Can a Virginia locality limit uranium mining to certain zoning districts, set stricter pollution standards, require extra bonds, or hold miners liable for property value loss?

Plain-English summary

A delegate asked five questions about whether a Virginia locality could regulate uranium mining: zoning to certain districts, stricter air and water standards, additional reclamation bonding, civil penalties for nearby property value declines, and civil penalties for lost agricultural revenue.

The AG's threshold answer was that no local regulation is possible right now because uranium mining itself is not a permitted activity in Virginia. Section 45.1-283 says no agency of the Commonwealth may accept uranium mining permit applications until a permitting program is established by statute, and no such program currently exists. A locality cannot regulate what state law doesn't permit. Conversely, a locality cannot authorize what the state forbids. So while the moratorium is in place, all five proposed local actions are foreclosed.

If the General Assembly were to lift the moratorium, the analysis would shift. The AG walked through each question.

Zoning to certain districts: Likely permissible if drafted to comply with the general principle that zoning rules cannot be arbitrary or capricious, and so long as the zoning doesn't function as a de facto ban on an activity the state has authorized. The locality couldn't zone uranium mining out of every district.

Stricter air quality standards: Not allowed without State Air Pollution Control Board approval. Any local governing body that proposes to adopt or amend an ordinance relating to air pollution must obtain the Board's approval, and the Board may not approve an ordinance regulating a source that is required to register or get a permit under state law.

Stricter water quality standards: Not allowed. The federal and state regulatory scheme, beginning with the Clean Water Act, preempts the field for water quality standards.

Additional reclamation bonding: Indeterminate. The nature and extent of mining bonding requirements, and the locus of authority, would depend on future legislation and on any agreement between the Commonwealth and the federal Nuclear Regulatory Commission.

Civil penalties for declines in real estate value: Not allowed. The U.S. Supreme Court has concluded that "the safety of nuclear technology [is] the exclusive business of the Federal Government," and the Price-Anderson Act creates a federal "public liability" action for damages arising out of a nuclear incident that supplants all state law claims. The Tenth Circuit held that a mere decline in real estate value cannot itself establish a nuclear incident. Federal law preempts a locality's attempt to create such liability. Plus, Virginia's Dillon Rule means localities have not been granted a general power to create civil penalties or liability anyway.

Civil penalties for lost agricultural revenue: Not allowed, for the same reasons. The state law tort of "tortious interference" already provides a recognized cause of action where it applies, and creation of new civil liability is a state-law function.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is Virginia under a uranium mining moratorium?
Section 45.1-283, enacted in 1982, prohibits accepting uranium mining permit applications until a permitting program is established by statute. No program has been established. Legislation to permit and regulate uranium mining was introduced in the 2013 Session of the General Assembly but did not pass.

What is the Price-Anderson Act?
A federal statute that creates a public liability action for damages arising out of a nuclear incident. The U.S. Supreme Court has read it to supplant all state law claims arising out of nuclear incidents. So a state-law tort claim against a uranium operation for a nuclear-related injury cannot proceed under state law; it must proceed (or not) under federal law.

Can a locality ban uranium mining outright if the moratorium is lifted?
No. An express ban would conflict with state law that authorizes the activity. The AG repeatedly emphasized that localities cannot prohibit what the state has authorized, and that a zoning ordinance could not be drafted so restrictively as to impose a de facto ban on the otherwise legal activity.

Background and statutory framework

Section 45.1-283 of the Virginia Code establishes the uranium mining moratorium: permit applications for uranium mining may not be accepted by any agency of the Commonwealth until a permitting program is established by statute. The Department of Mines, Minerals and Energy permits exploration activity, but mining itself is barred.

Virginia follows the Dillon Rule. Local authority must come from express grants or necessary implication, and if a power cannot be found, the inquiry is at an end. The Constitution of Virginia authorizes the General Assembly to confer broad authority on local governments but doesn't create local powers on its own.

State law can block local authority in three ways: explicit statutory preemption; conflict preemption (a local law inconsistent with state law); and field preemption (when the state's program is so comprehensive it occupies the field). Federal law may preempt state and local action in legally analogous ways.

On federal preemption, the U.S. Supreme Court has held that the Federal Government has occupied the entire field of nuclear safety concerns except the limited powers expressly ceded to the States. The Price-Anderson Act creates the federal public liability scheme for nuclear incidents.

