Owners of the nation’s largest untapped uranium deposit challenge Virginia’s decades-long ban on mining it at the U.S. Supreme Court.
SONANS, VIRGINIA — Sun splashed across pasture and resting cattle on a sunny, late October day. The tranquil atmosphere didn’t hint at the massive cache of uranium lying just beneath the grass and soil, nor at the legal fight brewing over it before the nation’s highest court.
As the nuclear industry makes a play for a bigger role in a carbon-free economy, Virginia sits on enough raw fuel to power the sector without any of the geopolitical baggage of its existing sources — but tapping it would mean importing the environmental risks that come with uranium mining, too.
For decades, uranium mining has been banned by state law in Virginia. On Monday, the U.S. Supreme Court will hear oral arguments in a case testing whether the commonwealth has such authority, or whether it resides instead with the federal government.
The case centers on the estimated 119 million pounds of uranium ore beneath Coles Hill, a private estate in the rural landscape outside Chatham, Virginia. The cache is the largest natural deposit of uranium in the United States and one of the largest in the world.
A long geologic — and legal history
The history of the deposit dates back hundreds of millions of years, according to Jim Beard, curator of earth sciences at the Virginia Museum of Natural History. Beard and a team of movers were on Coles Hill in late October to move the samples taken by a mining company in the early ’80s from a storage building on the property to the museum in Martinsville.
Roughly 220 million years ago, the Chatham fault was created by the cracking of Pangaea as the super-continent was pulled apart, Beard said. On one side of the fault is sedimentary rock that’s roughly 220 million years old. On the other is older, igneous rock that’s 440 million years old. The massive uranium deposit that Marline found beneath Coles Hill rests in that fault line.
The Cole family the hill is named for has owned it since 1785. In the 1970s, mining company Marline detected the uranium deposit as part of a national search for the nuclear fuel that involved sweeping certain geological areas by helicopter and then car. Exploratory drilling by the early ’80s found enough ore to more than justify an investment in mining.
Virginia lawmakers asked a state commission in 1981 to conduct a feasibility study on uranium mining and milling. A year later, they enacted a law that permitted uranium exploration but imposed a one-year moratorium on uranium mining. The moratorium was extended indefinitely in 1983. The Chernobyl disaster of 1986 effectively closed the door on uranium mining by stoking fears and driving down the price of uranium.
All remained quiet at Coles Hill until the early 2000s, when Walter Coles returned to his ancestral home after a 33-year career as a military and foreign service officer. By then, the price of uranium had risen enough that he fielded a steady stream of inquiries from international investors. In late 2006, Coles and the neighboring Bowen family, whose farm land encompasses a portion of the deposit, formed Virginia Uranium Inc. and revived the idea of mining the land.
Over the next seven years, the company tried unsuccessfully to convince Virginia legislators to lift the moratorium on uranium mining, eventually challenging the mining ban in state and federal court. The state-level lawsuit is on hold, awaiting the outcome of the federal lawsuit, now before the U.S. Supreme Court.
At a crossroads
The court is taking up the case as the country’s nuclear industry faces an uncertain future. Plant Vogle, a Georgia project that is the only nuclear plant under construction in the country, has been plagued by delays and cost overruns, but continues to move forward. A May 2018 study by Center for Climate and Energy Solutions found that although nuclear provides about 20 percent of U.S. electricity generation, plants are being retired because of “low wholesale electricity prices resulting from low natural gas prices, excess power generation capacity, declining renewable energy costs, and low growth in electricity demand.”
Coles Hill is located in a county at an economic crossroads, too. Pittsylvania County once was a powerhouse of tobacco production, as well as home to thriving milling, textile and furniture industries. All of those legacy industries have cratered as manufacturers moved and mechanized, and tobacco use has declined to less than half of what it was in the mid-‘60s. The county has largely diversified its economy around outdoor recreation and technology-based businesses.
“The community has worked really hard to rebuild a vibrant, diverse economy, and a mining operation like this is incompatible with what they’re trying to accomplish,” said Virginia Attorney General Mark Herring.
Coles argued that uranium mining would be an economic boon for the county, pointing to a 2011 economic impact study that predicted 1,000 jobs, $135 million in economic impact, and $3.1 million in annual state and local taxes over the projected 35-year life of the mining operation.
“It would be a tremendous engine for growth here,” Coles said. “If we were to set up a processing facility here, it would lead to high-paying jobs over $65,000 a year on average. It would bring a lot of feeder industries into the community that would support the nuclear sector — not only the mining but the nuclear sector as well.”
Pittsylvania County is not just in the midst of an economic transition, but the the midst of new energy developments as well. A 76-acre solar farm, the region’s first, opened earlier this year outside nearby Danville. Meanwhile, construction of the Mountain Valley Pipeline, a 303-mile interstate line moving natural gas from the Marcellus formation of northern West Virginia to markets in the Southeast, is underway in the county, with the goal of linking to a compressor station outside Danville. The question of the Coles Hill uranium deposit further complicates the question of Pittsylvania County’s energy future.
Downstream effects
Charles Miller, who spent 14 years on the county school board before he was elected last year to represent the area on the Pittsylvania County Board of Supervisors, grew up in the ’50s and ’60s in Mount Airy, downstream from Coles Hill. The unincorporated community is one of many in the sprawling rural county; the Chatham zip code alone covers nearly 200 square miles, occupied by a sparse 9,250 people clustered in places like Mount Airy, Sonans, Markham, Chalk Level and Sheva.
