hear argument next inc a sixteen twelve seventy five virginia uranium first was born mr cooper mr chief justice and may it please the court in the p g and e case this court held that although the state of california had the undisputed regulatory power to emplace a moratorium on the construction of new nuclear plants it was preempted under the atomic energy act came to that conclusion was it accepted the court of appeals interpretation of state law that the purpose the purpose of that regulatory that  that the courts or the californias exercise of regulatory authority was not for the purpose of protecting against radiation hazards which is the which is the line drawn in the statute to indirectly and defacto regulate a activity that was in the exclusive authority of the n r c what what if it's case what if it's dual purpose well your honor which a lot of things are going to be in this context that's true your honor and how to how does that work just kavanagh in a case where it's a dual purpose this court in p g and e said is it grounded and the impermissible person purpose is it grounded in the courts of appeals have had no problem examining the situations where and that's going to be true in most of it mr legislation mr cooper then when we don't we get into trouble under shady gro e guessing what the motivations of a state legislature are all the methodological christological and federalism questions that that raises what we do about that your honor this court in a variety of contacts is called upon bility based on our assessment of legislative motive it well your honor and we have not been able to find another statute where congress has prescribed a purposed based preemption standard but congress has nonetheless in terms that are quite clear and in terms that this court in p g and e accepted and implemented made purpose the line between what is stick to what is state and what is federal with respect to the regulation of nuclear power development so we're just stuck with purpose whether we like it or not i got it that's that's the bottom line yes but perhaps distinguishabl this basis that at least there california was directly regulating the construction of nuclear power plants were prohibited and that is an area under what is it twenty twenty one  near the questions that we will not be more productive for me hopefully for me there california was regulating construction and that's that's dealt with by sea but k i grant you twenty twenty one k does seem to have a carve out based on purpose yes you got me there ok yes but i think just as what was say well within the construction world all right we have this carve out under k that we have to deal with and california might regulate construction for purposes other than safety considerations for economic or other considerations what we do about it when when the state comes along says i'm not going to regulate construction i'm not even going to get into that game i'm not in the sea game at all why would we look at k why would we look at anything why wouldn't we just say this is just not an area that congress regulated congress just couldn't come to agreement on how to regulate mining well to come back to p g and e what the count what california  how a plant is constructed so before you get to the how california answered the weather and it and this court acknowledged that was within its authority but what it couldn't do was use that of virginia is genuine purpose what the congress has asked the courts to do is to determine the purpose of a of a state regulation state regulations ranging in the in this body order to to to use those sovereign powers in order to prevent the of the cut coming into existence the regulatory  in the first place and that is what p g and e says quite reasonably states cannot do if they could do that it would make a mockery as this court said in the national media so season case would make a mockery of the purpose based preemption standard that congress has prescribed i might just be repeating just discourse which is question but you've conceded if they talk about mining hazards that that's when you lose and i appreciate the candor but what if the legislation is written to protect against mining hazards and of the i don't know sixty members of the legislature twenty of them say this is a great way to keep nuclear energy out of the state  and we should do that but what is the purpose of that legislation still to protect against mining hazards or do you look behind it and says well a third of them thought it was a good way to keep nuclear power out and how do you analyze that question your honor the courts can't except simply as written what the state may say in terms of what the purpose is that starts exactly what happened in the entergy case from the second circuit the legislature in vermont was acutely aware of p g and e and acutely aware of trying to avoid preemption and so on the face of the statute it articulated nine safety rationales for what was the court of appeals determined its its concealed purpose which was radiation hazards of nuclear power generation so that the courts really have to look behind to see if in fact the the legislature is motivated and its purpose is a pretty baited radiation has is going to require supposing every single legislative  mixed motives this is an odd way to read a preemption statute your honor i know of no case that i'm aware of anyway when this court and the federal courts go about the what is ordinary business of trying to determine legislative purpose where legislators have been deposed that is not what we have in mind what the courts look to in these cases of the standard ordinary indicia of of of objective purpose what is the text say by the way the text in this case says a lot about that but what is the legislative history what are the