issued an array of
rules on these subjects. See, e.g., 10 CFR §40 et seq.
(2018). None of those, though, proved the real problem for
Virginia Uranium. The company hit a roadblock even
before it could get to the point where the NRC’s rules kick
in: State law flatly prohibits uranium mining in Virginia.
See Va. Code Ann. §§45.1–161.292:30, 45.1–283 (2013);
848 F.3d 590, 593–594 (CA4 2017).
To overcome that obstacle, Virginia Uranium filed this
lawsuit. The company alleged that, under the Constitu-
tion’s Supremacy Clause, the AEA preempts state uranium
mining laws like Virginia’s and ensconces the NRC as the
lone regulator in the field. And because the NRC’s regula-
tions say nothing about uranium mining, the company
continued, it remains free to mine as it will in Virginia or
elsewhere.
Both the district court and a divided panel of the Fourth
Circuit rejected the company’s argument. The courts
Cite as: 587 U. S. ____ (2019) 3
Opinion of GORSUCH, J.
acknowledged that the AEA affords the NRC considerable
authority over the nuclear fuel life cycle. But both courts
found missing from the AEA any hint that Congress
sought to strip States of their traditional power to regulate
mining on private lands within their borders. Given the
significance of the question presented, we granted review.
584 U. S. ___ (2018).
II
The Supremacy Clause supplies a rule of priority. It
provides that the “Constitution, and the Laws of the United
States which shall be made in Pursuance thereof,” are “the
supreme Law of the Land . . . any Thing in the Constitu-
tion or Laws of any state to the Contrary notwithstand-
ing.” Art. VI, cl. 2. This Court has sometimes used differ-
ent labels to describe the different ways in which federal
statutes may displace state laws—speaking, for example,
of express, field, and conflict preemption. But these cate-
gories “are not rigidly distinct.” Crosby v. National For-
eign Trade Council, 530 U.S. 363, 372, n. 6 (2000) (inter-
nal quotation marks omitted). And at least one feature
unites them: Invoking some brooding federal interest or
appealing to a judicial policy preference should never be
enough to win preemption of a state law; a litigant must
point specifically to “a constitutional text or a federal
statute” that does the displacing or conflicts with state
law. Puerto Rico Dept. of Consumer Affairs v. ISLA Petro-
leum Corp., 485 U.S. 495, 503 (1988); see also 3 J. Story,
Commentaries on the Constitution of the United States
§1831, p. 694 (1st ed. 1833) (“the supremacy of the laws is
attached to those only, which are made in pursuance of
the constitution”).
Before us, Virginia Uranium contends that the AEA
(and only the AEA) unseats state uranium mining regula-
tions and that it does so under the doctrines of both field
and conflict preemption. We examine these arguments
4 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
about the AEA’s preemptive effect much as we would any
other about statutory meaning, looking to the text and
context of the law in question and guided by the traditional
tools of statutory interpretation. Here, no more than in
any statutory interpretation dispute, is it enough for any
party or court to rest on a supposition (or wish) that “it
must be in there somewhere.”
A
We begin with the company’s claim that the text and
structure of the AEA reserve the regulation of uranium
mining for the purpose of addressing nuclear safety con-
cerns to the NRC alone—and almost immediately prob-
lems emerge. Unlike many federal statutes,1 the AEA
contains no provision preempting state law in so many
words. Even more pointedly, the statute grants the NRC
extensive and sometimes exclusive authority to regulate
nearly every aspect of the nuclear fuel life cycle except
mining. Companies like Virginia Uranium must abide the
NRC’s rules and regulations if they wish to handle en-
riched uranium, to mill uranium ore or store tailings, or to
build or run a nuclear power plant. See 42 U.S. C.
§§2111(a), 2113(a), 2073. But when it comes to mining,
the statute speaks very differently, expressly stating that
the NRC’s regulatory powers arise only “after [uranium’s]
removal from its place of deposit in nature.” §2092 (em-
phasis added). As the government itself has conceded, this
means that “uranium mining” lies “outside the NRC’s
jurisdiction,” Brief for United States as Amicus Curiae 14,
and the agency’s grip takes hold only “at the mill, rather
than at the mine,” In re Hydro Resources, Inc., 63 N. R. C.
510, 512 (2006).
——————
1 See, e.g., Chamber of Commerce of United States of America v. Whit-
ing, 563 U.S. 582, 594–595 (2011); Geier v. American Honda Motor Co.,
529 U.S. 861, 867 (2000).
Cite as: 587 U. S. ____ (2019) 5
Opinion of GORSUCH, J.
What the text states, context confirms. After announc-
ing a general rule that mining regulation lies outside the
NRC’s jurisdiction, the AEA carves out a notably narrow
exception. On federal lands, the statute says, the NRC
may regulate uranium mining. §2097. And if the federal
government wants to control mining of uranium on private
land, the AEA tells the NRC exactly what to do: It may
purchase or seize the land by eminent domain and make it
federal land. §2096. Congress thus has spoken directly to
the question of uranium mining on private land, and every
bit of what it’s said indicates that state authority remains
untouched.
Later amendments to the AEA point to the same conclu-
sion. Some years after the statute’s passage, Congress
added a provision, currently codified in §2021, allowing
the NRC to devolve certain of its regulatory powers to the
States. Unsurprisingly, Congress indicated that the NRC
must maintain regulatory control over especially sensitive
activities like the construction of nuclear power plants.
§2021(c). But under §2021(b) the NRC may now, by
agreement, pass to the States some of its preexisting
authorities to regulate various nuclear materials “for the
protection of the public health and safety from radiation
hazards.” Out of apparent concern that courts might
(mis)read these new provisions as prohibiting States from
regulating any activity even tangentially related to nuclear
power without first reaching an agreement with the NRC,
Congress added subsection (k):
“Nothing in this section [that is, §2021] shall be con-
strued to affect the authority of any State or local
agency to regulate activities for purposes other than
protection against radiation hazards.”
Section 2021, thus, did nothing to extend the NRC’s
power to activities, like mining, historically beyond its
reach. Instead, it served only to allow the NRC to share
6 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
with the States some of the powers previously reserved to
the federal government. Even then, the statute explained
in subsection (k) that States remain free to regulate
the activities discussed in §2021 for purposes other than
nuclear safety without the NRC’s consent. Indeed, if
anything, subsection (k) might be described as a non-
preemption clause.
Virginia Uranium’s case hinges on a very different
construction of subsection (k). The company suggests
that, properly read, the provision greatly expands the
preemptive effect of the AEA and demands the displace-
ment of any state law (touching on mining or any other
subject) if that law was enacted for the purpose of protect-
ing the public against “radiation hazards.” And, the com-
pany adds, Virginia’s law bears just such an impermissible
purpose.
In our view, this reading nearly turns the provision on
its head. Subsection (k) does not displace traditional
state regulation over mining or otherwise extend the
NRC’s grasp to matters previously beyond its control. It
does not expose every state law on every subject to a
searching judicial inquiry into its latent purposes. Instead
and much more modestly, it clarifies that “nothing in
this [new] section [2021]”—a section allowing for the
devolution-by-agreement of federal regulatory authority—
should be construed to curtail the States’ ability to regu-
late the activities discussed in that same section for pur-
poses other than protecting against radiation hazards. So
only state laws that seek to regulate the activities dis-
cussed in §2021 without an NRC agreement—activities
like the construction of nuclear power plants—may be
scrutinized to ensure their purposes aim at something
other than regulating nuclear safety. Really, to accom-
plish all it wants, Virginia Uranium would have to per-
suade us to read 13 words out of the statute and add 2
more:
Cite as: 587 U. S. ____ (2019) 7
Opinion of GORSUCH, J.
Nothing in this section shall be construed to affect the
authority of any State or local agency to may regulate
activities only for purposes other than protection
against radiation hazards.
That may be a statute some would prefer, but it is not the
statute we have.
Just consider what would follow from Virginia Urani-
um’s interpretation. Not only would States be prohibited
from regulating uranium mining to protect against radia-
tion hazards; the federal government likely would be
barred from doing so as well. After all, the NRC has long
believed, and still maintains, that the AEA affords it no
authority to regulate uranium mining on private land.
