- Professor Ilya Somin, George Mason Law
- Professor David Dana, Northwestern Law
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.
The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum examined the growing controversy over pipeline takings.
The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents. According to PTO statistics, to date, nearly 50,000 patent claims have been challenged under IPR, and nearly 11,000 (22.4%) of those claims have been invalidated. On June 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the Patent Trial and Appeal Board's (PTAB) interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard.
Important outstanding questions about the constitutionality of IPR and PGR remain, however. Specifically, once the Patent and Trademark Office has granted a patent, does a decision made by an administrative judge within the executive branch to invalidate the patent under IPR/PGR amount to a taking under the 5th Amendment of the U.S. Constitution? Moreover, does such a procedure by which issued patents are reviewed for validity by non-Article III judges raise separation of powers issues?
Professor Greg Dolin participated in the Teleforum to elucidate the argument that he and Irina Manta make in their recent article, Taking Patents, that PGR and IPR decisions invalidating patents do indeed amount to takings under the 5th Amendment. Professor Camilla Hrdy and Yale Information Society Law Project Fellow Ben Picozzi believe that PTAB decisions invalidating patents under IPR and PGR do not raise takings problems. These patent experts also discussed separation of powers issues related to IPR and PGR.
This panel will discuss whether we have Federal overreach in this environmental law area, such as current interpretations of the Clean Water Act, Clean Air Act, Clean Power Plan, etc., and what the appropriate roles for the Federal Government and Florida are in the context of environmental law.
This panel was part of the 2016 Annual Florida Chapters Conference at Disney's Boardwalk Inn in Lake Buena Vista, FL on January 22-23, 2016.
Federalism and Environmental Law
Disney's Boardwalk Inn
Lake Buena Vista, FL