“This looks just like it did when I was growing up,” said Miller as he drove through a spectacular October patchwork of orange, yellow and crimson hardwoods in the gently rolling foothills northeast of Coles Hill.
He reminisced about his childhood playing in an 6-mile stretch between Mount Airy and “the mountain,” which includes Coles Hill, recalling stories about fleeing from snakes, escaping quicksand, and fishing for supper in the Stinking and Banister rivers. The two rivers converge below Coles Hill before draining into the Roanoke River and eventually the Atlantic Ocean.
Miller said that since the mid-2000s, when Virginia Uranium began its push to allow mining, “overwhelmingly the people have indicated they do not want that to take place.”
For him, it’s about public health, not in Pittsylvania County but in the watershed downstream.
“Let’s say the moratorium was lifted and eventually mining was done,” Miller said. “If down the road there was a generation or two or three of children that had birth defects that could be positively linked back to uranium mining, I have children, grandchildren, a great grandchild that would have to bear that burden. I’m not willing to be a party to that.”
The legal challenge
The question to be decided by the Supreme Court does not address the larger issues associated with uranium mining, but a narrower distinction between the language of a state law versus the intent of the lawmakers who passed it.
Lawyers representing Virginia Uranium, Inc. contend the Virginia General Assembly banned uranium mining not because of concerns about mining per se, but because of fears about radiological hazards associated with the milling and refining of uranium, which produces “yellowcake” as well as radioactive byproducts. The milling process is regulated not by states but by the federal Nuclear Regulatory Commission under the Atomic Energy Act of 1954. Virginia Uranium alleges the true intent of the moratorium is to prevent uranium processing, which legislators feared would lead to radioactive contamination of the groundwater and environment.
Beyond the narrow question of intent, Virginia Uranium, Inc. v. Warren has far-reaching ramifications for the domestic mining of uranium and the balance of power between federal and state governments.
John Ohlendorf, an associate at Washington, DC, law firm Cooper & Kirk, which is representing Virginia Uranium, said that demand for atomic energy will likely grow based on the international commitment to reducing greenhouse emissions and the fact that renewables can’t yet “provide the consistent baseload of power that atomic energy can.”
“In the United States, we are a large user of atomic energy, but unfortunately, the vast majority of uranium we use to produce that energy is imported from other countries, some of which aren’t entirely friendly to our geo-strategic interests,” Ohlendorf said. “We think that developing a domestic source of uranium — the largest untapped source in the country — is very important for the nation’s atomic energy going forward.”
Attorney General Herring, who is representing the state against Virginia Uranium, said, “The General Assembly has had a moratorium in place for more than three decades, and it’s our right as a state to decide whether or not we want this potentially risky mining to happen in our communities. We’ve never had uranium mining in Virginia, and you don’t really see this kind of mining operation in climates like this, or this close to populated areas.”
What the future may hold
Opposition to uranium mining has been echoed by regional environmental advocacy groups including the Dan River Basin Association, the Roanoke River Basin Association, and the Piedmont Environmental Council, all of which were parties to an amicus brief filed in the case.
“Pittsylvania County lies almost smack in the middle of our basin,” said Scott Van Der Hyde, executive director of the Roanoke River Basin Association. “In terms of what’s at risk, it’s both locally and downstream as well. The local economy historically has been dominated by agriculture. They’re trying to build more of a tourism and outdoor recreation economy around it as well. All of these things require a certain amount of land, clean water, healthy land. Putting in a uranium mine not only poses risks to environmental quality, but economic and health risks as well.”
Beyond local concerns, Van Der Hyde said, there are huge potential impacts for people living downstream. The city of Virginia Beach, home to nearly half a million people, draws its drinking water from Lake Gaston, a reservoir on the Roanoke River.
Will Cleveland of the Southern Environmental Law Center, one of the groups that filed the amicus brief on behalf of the groups, said that Virginia Uranium’s legal argument was “trying to fit a round peg into a square hole.”
“They’re asking the U.S. Supreme Court to effectively ignore the text of the law before them and focus exclusively on the perceived legislative intent, which is not how federal preemption is supposed to work,” Cleveland said. “The ramifications of that type of analysis is breathtakingly broad. One could argue that every single statute a state passes is preempted because, say they had this thing in mind when they passed it, and so therefore brings it in conflict with federal law.”
Unlike Ohlendorf, Cleveland does not believe this case will affect the future of nuclear power in America in any significant way.
“Certainly the economics of nuclear power continue to get worse and worse,” Cleveland said. “Nuclear power is not growing in the U.S. If anything it’s on the decline. I don’t think anything’s at stake in this case for the nuclear industry. Virginia has never been a source of uranium for the nuclear power sector. It’s not like they’re losing supply that they currently depend on. If anything, this will reaffirm the important role that states play in dictating their own energy futures.”
The court’s decision in Virginia Uranium, Inc. v. Warren won’t come immediately, but will be issued sometime before the court recesses for the end of its term, likely in late June or early July. If it rules against Virginia Uranium, the company’s case against the mining moratorium in state court will pick back up. If the Supreme Court rules against Virginia and the moratorium on uranium mining, that’s not the end of the matter either, as additional proceedings would be required before a final judgement — and that’s before what would likely be a lengthy regulatory and licensing process.
A 2011 study by the National Research Council found that even if the moratorium is lifted, the process of developing a framework for mining that addresses health and environmental issues and related risks would take at least five to eight years.