Environmental Law & Property Rights

Drones & Property Rights

Short video featuring Gregory S. McNeal
Gregory S. McNeal April 22, 2016

Gregory S. McNeal, Associate Professor of Law and Public Policy at Pepperdine School of Law, discusses some property rights questions that are associated with drone use. Do property owners own the air above their property? Can they destroy a drone that flies onto their property? How should disputes between property owners and drone users be settled?

United States Army Corps of Engineers v. Hawkes Co., Inc. - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Mark Miller
Mark Miller April 20, 2016

On March 30, 2016, the Supreme Court heard oral argument in United States Army Corps of Engineers v. Hawkes Co., Inc. Hawkes Co. (Hawkes) applied to the Army Corps of Engineers (Corps) for a Clean Water Act permit to begin extracting peat from wetlands in northern Minnesota it was preparing to purchase. After attempting to discourage the purchase, and initiating various administrative processes, the Corps ultimately issued an Approved Jurisdictional Determination (Approved JD) asserting that the wetland contained waters of the United States, thereby creating a substantial barrier to development by Hawkes. Hawkes filed suit in federal district court to challenge the Approved JD, arguing that it conflicted with the U.S. Supreme Court’s interpretation of jurisdiction under the Clean Water Act. The district court dismissed the suit on the grounds that the Approved JD was not a “final agency action” as defined by the Administrative Procedure Act, and therefore not yet subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit reversed that judgment and remanded the case, holding that an Approved JD did constitute final agency action ripe for judicial review.

The question before the Supreme Court is whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is, therefore, subject to judicial review under the Administrative Procedure Act.

To discuss the case, we have Mark Miller, who is Managing Attorney, Atlantic Center, Pacific Legal Foundation.

Free Speech and Climate Change

Short video featuring Andrew Grossman
Andrew Grossman April 19, 2016

Andrew Grossman, Partner at BakerHostetler, explains the investigation of the fossil fuel industry and public policy groups skeptical of climate change by the Attorneys General of nineteen states. He underscores the importance of free speech in public policy debates on climate change. Mr. Grossman is also Counsel for the Competitive Enterprise Institute.

WOTUS comes to SCOTUS: Oral Arguments heard in U.S. Army Corps of Engineers v. Hawkes Company - Podcast

Environmental Law & Property Rights Practice Group Podcast
Mark Miller March 31, 2016

Can the Feds keep the courthouse doors closed to you when they have effectively frozen your property? That is the question the Supreme Court of the United States considered on March 30th, when the Solicitor General, representing the U.S. Army Corps of Engineers, and Pacific Legal Foundation, representing Hawkes Company, squared off regarding the Corps’ decision that Hawkes Company could not use its property for peat farming without first spending hundreds of thousands of dollars in pursuit of a federal wetlands permit under the Environmental Protection Agency’s “Waters of the United States” (WOTUS) rule. Pacific Legal Foundation argues that its client should be allowed to challenge that decision, called a Jurisdictional Determination, in court; the Corps disagrees. What will the justices say? The co-counsel for the Hawkes Company who appeared before the Supreme Court discussed the case, how the oral argument went, and what we might expect to see in the Court's decision.


  • Mark Miller, Managing Attorney, Atlantic Center, Pacific Legal Foundation

Will the Clean Power Plan Stay? - Podcast

Environmental Law & Property Rights and Federalism & Separation of Powers Practice Groups Podcast
Elbert Lin March 08, 2016

Everyone has heard of the Clean Power Plan, but fewer people actually understand its contours and requirements. Most recently, on February 9, 2016, the U.S. Supreme Court stayed implementation of the rule, pending judicial review. Our expert discussed the scope and impact of the rule and the latest developments in the litigation.


  • Elbert Lin, Solicitor General, West Virginia