historical context of the legislation itself what was the legislature addressing but you would concede mr cooper that two states with the exactly the same statutes it could come out different ways because the legislative history was different in the two states it could your honor if if the purpose animating the legislature through the best good faith examination of the courts looking at that issue came to the conclusion that yes this genuine and non prohibited purpose was the but for purpose if you will of the legislation yes that is not to present real opportunities for gamesmanship as well sort of bad incentives for a state discover over your purpose your honor and we've seen that we've seen that  in cases that have been decided in this line as i was saying the entergy case itself the legislature was very careful to attempt to obscure what was in the courts determine quite properly what was genuinely animating the legislative body in that case and it's not unusual in this particular area when when congress  determined to create a system of dual regulator and drew the line between the purpose of the state to regulate radiation hazards it was reserving for the federal government that particular area with good reason it was allowing the states to regulate in the area of electric generation as they had always done and to  if if the states would have regulated this particular plant as though it was a fossil fuel fuel plant then there would be no doubt that its purposes were not  concerns me about this is how is this going to work all right and one way would be is just to sort of my horse subjective motivations depositions you rightly say i think that that's not what you're looking for so what's what is it you would ask whether the state can articulate a legitimate non safety rationale that's that's a possible answer is that's that's that's too low i think you're going to you're right i am going to say that then what it would what is the answer for something workable that makes sense here that's what that's what's bothering me here and i think if you're if you're groping if you were for a framework for courts to analyze this it seems to me the court in arlington heights produced a perfectly was a motivating factor than the state has to come in and show that it would have been enacted even in the absence of the motive baiting factor and again the congress drew the line here because it wanted to ensure and this was purpose is actually in this a narrow way preemption because typically if if the state in an axe a measure regardless of what its purpose is that is an indirect regulation of that which is exclusively federal as in the national meat association case the court doesn't look into what the purpose was it quite properly this actually takes takes the standard preemption doctrine and his state is friendlier to the state's interest because it allows states as k explicitly said it's to regulate the materials at issue source by product of special nuclear materials for purposes other than protection against radiation hazards but when it comes to something that dramatically important protection against radiation hazards of these nuclear materials the congress wanted that to be exclusively federal and so it drew a line on on purpose if i may reserve the balance of my time general francisco mr chief justice and may it please the court under the atomic energy act virginia can ban uranium mining because it thinks that mining is unsafe but what if you can't mining it because mining isn't safe but what it can't do is ban uranium mining because you're a name process in the us is it the federal government order the state to permit and regulate mining no you if we said your purpose for not wanting to do this is preemptive now you must not in the slightest your honor because if virginia's mining ban were preempted virginia wouldn't have to do anything it could apply its existing mining laws it could adopt a new mining law fit wanted or could leave the entire area completely unregulated but the one thing that pacific gas tells us that it can't do is it can't use the authority that it does have to reach into and indirectly regulate something reserved exclusively in the federal government may it may or go back to just a score such as question about p g and e and whether it's the same as or different from this case and it's might be just a different way of saying what he said but it does seem to me that when you're talking about construction of a nuclear plant there's obvious dual authority between the federal government and the states twenty eighteen gives a lot of authority to the states and then twenty twenty one c clearly makes this a part of what the commission looks at and you know mr cooper said there's the weather question and the how question but honestly the if you think about the thing there is there's dual authority in one area and it seems to me that that's not true here where the act specifically says that the commission's authority starts when the materials are extracted from the earth and has nothing to right with what happens prior to that so isn't the separation involved in these two activities very different from the separation and volved in the p g and e context so my my answer your question is no and if i could preventing any fuel from reaching the facility in the first place by way of the roach general i don't understand it's a nice ten circuit case so well done but it doesn't bind this core so what do we do  construction i don't see whether and how in the statute and see i see construction period right and california was regulating construction in some fashion right and i are here it's mining and maybe congress should have preempted in mining instead of just starting with milling but it didn't so why isn't that the end of the case because i think