2022: The Year Ahead

Here are the five biggest things to watch for.

There will be a lot going on this year in the environmental sphere.  I wanted to focus on a few big things to keep an eye on, rather than trying to give a long, comprehensive survey. Here are the five biggest things to watch for:

  1. Midterm elections. As of now, things are looking very good for the Republicans. If they sweep the House and Senate in November, that will mean the end of any chance the Democrats might have to enact their environmental agenda.  It could also lead to efforts to repeal parts of the infrastructure bill.
  2. Justice Breyer. There’s been speculation for several years about Justice Breyer’s plans. Ultimately, he will decide whatever he decides. But delaying past this year risks having a Republican Senate that will refuse to confirm any successor, possibly followed by a return of Trump in 2024. Not to mince words, unless he’s sure he can hang on till 2028, Breyer should step down now.
  3. The Supreme Court and the Clean Power Plan. The Clean Power Plan was Obama’s signature climate regulation. It sought to cut emissions from coal and gas-fired power plants. It has been overtaken by events, but the Supreme Court surprised observers to grab a case that’s primarily about the legality of the Plan. A ruling against EPA seems almost certain — the big question is how badly the conservative majority will shackle future EPA efforts. At the extreme, we might see a sweeping opinion limiting the powers of all regulatory agencies, not just EPA.
  4. Regulations. The. Biden Administration is moving forward with proposed new regulations. Many of those should be issued by the end of the year. In particular, you should watch for regulations of carbon from cars and from power plants, and for a rule redefining federal jurisdiction over wetlands and small streams. In both areas, Trump rolled back earlier Obama rules, and Biden will be looking for even more effective substitutes for what Obama did. We could also see some important moves by the Federal Energy Regulatory Commission’s new Democratic majority. The Commission’s main business is regulating the grid, but how it does so will have big consequences for how fast we can decarbonize.
  5. Spending. Congress provided massive spending for clean energy in legislation last year. Biden will try to get the spending programs up and running as soon as possible.  That’s important in order to develop constituencies for the funding before Republicans have a chance to close the spigot. At present, the proposed reconciliation bill seems dead, given Sen. Manchin’s unexpected exit from negotiations. That’s a pity, given the bill’s extensive support for clean energy. But Biden will certainly be trying to salvage as much of the bill as he can.

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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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