What’s Ahead in 2018? The Top Five Things to Watch For.

2018 will be a big year for environmental law, either for good or for bad.

2016 was a huge year in environmental law, with big achievements like the Paris Agreement and huge disappointments like the presidential election.  By contrast, 2017 was pretty predictable: Trump did just what he promised during the campaign.  The year ahead of us will have some big events to watch out for.  Here are my nominations for the top five in terms of environment and energy.

  1. WOTUS.  The Trump Administration has geared up to rescind Obama’s WOTUS rule.  WOTUS stands for “Waters of the United States.” It is an effort to clarify federal authority over wetlands and small streams.  The current litigation situation is something of a tangle, which I won’t try to explain here. . Meanwhile, the Trump Administration is planning to suspend the rule and then repeal it.  At some point in 2018,  Trump Administration will issue its own suspension/rescission, and a lower court will make at least a preliminary ruling on the Administration’s action.  The Administration wants to limit federal authority even more than the Bush Administration had, so this is a really important issue for wetlands and water quality.
  2. Clean Power Plan.  The Clean Power Plan, the Obama Administration’s most important climate initiative, is also struck in litigation.  Scott Pruitt  has begun an effort to rescind and (possibly) replace it.  This should result in final EPA action sometime during the year, quite likely early enough for the DC Circuit to rule on its legality during 2018.  There’s a good chance that the issue will end up at the Supreme Court, probably in 2019.
  3. Justice X A big unknown is whether Justice Kennedy or one of the liberal Justices (probably Ginsburg or Breyer) will leave the Court during 2018.  If so, Trump will get a chance to move the Court significantly to the Right, with Chief Justice Roberts as the new swing vote. If this comes to pass, it will have a major impact on environmental cases, not to mention major constitutional issues.
  4. The Polish Climate Meeting. Every years, there’s an international conference to revise existing agreements about climate change. The Paris Agreement came out of one such meeting.  After the meeting in Poland toward the end of the year, we will have a better sense of how other nation’s will deal with Trump’s desertion from the Paris Agreement.  Hopefully, other nations will continue to stand strong and move forward without the US.
  5. Midterm Elections.  I can’t emphasize enough just how important these election will be. If past patterns hold, the Democrats should gain a lot of ground in the House and in state elections.  Control of the House, which is a distinct possibility, would allow hearings about the Trump Administration’s regulatory activities and will ensure that anti-environmental legislation is blocked.  Control of the Senate is a long shot but would require Trump to appoint more moderate judges.  The states are also crucial. State legislatures and agencies are the only hope of making progress until the next Presidential election. Right now, the Democrats are very weak in the states.

In short: hang on to your hats, 2018 is going to be quite a rollercoaster.

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About Dan

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…

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