the answer to your question is that neither p g and e nor anything that we're arguing here is really a nuclear specific rule take the national to sociate in case for example a decision of this court the federal government had exclusive regulatory authority over slaughterhouse operations and what the court made clear was that the state couldn't use its authority over the sales of meat to reach into an indirectly regulate slaughterhouse operations here the purpose inquiry actually narrows the scope of preemption because not only does the state have to use the authority that it does have to reach into an indirectly touch upon something that the federal government regulates it has to do so for a very specific and impermissible purpose and i think that if you adopted a contrary rule unlike the one adopted by the fourth circuit it really is a road map for completely undermining a multibillion dollar industry and that your honor is the reason i was citing school valley not because i believe that the holding obviously is binding on this court because it's facts show that the state could simply shut down all nuclear activity by designating the roadway leading up to a nuclear plant as unsuitable for commercial trucking even if the only commercial trucks that ever go up that roadway are to make deliveries to the facility that houses usually subjective concept but and that's what congress that's the term congress chose to use and twenty twenty one k but is there a way of understanding that as applying an objective standard that doesn't boil down to rational basis review so the inquir wouldn't be what was in the minds of these particular legislators but would a reasonable legislator do that and that this particular prohibition if it's objective was not disagreement with the federal regulations yes your honor i think there is an injustice cam and i think this also goes to the concern that you are raising as well i think that the way you would analyze this is by looking at the text the legislative history the historical context in which it was did and the plausibility of any permissible non si for the rationale that the states puts forward if the state puts forward a plausible non safety rationale and that rationale is not otherwise foreclosed by the text legislative history and  l context then i think the state wins the problem in this case is that the fourth circuit effectively assumed that the purpose of this law was to prohibit your anian processing because you're in the in process and was on state but it held that that was simply irrelevant to the disposition of the kitchen or even to your standard we have a problem of mixed motives because every piece of legislation has a variety of motives behind it we have a lot of cars with a lot of different purposes i'm not  to stand how you're going to solve the problem in virginia we have in this record evidence of their concern both about environmental and economic impacts from mining itself as well as with other things so what we do with those cases where at the end of the day it's indeterminate so two responses your honor the first which i'll get off off of quickly because i don't think you're going to find it fully responsibly that you don't have to address that here because the fourth circuit refused to apply any purpose inquiry at all but secondly i think that the answer lies in where the burden of proof is the burden of proof is on those challenging state law and if they cannot establish that the principle or predominant purpose of this law was impermissible then they lose and so here the fourth circuit refused to undertake any inquiry at all because it effectively assume that the purpose was in petitioners favor but concluded that that was your relevant any plausible non safety rationale i think if it's not foreclosed by the text legislative history and historical context and they can establish a plausible rationale at the time that this was adopted then yes i saw that answer was just to score such as question because if there is at least one plausible non safety rationale that's good enough or i think that  now has to be sufficient to sustain the law whatever it is i mean and so for example suppose that virginia put forward irrational of we don't like big huge ugly holes dug into the virginia countryside which is a very plausible rationale but suppose that in a particular area of virginia they actually have tons of big ugly holes dug in the virginia countryside by way of coal mines so i think it's very much want we've got too many we don't want anymore well your honor and i think that that's exactly the type of analysis that the statute itself requires when it required that type of purpose inquiry because i do think otherwise otherwise you really are giving state and local governments a roadmap for undermining a multibillion dollar industry just one other example generally you've been talking about the undermining of this industry but i guess a couple of things is one is that as long as there is this there purpose or as long as the state can say that there is this other purpose it will be just as successfully be able to undermine the industry and then on as well this statute does give the federal government the ability to make sure that states can't really undermine it if the federal government once a nuclear industry badly enough because in addition to the fact that somebody can import this material from another state or from another country the federal government itself can mine for this material on its own lands or it can condemn lance and and do it with newly acquired labs so there's a limit to how far any state is able to undermine the federal goal here if the federal goal is real  enough i agree your honor but two responses to the first part of your question and then i'd like to address the second part