Environmental Law & Property Rights

The Role of Congress in Environmental Law - Event Audio/Video

2015 National Lawyers Convention
Eric R. Claeys, Matt Leggett, Nicholas A. Robinson, David Schoenbrod, Steven Colloton November 19, 2015

Environmental law and policy raise profound questions about Congress's role and responsibilities. Many environmental regulatory statutes leave the Environmental Protection Agency with broad discretion. Although these grants of discretion create flexibility and take advantage of EPA expertise, they also invite congressional passivity, create administrative problems, and increase special-interest pressures on the EPA and Congress alike. Congressional-EPA relations matter now more than ever because many major federal environmental laws are now more than 40 years old. The EPA is using currently enabling language from old environmental organic acts to regulate global climate change and other cutting-edge problems. What are the proper relations between Congress and the EPA? If these relations are out of alignment, can Congress realign them and how? Panelists will explore these questions with examples ranging from hydrofracturing through clean water and clean air regulation.

Environmental Law: The Role of Congress in Environmental Law
11:00 a.m. – 12:30 p.m.
East Room

  • Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law
  • Mr. Matt Leggett, Policy Counsel on Energy, Environment, and Agriculture, U.S. Senate Republican Policy Committee
  • Prof. Nicholas A. Robinson, University Professor on the Environment, and Kerlin Professor Emeritus, Pace University School of Law
  • Prof. David Schoenbrod, Trustee Professor of Law, New York Law School
  • Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit

The Mayflower Hotel
Washington, DC

Federal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association - Post-Argument SCOTUScast

SCOTUScast 11-7-15 featuring James Coleman
James Coleman November 07, 2015

On October 14, 2015, the Supreme Court heard oral argument in Federal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association.

These consolidated cases involve the efforts of the Federal Energy Regulatory Commission (FERC) to specify the methodology that operators in the wholesale electricity market use when compensating users for a commitment to reduce their consumption at particular times, a phenomenon known as “demand response.”  The U.S. Court of Appeals for the D.C. Circuit determined that FERC lacked statutory authority to impose such a methodology.  The Supreme Court agreed to consider the following two questions:

(1) Whether FERC reasonably concluded that it has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates; and (2) Whether the D.C. Circuit erred in holding that the rule issued by FERC is arbitrary and capricious. 

Justice Alito appears to be recused from this case.

To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

The Constitutional Foundations of Intellectual Property -- A Natural Rights Perspective - Podcast

Intellectual Property Practice Group Podcast
Seth L. Cooper, Randolph J. May, Mark F. Schultz October 22, 2015

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of important figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors.


  • Seth L. Cooper, Senior Fellow, The Free State Foundation
  • Randolph J. May, President, The Free State Foundation
  • Prof. Mark F. Schultz, Senior Scholar & Co-Director of Academic Programs, Center for the Protection of Intellectual Property, George Mason University School of Law and Associate Professor, Southern Illinois University School of Law

Unplugging FERC?: Federal Energy Regulatory Commission v. Electric Power Supply Association - Podcast

Federalism & Separation of Powers and Environmental Law & Property Rights Practice Groups Podcast
Erik S. Jaffe October 21, 2015

In a case that could have serious implications about the limits of judicial review, the Supreme Court will be deciding a narrow statutory interpretation question. The initial question is whether FERC has authority to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. But wrapped within that question is how much deference the Supreme Court is willing to give FERC on this matter.


  • Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

How Long are Horne's Horns? - Podcast

Environmental Law & Property Rights Practice Group Podcast
John D. Echeverria, Michael W. McConnell October 02, 2015

In Horne v. U.S. Department of Agriculture, eight justices of the Supreme Court agreed that a governmental taking of personal property, just like real property, was a compensable taking under the Fifth Amendment. In Horne, the government took physical control of parts of the Horne's raisin crop, withholding it from the market in order to influence raisin prices. Under other agricultural programs, growers are permitted to send to market only certain quantities of the produce, though the government never takes physical control of the goods. Just how sweeping is the Horne decision? Does it apply to all forms of personal property? What level of control must the government exercise over personal property in order for there to be a compensable taking? Are these other agricultural programs now suspect?


  • Prof. John D. Echeverria, Vermont Law School
  • Hon. Michael W. McConnell, Professor of Law and Director, Stanford Constitutional Law Center, Stanford Law School