The Next Six Months
A half-dozen crucial developments will shape environmental policy for years to come.
The next six months will be unusually important in environmental law. There are six key areas to keep an eye on:
1. The Paris climate talks. The world’s governments meet every year in December as part of continuing negotiations on climate issues. This year’s meeting will be the most critical since Copenhagen, six years ago. The plan is to unveil a new architecture involving climate commitments from all the major carbon emitters. An important change since Copenhagen is that the Chinese now seem willing to commit. Thus, this year’s meeting could be a big step forward. On the other hand, if the conference fails, it will probably be the end of the UN negotiating framework and instead we will see negotiations involving only the major players like the US, China, Japan and the EU.
2. The Clean Power Plan. The U.S. has already set out the carbon cuts it plans to achieve, which are based on the Clean Power Plan under section 111(d). A law suit has already been filed against it, and coal industry lawyers like Larry Tribe claim the whole thing is illegal. The Plan was just sent to the White House for final approval. It should be formally issued by the end of the year, and we should also have a court ruling on the current challenge.
3. The Mercury Case. Power companies are fighting another measure relating to coal, this one limiting toxic mercury emissions by coal plants. Observers were surprised when the Supreme Court took the case, since the lower court seemed to follow existing law. If the Court strikes down this rule, it might do so in a narrow opinion. Or like the dissenting judge in the lower court, it might stake out an aggressive new role for courts as guardians of cost-benefit analysis. Either way, a ruling against EPA would result in higher emissions of particulates, which have been tied to thousands of deaths per year.
4. The Obamacare Case. What, you may ask, does this case have to do with environmental law? Nothing directly, but the key issue in the case is what to do when a statute seems internally inconsistent. That’s also a critical issue with the Clean Power Plan, so the Court’s approach in the Obamacare case could really change the odds on that case.
5. The 2016 Campaign. When the year ends, we will be only two months away from the Iowa caucuses. By the then, we should have a better idea of which candidates have been garnering serious support. The next Presidential election will be eventful in many dimensions. In terms of the environment, it will determine whether we continue to make progress or backslide as under Bush. It will also quite likely determine control of the Supreme Court, which has shown more and more of a desire to take an active role in overseeing environmental regulation. By the end of the year, we may also have a better idea of how many Senate races will be competitive.
6. The Encyclical. The Vatican is planning a major new pronouncement on climate change. Don’t expect this to change the views of hard-core conservatives, but it could make a big difference to the views of average Catholics.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more