of your question as well on the first part of your question we assume that the states and gauge in good faith and we assume that the states aren't going to misstate their reasons for doing something but i will tell you that it is a lot more difficult for a state to for example rezone all land nuclear activity is taking place on his residential even if it's totally unsuitable for residential dwelling if they know they're going to have to come forward and justify that it may finish the second portion or briefly yes in my and in response to the second part of your question justice kagan yes this is the federal government can in certain circumstances condemn land but take not something like this case but take something like an ongoing nuclear facility where the state is using under the fourth circuit's rule its authority to rezone that land is residential to completely obstructed and shut it down it is a lot more difficult for the federal government to come in and condemn an entire operating nuclear power mr chief justice and may please the court this is an obstacle preemption case masquerading as a field preemption case there is no field preemption here because of the undisputed fact that the nuclear regulatory commission does not and cannot regulate any aspect of uranium mining including the safety aspects of uranium mining and there is no obstacle preemption here because the atomic energy act and the nuclear regulatory commission have repeatedly reaffirmed that states have the ability to regulate mining up to and including by building it all they can regulate milling correct excuse me that i want the federal government regulates militarize cavanagh yes so the mining in the milling occur together correct in other words they occur you don't have mining with milling you don't have milling without mining just having a there's a way the in situ leaching process they literally occur at the same if you have conventional mining i'm sorry yes you have before you can mine that's correct but i think in many ways with this case boils down to is two questions about pacific gas either one of which is sufficient to resolve this case in our favor the first question is why the court conducted a purpose analysis in pacific gas and the second question is what is the nature of the purpose and now assess that pacific asked it so only take the first question why did the court do it the reason the court did it is because a several members of this court have already flagged pacific gas was dealing with an area of overlapping shared authority between the federal and state government and i know the yellow brief dwells on this we want to quote some of the language in the court's opinion that addresses this the court said at page one ninety four of its opinion that that case arose at issue involving the intersection of federal and state authority the court said at pages two eleven and two twelve of its opinion that it was involving the dual regulation of nuclear powered energy generation and before you get too deeply into that decision which you have addressed very extensively and well in your brief can i just ask you this suppose the for ginia general assembly i'm active a lot there reads as follows the general was disagrees with the federal government but you're a me i'm tailings can be safely stored in virginia and for that reason only that reason we are banning the practice of uranium mining would that be preemptive justice alito we do not think even that mythical statute would be preempted and let me start by explaining why we don't think that and then i'll explain why i don't think the answer to that matters in this you know how would that be doesn't that make nonsense of twenty one twenty twenty twenty one k justice alito i don't think it does and here's why i think the predicate for twenty twenty one k is the existence of an n r c regulated activity twenty twenty one k has to be read in part in material with twenty twenty one b twenty twenty one b also refers to purpose and it says that in a situation where the state negotiates for the discontinuance of commission authority the state again gets the bat though the right to regulate those activities for purposes of health and safety and then twenty twenty one k comes along and says just because you how haven't gotten a twenty twenty doesn't mean you can't regulate for other purposes so what why can't the imagination allows you to think of all kinds of things where they stop the tailings no one who works in a failing plant can eat right you know that's not going to be a real law but you can't eat they can't have electricity in the plant they can't build it in the first place because it's residential yet you name it they have authority in all kinds of places and all they have to do to stop the flow of the tailings is that uses other authority soley in order to stop the tailings and you say that's just fine we'll just as far think there are two different reasons why that is distinct from the situation fine no the eating is distinct but what i'm driving at is the general matter of i were in a state legislature and you could think of a thousand ways my guess is we stopped tailings in our state house and then you look to an area you can regulate and you regulate that area but you do it in a way that nobody can build a plant ok i don't think that's a far fetched question i think they are and that's what they say happened here and i think the answer to your question just as far goes back to a point that justice gorsuch made earlier in that situation if we're talking about a plant we're talking about dual overlapping federal and state  hority under twenty twenty one twenty but that's not my question it's the tailings they can't regulate you get my question yes just a you get a good lawyer like you and he finds a different area and