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Environmental Law & Property Rights

The New Trail of Tears: Property and Poverty on Native American Reservations

Environmental Law & Property Rights Teleforum Thursday, September 01, 02:00 PMFederalist Society Teleforum Conference Call

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book The New Trail of Tears: How Washington is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation—and the rays of hope—and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,” writes Riley, “have chosen civilization; now it’s time for America to make them equal Americans.” With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum will look at the legal and political problems that plague the more than 500 reservations in North America.

Featuring:

Clean Power Plan Litigation Update

Environmental Law & Property Rights Practice Group Teleforum Wednesday, August 31, 02:00 PMFederalist Society Teleforum Conference Call

On Tuesday, September 27, the D.C. Circuit Court of Appeals will hear West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama’s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state’s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will join us to discuss the arguments as briefed in this highly important case.

Featuring:

  • Mr. Elbert Lin, Solicitor General, State of West Virginia

Pipeline Takings: When Can Your Property Be Taken?

Environmental Law & Property Rights Practice Group Teleforum Monday, August 29, 12:00 PMFederalist Society Teleforum Conference Call

The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum will examine the growing controversy over pipeline takings.

Featuring:

  • Professor Alexandra B. Klass, Distinguished McKnight University Professor, University of Minnesota Law School
  • Professor Ilya Somin, Professor of Law, George Mason University School of Law

The Climate Change Investigations – Fair Regulation of Markets or Executive Overreach that Chills Free Speech? - Podcast

Litigation Practice Group Teleforum
Andrew Grossman, Margaret A. (Peggy) Little August 08, 2016

Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the U.S. Department of Justice to investigate whether Exxon and its “brain trust” violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth” and what is “fraud,” these majority states revealed a stark divide in our polity about the proper role of the executive branch – state and federal – in formulating, enforcing and financing climate change policy.

At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy’s been hacked” and that these state and federal enforcement actions were necessary to remedy Congress’s and other legislative inactivity. In this Teleforum, Andrew Grossman – who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance – discussed some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress, such as: Should a corporation’s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications – isn’t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?

Featuring:

  • Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
  • Margaret A. (Peggy) Little, Partner, Little and Little, & Director, The Federalist Society's Pro Bono Center

Protecting Property Rights in the Sharing Economy - Podcast

Environmental Law & Property Rights Practice Group Podcast
Grady Gammage, Christina Sandefur July 15, 2016

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts discussed the legislation and broader issues relating to property rights and the sharing economy.

Featuring:

  • Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC
  • Christina Sandefur, Executive Vice President, Goldwater Institute