Nor does Virginia Uranium dispute the federal govern-
ment’s understanding. Admittedly, if Virginia Uranium
were to prevail here, the NRC might respond by changing
course and seeking to regulate uranium mining for the
first time. But given the statute’s terms, the prospects
that it might do so successfully in the face of a legal chal-
lenge appear gloomy. Admittedly, as well, federal air and
water and other regulations might apply at a uranium
mine much as at any other workplace. But the possibility
that both state and federal authorities would be left un-
able to regulate the unique risks posed by an activity as
potentially hazardous as uranium mining seems more
than a little unlikely, and quite a lot to find buried deep in
subsection (k). Talk about squeezing elephants into
mouseholes. See Whitman v. American Trucking Assns.,
Inc., 531 U.S. 457, 468 (2001).
B
If the best reading of the AEA doesn’t require us to hold
the state law before us preempted, Virginia Uranium
takes another swing in the same direction. Only this time,
the company submits, our precedents have adopted a
different, even if maybe doubtful, reading of the AEA that
8 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
we must follow. Most prominently, Virginia Uranium
points to this Court’s decision in Pacific Gas & Elec. Co. v.
State Energy Resources Conservation and Development
Comm’n, 461 U.S. 190 (1983).
But here, too, problems quickly appear. Pacific Gas
rejected a preemption challenge to a state law prohibiting
the construction of new nuclear power plants. Along the
way, the Court expressly dismissed the notion that §2021
establishes the federal government as “the sole regulator
of all matters nuclear.” Id., at 205. The Court observed
that subsection (k) addresses itself only to “the preemptive
effect of ‘this section,’ that is [§2021].” Id., at 210. And
the Court acknowledged that subsection (k) does not “cut
back on pre-existing state authority outside the NRC’s
jurisdiction,” a field that surely includes uranium mining.
Id., at 209. None of this remotely helps Virginia Urani-
um’s cause.
Still, Virginia Uranium seeks to make the best of a bad
situation. The company points out that Pacific Gas upheld
the state law at issue there only after observing that it
was enacted out of concern with economic development,
not for the purpose of addressing radiation safety hazards.
Id., at 205. From this, the company reasons, we should
infer that any state law enacted with the purpose of
addressing nuclear hazards must fall thanks to our
precedent.
But even that much does not follow. Since the passage
of the AEA, the NRC has always played a significant role
in regulating the construction of nuclear power plants.
Indeed, under §2021(c) this remains one area where the
NRC generally cannot devolve its responsibilities to the
States. See id., at 197–198, 206–207. And because §2021
classifies the construction of nuclear power plants as one
of the core remaining areas of special federal concern, any
state law regulating that activity risks being subjected to
an inquiry into its purposes under subsection (k). But the
Cite as: 587 U. S. ____ (2019) 9
Opinion of GORSUCH, J.
activity Virginia’s law regulates—mining on private
land—isn’t one the AEA has ever addressed, and it isn’t
one §2021 discusses, so subsection (k) does not authorize
any judicial inquiry into state legislative purpose in this
case.
Admittedly, there is a wrinkle here. Pacific Gas seemed
to accept California’s argument that its law addressed
whether new power plants may be built, while the NRC’s
regulatory power under §2021(c) extends only to the ques-
tion how such plants are constructed and operated. Id., at
212. And accepting (without granting) these premises, it
would appear that California’s law did not implicate an
activity addressed by §2021, so an inquiry into state legis-
lative purpose under subsection (k) was not statutorily
authorized. Yet Pacific Gas inquired anyway, perhaps on
the unstated belief that the state law just came “too close”
to a core power §2021(c) reserves to the federal govern-
ment. Does that mean we must do the same? Certainly
Virginia Uranium sees it that way.
We do not. Just because Pacific Gas may have made
more of state legislative purposes than the terms of the
AEA allow does not mean we must make more of them yet.
It is one thing to do as Pacific Gas did and inquire exact-
ingly into state legislative purposes when state law pro-
hibits a regulated activity like the construction of a nuclear
plant, and thus comes close to trenching on core federal
powers reserved to the federal government by the AEA. It
is another thing to do as Virginia Uranium wishes and
impose the same exacting scrutiny on state laws prohibit-
ing an activity like mining far removed from the NRC’s
historic powers. And without some clearer congressional
mandate suggesting an inquiry like that would be appro-
priate, we decline to undertake it on our own authority.
The preemption of state laws represents “a serious intru-
sion into state sovereignty.” Medtronic, Inc. v. Lohr, 518
U.S. 470, 488 (1996) (plurality opinion). And to order
10 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
preemption based not on the strength of a clear congres-
sional command, or even on the strength of a judicial gloss
requiring that much of us, but based only on a doubtful
extension of a questionable judicial gloss would represent
not only a significant federal intrusion into state sover-
eignty. It would also represent a significant judicial intru-
sion into Congress’s authority to delimit the preemptive
effect of its laws. Being in for a dime doesn’t mean we
have to be in for a dollar.
This Court’s later cases confirm the propriety of re-
straint in this area. In a decision issued just a year after
Pacific Gas (and by the same author), this Court consid-
ered whether the AEA preempted state tort remedies for
radiation injuries after a nuclear plant accident. Silkwood
v. Kerr-McGee Corp., 464 U.S. 238 (1984). In doing so, the
Court did not inquire into state legislative purposes, ap-
parently because it thought state tort law (unlike a law
prohibiting the construction of a nuclear power plant) fell
beyond any fair understanding of the NRC’s reach under
the AEA. Id., at 251. Exactly the same, as we have seen,
can be said of Virginia’s mining law. In fact, if the Silk-
wood Court had inquired into state legislative purposes,
the law there might well have been harder to sustain than
the one now before us. State tort laws, after all, plainly
intend to regulate public safety. And as applied in Silk-
wood, state tort law sought to regulate the safety of a
nuclear plant’s operations, an area of special federal inter-
est under §2021(c). Id., at 256. Nothing comparable, of
course, can be said of the mining regulations before us.
Some years later, this Court in English v. General Elec.
Co., 496 U.S. 72 (1990), went further still, casting doubt
on whether an inquiry into state legislative purposes had
been either necessary or appropriate in Pacific Gas itself.
496 U.S., at 84–85, n. 7 (“Whether the suggestion of the
majority in Pacific Gas that legislative purpose is relevant
to the definition of the pre-empted field is part of the
Cite as: 587 U. S. ____ (2019) 11
Opinion of GORSUCH, J.
holding of that case is not an issue before us today” (em-
phasis added)).
If Pacific Gas and its progeny alone marked our path,
this case might be a close one, as our dissenting colleagues
suggest. Post, at 3–5 (opinion of ROBERTS, C. J.). But for
us any lingering doubt dissipates when we consult other
cases in this area and this Court’s traditional tools of
statutory interpretation.2
Start with the fact that this Court has generally treated
field preemption inquiries like this one as depending on
what the State did, not why it did it. Indeed, this Court
has analyzed most every other modern field preemption
doctrine dispute in this way—from immigration, Arizona
v. United States, 567 U.S. 387 (2012), to arbitration,
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011),
to foreign affairs, Crosby v. National Foreign Trade Coun-
cil, 530 U.S. 363 (2000), to railroads, Kurns v. Railroad
Friction Products Corp., 565 U.S. 625 (2012), to energy,
Hughes v. Talen Energy Marketing, LLC, 578 U. S. ___
(2016), to civil procedure, Shady Grove Orthopedic Associ-
ates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010). It is
unclear why we would proceed differently here without
some clear congressional instruction requiring it.3
——————
2 Far from “sweep[ing] well beyond the confines of this case,” as our
concurring colleagues suggest, see post, at 1 (GINSBURG, J., concurring
in judgment), these considerations are, to us, essential to its resolution.