Section 15.2-2280 gives localities the authority to enact zoning ordinances regulating the use of land. State air pollution law preempts local air pollution ordinances unless approved by the State Air Pollution Control Board, and the federal and state scheme beginning with the Clean Water Act preempts the water quality field.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 15.2-2280 (local zoning enabling)
• Va. Code § 45.1-283 (uranium mining moratorium)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-077_Merricks.pdf

Original opinion text

The full opinion text is reproduced verbatim from the AG's PDF. See the linked PDF or landing page above for the complete text.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 11, 2013

The Honorable Donald W. Merricks
Member, House of Delegates
Post Office Box K
Chatham, Virginia 24531

Dear Delegate Merricks:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You ask whether a locality may: (i) limit or restrict uranium mining to certain zoning districts; (ii) implement more stringent air and water quality standards than those permitted by state and federal law; (iii) require additional bonding for uranium mine reclamation purposes in addition to or beyond those required by state and federal law; (iv) impose civil penalties or liability for depreciation in the value of real estate located within a defined geographic area of a uranium mining operation site; and (v) impose civil penalties or liability for loss of revenue by agriculturally based operations due to cancellation, rescission, or modification of agriculturally based contracts due to uranium mining.

Response
It is my opinion that a locality currently cannot regulate uranium mining in any fashion because uranium mining is not a permitted activity within the Commonwealth. It is further my opinion that, should the General Assembly act to permit and provide for the regulation of uranium mining, a locality's authority related to uranium mining will depend upon federal and state law in effect at that time, including the enabling legislation for uranium mining enacted by the General Assembly. It is further my opinion, as detailed below, that a locality does not have authority under existing federal and state law to take certain of the actions about which you inquire.

Background
Section 45.1-283 of the Code of Virginia provides, "[n]otwithstanding any other provision of law, permit applications for uranium mining shall not be accepted by any agency of the Commonwealth prior to July 1, 1984, and until a program for permitting uranium mining is established by statute." Currently, there is no program for the permitting of uranium mining within the Commonwealth. The Department of Mines, Minerals and Energy, in consultation with the Virginia Department of Health, permits exploration activity for uranium mining, but no agency of the Commonwealth accepts applications for the actual mining of uranium.

On January 19, 2012, the Governor issued a directive to establish a Uranium Working Group to "provide a scientific policy analysis to help the General Assembly assess whether the moratorium on uranium mining in the Commonwealth should be lifted, and if so, how best to do so." The working group presented its report to the Governor on November 30, 2012. Legislation to permit and regulate uranium mining was introduced in the 2013 Session of the General Assembly, however, it did not pass.

Applicable Law and Discussion
The Constitution of Virginia allows the General Assembly to confer broad authority on local governments relating to the welfare of its citizens, through the shared exercise of the Commonwealth's general "police power." Virginia, however, follows the Dillon Rule of strict construction with respect to the existence of local authority. The Dillon Rule provides that "municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." Its corollary states that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication." The Dillon Rule is applicable to the initial determination of whether a local power exists at all and "[i]f the power cannot be found, the inquiry is at an end."

State law also may block local authority in three ways: (1) preemption through explicit statutory language; (2) conflict preemption - a local government may not exercise its police power by adopting a local law inconsistent with constitutional or general state law; and (3) field preemption - a locality may not exercise its police power when the legislature has preempted the area of regulation through a comprehensive state program. Federal law may preempt state and local action in legally analogous ways.

Local Authority with Respect to Uranium Mining Generally
Each of your questions asks about local authority to enact regulations related to uranium mining. If an activity is authorized by and conducted in compliance with state law, a Virginia locality cannot impose a ban on that otherwise legal activity. The opposite is also true - a locality cannot authorize what the State currently prohibits. Because state law does not permit uranium mining at all, and ordinances must be consistent with state policy and general law, localities currently do not have the authority to regulate uranium mining.

If the General Assembly chooses to establish a permitting program for uranium mining and milling operations within the Commonwealth and provides for related regulation, such legislation will affect local government authority to regulate such operations by ordinance. The General Assembly may choose to have the state preemptively occupy the field, and the locality could not regulate further. On the other hand, the General Assembly could enable concurrent regulatory authority to its appropriate agencies and localities, in which case the locality could exercise such authority so long as such exercises do not conflict with federal or state law.

