While the 1982 moratorium on uranium mining in Virginia originally was made to last one year, it was extended indefinitely in 1983 to allow more time for additional studies and public hearings.
The ban has remained in effect to this day despite numerous lobbying efforts, legislative actions and lawsuits — including one that ended up in the United States Supreme Court — from Virginia Uranium Inc. and other companies regarding Coles Hill in Chatham, the largest untapped uranium deposit in the nation with an estimated value of $6 billion.
In wake of the U.S. Supreme Court decision in June upholding the power of Virginia — or any state — to ban uranium drilling even though the federal Atomic Energy Act allows it with significant regulation, three Chatham-based companies are embroiled in another court case seeking their last option: a change in Virginia law that would allow them to mine the uranium lodged under Coles Hill.
“The project can’t go forward without a change in Virginia law,” said Cale Jaffe, a University of Virginia professor who has filed briefs against Virginia Uranium in the case that went to the nation’s highest court.
As it turns out, Virginia Uranium filed a case in 2015 in Wise County Circuit Court arguing Virginia’s ban on uranium mining violated the state’s constitution. But the case was put on hold as arguments from another case wound through the federal courts and ended up before the highest court in the land. The state case, however, never went away and now will move forward — a trial has been scheduled for Feb. 10 to 14.
One part of Virginia Uranium’s argument is the question of whether the act of a ban on mining is for the public’s protection, as contended by the state. The company argues the ban instead has the effect of restricting the use of its private property.
Therefore, according to the legal reasoning, the ban is not in the public’s best interest because mining uranium is not a danger to the public.
The company also alleges that an outright ban, as opposed to implementing “reasonable regulatory restrictions,” takes more of the property than necessary to achieve the commonwealth’s goal, all without compensation for the loss of economic value.
In short, this case revolves around what is called a takings claim, which is where an entity alleges the government, either through regulation or actual seizure, has removed all value from the property without good reason or compensation.
“Defendants’ [Virginia’s] actions have thus drained Plaintiff’s [Virginia Uranium’s] mineral estate of all value,” the complaint reads.
The company had originally requested either a change in law or compensation of $483 million, but the court dismissed the ability to receive compensation in 2016.
Virginia Uranium is not the only Chatham-based company suing the state in the case, there also is Coles Hill, LLC, and Bowen Minerals, LLC. Neighbors with adjoining farms, Walter Coles Sr. and Henry Bowen collectively own Coles Hill, which they lease to Virginia Uranium Inc.
Coles, the president and CEO of Virginia Uranium, would not comment for this story.
The plaintiffs argue in their complaint against the state that “unprecedented economic growth” would occur if the ban were lifted, as the process of mining, processing and shipping the uranium could create hundreds of jobs.
Conversely, opponents, like Jaffe, argue uranium mining could negatively impact other industries, thus weakening the overall economy. Most of the concerns around uranium mining regard the safe storage of tailings — radioactive waste from the milling of uranium.
“[Mining] actually might cause more economic harm than good was the concern,” Jaffe said.
Jaffe said part of the concern for many of the organizations that signed his brief in the Supreme Court — including the Danville Pittsylvania County Chamber of Commerce, the River District Association in Danville and the Danville Industrial Development Authority — was uranium mining’s reputation as “a boom or bust cycle.” Simply put, it would generate plenty of money until the ore is depleted, leaving nothing more than a vast hole in the ground.
But Virginia Uranium argues other nuclear projects with “far greater radiological safety risk” are ongoing in Virginia, including several facilities where nuclear fuel is produced as well as four nuclear power plants.
For a plaintiff to prove a takings claim, it has to be proven the government did in fact strip the property of all — not just some — value, said University of Virginia law professor Rich Schragger, an expert in property law and takings claims.
In other words, the land still has value even if the uranium ore is never mined.
“The law doesn’t guarantee that you get to do the most valuable thing with your land; the law only prevents the government from seizing it,” he said. “This [case] seems like a Hail Mary to me.”
If a court concludes a takings claim is valid, however, the government would then have two options: either pass an injunction to change the regulation, or provide compensation. Since the prospect of the plaintiffs receiving compensation was ruled out in 2016 because the lawsuit was filed after the statute of limitations was reached, the only option left is an injunction.
John Ohlendorf, one of the attorneys representing Virginia Uranium, said such an injunction would take effect the moment a judge announces it, but he expects the commonwealth would almost certainly appeal the case to the Virginia Supreme Court.
Michael Ward, lead counsel for the state, said “there’s many possible outcomes” to the case when asked about repercussions or next actions for either side winning.