3 Certainly the dissent’s case, National Meat Assn. v. Harris, 565
U.S. 452 (2012), doesn’t command a different result. There, the Court
merely enforced an express statutory preemption clause that prohibited
States from setting standards for handling non-ambulatory pigs that
differed from federal standards. As we’ve seen, the AEA contains no
comparable preemption clause forbidding Virginia to regulate mining in
any way. Admittedly, National Meat went on to say that a State could
not enforce a preempted animal-handling standard indirectly by
banning the sale of meat from non-ambulatory pigs if its law “func-
tion[ed] as a command to slaughterhouses to structure their operations
in the exact way” state regulators desired rather than as federal
12 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
Our field preemption cases proceed as they do, more-
over, for good reasons. Consider just some of the costs to
cooperative federalism and individual liberty we would
invite by inquiring into state legislative purpose too pre-
cipitately. The natural tendency of regular federal judicial
inquiries into state legislative intentions would be to stifle
deliberation in state legislatures and encourage resort to
secrecy and subterfuge. That would inhibit the sort of
open and vigorous legislative debate that our Constitution
recognizes as vital to testing ideas and improving laws. In
Virginia Uranium’s vision as well, federal courts would
have to allow depositions of state legislators and gover-
nors, and perhaps hale them into court for cross-
examination at trial about their subjective motivations in
passing a mining statute. And at the end of it all, federal
courts would risk subjecting similarly situated persons to
radically different legal rules as judges uphold and strike
down materially identical state regulations based only on
the happenstance of judicial assessments of the “true”
intentions lurking behind them. In light of all this, it can
surprise no one that our precedents have long warned
against undertaking potential misadventures into hidden
state legislative intentions without a clear statutory man-
date for the project. See, e.g., Shady Grove, 559 U.S., at
404–405; Rowe v. New Hampshire Motor Transp. Assn.,
552 U.S. 364, 373–374 (2008); Palmer v. Thompson, 403
U.S. 217, 225 (1971); Arizona v. California, 283 U.S. 423,
455, n. 7 (1931) (collecting cases).
To be sure, Virginia Uranium insists that we don’t need
to worry about concerns like these in this case. We don’t,
the company says, because Virginia has admitted that it
enacted its law with the (impermissible) purpose of pro-
——————
standards required. Id., at 464. But here, by contrast, no one sug-
gests that Virginia’s mining law requires anyone to disregard NRC
regulations.
Cite as: 587 U. S. ____ (2019) 13
Opinion of GORSUCH, J.
tecting the public from nuclear safety hazards. But the
Commonwealth denies making any such admission. In-
stead, it says it has merely accepted as true the allega-
tions in the company’s complaint about the intentions
animating state law for purposes of the Commonwealth’s
own motion to dismiss this suit under Federal Rule of
Civil Procedure 12(b)(6). If the case were to proceed be-
yond the pleadings stage, Virginia insists, a more search-
ing judicial inquiry into the law’s motivation would be
inevitable. Whoever may be right about the status of
Virginia’s admissions in this case, though, the point re-
mains that following Virginia Uranium’s lead would re-
quire serious intrusions into state legislative processes in
future cases.
Beyond these concerns, as well, lie well-known concep-
tual and practical ones this Court has also advised against
inviting unnecessarily. State legislatures are composed of
individuals who often pursue legislation for multiple and
unexpressed purposes, so what legal rules should deter-
mine when and how to ascribe a particular intention to a
particular legislator? What if an impermissible intention
existed but wasn’t necessary to her vote? And what per-
centage of the legislature must harbor the impermissible
intention before we can impute it to the collective institu-
tion? Putting all that aside, how are courts supposed to
conduct a reasonable inquiry into these questions when
recorded state legislative history materials are often not
as readily available or complete as their federal counter-
parts? And if trying to peer inside legislators’ skulls is too
fraught an enterprise, shouldn’t we limit ourselves to
trying to glean legislative purposes from the statutory text
where we began? Even Pacific Gas warned future courts
against too hastily accepting a litigant’s invitation to
“become embroiled in attempting to ascertain” state legis-
lative “motive[s],” acknowledging that such inquiries
“often” prove “unsatisfactory venture[s]. What motivates
14 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
one legislator to vote for a statute is not necessarily what
motivates scores of others to enact it.” 461 U.S., at 216
(citation omitted). See also Shady Grove, 559 U.S., at
403–404, n. 6; Palmer, 403 U.S., at 225; Edwards v.
Aguillard, 482 U.S. 578, 636–639 (1987) (Scalia, J., dis-
senting). Cf. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 79 (1998). We think these warnings wise,
and we heed them today.
C
If the AEA doesn’t occupy the field of radiation safety in
uranium mining, Virginia Uranium suggests the statute
still displaces state law through what’s sometimes called
conflict preemption. In particular, the company suggests,
Virginia’s mining law stands as an impermissible
“obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Hines v.
Davidowitz, 312 U.S. 52, 67 (1941). On Virginia
Uranium’s account, Congress sought to capture the
benefits of developing nuclear power while mitigating its
safety and environmental costs. And, the company
contends, Virginia’s moratorium disrupts the delicate
“balance” Congress sought to achieve between these
benefits and costs. Maybe the text of the AEA doesn’t
touch on mining in so many words, but its authority to
regulate later stages of the nuclear fuel life cycle would be
effectively undermined if mining laws like Virginia’s were
allowed.
A sound preemption analysis cannot be as simplistic
as that. No more than in field preemption can the
Supremacy Clause be deployed here to elevate abstract
and unenacted legislative desires above state law; only
federal laws “made in pursuance of ” the Constitution,
through its prescribed processes of bicameralism and
presentment, are entitled to preemptive effect. Art. VI, cl.
2; ISLA Petroleum, 485 U.S., at 503. So any “[e]vidence of
Cite as: 587 U. S. ____ (2019) 15
Opinion of GORSUCH, J.
pre-emptive purpose,” whether express or implied, must
therefore be “sought in the text and structure of the
statute at issue.” CSX Transp., Inc. v. Easterwood, 507
U.S. 658, 664 (1993).
Sound and well-documented reasons underlie this rule
too. Efforts to ascribe unenacted purposes and objectives
to a federal statute face many of the same challenges as
inquiries into state legislative intent. Trying to discern
what motivates legislators individually and collectively
invites speculation and risks overlooking the reality that
individual Members of Congress often pursue multiple and
competing purposes, many of which are compromised to
secure a law’s passage and few of which are fully realized
in the final product. Hefty inferences may be required, as
well, when trying to estimate whether Congress would
have wanted to prohibit States from pursuing regulations
that may happen to touch, in various degrees and different
ways, on unenacted federal purposes and objectives.
Worse yet, in piling inference upon inference about hidden
legislative wishes we risk displacing the legislative
compromises actually reflected in the statutory text—
compromises that sometimes may seem irrational to an
outsider coming to the statute cold, but whose genius lies
in having won the broad support our Constitution
demands of any new law. In disregarding these legislative
compromises, we may only wind up displacing perfectly
legitimate state laws on the strength of “purposes” that
only we can see, that may seem perfectly logical to us, but
that lack the democratic provenance the Constitution
demands before a federal law may be declared supreme.
See, e.g., Pacific Gas, 461 U.S., at 222 (acknowledging
that under the AEA “the promotion of nuclear power is not
to be accomplished ‘at all costs’ ”); Cyan, Inc. v. Beaver
County Employees Retirement Fund, 583 U. S. ___, ___–___
(2018) (slip op., at 14–15); Aguillard, 482 U.S., at 636–639
(Scalia, J., dissenting); United States v. O’Brien, 391 U.S.
16 VIRGINIA URANIUM, INC. v. WARREN
Opinion of GORSUCH, J.
367, 382–384 (1968); Fletcher v. Peck, 6 Cranch 87, 130
(1810).
So it may be that Congress meant the AEA to promote
the development of nuclear power. It may be that
Congress meant the AEA to balance that goal against
various safety concerns. But it also may be that Members
of Congress held many other disparate or conflicting goals
in mind when they voted to enact and amend the AEA,
and many different views on exactly how to manage the
competing costs and benefits. If polled, they might have
reached very different assessments, as well, about the
consistency of Virginia’s law with their own purposes and
objectives. The only thing a court can be sure of is what
can be found in the law itself. And every indication in the
law before us suggests that Congress elected to leave
mining regulation on private land to the States and grant
the NRC regulatory authority only after uranium is
removed from the earth. That compromise may not be the
only permissible or even the most rationally attractive
one, but it is surely both permissible and rational to think
that Congress might have chosen to regulate the more
novel aspects of nuclear power while leaving to States
their traditional function of regulating mining activities
on private lands within their boundaries.4
As an alternative to proceeding down the purposes-and-
objectives branch of conflict preemption, Virginia Uranium
might have pursued another. Our cases have held that we
——————
4 The concurrence takes a slightly different tack. It seems to accept
the premise that the Court can divine the unenacted “purposes” and
“objectives” underlying the AEA and weigh them against Virginia’s
mining law. But in rejecting Virginia Uranium’s argument, it winds up
emphasizing repeatedly that the text of the AEA does not address
mining. See post, at 12–14. That may not fully address Virginia
Uranium’s assertion that state mining regulations interfere with a
latent statutory purpose lying beyond the text, but it does highlight the
propriety of confining our inquiries to the statute’s terms.
