NLC: Environmental Law without Congress
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].
It has long been understood that broad congressional delegations of rulemaking authority have empowered administrative agencies to play a robust role in setting policy priorities for many subjects, including the environment. This phenomenon is even more evident when realizing that most of the major environmental laws were passed several decades ago and have seen little updating since. Has Congress purposefully, or because of its inattention to passing or amending environmental laws, been ceding its policy-setting authority to others?
On November 18, 2017, the Federalist Society Environmental Law & Property Rights Practice Group will host a panel titled Environmental Law without Congress: Are Alternatives to Legislation Eclipsing the Congressional Role? The panel will discuss examples where, and explain why, administrative and other alternatives to legislation have become primary drivers in setting environmental policy. Panelists include the following experts on environmental law and its intersection with the administrative state:
Topics discussed will include the causes and consequences of legislative gridlock on environmental issues, with case studies from a variety of environmental statutes; the private governance response to environmental problems, including climate change, and how private initiatives can bypass governmental inaction; whether the Trump Administration can accomplish its deregulatory environmental agenda administratively, given the highly prescriptive nature of current federal environmental statutes and the ability to enforce these statutes through citizen suits; and whether part of the reason we see environmental policy being made without Congress is because Congress might have strategic reasons for allowing that power shift to occur, with case studies examining specific examples where Congress has chosen to permit, or even invite, invasions into the sphere of authority that the Framers intended it guard.
The panel will be held on Saturday, November 18, 2017 from 11:00 – 12:30 PM in the East Room of The Mayflower Hotel as part of the Federalist Society’s 2017 National Lawyers Convention. The topic of this year’s convention is: Administrative Agencies and the Regulatory State.
Registration is required to attend the panel. Click here for more information about the conference including the schedule, registration, and lodging information. Online registration ends Monday, November 13.
Professor of Law and Executive Director, Law and Economics Center, Antonin Scalia Law School, George Mason University
Donald Kochan is Professor of Law and Executive Director of the Law & Economics Center (LEC). Professor Kochan is an elected member of the American Law Institute (ALI) and serves as an Adviser to ALI's Restatement of the Law Fourth, Property project. Professor Kochan is a Nonresident Scholar at the Center for the Constitution at Georgetown University Law Center, where he was a Visiting Scholar in residence during Fall 2018. Before joining the Antonin Scalia Law School faculty, he was the Parker S. Kennedy Professor in Law at Chapman University’s Dale E. Fowler School of Law from 2004 to 2020. From 2003 to 2004, Professor Kochan was an Olin Fellow at the University of Virginia School of Law. During 2002-2003, he was a Visiting Assistant Professor of Law at George Mason’s Scalia Law School.
Professor Kochan’s scholarship focuses on areas of property law, constitutional law, administrative law, local government law, natural resources and environmental law, and law & economics. He has published several books and more than 50 scholarly articles and essays in well-regarded law journals. His work has been cited in more than a dozen state and federal court opinions, in more than 75 briefs filed in state and federal courts including more than 25 filed in the U.S. Supreme Court, in dozens of books and treatises, and in more than 800 scholarly articles.
Professor Kochan received his JD from Cornell Law School, where he was a John M. Olin Scholar in Law and Economics and managing editor of the Cornell International Law Journal. During law school, he also served as editor and executive editor of the Harvard Journal of Law & Public Policy symposium issues in 1997 and 1998. He received his BA from Western Michigan University, magna cum laude, with majors in both political science and philosophy, where he studied as the John W. Gill Medallion Scholar and was honored as the Presidential Scholar (awarded to the top graduate in the political science department).
After graduating from law school, Professor Kochan was a law clerk to The Honorable Richard F. Suhrheinrich of the United States Court of Appeals for the Sixth Circuit. Following his clerkship, Professor Kochan was an associate with the firm of Crowell & Moring LLP in Washington, D.C., where he specialized in natural resources & environmental law as well as tort, products, and consumer civil litigation & legislative affairs.