Property Rights

The Oklahoma Attorney General's Plan: The Clean Air Act Section 111(d) Framework that Preserves States' Rights - Event Audio/Video

Environmental Law & Property Rights Practice Group
Scott Pruitt, F. William Brownell, Patrick McCormick, David D. Doniger, Jeffrey Bossert Clark May 23, 2014

The Oklahoma Attorney General's Plan: The Clean Air Act Section 111(d) Framework that Preserves States' Rights - Event Audio/VideoUnder Section 111(d) of the Clean Air Act, the Environmental Protection Agency is poised to propose new regulations for CO2 emission reductions from existing power plants. What is the appropriate federalism model for regulation of CO2 emissions under the Section 111(d)?

Oklahoma Attorney General Scott Pruitt will discuss his recent paper, "The Oklahoma Attorney General's Plan: The Clean Air Act Section 111(d) Framework that Preserves States' Rights." The Attorney General's plan for state-level compliance construes federal and state authority under Section 111(d) as follows: EPA designs a procedure and emission guidelines, and States determine the legally enforceable emission standard that is as stringent as the applicable guideline – unless the State determines that circumstances justify imposition of a less stringent emission standard. The Oklahoma Attorney General’s Plan institutes a unit-by-unit, “inside the fence” approach to determining State emission standards, and accounts for the practical reality that air quality impacts differ from State to State, as do costs and opportunities for CO2 emission reductions. This approach preserves State primacy and does not turn over management of local generation fleets to EPA; the Oklahoma Attorney General’s plan keeps resource planning in the hands of state regulators with specialized expertise and a focus on ratepayer impacts and protection of the public interest.

Attorney General Pruitt's presentation will be followed by a panel discussion of the plan's merits, its understanding of Section 111(d), and its wider implications for State Clean Air Act compliance.


  • Hon. Scott Pruitt, Attorney General, State of Oklahoma
  • Mr. F. William Brownell, Executive Committee Chariman and former head of Administrative Law and Environmental Practice Groups, Hunton & Williams LLP?
  • Mr. Patrick McCormick III, Republican Special Counsel, U.S. Senate Energy and Natural Resources Committee
  • Mr. David Doniger, Policy Director and Senior Attorney, Natural Resources Defense Council Climate and Clean Air Program
  • ?Moderator: Mr. Jeffrey Bossert Clark, Chairman, Federalist Society Environmental Law & Property Rights Practice Group Executive Committee, and Partner, Kirkland & Ellis LLP

National Press Club
Washington, DC

Marvin M. Brandt Revocable Trust v. United States - Post-Decision SCOTUScast

SCOTUScast 3-17-14 featuring Richard Epstein
Richard A. Epstein March 17, 2014

Richard EpsteinOn March 10, 2014, the Supreme Court issued its decision in Marvin M. Brandt Revocable Trust v. United States. The question in the case concerns what happens to a railroad’s right of way granted under a particular statute—here the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way? In short, who owns or controls the land when the railroads stop using it for rails, stations, and switching yards?

By a vote of 8-1, the Court held, in an opinion delivered by Chief Justice John Roberts, that under well-established common law property principles, an easement disappears when abandoned by its beneficiary and the owner of the underlying land--here a private party--resumes a full and unencumbered interest in said land. The contrary decision of the lower court was reversed and remanded. Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan joined the opinion of the Court. Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Richard Epstein who is the Laurence A. Tisch Professor of Law at the New York University School of Law, as well as the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School.