Cite as: 587 U. S. ____ (2019) 17
Opinion of GORSUCH, J.
can sometimes infer a congressional intent to displace a
state law that makes compliance with a federal statute
impossible. English, 496 U.S., at 79. But Virginia
Uranium hasn’t pursued an argument along any of these
lines, and understandably so. Not only can Virginia
Uranium comply with both state and federal laws; it is
also unclear whether laws like Virginia’s might have a
meaningful impact on the development of nuclear power in
this country. Some estimate that the United States
currently imports over 90 percent of the uranium used in
this country. App. to Pet. for Cert. 19a. Domestic
uranium mines currently exist on federal lands as well
and are thus beyond the reach of state authorities. Ibid.
And if the federal government concludes that development
of the Coles Hill deposit or any other like it is crucial, it
may always purchase the site (or seize it through eminent
domain) under the powers Congress has supplied. 42
U.S. C. §2096. All this may be done without even
amending the AEA, itself another course which Congress
is always free to pursue—but which this Court should
never be tempted into pursuing on its own.
*
The judgment of the court of appeals is
Affirmed.
Cite as: 587 U. S. ____ (2019) 1
GINSBURG
GINSBURG , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1275
_________________
VIRGINIA URANIUM, INC., ET AL., PETITIONERS v.
JOHN WARREN, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2019]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
and JUSTICE KAGAN join, concurring in the judgment.
Soon after discovery of a large deposit of uranium ore in
Virginia in the late 1970s, the Commonwealth banned
uranium mining. Petitioners (collectively, Virginia Ura-
nium) now seek to mine that deposit. They challenge the
Commonwealth’s uranium mining ban as preempted by
the Atomic Energy Act (AEA or Act), 42 U.S. C. §2011
et seq., either because the ban intrudes on the federally
occupied field of nuclear safety, or because it obstructs
realization of federal purposes and objectives.
I reach the same bottom-line judgment as does JUSTICE
GORSUCH: The Commonwealth’s mining ban is not
preempted. And I agree with much contained in JUSTICE
GORSUCH’s opinion. See ante, at 4–10. But his discussion
of the perils of inquiring into legislative motive, see ante,
at 11–14, sweeps well beyond the confines of this case, and
therefore seems to me inappropriate in an opinion speak-
ing for the Court, rather than for individual members of
the Court. Further, Virginia Uranium’s obstacle preemp-
tion arguments fail under existing doctrine, so there is
little reason to question, as JUSTICE GORSUCH does, see
ante, at 14–16, whether that doctrine should be retained.
For these reasons, I join the Court’s judgment, and sepa-
rately state how I would resolve the instant controversy.
2 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
I
A
The production of nuclear fuel begins with mining ura-
nium, a radioactive metal. See ante, at 1–2; Brief for
Former Nuclear Regulators as Amici Curiae 7. Conven-
tionally, uranium ore is mined and then “milled”—crushed
and treated with chemicals that extract the usable ura-
nium. Ibid. The resulting concentrated uranium oxide,
known as yellowcake, is shipped elsewhere for conversion,
enrichment, and fabrication into fuel. Ibid. Producing
just a pound of usable uranium requires milling hundreds
or even thousands of pounds of ore. H. R. Rep. No. 95–
1480, pt. 1, p. 11 (1978). Milling thus generates vast
quantities of “tailings”: Sandy waste that is radioactive,
contains toxic heavy metals, ibid., and must “be carefully
regulated, monitored, and controlled,” U. S. NRC, Con-
ventional Uranium Mills (rev. May 15, 2017), https://www
.nrc.gov /materials /uranium - recovery /extraction - methods /
conventional-mills.html (as last visited June 12, 2019).
Milling and tailings storage typically occur within 30
miles of the place where uranium is mined. Ibid.
The Federal Government regulates much of this process,
primarily to protect public health and safety from radia-
tion, but also for national security reasons. English v.
General Elec. Co., 496 U.S. 72, 81–82 (1990); Pacific Gas
& Elec. Co. v. State Energy Resources Conservation and
Development Comm’n, 461 U.S. 190, 207, 211–212 (1983)
(PG&E). Under the AEA, a federal license is required to,
inter alia, “transfer or receive in interstate commerce”
nontrivial quantities of “source material,” including ura-
nium ore, “after removal from its place of deposit in na-
ture,” §§2092, 2014(z). See also §§2091–2099. Licensing
requirements also apply to the production, possession, or
disposal of “byproduct material,” including tailings. See
§§2014(e), 2111–2114. Federal regulations govern, as
well, subsequent processes, including uranium enrichment
Cite as: 587 U. S. ____ (2019) 3
GINSBURG, J., concurring in judgment
and nuclear power generation. See, e.g., §§2131–2142.
The Federal Government does not regulate conventional
uranium mining on private land, having long taken the
position that its authority begins “at the mill, rather than
at the mine.” In re Hydro Resources, Inc., 63 N. R. C. 510,
512–513 (2006); Brief for United States as Amicus Curiae
4. See also ante, at 4–6. And while the Federal Govern-
ment has exclusive authority over the radiation hazards of
milling and subsequent stages of the nuclear fuel cycle,
States may regulate these activities for other purposes.
See §2018 (AEA does not affect state authority over “the
generation, sale, or transmission of electric power pro-
duced” by nuclear powerplants); English, 496 U.S., at 81–
82; PG&E, 461 U.S., at 207, 211–212.
The AEA provides a means by which States may take
over federal responsibility for regulating the nuclear
safety aspects of milling and the disposal of tailings. See
42 U.S. C. §2021. In 1959, Congress amended the AEA to
“recognize the interests of the States in the peaceful uses
of atomic energy, and to clarify the respective responsibili-
ties under th[e] Act of the States and [federal authorities]
with respect to the regulation of byproduc[t and] source
. . . materials.” Act of Sept. 23, 1959, 73 Stat. 688, as
amended, 42 U.S. C. §2021(a)(1). The Nuclear Regulatory
Commission (NRC) and a State may agree for the former
to devolve to the latter authority to regulate source or
byproduct materials “for the protection of the public
health and safety from radiation hazards.” §2021(b).
“During the duration of such an agreement . . . the State
shall have authority to regulate the materials covered by
the agreement for the protection of the public health and
safety from radiation hazards.” Ibid. Section 2021(c)
prohibits the NRC, however, from devolving its authority
over “more dangerous activities—such as nuclear reac-
tors.” S. Rep. No. 870, 86th Cong., 1st Sess., 8 (1959).
Finally, and of critical importance to this case, §2021(k)
4 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
provides that “[n]othing in this section shall be construed
to affect the authority of any State or local agency to
regulate activities for purposes other than protection
against radiation hazards.”
B
In the late 1970s, uranium ore was discovered under
Coles Hill, an unincorporated community in Pittsylvania
County, Virginia. App. to Pet. for Cert. 216a. Totaling
119 million pounds of uranium ore, the deposit is the
Nation's largest. Id., at 201a. See also 848 F.3d 590, 593
(CA4 2017) (case below). After a private company began
leasing mineral rights to the deposit, the Virginia General
Assembly directed the state Coal and Energy Commission
to study the effects on the environment and public health
of uranium exploration, mining, and milling. H. J. Res.
No. 324, 1981 Va. Acts p. 1404; App. to Pet. for Cert. 216a.
The next year, the General Assembly authorized ura-
nium exploration but imposed a one-year moratorium on
uranium mining. 1982 Va. Acts ch. 269. The Assembly’s
stated purpose was “to encourage and promote the safe
and efficient exploration for uranium resources within the
Commonwealth, and to assure . . . that uranium mining
and milling will be subject to statutes and regulations
which protect the environment and the health and safety
of the public.” Ibid. The Assembly soon extended the ban
“until a program for permitting uranium mining is estab-
lished by statute.” 1983 Va. Acts ch. 3. The Common-
wealth has not established a permitting program, so the
ban remains in force.
