The Year Ahead
Here are the top ten environment and energy developments to watch for.
Here we are, starting another year. Last year turned out to have some major environmental developments. The most notable were the Supreme Court’s ruling in West Virginia case, striking down the Clean Power Plan, and the passage of the Inflation Reduction Act, with its huge economic incentives for clean energy. Here’s quick rundown of what 2023 might hold in store.
- The Sackett case. A ruling in this case, now back in the Supreme Court a second time, could slash federal protection of wetlands and small streams, especially in the West.
- The Pork Producers case. The case involves a California law prohibiting sale of pork produced from pigs that were not humanely raised. Depending on how the opinion is written, it could also impact how much authority states have to limit the sale of electricity from fossil fuel generators or the sale of high-emissions vehicle fuels.
- Investigations. We’re going to see constant political theater in which House Republicans will haul administration officials in front of Congress for abuse and pepper them with burdensome document requests.
- EPA regulations. Because of West Virginia v. EPA, the agency will have to come up with a new approach to regulating carbon emissions from existing power plants. In addition, there are major air pollution rules in the works, which may lead to less use of fossil fuels.
- FERC transmission rules. New transmission lines are crucial to the energy transition. FERC is trying to come up with rules that will streamline the approval process, which at this point is tremendously cumbersome.
- Climate disclosure rules. The SEC has proposed rules requiring extensive disclosure relating to carbon emissions and climate risks by large companies. Biden has now proposed imposing similar rules on federal contractors. Expect litigation when these are finalized.
- Spending battles. The Republicans won’t be able to pass new legislation of their own given Biden’s veto power and Democratic control of the Senate. They do have the ability to cut budgets for agencies like EPA. They may also try to attach riders to must-pass laws, designed to suspend or roll back environmental requirements. Democrats will push back.
- Possible new energy legislation. We’re obviously not going to see major new legislation. There may be bipartisan support for targeted efforts to streamline permitting in order to allow rapid rollout of transmission and other energy infrastructure. We might also see legislation focused specifically on transmission issues.
- State climate & energy regulation. Blue states will forge ahead with their climate programs, if anything with more enthusiasm as pushback against Republicans in Congress. Other states are going to be trying to figure out how to respond to the massive new incentives for clean energy in the Inflation Reduction Act.
- Suits against oil companies. The Supreme Court will decide sometime in the spring whether to rule on a crucial procedural issue. Oil companies want to move climate change lawsuits from state to federal court, where the industry has a better chance of winning. That move could torpedo the lawsuits.
No doubt there will be some surprises, but for now, these seem to be the biggest things on the horizon. Stay tuned to Legal Planet for further developments!
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