it just turns out the regulation this different area will stop them from ever having tailings and that's why they did it ok so that's my problem let me try this again justice fryer when we're talking about a tailings facility we're in an area of overlapping authority because n r c regulate tailings management and at that point you are covered by twenty twenty one k and the court has to conduct the sort of purpose analysis that's mandy by twenty twenty one k our submission is that this case is fundamentally different because we are regulating mining but when you're regulating mining separate mining and milling whether it's in the real world it's not separated just haven't in the statute it's separated and our seas judgment they're separate i think the best evidence of that is discussed in our brief it's the hydro resource resources decision of n r c so this is a case in which n r c is regulating an activity that they have the authority to regulate some milling process right and n r c has argued that as part of their regulation of milling they should take into account background radiation that exists because of previously on c regulated mining and n r c says we can't do that we're not allowed to take into account the consequences of previous mining activities because we and our sea have no authority to regulate mining even though we have authority to regulate milling we n r c can't regulate mining and even taking into account radiation that exists because of that previous mining would constitute in permissible an r c regulation of mining and so i think we're garbus of whether as a metaphysical level we c say milling and mining are so inexplicably intertwined that the regulation of one isn't necessarily the regulation of the other i think both congress in the text of the statute right so that mean that's the other point this statute from the beginning has given n r c the ability to c has aggressively disclaimed that argument in a decision where a great deal actually turned on that argument but the second question to raise justice prior to go back to justice price i think the first reason that just as far as example isn't covered by this situation is that we c cede once we're dealing with an n r c regulated activity a tailings facility twenty twenty one k requires some sort of purpose analysis that's why the court did a purpose analysis in pacific gas and that's also why school valley is right yes kagan because the vast majority of the activities in skull valley were n r c regulated activities and we have no quarrel with that decision whatsoever but that the other reason is even if so to go back to justice alito is hypothetical excuse me even if it appeared on the face of the statute the first reason we think that that was not preempted and if that was not preempted this law is obviously not preempted but even if the court were inclined to reserve judgment or to carve out an exception for a law where that sort of purpose is stated on the text or the face of the statu there would be no justification for unleashing the all things considered subjective and motivations of the state legislature that we see in the blue brief and the yellow brief and here i think one of the not of motives in my opinion it's a bad word  because you don't know people's motives you don't normally into that motives can be backward looking he did it out of revenge they can be referring solely to a past fact he hit my sister that too why but we're concerned with the subset of that we're looking to the future and i think you're right to say that purpose when we talk about an every judge as far as i know including justice scalia whom we used to talk about this sometimes will look to a statute the purpose go back to lord cook go back as far as you want name any judge in american history and who has haven't heard of of course we have a dozen ways of looking at purpose so what's wrong with looking at purpose here i grant you a state legislature unlike congress is less likely to hold on the record hearings about a statute but then that would be a reason for saying when we try to determine purpose we do not look necessarily to legislative history as written in committee reports because there aren't any now they're just a school and i could have a lot of arguments about whether you do either you don't but that's beside the point when you say don't look at purpose there i get off the boat because i think that's our job as a cord in or in a relevant case to determine what the purpose of the statute is sometimes it's easy sometimes it's tough so what's wrong with what i just said i think i have two answers just as for the first one is that when we're dealing with a state legislature which is fundamentally as you say unlike congress and it's unlike congress in a different way the state legislature does not have to show its authority to do something under our federal system the challenger has to show why a state legislature may not do something so the first thing i'd say is we'd have to know why would the purpose of this law matter and to go back to i think something that was brought up by justice course that our fundamental view is because congress does not regulate mining in any way in any shape or any form it does not matter the purpose for which virginia has chosen to forbid mining but even if the court wanted to carve out an exception for the case that we've talked about earlier i think i think justice  absolutely right i think the purpose of the statute is an orthodox question of statutory interpretation and should be determined the way the court normally does the face of this statute regulates mining the face of this statute cites environmental apparent what those would be in the context of this situation this would be a massive earth moving mine operation that there's a statistic that's