A slowdown in construction of new nuclear powerplants
in the 1980s contributed to a “precipitous decline in the
price of uranium ore.” Huffman v. Western Nuclear, Inc.,
486 U.S. 663, 666–667, and n. 5 (1988). Rising prices in
the first decade of the new millennium prompted renewed
interest in mining the deposit, and Virginia Uranium
Cite as: 587 U. S. ____ (2019) 5
GINSBURG, J., concurring in judgment
lobbied to have the ban repealed. App. to Pet. for Cert.
222a; Brief for United States as Amicus Curiae 9.
When efforts to persuade the state legislature proved
unsuccessful, Virginia Uranium brought this suit seeking
a declaration that the ban is preempted by federal law and
an injunction requiring the Commonwealth to issue ura-
nium mining permits. App. to Pet. for Cert. 237a. Re-
spondents, Virginia Department of Mines, Minerals, and
Energy officials (together, the Commonwealth Defend-
ants), moved to dismiss the complaint for failure to state a
claim, and the District Court granted the motion. Virginia
Uranium, Inc. v. McAuliffe, 147 F. Supp. 3d 462, 478 (WD
Va. 2015).1 The Court of Appeals for the Fourth Circuit
affirmed, holding in principal part that because the Com-
monwealth’s mining ban did not regulate an activity
overseen by the NRC, there was no need to consider the
purposes for which the ban was imposed. 848 F.3d, at
597–598. Given the importance of the issue, and to re-
solve a division of authority among the Courts of Appeals,
we granted Virginia Uranium’s petition for a writ of certi-
orari. Compare id., at 594–599 (case below), with, e.g.,
Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d
1223, 1246 (CA10 2004) (state laws grounded in nuclear
safety concerns are preempted).
II
Under the Supremacy Clause, the “Constitution, and
the Laws of the United States which shall be made in
Pursuance thereof,” are “the supreme Law of the Land.”
Art. VI, cl. 2. “Put simply, federal law preempts contrary
——————
1 The District Court also dismissed the Commonwealth’s Governor
and several other state officials as defendants on the ground that the
Eleventh Amendment barred suit against them. Virginia Ura-
nium, Inc. v. McAuliffe, 147 F. Supp. 3d 462, 467–468 (WD Va. 2015).
Virginia Uranium did not appeal from that part of the District Court’s
decision.
6 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
state law.” Hughes v. Talen Energy Marketing, LLC, 578
U. S. ___, ___ (2016) (slip op., at 11).
This Court has delineated three circumstances in which
state law must yield to federal law. English, 496 U.S., at
78–79. First, and most obvious, federal law operates
exclusively when Congress expressly preempts state law.
Ibid. Second, state law can play no part when “Congress
has legislated comprehensively to occupy an entire field of
regulation, leaving no room for the States to supplement
federal law.” Hughes, 578 U. S., at ___ (slip op., at 11)
(internal quotation marks omitted). Third, state law is
rendered inoperative when it “actually conflicts with
federal law,” English, 496 U.S., at 79, as when a private
party cannot “comply with both state and federal require-
ments,” Merck Sharp & Dohme Corp. v. Albrecht, 587
U. S. ___, ___ (2019) (slip op., at 2) (internal quotation
marks omitted), or when state law “creates an unaccept-
able ‘obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,’ ” Wyeth v. Levine,
555 U.S. 555, 563–564 (2009) (quoting Hines v. Da-
vidowitz, 312 U.S. 52, 67 (1941)). Whatever the category
of preemption asserted, “the purpose of Congress is the
ultimate touchstone” in determining whether federal law
preempts state law. Hughes, 578 U. S., at ___ (slip op., at
11) (internal quotation marks omitted). Virginia Uranium
invokes both field and obstacle preemption; I address each
in turn.
A
Virginia Uranium’s primary contention is that Congress
has occupied the field of nuclear safety regulation,
preempting state laws enacted because of concerns about
the radiation safety of federally regulated activities.
Defining the preempted field by reference to the purpose
for which state laws were enacted finds “some support in
the text of the [AEA],” English, 496 U.S., at 84, and, in
Cite as: 587 U. S. ____ (2019) 7
GINSBURG, J., concurring in judgment
particular, §2021(k). Again, this provision states that
“[n]othing in [§2021] shall be construed to affect the au-
thority of any State . . . to regulate activities for purposes
other than protection against radiation hazards.” (Em-
phasis added.) Section 2021(k) presupposes federal
preemption of at least some state laws enacted to guard
“against radiation hazards.” Virginia Uranium and the
dissent read this subsection to include within the
preempted sphere all state laws motivated by concerns
about the radiation hazards of NRC-regulated activities.
Brief for Petitioners 35; post, at 2. The Commonwealth
Defendants would exclude from federal foreclosure state
laws directed to activities not regulated by the NRC. E.g.,
Tr. of Oral Arg. 33–34. The Commonwealth Defendants
have the better reading of the statute.
1
The Commonwealth has forbidden only conventional
uranium mining on private land, an activity all agree is
not federally regulated. E.g., id., at 9–10, 17–18, 30. The
controlling AEA provision, §2092, triggers federal regula-
tion only when source material is “remov[ed] from its place
of deposit in nature.” Federal authorities have long read
that provision to preclude federal regulation of conven-
tional uranium mining. Ante, at 4; supra, at 4. In con-
trast to the AEA’s express provisions for uranium mining
on public lands, §§2097–2098, the Act is nearly silent
about conventional uranium mining on private lands. See
ante, at 4–6. Indeed, insofar as the Act addresses private
conventional mining, it does so to bar federal regulators
from obtaining reports about ore “prior to removal from its
place of deposit in nature.” §2095. Every indication, then,
is that Congress left private conventional mining unregu-
lated. And if Congress did not provide for regulation of
private conventional mining, it is hard to see how or why
state law on the subject would be preempted, whatever the
8 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
reason for the law’s enactment.
2
Virginia Uranium’s argument to the contrary rests on
§2021(k), but that provision, correctly read, lends no sup-
port for Virginia Uranium’s cause. By its terms, §2021(k)
addresses only state authority to regulate “activities” for
nonradiological purposes. Read in context of §2021 as a
whole, “activities” means activities regulated by the NRC.
See §2021(c), (l), (m), (o); ante, at 6 (§2021(k) “might be
described as a non-preemption clause”).
The AEA’s context and history are corroborative. Prior
to enactment of §2021(k), the Federal Government and
States shared responsibility for most steps of the nuclear
fuel cycle, with the former regulating primarily for public
health and safety, and the latter regulating for economic
and other nonradiological purposes. See supra, at 4.
Section 2021 was designed “to heighten the States’ role,”
PG&E, 461 U.S., at 209, by enabling federal regulators to
cede their previously exclusive authority over the nuclear
safety of several lower risk activities, §2021(b). Given this
aim, §2021(k) is most sensibly read to clarify that the door
newly opened for state regulation left in place pre-existing
state authority “to regulate activities for purposes other
than protection against radiation hazards.” See ante, at
5–6. The House and Senate Reports are explicit on this
point: Section §2021(k) was “intended to make it clear that
the bill does not impair the State[s’] authority to regulate
activities of [federal] licensees for the manifold health,
safety, and economic purposes other than radiation protec-
tion”; the bill simply provides a means for States to obtain
heretofore exclusively federal authority to regulate these
activities for “protection against radiation hazards.”
S. Rep. No. 870, 86th Cong., 1st Sess., at 12; accord H. R.
Rep. No. 1125, 86th Cong., 1st Sess., 12 (1959). Nothing
suggests that Congress “intended to cut back on pre-
Cite as: 587 U. S. ____ (2019) 9
GINSBURG, J., concurring in judgment
existing state authority outside the NRC’s jurisdiction.”
PG&E, 461 U.S., at 209–210. That authority encom-
passed state laws regulating conventional uranium min-
ing, even if enacted because of concerns about the radio-
logical safety of postextraction, NRC-regulated steps in
the nuclear fuel cycle.
3
Virginia Uranium leans most heavily on a statement in
the Court’s PG&E opinion: “[T]he Federal Government
has occupied the entire field of nuclear safety concerns.”
