We just completed a fun hour-long talk with the students in the William and Mary Law School’s American Constitution Society, the Native American Law Society, and the Society on Environmental and Animal Law about the various pipeline cases that are ongoing nationwide. (If our tech worked, we shall post the audio recording in a future post.)
The theme of our talk was that these cases are an excellent illustration of the need for lawyers to think outside their usual lanes when it comes to addressing and solving their clients’ problems, because they present a smorgasbord of legal issues that range from property and eminent domain law, to administrative law, constitutional law, state and local government law, environmental law, federal courts, and civil procedure.
The lawyers who are litigating these cases have done a good job of not being bound by convention and thinking creatively. They are thankfully analyzing the cases holistically. We used today’s talk to emphasize to our young colleagues that despite taking law school courses segregated into discrete areas of law, practicing law and solving people’s problems often requires you to wear multiple hats, as in these pipeline cases, and to think about cases in a more general way.
Here are the links to the decisions we spoke about, and a couple others we could not fit in the time allotted:
- SCOTUS Transcript, U.S. Forest Svc. v. Cowpasture River Preservation Ass’n, No. 18-1584 (lawyers in an “enviro” case had to put on their Roman and English law property hats)
- The “quick take by injunction” cases, in which the Supreme Court denied cert three times last Term. Read about our amicus brief on the issue: “New SCOTUS Amici Brief (OCA, NJ Prop Owners, IJ, Cato): Quick-Take-By-Injunction Scheme Shows Complete Lack Of Respect For The Law“
- The Third Circuit case on the same issue, where one of the property owners (the State of New Jersey) actually won, by dusting off their Federal Courts and Con Law treatises, about the Eleventh Amendment. “What A Difference The Defendant Makes: The Federal Courts Finally Locate A Natural Gas Act Preliminary Injunction They Don’t Like.”
- FERC’s pushback on the Eleventh Amendment issue on Chevron deference grounds (Admin Law alert!) “FERC Invokes Chevron Deference, Rules That Under NGA, Private Condemnors May Take State-Owned Land.”
- Civil Procedure and Erie: “In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law).”
- “Is Land Only Partly Owned By A Tribe Immune From Eminent Domain?“
- Admin Law Purgatory: “Waiting For FERC: DC Circuit OK’s Pipeline Approval, Over Salty Concurring Opinion.”
Thanks to the students for asking me to speak today. I had a great time.