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Virginia Uranium, Inc., et al. v. John Warren, et al.

Paid petition · United States Court of Appeals for the Fourth Circuit, No. 16-1005 · judgment February 17, 2017

Decided · June 17, 2019
At-filing estimate: 5% cert probability
The Solicitor General's brief was filed April 9, 2018

Before the decision, roughly the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below, a business petitioner, and a Fourth Circuit decision below.

Question presented

This Court has held that the Atomic Energy Act ("AEA") "occupie[s] the entire field of nuclear safety concerns," Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212 (1983), and it has "defined the preempted field, in part, by reference to the motivation behind [a challenged] state law," English v. General Elec. Co., 496 U.S. 72, 84 (1990). In accordance with these precedents, the Tenth Circuit has held that "a state cannot use its authority'' over activities indisputably subject to State regulation as a pretextual "means of regulating radiological hazards" arising from activities entrusted by the AEA to the Nuclear Regulatory Commission ("NRC"). Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1247-48 (10th Cir. 2004). Accord, e.g., Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 416 (2d Cir. 2013). In contrast, the divided panel below held that so long as a challenged state law "does not [on its face] purport to regulate an activity within the [AEA]'s reach," courts may not "conduct a pretext analysis" to "decipher whether the legislature was motivated" by radiological safety concerns." App.14a, 15a, 18a. The question presented is: 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)?

Counsel of record

For petitioner
Charles Justin Cooper
Cooper & Kirk, PLLC

For respondent
Toby Jay Heytens
Office of the Attorney General

Case

Subject area
Federalism (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 4 conferences

Amicus briefs
3 cert-stage · 11 merits
(6 supporting pet./neither, 5 respondent)

Orders
Order list, October 2, 2017
Order list, May 21, 2018 · Certiorari granted
Order list, October 1, 2018

Argument & decision

Argued November 5, 2018 — Charles J. Cooper · Toby J. Heytens. Listen and read along · the Court’s audio

Decided June 17, 2019. Opinion by Gorsuch.

Proceedings

  1. Jul 19 2019
    JUDGMENT ISSUED.
  2. Jun 17 2019
    Adjudged to be AFFIRMED. 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.
  3. Nov 05 2018
    Argued. For petitioners: Charles J. Cooper, Washington, D. C.; and Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Toby J. Heytens, Solicitor General of Virginia, Richmond, Va.
  4. Oct 01 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  5. Sep 26 2018
    Reply of petitioners Virginia Uranium, Inc., et al. filed. (Distributed)
  6. Sep 18 2018
    The entire record from the U.S.D.C. Western Dist. of Virginia is electronic and located on PACER.
  7. Sep 12 2018
    CIRCULATED
  8. Sep 10 2018
    Record requested from the U.S.C.A. 4th Circuit.
  9. Sep 04 2018
    Brief amici curiae of Preemption Law Professors filed.
  10. Sep 04 2018
    Brief amici curiae of The Roanoke River Basin Association, et al. filed.
  11. Sep 04 2018
    Brief amici curiae of National Conference of State Legislators, et al. filed.
  12. Sep 04 2018
    Brief amici curiae of States of Indiana, et al. filed.
  13. Sep 04 2018
    Brief amici curiae of Members of the Southern Virginia Delegation to the Virginia General Assembly, et al. filed.
  14. Aug 29 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  15. Aug 27 2018
    Brief of respondents John Warren, et al. filed.
  16. Aug 20 2018
    SET FOR ARGUMENT on Monday, November 5, 2018
  17. Jul 26 2018
    Brief amicus curiae of Nuclear Energy Institute filed.
  18. Jul 26 2018
    Brief amicus curiae of United States filed.
  19. Jul 26 2018
    Brief amici curiae of Entergy Operations, Inc. and Entergy Nuclear Operations, Inc. filed.
  20. Jul 26 2018
    Brief amici curiae of Senator Tom Cotton, Senator Jim Inhofe, and Senator Ted Cruz filed.
  21. Jul 26 2018
    Brief amicus curiae of Chamber of Commerce of the United States of America filed.
  22. Jul 26 2018
    Brief amici curiae of Former Nuclear Regulators filed.
  23. Jul 19 2018
    Brief of petitioner Virginia Uranium, Inc., et al. filed.
  24. Jul 19 2018
    Joint appendix filed. (Statement of costs filed)
  25. Jun 11 2018
    Joint motion to extend the time to file the joint appendix and the opening briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including July 19, 2018. The time to file respondents' brief on the merits is extended to and including August 27, 2018.
  26. May 24 2018
    Joint motion for an extension of time to file the joint appendix and the opening briefs on the merits filed.
  27. May 23 2018
    Blanket Consent filed by Respondents, John Warren, et al..
  28. May 22 2018
    Blanket Consent filed by Petitioners, Virginia Uranium, Inc., et al..
  29. May 21 2018
    Petition GRANTED.
  30. May 14 2018
    DISTRIBUTED for Conference of 5/17/2018.
  31. Apr 24 2018
    DISTRIBUTED for Conference of 5/10/2018.
  32. Apr 23 2018
    Supplemental brief of respondents John Warren, et al. filed. (Distributed)
  33. Apr 09 2018
    Brief amicus curiae of United States filed.
  34. Oct 02 2017
    The Solicitor General is invited to file a brief in this case expressing the views of the United States.
  35. Aug 16 2017
    DISTRIBUTED for Conference of 9/25/2017.
  36. Aug 15 2017
    Reply of petitioners Virginia Uranium, Inc., et al. filed.
  37. Aug 02 2017
    Brief of respondents John Warren, et al. in opposition filed.
  38. Jun 15 2017
    Order extending time to file response to petition to and including August 2, 2017.
  39. Jun 01 2017
    Response Requested. (Due July 3, 2017)
  40. May 25 2017
    Brief amicus curiae of The Chamber of Commerce of the United States of America filed. (Distributed)
  41. May 25 2017
    Brief amici curiae of Senators Tom Cotton, et al. filed. (Distributed)
  42. May 23 2017
    DISTRIBUTED for Conference of June 8, 2017.
  43. May 17 2017
    Waiver of right of respondents John Warren, et al. to respond filed.
  44. May 02 2017
    Consent the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners
  45. Apr 21 2017
    Petition for a writ of certiorari filed. (Response due May 25, 2017)