461 U.S., at 212. But in neither PG&E nor in later deci-
sions in its wake, Silkwood v. Kerr-McGee Corp., 464 U.S.
238 (1984), and English, 496 U.S. 72, did the Court rest
preemption on the purposes for which state laws were
enacted. Indeed, in all three, the Court held that the state
laws at issue were not preempted. See ante, at 7–10.
Moreover, without gainsaying that it may sometimes be
appropriate to inquire into the purpose for which a state
law was enacted, PG&E calls for no such inquiry here.
PG&E considered whether the AEA preempted a Califor-
nia law conditioning approval to build new nuclear plants
on a finding that an adequate method existed for disposing
of spent nuclear fuel. 461 U.S., at 197–198. The Court
upheld the law because it was enacted out of concern for
economic development, not because of radiation safety
hazards. Id., at 205, 213–216.
It is unsurprising that the PG&E Court asked why the
California law had been enacted. The State’s law ad-
dressed construction of a nuclear powerplant, an activity
closely regulated by the Federal Government for nuclear
safety purposes. See 42 U.S. C. §§2021(c)(1), 2132–2142;
10 CFR pt. 50 (2018). The Court therefore inquired
whether the state law was enacted, in §2021(k)’s words,
“for purposes other than protection against radiation
hazards.” Here, in contrast, the Commonwealth’s mining
10 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
ban targets an exclusively state-regulated activity. See
ante, at 8–10.2
4
I am not persuaded by the Solicitor General’s argument
that the Commonwealth’s mining ban is preempted be-
cause it is a pretext for regulating the radiological safety
hazards of milling and tailings storage. See Brief for
United States as Amicus Curiae 28–30. To the degree the
AEA preempts state laws enacted for certain purposes,
§2021(k) stakes out the boundaries of the preempted field,
i.e., state laws that apply to federally licensed activities
and are driven by concerns about the radiological safety of
those activities. We have no license to expand those
boundaries.
The case on which the Solicitor General primarily relies,
National Meat Assn. v. Harris, 565 U.S. 452 (2012), does
not counsel otherwise. National Meat concerned a set of
California laws that “dictat[ed] what slaughterhouses
must do with pigs that cannot walk, known in the trade as
nonambulatory pigs.” Id., at 455. The question presented:
Did California’s prescriptions conflict with the Federal
Meat Inspection Act’s express preemption of state law that
imposed requirements “in addition to, or different than
those made under” the Act? 21 U.S. C. §678. One of the
California provisions, a ban on the sale of meat or prod-
ucts from nonambulatory pigs, regulated a subject outside
the scope of the Federal Meat Inspection Act. National
Meat, 565 U.S., at 463. The Court nevertheless concluded
——————
2 The dissent insists that we are bound by language in Pacific Gas &
Elec. Co. v. State Energy Resources Conservation and Development
Comm’n, 461 U.S. 190 (1983) (PG&E ), unnecessary to that decision.
Post, at 4–6. But as JUSTICE GORSUCH explains, PG&E ’s inquiry into
the purpose for which some state laws were enacted does not mean we
must now extend that inquiry to all state laws. Ante, at 10 (“Being in
for a dime doesn’t mean we have to be in for a dollar.”).
Cite as: 587 U. S. ____ (2019) 11
GINSBURG, J., concurring in judgment
that the sale ban fell within the scope of the Act’s express
preemption clause because it was intended to work to-
gether with other California provisions to impose addi-
tional requirements on slaughterhouse operations. Id., at
463–464.
National Meat is not controlling here. No express
preemption provision is involved. The mining ban sets no
safety standards for federally supervised milling or tail-
ings storage activities. True enough, the ban makes it far
less likely, though not impossible, that such activities will
take place in the Commonwealth.3 In that regard, the
Commonwealth’s mining ban is more aptly analogized to
state bans on slaughtering horses, upheld by courts of
appeals and distinguished in National Meat from Califor-
nia’s nonambulatory pig laws. Horse slaughtering bans,
National Meat explained, “work[ed] at a remove from the
sites and activities that the FMIA most directly governs”
by ensuring that “no horses will be delivered to, inspected
at, or handled by a slaughterhouse, because no horses will
be ordered for purchase in the first instance.” Id., at 465,
467 (citing Cavel Int’l, Inc. v. Madigan, 500 F.3d 551 (CA7
2007), and Empacadora de Carnes de Fresnillo, S. A. de
C. V. v. Curry, 476 F.3d 326 (CA5 2007)). The distinction
drawn in National Meat thus supports this conclusion: A
state law regulating an upstream activity within the
State’s authority is not preempted simply because a down-
stream activity falls within a federally occupied field.4
——————
3 Were a similar deposit found over the state line, the mining ban at
issue would not prevent uranium ore mined in North Carolina from
being milled, and the resulting tailings stored, in the Commonwealth.
4 The distinction drawn here does not turn, as the dissent misper-
ceives, post, at 8, on whether the state-regulated activity is upstream or
downstream of the federally preempted field. The Commonwealth
regulated an activity, conventional uranium mining, that Congress left
to state regulation. Again, nothing in the AEA shows that Congress
intended to preempt such a law based on the purpose for which it was
enacted.
12 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
B
Nor is the Commonwealth’s mining ban preempted as
an “unacceptable obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Wyeth, 555 U.S., at 563–564 (internal quotation marks
omitted). Together, Virginia Uranium and the United
States identify four ways in which the mining ban suppos-
edly conflicts with federal purposes and objectives. None
carry the day.
First, Virginia Uranium contends that the mining ban
conflicts with the “delicate balance” federal law has struck
between promoting nuclear power and ensuring public
safety. Brief for Petitioners 55–56; see Brief for United
States as Amicus Curiae 31–33. But the Federal Govern-
ment does not regulate the radiological safety of conven-
tional uranium mining on private land, so federal law
struck no balance in this area.
Second, Virginia Uranium contends that the mining ban
“prohibit[s] the achievement of one of Congress[’] ‘primary
purpose[s]’: ‘the promotion of nuclear power.’ ” Brief for
Petitioners 56 (quoting PG&E, 461 U.S., at 221). PG&E,
however, dismissed the suggestion that Congress had a
policy of promoting nuclear power “at all costs.” Id., at
222 (internal quotation marks omitted). Given the ab-
sence of federal regulation in point, it is improbable that
the Federal Government has a purpose or objective of
promoting conventional uranium mining on private land.
Cf. ante, at 16.
Virginia Uranium warns of dire consequences if all 50
States enact bans similar to the Commonwealth’s. Brief
for Petitioners 56–57. But, as the Court of Appeals ex-
plained, numerous domestic uranium recovery facilities
are federally regulated (either because they sit on federal
land or use unconventional mining techniques) and are
“thus beyond the reach of any state bans”; and the AEA
authorizes the Federal Government to develop uranium
Cite as: 587 U. S. ____ (2019) 13
GINSBURG, J., concurring in judgment
deposits on public lands and to acquire private deposits.
848 F.3d, at 599; see 42 U.S. C. §§2096–2097. Federal
purposes and objectives do not require judicial supplemen-
tation of the AEA’s express provisions for maintaining the
uranium supply. Cf. ante, at 17.
The dissent suggests that national security may require
further domestic uranium production. Post, at 2, n. 2. If
the Executive Branch—which presumably knows more
about “the critical role of uranium to the country’s energy
industry and national defense,” ibid.—agrees, it can ar-
range for acquisition of the site by the United States, and
then for commencement of mining notwithstanding the
Commonwealth’s ban. Yet the site remains in private
hands.
Third, Virginia Uranium argues that §2021 provides the
sole means for States to regulate radiological safety haz-
ards resulting from milling and tailings storage, and that
Virginia has effectively regulated milling and tailings
storage without obtaining authority to do so through an
adequate §2021 agreement. Brief for Petitioners 57–59
(citing Gade v. National Solid Wastes Management Assn.,
505 U.S. 88, 98–101 (1992)); see Brief for United States as
Amicus Curiae 33–34. As explained, see supra, at 7–9, 11,
Virginia has not regulated the radiological safety of tail-
ings storage; it has prohibited only an antecedent activity
subject to exclusive state authority.
