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Key environmental developments ahead in 2016

Dan Farber, professor of law | January 2, 2016

The year 2015 was a big one for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for.

  1. The presidential election. The election will have huge consequences for the environment. A Republican President is almost sure to try to roll back most of the environmental initiatives of the Obama Administration, undoing all the progress that has been made on climate change and other issues – and we might also see efforts to undo earlier environmental legislation.
  2. The Senate. No one seems to think that control of the House of Representatives is at issue in this year’s election, but control of the Senate is potentially in play. If Republicans win the Presidency and keep both houses of Congress, we’re likely to see major efforts to undo earlier environmental laws. With a Democrat in the White House, Senate control would provide more leverage against a Republican House.
  3. The clean-power plan. This regulation is the key to federal climate policy. It seems almost certain to go to the Supreme Court, but that might not happen until 2017. In the meantime, we’ll see what the D.C. Circuit does, beginning early in the year when the court decides whether to issue a stay.
  4. WOTUS. WOTUS – for the benefit of the uninitiated, that’s Waters of the United States – is a rule that defines federal jurisdiction over water bodies and wetlands. It’s already tied up in litigation, and depending on how that proceeds, we may or may not have a resolution next year.
  5. New regulations. The government proposed blockbuster rules last year. There’s nothing equally big on the agenda, but there are likely to be some smaller yet significant rules between now and the time a new President takes office in January 2016. A number of regulatory initiatives are expected to address oil and gas activities on federal lands and offshore. You can expect to hear howls from the industry over these regulations. EPA will also roll out supplemental rules relating to the Clean Power Plan. DOE is planning some important new rules on energy efficiency.
  6. Mercury regulations. EPA plans to make a new finding in April relating to mercury pollution from power plants in response to the Supreme Court’s decision this year in Michigan v EPA. We’ll see at that point how the D.C. Circuit responds.
  7. Toxic regulation reform. The Toxic Substances Control Act was something of a legislative train wreck, which has never really functioned effectively. In 2015, both houses of Congress passed bipartisan reforms. The question is whether they’ll be able to come to an agreement in 2016 about how to proceed. There’s a division among environmental groups about whether adoption of the reforms would be a good thing or a bad thing.

Cross-posted from the environmental law blog Legal Planet.

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