Unstable Elements: What the Fractured Decision in Virginia Uranium Means for the Future of Atomic Energy Act Preemption

In Virginia Uranium v. Warren, the Supreme Court wrestled with the question of whether Virginia was preempted from banning uranium mining with the goal of preventing milling and tailings disposal, activities that can only be regulated by the Federal Nuclear Regulatory Commission. While the Court upheld Virginia’s ban, it did so in a fractured decision that reveals divisions
about obstacle preemption, a category of preemption that posits state laws that interfere with the objectives of federal statutes are preempted. This doctrine has been criticized for its vagueness and has created unlikely alliances between conservative and liberal Justices, who are unlikely to accept obstacle preemption claims. The outcome in Virginia Uranium suggests that the current Court is particularly unlikely to be receptive to obstacle preemption claims. This Note concludes that this reticence provides an opportunity for states to pass environmentally protective policies beyond what was previously thought possible in the field of nuclear energy.