Finally, the United States contends that Virginia’s
mining ban frustrates federal purposes and objectives by
“prevent[ing] the occurrence of ” activities that Congress
intended the Federal Government to regulate. Brief for
United States as Amicus Curiae 31 (quoting 848 F.3d, at
600 (Traxler, J., dissenting)). But federal regulation of
certain activities does not mean that States must author-
ize activities antecedent to those federally regulated. For
example, federal regulation of nuclear powerplants does
not demand that States allow the construction of such
14 VIRGINIA URANIUM, INC. v. WARREN
GINSBURG, J., concurring in judgment
powerplants in the first place. PG&E, 461 U.S., at 222.
* * *
For the reasons stated, I concur in the Court’s judgment
affirming the judgment of the Court of Appeals.
Cite as: 587 U. S. ____ (2019) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1275
_________________
VIRGINIA URANIUM, INC., ET AL., PETITIONERS v.
JOHN WARREN, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2019]
CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER
and JUSTICE ALITO join, dissenting.
Although one party will be happy with the result of
today’s decision, both will be puzzled by its reasoning.
That’s because the lead opinion sets out to defeat an ar-
gument that no one made, reaching a conclusion with
which no one disagrees. Specifically, the opinion devotes
its analysis to whether the field of uranium mining safety
is preempted under the Atomic Energy Act, ultimately
concluding that it is not. But no party disputes that.
Rather, the question we agreed to address is whether a
State can purport to regulate a field that is not preempted
(uranium mining safety) as an indirect means of regulat-
ing other fields that are preempted (safety concerns about
uranium milling and tailings). And on that question, our
precedent is clear: The AEA prohibits state laws that have
the purpose and effect of regulating preempted fields.
As relevant here, processing uranium ore involves three
steps: mining, milling, and storing “tailings.” Mining is
the extracting of uranium ore from the ground; milling is
the process of turning the substance into a usable form;
and tailings are the leftover radioactive waste that must
be safely stored.
There is no dispute over which of these fields the AEA
reserves to the exclusive jurisdiction of the Nuclear Regu-
2 VIRGINIA URANIUM, INC. v. WARREN
ROBERTS, C. J., dissenting
latory Commission. The parties agree that the field of
uranium mining safety is not preempted. See Brief for
Petitioners 3, 22, n. 4, 27; Reply Brief 8; Brief for Re-
spondents 1; Brief for United States as Amicus Curiae 4,
14. And it is undisputed that radiological safety concerns
about milling and tailings are preempted fields. See Brief
for Petitioners 32; Tr. of Oral Arg. 36–37 (counsel for
respondents); Brief for United States as Amicus Curiae 23.
Indeed, that shared understanding was the basis of the
question presented.1
Despite all this, the lead opinion insists that petitioners
(hereafter the company) press an entirely different argu-
ment. “Before us, Virginia Uranium contends that the
AEA (and only the AEA) unseats state uranium mining
regulations,” ante, at 3, but “almost immediately problems
emerge,” ante, at 4. Problems do immediately emerge in
the opinion, but they are of its own making. The company
does not argue that the AEA reserves the field of uranium
mining safety. After attributing this failing argument to
the company, the lead opinion then proceeds to explain
why the argument must, in fact, fail. See ante, at 3–10.
Turning to the question presented, however, the company’s
theory of the case is fairly straightforward. The property
at issue here contains the largest known uranium deposit
in the country and one of the largest in the world.2 Shortly
——————
1 “Does the AEA preempt a state law that on its face regulates an
activity within its jurisdiction (here uranium mining), but has the
purpose and effect of regulating the radiological safety hazards of
activities entrusted to the NRC (here, the milling of uranium and the
management of the resulting tailings)?” Pet. for Cert. i.
2 Oddly, the lead opinion and concurrence suggest that developing
this site is unnecessary because domestic production accounts for less
than ten percent of the uranium used in the country. See ante, at 16–
17 (lead opinion); ante, at 12–13 (GINSBURG, J., concurring in judg-
ment). But given the critical role of uranium to the country’s energy
industry and national defense, the near complete reliance on foreign
sources of uranium—including substantial imports from Russia, Ka-
Cite as: 587 U. S. ____ (2019) 3
ROBERTS, C. J., dissenting
after its discovery, Virginia enacted a complete ban on
uranium mining. According to the company, the ban was
not motivated by concerns about mining safety. Instead, it
was motivated by Virginia’s desire to ban the more hazard-
ous steps that come after mining—uranium milling and
the storage of radioactive tailings—due to the Common-
wealth’s disagreement with the NRC over how to safely
regulate those activities. And, crucially, Virginia has yet
to put forward any other rationale to support the ban.3
Thus, the question before us is whether, consistent with
the AEA and our precedents, the Commonwealth may
purport to regulate a non-preempted field (mining safety)
with the purpose and effect of indirectly regulating a
preempted field (milling and tailings). That should have
made for an easy case.
Under our AEA precedents, a state law is preempted not
only when it “conflicts with federal law,” but also when its
purpose is to regulate within a preempted field. Pacific
Gas & Elec. Co. v. State Energy Resources Conservation
——————
zakhstan, and Uzbekistan—would seem to suggest just the opposite.
See App. to Pet. for Cert. 353a (detailing foreign sources of uranium
imports); 42 U.S. C. §2012(d) (“The processing and utilization of
source, byproduct, and special nuclear material must be regulated in
the national interest and in order to provide for the common defense
and security and to protect the health and safety of the public.”);
Energy Futures Initiatives, Inc., The U. S. Nuclear Energy Enterprise:
A Key National Security Enabler 18 (Aug. 2017) (“A vibrant domestic
nuclear energy industry, including a healthy supply chain . . . is essen-
tial for the achievement of U. S. national security objectives.”).
3 As the lead opinion acknowledges, Virginia has thus far in the liti-
gation accepted the company’s claim that the actual purpose of the
mining ban is to regulate the radiological safety of uranium milling and
tailings storage. See ante, at 11–12. Virginia contends that if the case
were to proceed past the pleadings stage, it could establish a nonsafety
rationale for the ban. See Brief for Respondents 47. That may well be
true. See id., at 11 (discussing environmental concerns). But for our
purposes today, we must resolve the case on the terms that it has come
to us.
4 VIRGINIA URANIUM, INC. v. WARREN
ROBERTS, C. J., dissenting
and Development Comm’n, 461 U.S. 190, 212–213 (1983).
Because “the Federal Government has occupied the entire
field of nuclear safety concerns,” a state law that is
“grounded in [such] safety concerns falls squarely within
the prohibited field.” Ibid.; see also English v. General
Elec. Co., 496 U.S. 72, 84 (1990) (state regulations “moti-
vated by [nuclear] safety concerns” are preempted by the
AEA (citing 42 U.S. C. §2021(k))). For example, even
though a State may generally regulate its roads, it may
not shut down all of the roads to a nuclear power plant
simply because it disagrees with the NRC’s nuclear safety
regulations. Here, because Virginia has not even disputed
that its uranium mining ban was “grounded in” its “nuclear
safety concerns” about uranium milling and tailings,
the company’s preemption claim should not have been
dismissed.
The lead opinion and the concurrence miss that simple
analysis because they shrink from our AEA precedents,
particularly Pacific Gas. In Pacific Gas, California had
banned the construction of nuclear power plants until the
State could ensure that new plants would have a viable
method for permanently disposing of nuclear waste. See
461 U.S., at 197–198. On its face, the ban did not purport
to regulate a preempted field; it did not regulate the man-
ner in which nuclear power plants may be constructed or
operated, which is a field preempted by the AEA. See id.,
at 212. If it had, the Court noted, the ban “would clearly
be impermissible.” Ibid. The California statute instead
purported to address the antecedent question whether new
plants should be constructed at all—an area within the
State’s traditional authority over the generation and cost
of electricity.
But the Court did not stop its preemption analysis
there. Instead, it was “necessary” to look beyond the face
of the statute to determine California’s “rationale” for the
ban. Id., at 213. California had argued that it could
Cite as: 587 U. S. ____ (2019) 5
ROBERTS, C. J., dissenting
exercise its traditional authority over power generation to
“completely prohibit new construction until its safety
concerns [we]re satisfied by the Federal Government.” Id.,
at 212. The Court flatly “reject[ed] this line of reasoning.”