Another important factor is the significant role played by the federal government in the regulation of uranium mining and milling activity. For example, the Nuclear Regulatory Commission ("NRC") licenses and regulates uranium milling operations. The Environmental Protection Agency ("EPA") is authorized to set health and environmental standards to govern the stabilization, restoration, disposal and control of effluents and emissions at both active and inactive mill tailings sites. The Federal Mine Safety and Health Administration enforces occupational health and safety laws for workers at a uranium mine and/or milling operations. The Price-Anderson Act governs "any legal liability arising out of or resulting from a nuclear incident." Any local action related to uranium mining would need to survive preemption analysis with respect to applicable federal law too.

Question 1: Limiting Uranium Mining to Certain Zoning Districts
Section 15.2-2280 of the Code of Virginia specifically provides localities with the authority to enact zoning ordinances regulating the use of land. This delegation of authority by the Commonwealth is a delegation of the Commonwealth's police power to legislate in this area. If any doubt remains as to the existence of such power in view of all the facts, that doubt must be resolved against the locality. Local zoning ordinances are presumed to be reasonable in the first instance, but the classifications an ordinance contains, and the distinctions that it draws, must not be arbitrary or capricious either in their terms as written or in their application.

Should the General Assembly authorize permitting of uranium mining and milling operations, and not otherwise fully preempt the regulation thereof, then whether localities could adopt zoning ordinances relating to district regulation of uranium mines will be dependent upon the general principle that the ordinances not be drafted in such a way as to be arbitrary or capricious either in their terms as written or in their application. Further, such zoning ordinances could not be so restrictive as to impose a ban on that otherwise legal activity.

Question 2: More Stringent Air and Water Quality Standards
Air quality is the subject of an extensive statutory and regulatory system. Since 1972, any local governing body that proposes to adopt or amend any ordinance relating to air pollution must obtain the approval of the State Air Pollution Control Board as to the provisions of the ordinance, and the Board may not approve an ordinance regulating any emission source that is required to register with the Board or to obtain a permit pursuant to state law. Accordingly, it is my opinion that a locality lacks authority to implement more stringent air quality standards than provided for under federal and state law without the prior approval of the Board.

Water quality also is the subject of an extensive statutory and regulatory system, beginning with the Clean Water Act. With respect to the particular action that is the subject of your question - local implementation of more stringent water quality standards than provided under federal and state law - it is my opinion that the federal and state regulatory scheme preempts this field so as to prohibit such an exercise of local authority.

Question 3: Additional Bonding
The nature and extent of uranium mining bonding requirements, and the locus of authority for setting bonding requirements, will depend on such future legislation as may be passed by the General Assembly, as well as such agreed delegation of authority as may be entered into between the Commonwealth and the NRC. It is therefore impossible to opine conclusively upon this question at this time.

Question 4: Civil Penalties and/or Liability for Declines in Real Estate Value
"The Supreme Court [of the United States] has concluded that 'the safety of nuclear technology [is] the exclusive business of the Federal Government.'" The Court explained that state law "is not pre-empted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States."

Under the Price-Anderson Act, legal liability arising out of or relating to a "nuclear incident" is part of this broad preemption, in that the "public liability action" created by the Price-Anderson Act reflects Congressional intent to "supplant all possible state causes of action when the factual prerequisite[s] of the statute are met." "In short, a plaintiff who asserts any claim arising out of a 'nuclear incident' ... 'can sue under the [Price-Anderson Act] or not at all.'"

The Tenth Circuit has held specifically that a mere decline in real estate value cannot establish a nuclear incident, explaining that diminution of real estate value might be a measure of damages but is insufficient to show the actual loss or damage that satisfies the nuclear incident requirement.

Accordingly, it is my opinion that federal law precludes a locality from subjecting a uranium mining operation to civil penalties or liability for declines in the value of real estate located within a defined proximity of such an operation. Even if federal law did not preempt local creation of such liability, operation of the Dillon Rule would appear to do so under current Virginia law. Localities have not been granted a general power to create civil penalties or liability, nor a specific power to do so with respect to uranium mining.

Question 5: Civil Penalties or Liability for Loss of Revenue Related to Agricultural Contracts
For the reasons given in my response to your preceding question, it is my opinion that a locality may not do so.

Conclusion
Accordingly, it is my opinion that a locality currently cannot regulate uranium mining in any fashion because uranium mining is not a permitted activity within the Commonwealth. It is further my opinion that, should the General Assembly act to permit and provide for the regulation of uranium mining, a locality's authority related to uranium mining will depend upon federal and state law in effect at that time, including the enabling legislation for uranium mining enacted by the General Assembly. It is further my opinion, as detailed above, that a locality does not have authority under existing federal and state law to take certain of the actions about which you inquire.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General