in the federal government search stage amicus brief where they say that to get one to five pounds of uranium you have to displace one ton of dirt to get one to five pounds of uranium this would be a massive disruption of virginia's scenic beauty we're talking about a fundamentally profoundly rural area of virginia that is building its economy based on agriculture and tourism and i think it's fairly obvious how that would have a significant impact on virginians and vironment and natural resources which is why the watches i'm trying to bridge are you know one ton sounds like a lot but a ton of dirt which is that it's going it's probably not that much i mean you're talking a truck load or work perhaps mr chief justice but our friends on the other side it's also not one pound of uranium our friends on the other side say this deposit is one hundred i believe it's a hundred and nineteen it's either ton it's an enormous quantity they're not they don't want to mine one to five pounds of uranium they want to mine what they themselves describe as the largest deposits of uranium in the continental united in the us that if your version allows coal mining and has a fair amount of coal mining in the western part of the court compare coalmining with uranium mining and see if there's something that if one is more disruptive to the scenery then the other one is more dangerous to miners than the other  something like that so you could ask whether it's plausible that this was done for some reason other than just the fact that for jana disagrees with the n r c that the tailings can be dealt with in a safe way and justice alito i think there is an apparent an obvious explanation that is all that the court doesn't need to do anything beyond it something the chief justice flagged there is virginia could easily decide that there is a world of difference i mean the analogy i've thought of here is the removal of ten commandments monuments right where virginia  decide that there is a world of difference between telling people and companies and communities that have built their economic livelihood around coal mining that we are not going to shut those down and disrupt the entire way of life in an area there's a world of difference between saying  whether the state has a plausible non certified the rationale we think that that's the language the court once you decide to do purpose that's the second point i was making earlier if you decide to do purpose we think that's the way you should do purpose that's the way the court did purpose in pacific gas and we think party who moves to dismiss we are core acquired to assume the truth of all well pleaded factual allegations in the complaint so to the extent well why did you even do that why is this a factual allegation well to the extent that what was in someone's mind when they reasonable legislator the reasonable legislator is cold a legislative in a judicial invention and the reason they invented is so that they can work out your provisions of the statutes and what their real purpose is and what they mean now that too has been used for hundreds of the i dunno for hundreds of many many many years so we don't have to look in their minds do it well look just as prior that is exactly what the petitioners are asking you to do the statements that are maybe but regardless my question is why do you have to look in their minds what you do is the same thing you do with a federal statute what you do is statute every day you get provisions and you say reading the words reading the applications you know fill in the blanks what would a reasonable legislator have wanted this purpose what purpose would it have served i think i've done that perhaps wrongly i don't think so  hundreds of times yes that's correct we all they want is a chance to show that but here you say you don't even get a chance to show it justice by we agree with everything you just said about purpose and it brings me back to my answer to justice kagan and justice ginsburg excuse me the statements in the brief that they are citing before this court are statements where we say the court should not consider these hundreds of pages of statements where people offer their subjective perspective on why they did what they did we say all of those materials are beside the point so so what happened here is also what i'm hearing is rational basis review is there any rational basis in which a legislator could vote for that ok fine if that's what you're asking but to layer purpose on top of it introduces all of the complications of justice alluded to which is if we're going to start inquiring into purpose one state may not be able to do the same thing another state maybe may be able to do simply because of our assessment of what was and somebody is mud and if we start looking at this statute i don't even know where to begin because it talks about the environmental and local resource impacts of mining and milling and tailings and everything else how could any rational legislator have done this only for concern about money maybe if i'm going to start going down the road of what's in somebodies head and subjective intentions of even a imaginary hypothetical reasonable legislator i don't know what justice course which we absolutely agree with you which is why our primary submission is that because this is not an area that's regulated by the federal government at all you don't do any sort of purpose analysis of that our primary submission is that exactly what you just said just a score such that there's no warrant to do that there's no need to do that and the courts shouldn't accept where do we draw the line or how do we draw it between the skull decision in the second circuit remonde decision there the activities that the state were alleged to be doing were intended and did in fact affect