- Peter Huber, The Manhattan Institute
In his nearly 30 years on the Court, Justice Scalia left a profound mark on many areas of the law, including property rights. From his seminal decisions in Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council to his frequent questioning at oral argument, Justice Scalia helped define the relationship between property and the Constitution. While his critics have suggested that Justice Scalia's property rights jurisprudence manifested a willingness to engage in “judicial activism," others have defended Scalia's approach as consistent with original understandings of the text of the Constitution.
This panel will address Justice Scalia's influence on constitutional understandings of property rights. Professor Ely has written extensively on the historical understandings of property rights including the popular book, The Guardian of Every Other Right: A Constitutional History of Property Rights. Professor Somin's recently published The Grasping Hand: "Kelo V. City of New London" and the Limits of Eminent Domain explores one of the Court's most notorious departures from the protection of property rights. Professor Hills is a renowned expert on the law of land use planning and has taken a more charitable view of the power of government to control the use of property. He is a co-author of Land Use Controls: Cases and Materials. The panel will be moderated by Justice Allison Eid, from the Colorado Supreme Court.
Environmental Law & Property Rights: Justice Scalia's Property Rights Jurisprudence
11:00 a.m. – 12:30 p.m.
The Mayflower Hotel
On Tuesday, September 27, the D.C. Circuit Court of Appeals heard en banc 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, joined us once again to discuss the oral arguments in this very important case.
The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 54 U.S.C. §320301(a). Declaring a national monument brings substantial new layers of protected status to the areas or thing so designated, precluding many previously-authorized uses of the area or thing as well. To varying degrees, U.S. Presidents have exercised this authority both during the regular course of their administration and sometimes with heightened vigor at the end, or “midnight hour,” of their final term. Our experts examined the historic use of the Antiquities Act authority and particularly the phenomena of “midnight monument” designations across administrations, including those already completed or anticipated by the now-outgoing Obama Administration. Their analysis included a discussion of the controversial proposal to designate a Bears Ears national monument in Utah in the coming weeks, the historically large expansion in August of the Papahānaumokuākea Marine National Monument to 582,578 square miles of land and sea, the September 15 designation of the Northeast Canyons and Seamounts Marine National Monument, and more.