Ibid. Because the AEA reserves the “field of nuclear
safety concerns” to the Federal Government, a state law
that was “grounded in” those concerns would fall “squarely
within the prohibited field.” Id., at 212–213. In other
words, if the purpose of California’s ban on nuclear plant
construction was to regulate radiological safety, it would
be preempted. California’s statute ultimately avoided that
outcome, however, because the State had put forward an
independent “nonsafety rationale”—namely, its concern
that new nuclear plants would not be economically viable
if they were unable to permanently dispose of nuclear
waste. Id., at 213. On that basis, the Court determined
that the ban was not preempted. Id., at 216 (“[W]e accept
California’s avowed economic purpose as the rationale for
enacting [the statute]. Accordingly, the statute lies out-
side the occupied field of nuclear safety regulation.” (em-
phasis added)).
Pacific Gas should control the outcome here. Like
California’s ban in that case, Virginia’s ban on its face
regulates a non-preempted field—uranium mining safety.
Like the plaintiffs challenging the California ban, the
mining company argues that the statute’s purpose is
really to regulate a preempted field—safety concerns
about uranium milling and tailings. But unlike California
in Pacific Gas, Virginia in this case has not put forward a
“nonsafety rationale.” That should have been the end of
the story, at least at this stage of the litigation.
Neither the lead opinion nor the concurrence explain
why this Court inquired into purpose in Pacific Gas but
can dispense with that “necessary” step here, id., at 213;
they just say the Court can. See ante, at 8–9 (lead opin-
ion); ante, at 10, n. 2 (opinion of GINSBURG, J.). At one
6 VIRGINIA URANIUM, INC. v. WARREN
ROBERTS, C. J., dissenting
point, the lead opinion suggests that the AEA “author-
ize[s]” a purpose inquiry only when a state law “comes
close to trenching on core federal powers.” Ante, at 9. But
the opinion does not say where that rule comes from.
Certainly not the statute or our precedents. And the lead
opinion never explains why the safety concerns about
nuclear plants in Pacific Gas are more “core” to the AEA
than the safety concerns about uranium milling and tail-
ings storage at issue here.
The central argument from my colleagues appears to be
that the AEA authorizes a purpose inquiry only when a
State “targets” or “seek[s] to regulate” an activity that is
also regulated by the federal statute. Ante, at 6 (lead
opinion); ante, at 10 (opinion of GINSBURG, J.). And be-
cause the Virginia statute seeks to regulate mining, the
AEA “does not authorize any judicial inquiry into state
legislative purpose in this case.” Ante, at 8–9 (lead opin-
ion); see ante, at 9–10 (opinion of GINSBURG, J.). But it is
conceded that the mining ban was adopted because of
radiological safety concerns about milling and tailings.
That is why Virginia argues, as it must, that its mining
ban would not be preempted even if it expressly stated
that it was enacted due to the Commonwealth’s disagree-
ment with the NRC’s nuclear safety regulations. Tr. of
Oral Arg. 33. If such a statute does not “target” or “seek to
regulate” a preempted field, what would?
States may try to regulate one activity by exercising
their authority over another. That is the whole point of
the purpose inquiry mandated by Pacific Gas. Indeed,
Pacific Gas specifically “emphasize[d]” that the California
law did not expressly seek to regulate “the construction or
operation of a nuclear powerplant,” that is, the statute on
its face was not directed at a preempted field. 461 U.S.,
at 212.
The AEA’s purpose inquiry is most useful precisely
when the challenged state law does not purport to regulate
Cite as: 587 U. S. ____ (2019) 7
ROBERTS, C. J., dissenting
a preempted field. If a State disagrees with the AEA’s
nuclear safety regulations, and thus wants to block nuclear
development within its borders, it has myriad ways to do
so through its broad police powers. Under the rule adopted
by the lead opinion and the concurrence, so long as the
State is not boneheaded enough to express its real purpose
in the statute, the State will have free rein to subvert
Congress’s judgment on nuclear safety.
A State could, for instance, restrict the ability of a county
to provide a nuclear facility with municipal services like
law enforcement, fire protection, and garbage collection. If
it wanted to target investors, a State could eliminate
limited liability for the stockholders of companies that
operate nuclear facilities. Although these examples may
seem farfetched, they have already happened. See Skull
Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223,
1247–1248, 1250–1252 (CA10 2004). In Skull Valley,
however, the Tenth Circuit correctly applied our precedent
and concluded that the “state cannot use its authority to
regulate law enforcement and other similar matters as a
means of regulating radiological hazards.” Id., at 1248;
see Entergy Nuclear Vermont Yankee, LLC v. Shumlin,
733 F.3d 393 (CA2 2013) (applying Pacific Gas and con-
cluding that a state statute was a pretext for regulating
radiological safety). Neither the lead opinion nor the
concurrence hazards an answer for cases like Skull Valley.
As these examples show, AEA preemption cannot turn
on the label a State affixes to its regulations. That ap-
proach would simply invite evasion, which is why we have
rejected it in our preemption cases more generally. For
example, in National Meat Assn. v. Harris, 565 U.S. 452
(2012), we addressed a preemption challenge involving
slaughterhouses in California. A federal statute preempted
state regulation of slaughterhouses’ front-end procedures
for inspecting, handling, and slaughtering livestock.
California, however, had regulated the back-end opera-
8 VIRGINIA URANIUM, INC. v. WARREN
ROBERTS, C. J., dissenting
tions of slaughterhouses by prohibiting the sale of meat
from livestock that had not been inspected, handled, and
slaughtered according to the State’s regulations. Id., at
455, 463–464.
Although the federal statute’s preemption clause did
“not usually foreclose state regulation of the commercial
sales activities of slaughterhouses,” we unanimously held
that California’s sales regulation was preempted because
it was a transparent attempt to circumvent federal law.
Id., at 463 (internal quotation marks omitted). Conclud-
ing otherwise, we noted, would allow a State to “impose
any regulation on slaughterhouses just by framing it as a
ban on the sale of meat produced in whatever way the
State disapproved.” Id., at 464. And that “would make a
mockery of the [federal statute’s] preemption provision.”
Ibid.; see also Engine Mfrs. Assn. v. South Coast Air Qual-
ity Management Dist., 541 U.S. 246, 255 (2004) (stating
that it “would make no sense” to allow a state regulation
to evade preemption simply because it addressed the
purchase, rather than manufacture, of a federally regulated
product).
The concurrence argues that National Meat is distin-
guishable because there the State regulated a down-
stream, non-preempted activity (sale of meat) in an effort
to regulate an upstream, preempted activity (processing of
livestock). Here, however, Virginia’s regulation is up-
stream (mining) and the preempted activity is down-
stream (milling and tailings). Ante, at 11. That’s true but
beside the point. Regardless whether the state regulation
is downstream like National Meat, upstream like here and
Pacific Gas, or entirely out of the stream like Skull Valley,
States may not legislate with the purpose and effect of
regulating a federally preempted field.4
——————
4 In a footnote, the concurrence appears to reject its own analysis,
stating that it makes no difference whether the state law is upstream
Cite as: 587 U. S. ____ (2019) 9
ROBERTS, C. J., dissenting
That common sense approach is consistent with the text
of the AEA, which recognizes that States continue to have
authority “to regulate activities for purposes other than
protection against radiation hazards.” 42 U.S. C.
§2021(k) (emphasis added). The lead opinion finds this
purpose-based approach discomfiting, citing the “well-
known conceptual and practical” difficulties about inquir-
ing into legislative motive. Ante, at 13. The statute and
our precedent plainly require such an approach here,
however, and the difficulty of the task does not permit us
to choose an easier way. I respectfully dissent.
——————
or downstream of the federally preempted field. See ante, at 11, n. 4.
Instead, the concurrence contends, the difference is that here the
Commonwealth “regulated an activity, conventional uranium mining,
that Congress left to state regulation.” Ibid. But that is equally true in
National Meat, where the State had likewise regulated an activity, the
sale of meat, that Congress left to state regulation. See 565 U.S., at
463. The concurrence and lead opinion also note that National Meat
involved an “express” preemption provision whereas this case does not.
Ante, at 11, n. 3 (lead opinion); ante, at 11 (opinion of GINSBURG, J.).
But they do not explain why that matters, and there’s no reason it
should. In both cases, the plaintiffs alleged that the State regulated an
undisputedly non-preempted activity as an indirect means to regulate
an undisputedly preempted activity.