regulated conduct by the federal government but one could say here if you prohibit mining your affecting lilly or disposal so how are and how do we draw the line between that regulation that were permitted to look to purpose or and that which were not right at the line we think is straightforward it's based on the text of the statute it's an r c regulated activity because in both valley decision and in the entergy decision the state law was directly acting upon and regulating something that is itself regulated by an r c the spent nuclear fuel to silly in the skull valley was regulated by n r c the vermont yankee nuclear power plant was certainly regulated by n r c and the court would you now i want to ring up the rhodes provision because mr cooper mentioned them they say there's this one provision of the law at issue in skull valley that turns a county road into a state road well i think two things about that provision first if that's literally all that utah did all utah did was to convert a road from a county road to us and that's the only thing they did there would be no basis whatsoever for finding that the law standing alone was preempted by the atomic energy act and to the extent that it operated i think there was also discussion of the national meets case which i think is affirmatively helpful for us because at the end of the opinion international me the court got to the sales provision of the california law in the courts and you know this doesn't directly  upon the conduct that's regulated by federal law and so i guess you could make an argument humane society made the argument that's not preempted and here's what the court actually said in national meet that argument ignores the way that the sales provision operates within state law as a whole palace when you didn't and not the sales provision as a freestanding provision they enacted the sales provision is part of an interim lated series of laws that in the courts language regulated the same thing as the federal government just in a different way and we think that's directly point because when this court c v s geed in skull valley the solicitor general c v s brief adopted that precise russia now when it came to the roads provision it said the roads provision house to be analyzed as part of how entire scheme is regulating the spent nuclear fuel facility you have to look at the scheme as a whole and you have to look at how the entirety of the series of interrelated laws work so one of the twenty twenty one sections c twenty twenty c four says that the commission shall retain the authority to regulate the disposal of product and then case says nothing and that is it's that regulatory authority i take it which is the statutory start licensing justice alito first this case we're not talking a byproduct we're talking about source material and the reason that that is critically important i don't think i'm just quibbling over terminology is because when we're talking about source material both twenty or nineteen on this say the disposal such other by products worse or special nuclear material correct but it's but you have to read that in conjunction with twenty twenty ninety two and twenty twenty two twenty eight ninety five both of which specifically say that n r c jurisdiction over source material does not even begin or comments until after that source material is removed from the ground congress was very clear they have a belt and suspenders approach they don't just say that n r c can't regulate the transfer of source material that's twenty ninety two they go even further and twenty ninety five and this is an extraordinary provision it prohibits an r c from even requesting reports about source material until after is out of the ground and r c has literally no but that's the critical distinction in this case because our whole point that the predicate of our argument but if the if if state law indirectly surreptitiously  regulates the same thing it would fall within the prohibited field justice alito i guess i'd have to know i have a little more information about what we mean by indirectly or surreptitiously regulates the same thing because it's certainly if we're talking about petitioners strong version of that argument that is completely inconsistent with this court's rejection of a field preemption argument in pacific gas because think about the argument that california is using off california that pacific gas and the federal government made for preemption in that case of course allowing the nation's largest state to prevent nuclear power construction nuclear power plant construction of course that is going to have a profound impact on the civilian nuclear power industry in the united states in the court acknowledged that the court said no we understand california could do that but we've concluded that congress has nonetheless given how the forney of the right to regulate for economic safety reasons and it is for congress not for this court this is what the court specifically said in pacific gas if congress concludes that california is misusing the authority that has been left to them it is for congress to tell the state that and go back to the point of course mr heightens not for reasons having to do with radiological safety and i suppose one way to understand this the preemptive field here is that it's surely extends to various kinds of activities and this is not one of those activities than mine but in addition it extends  to judgments about radiological safety even outside those activities on the theory that the n r c is the proper body to make judgments about radiological safety and we don't want fifty states to be making their own so i suppose that's a way to explain the opposite position i agree with that justice kagan but i think the very last thing you said shows why that argument can't