June 13, 2016

Public event by Heritage and PLF on June 15 to explore the impact of the Hawkes decision

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

As my fellow Liberty Bloggers have joyously explained, the Supreme Court’s unanimous ruling for our clients in U.S. Army Corps of Engineers v. Hawkes Co. will provide relief to millions of landowners whose property is subject to ever-expanding claims of federal jurisdiction and control. Just how important the Hawkes decision turns out to be will depend on the federal government’s reaction and on future developments in related or analogous cases, but some reasonable predictions can be made now.26047093982_40ed83b54d_m

The content and impact of our Hawkes victory will be discussed at a number of Supreme Court review programs from July until the start of the Court’s new term in early October—and beyond.  But to begin that discussion, The Heritage Foundation and Pacific Legal Foundation are co-sponsoring a panel event on Wednesday, June 15 at noon Eastern Time, where we will take up several interesting threads of analysis. Here is a link to the program, which you can attend in person or watch online at the link indicated. The event video will also be archived for later viewing.

I am pleased to represent PLF at the event. I’ll be joined on the panel by one of Heritage’s great constitutional scholars, Paul Larkin, Jr., and a leading Clean Water Act (CWA) practitioner, Deidre Duncan from Hunton & Williams. Heritage’s Research Fellow in Agricultural Policy, Daren Bakst, will moderate the discussion.

Our starting point is what the Hawkes case was about and what relief the justices granted our clients and others in similar situations. Beyond that, Justice Anthony Kennedy wrote a significant concurring opinion, joined by two other justices, expressing skepticism about the EPA’s and the Corps’ expansive interpretation of their jurisdiction under the CWA that gave rise to the dispute in Hawkes and underlies the current “waters of the United States” (WOTUS) regulation. Such interpretations of the CWA, the justices warned, could even be unconstitutional. What does that portend for the WOTUS rule, which has already been stayed by the federal courts, and similar broad interpretations of the CWA?

We have also been asked to discuss legislative reforms to correct the worst problems under the CWA, which I am eager to chime in on based on my colleagues’ long history of litigation and scholarship. And finally, we may discuss impacts that go beyond the CWA and even property rights and environmental regulations. The main opinion and some concurring opinions will also help other Americans secure their day in court to challenge unrelated agency actions and dictates, including possible “warning letters” or “guidance documents.” In short, this promises to be a wide-ranging and interesting conversation.

Correction: the original post noted that the event would be on July 15, rather than June 15, even though the link to the Heritage webpage had the correct date. I apologize for the error.

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