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Environmental Law & Property Rights

Who Controls Fracking?: Two Critical Court Decisions - Podcast

Environmental Law & Property Rights Practice Group Podcast
Eric R. Claeys, Hannah J. Wiseman May 24, 2016

Unconventional oil and gas production (or "fracking") has generated new wealth, new jobs, and new sources of energy for many Americans. But fracking has also generated local congestion and pollution problems, and some believe that it creates significant risks for state fresh water supplies or global climate change. In many states, localities opposed to fracking are trying to ban the practice or impose long moratoriums on it within municipal limits, notwithstanding statewide political support for fracking. The tensions between state-level energy policies and local restrictions raise legal questions about when statewide energy regulations should preempt local efforts to restrict fracking using local powers over land use. Earlier this month, the Colorado Supreme Court handed down two new and important preemption decisions, City of Fort Collins v. Colorado Oil & Gas Association, and Longmont v. Colorado Oil & Gas Association. Our experts discussed both cases, their significance in Colorado, and their implications for fracking and preemption law elsewhere in the United States.

Featuring:

  • Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law
  • Prof. Hannah Wiseman, Attorneys' Title Professor, Florida State University College of Law

Hughes v. Talen Energy Marketing - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring James Coleman
James Coleman May 16, 2016

On April 19, 2016, the Supreme Court decided Hughes v. Talen Energy Marketing and several consolidated companion cases. The Court considered whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court were: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. 

By a vote of 8-0, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Ginsburg delivered the opinion of the Court, holding that Maryland's regulatory program--which disregards an interstate wholesale rate set by FERC--is preempted by the Federal Power Act, which vests in FERC exclusive jurisdiction over interstate wholesale electricity rates. Justice Ginsburg’s opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment. 

To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

Governmental Power versus Free Speech? - Podcast

Practice Groups Podcast
John S. Baker, Jr., C. Boyden Gray, Scott Pruitt May 16, 2016

Several state attorneys general have banded together to investigate what ExxonMobil did and did not know about global warming over the past decades.  A subpoena issued by the attorney general of the U.S. Virgin Islands seeks Exxon records dating back to 1977, including communications with some 90 private organizations and dozens of private individuals.  Other subpoenas have been issued to private organizations.  Our panel of experts discussed the merits of the investigation, how widely it might range, and its implications.

Featuring:

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
  • Hon. Scott Pruitt, Attorney General, State of Oklahoma

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.