The Year Ahead

Daniel Farber

Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley School of Law.
Professor Farber’s expertise is in the area of Cost-Benefit Analysis, Climate Change, and Constitutional Law.
Professor Farber has served on the Board of Directors for the Minnesota Civil Liberties Union, as a Law Clerk for Justice John Paul Stevens, United States Supreme Court, as a Law Clerk for Judge Philip W. Tone, United States Court of Appeals for the Seventh Circuit, and on the Litigation Committee, AAUP; AAUP Special Committee on Confidentiality in Tenure Review. Professor Farber was also an Associate at the firm Sidley & Austin (Washington DC).
Daniel Farber has written several books on environmental law, including Disasters and the Law, (Aspen Publishers, 2006, with Jim Chen), Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World (University of Chicago Press, 1999), Environmental Law in a Nutshell (West Pub. Co., 1st ed. 1983, 2d ed. 1988; 3d ed. 1992; Japanese translation, 1992; 4th ed. 1995; 5th ed. 2000 with R. Findley), and Environmental Law Cases and Materials (West Pub. Co., 1st ed. 1981, 2d ed. 1985, 3d ed. 1991, 4th ed. 1995, 5th ed. 1999; with 1983, 1988, 1993, and 1997 Supplements; Teacher's Manuals 1992 , 1995 and 1999) with R. Findley, 6th ed. 2003 with R. Findley and J. Freeman; 7th ed. 2006 with J. Freeman and A. Carlson. His recent book publications include Public Choice and Public Law (Economic Approaches to Law), Elgar 2007, and Retained by the People: The ‘Silent’ Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have, Basic Books, 2007, as well as a number of book chapters on constitutional law and judicial decision-making. Professor Farber’s recent articles include Justice Stevens, Habeas Jurisdiction, and the War on Terror, in the U.C. Davis Law Review 2010, Rethinking the Role of Cost-Benefit Analysis in the University of Chicago Law Review 2009, and Adaptation Planning and Climate Impact Assessments: Learning from NEPA’s Flaws, in the Environmental Law Reporter, among many others from a wide range of legal topics.).
Daniel Farber
University of California at Berkeley
Berkeley CA
510.642.0340
email
website

Dec. 31, 2018

A version of this post was originally published on Legal Planet.

What are the key things to watch for in 2019 in the environmental area?

Regulations.

According to the Trump administration’s schedule, three big rules should be issued in March: repeal of the Waters of the United States rule (WOTUS), repeal and replacement of the Clean Power Plan, and the freeze on fuel efficiency standards. This seems very ambitious to me, especially for the last two where there are major technical issues to be resolved. EPA has already lost a couple of weeks due to the shutdown, and there’s every likelihood that will continue. But even with slippage, the rules are likely to come out sometime next year. There will also be movement on a bunch of other rules, such as the effort to loosen restrictions on methane emissions.
In addition, just prior to shutting down, EPA proposed a re-do of the toxics standards for power plants. The proposed rule would not change the standard, which would be pointless now that the industry has complied. Instead, EPA will try to establish a precedent for disregarding co-benefits (health benefits involving other pollutants, besides the one being directly regulated).

Courts.

More environmental rules will be hitting the courts. That will include the regulations mentioned above. It’s very unlikely that the legal issues posed by these major regulations will be resolved in 2019, but there will be stay requests, which will give an initial read on judicial attitudes.
None of the major environmental rules is likely to get to the Supreme Court next year, but we’ll begin to get a read of how Kavanaugh’s appointment will shift the Court. For instance, we’ll see whether the Court is tightening the rules for plaintiffs to get standing and whether it is moving toward less deference toward agency statutory interpretation.

Politics.

The House Democrats are going to make life difficult for the Trump administration as they unleash a slew of investigations. No doubt there will also be continuing drama over the budget and shutdown.

In short, a lot of things were set in motion in 2018. We’ll start seeing them emerge into the light of day in 2019.

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2019