possibly be right and our sea lacks the authority to regulate even the radiological safety aspects of mining so the logic if you define the field that way the logical implication of that argument is that there is literally no one who has the authority to regulate  radiological safety aspects of uranium mining because the n r c can't do it because the n r c has repeatedly reaffirmed that they have no power to do anything on the radio logical safety issues posed by the milling far more than the mining i thought that was why you're concerned about the milling to justice alito supporting the way to prohibit the milling you can't do that let's prohibit the mining that way would prohibit the milling which has the radiological safety concerns i think that's the sort of the point you just have and i think i think that's right i think part of the reason that i think there's three possibilities there's the radiological safety aspects of uranium sitting in the ground there's the radiological safety aspects of the mining process and there's the radiological safety aspects of the mill i agree with you completely the reason you give n r c jurisdiction over the third is the conclusion that that poses special concerns all the concerns with radiological safety almost all i want to read it almost all of us have and i know there is discussion some of the briefing in this case that suggest that there are radiological concerns associate with the mining process itself congress said that sitting in the excuse me a committee report from nine hundred forty six says that sitting in the ground you're raining does not create radiological safety concerns but there's the separate question of whether the process of digging it out of the ground raises any radiological safety concerns and i think there's at least some evidence in some of the briefing that there may be at least some radiological safety concerns associate with doing that without saying that the same as milling and there were garbus of whether there are radiological safety concerns there are police really a wide variety of health and safety concerns associate with extracting massive amounts of material out of the ground and so we think that at the end of the day the purpose of this court has reaffirmed repeatedly that the purpose of the statute includes not only what it sets out to change undisturbed until the present day that the federal government does not regulate your raney and mine for that reason virginia's inherent sovereign ability to control something as fundamental as what material gets pulled out of the ground remains fully milling in the tailings that represent the threat of nuclear safety and there were two ways they could do it they could do it directly we prohibit milling in this day but that would have run straight into a stop sign your honor you're on of they could say that but a court would have to look behind it would have to look behind it using all the techniques that my friend the solicitor general has mentioned including plausibility but come back to justice kavanagh i want to make clear that the court understand as justice gorsuch is referenced that the statute that banned mining had sister provisions in the very same breath virginia and acted a you're a new administrative tasking it with the off with the responsibility to study you're a mining in virginia and milling and tailings on page one eighty five i would refer the court to one eighty five through one eighty seven with respect to milling activity the tailings management the quantity and characteristics of the tailings the method of disposal treatment systems for removal of solids rape radio nucleotide on and on for the next several pages pages that  the courts below and my friends for the commonwealth have focused myopically on the one sentence that is the ban what was really happening here and the purpose of this was to prohibit mailing and tailings management the only thing that really represents serious radiological hazards second point due regulation my friend quotes from p g and e justice course which i want to i want to finish is quote he didn't get to finish it congress is preserve the dual regulation of nuclear powered electricity generation this is from two twelve to eleven to twelve coal and the federal government maintains complete control of the safety and nuclear aspects of energy generation that states exercise that their traditional author already justice course the traditional off already which they've always exercised over the generation transmission and sale of electricity over the over the need for additional generation generating capacity of that type of generating facilities to be licensed are they going to be coal or nuclear you're are in california in p g and e california had the antecedent of fardy its and its alone to decide whether there would be a plant of any kind including a nuclear plant and if there was no nuclear plant there could be no an regulation over how that thing was constructed or how it was operated my final point here plausible non safety rationale this is the one place where i guess i do disagree with my friend the solicitor general that sounds too much to me like rational basis review like any conceivable thing that the state could bring forward or a judge could even conceive of will do the trick that's not what congress had in mind when it said courts look at the purpose is the purpose for the protection against radiological hazards that's what congress wants you to decide and not just is it any plausible purpose is is  that the purpose and you have to do your best it's not easy but that's that's the question that the congress has said is before the courts and if the courts conclude in their best efforts that that's the purpose well then it's preempted thank you thank you counsel cases submitted