This post was originally published on Legal Planet. Reprinted with permission.
President-elect Donald Trump’s picks for office provide a strong hint of what the next year will look like. In Trump’s first term, government actions were often overturned by the courts. Agencies made basic mistakes: skipping mandatory procedural steps, ignoring important evidence, or failing to address opposing arguments. Many people thought he had learned his lesson and would pick competent, experienced administrators this time. They were mostly wrong. Some of his choices, like RFK, Jr. and Tulsi Gabbard, are spectacularly unqualified — in fact, their selection seems to reject the whole idea that expertise and experience should matter.
Trump’s EPA pick isn’t as bad as these others. Unlike Trump’s first-term EPA choices, Lee Zeldin is neither a rabid enemy of environmental protection nor a paid lobbyist for fossil fuels. On the other hand, he has less experience than the first-term appointees, who themselves lacked the regulatory experience of many of their predecessors. Scott Pruitt had litigated major environmental cases, and Andrew Wheeler was familiar with swaths of environmental law from his work as a coal lobbyist. Zeldin’s environmental background is limited to issues relating to Long Island Sound. Overall, he seems likely to act as a conduit for White House dictates rather than playing any independent role, and he will be poorly positioned to exercise quality control over agency actions.
Trump’s choice for Interior Secretary and energy czar, Doug Burgum, has been a successful governor. While devoted to fossil fuels, he also seems open to renewables. Chris Wright, the pick for Energy Secretary, is a fracking company executive and as devoted to fossil fuels as you might expect. This could lead to slowdowns on the renewable energy grants and loans the Department controls. It seems unlikely that any of them will offer any resistance to Trump’s desires.
Trump’s dictates, from everything we know at this point, will be almost unremittingly anti-environmental. Trump’s first term was an all-out assault on climate regulations and on limits on fossil fuels, and he has promised much of the same this time. As some of his outlandish picks for other agencies indicates, Trump continues to view agencies as infested with worthless programs and civil servants dedicated to undermining the country. He has promised to reinstate Schedule F as a means of purging the civil service of dissidents and frightening the rest into towing the party line.
Trump has also threatened to grab power at the expense of Congress by illegally impounding funds to slash programs he opposes. His demand that the Senate recess so that he can make all his appointments without their participation further confirms his unwillingness to submit to checks and balances. The recent struggle to avoid a government shutdown indicates that Trump will have difficulty mustering congressional support for his more extreme demands. That means that he will be even more prone to unilateral presidential action.
This all adds up to a tremendous capacity for destruction. But it is based in part on confidence that it is no longer necessary to follow the law because courts will bow to Trump’s will. I know that some people may view this as naïve, but I don’t think the courts will cave to Trump. During the first Trump administration, the government lost scores of cases. In the aftermath of the 2020 elections, judges peremptorily rejected lawsuits filed to overturn the last election, including judges that Trump himself appointed.
Trump’s strategy involves appointing inexperienced administrators and to alienate or eliminate the experienced public servants who could help them implement their policies effectively. In the environmental area, we can expect a wave of hyper-aggressive administrative actions from the Trump administration: rollbacks of dozens of current regulations, efforts to weaken the federal bureaucracy, and elimination of barriers to fossil fuel production and use. The good news is that Trump has not learned the lessons of his first administration and continues to think that ideology and bravado can substitute for competence. The courts are likely to tell him otherwise.
None of this is a certainty. What is certain is that we are moving into an era of even greater chaos than Trump’s first administration and that there will be battles over his actions at every turn. In short, 2025 will not be fun, but it will definitely be interesting.
Showing 2,838 results
Daniel Farber | January 2, 2025
President-elect Donald Trump’s picks for office provide a strong hint of what the next year will look like. In Trump’s first term, government actions were often overturned by the courts. Agencies made basic mistakes: skipping mandatory procedural steps, ignoring important evidence, or failing to address opposing arguments. Many people thought he had learned his lesson and would pick competent, experienced administrators this time. They were mostly wrong.
Minor Sinclair | December 11, 2024
The Center for Progressive Reform was founded during the George W. Bush era when Republicans won the White House and controlled both houses of Congress. As a candidate, Bush threatened to put in the crosshairs the nation’s social safety net, public protections, and the government’s role to protect civil rights, consumer rights, the environment, and the common good. The circumstances were similar to those we currently find ourselves in. Then, as now, our job was to secure the system of rules and regulations critical to protecting people from harm and the environment from degradation. Still, we now face challenges that are entirely new.
Daniel Farber | December 9, 2024
They say that history never repeats itself, but it often rhymes. As in many sequels, there will be many things we’ve seen before. Much of that consisted of an all-out attack on environmental law. If you hated the original, you won’t enjoy watching the same thing the second time around. But there are a few additions to the cast and some new backdrops on the set. Today, I’m going to talk about some areas of continuity.
Daniel Farber | December 2, 2024
When the U.S. Supreme Court overruled Chevron, one effect was to raise a crucial question about how courts should apply the National Environmental Policy Act (NEPA). For decades, courts have deferred to regulations issued by the White House Council on Environmental Quality (CEQ). The basis for that deference was a bit fuzzy, but now it is much fuzzier.
Daniel Farber | November 15, 2024
This is the final installment in our series of posts about the causation issue under NEPA. In our previous post, we laid out NEPA’s purposes and why analogies to tort law can misfire because that area of law has very different purposes. Today, building on our recent working paper, we explain the functional approach to causation that we believe courts should apply.
Daniel Farber | November 14, 2024
Overall, the Supreme Court has articulated a functional approach that is based on the purposes of NEPA, based on the structure and text of the statute. Today’s post will lay the foundation by discussing NEPA’s purposes and how they differ from those of another area of law often used as an analogy, tort law.
Daniel Farber | November 13, 2024
NEPA requires that agencies consider the environmental effects of their projects, but the petitioners in the Seven Counties case raise hairsplitting arguments to exclude obvious effects due to technicalities. We consider their arguments one by one.
Daniel Farber | November 12, 2024
In what could turn out to be another loss for environmental protection in the Supreme Court, the Court is about to decide a major case about the scope of the National Environmental Policy Act of 1969 (NEPA). The case, Seven County Infrastructure Coalition v. Eagle County, has important implications for issues such as whether NEPA covers climate change impacts. The same groups that succeeded in drastically cutting back on federal wetlands jurisdiction a few years ago are hoping to do the same thing to environmental impact statements. This post will provide the key background on the case.
Sophie Loeb | November 7, 2024
On November 1, the North Carolina Utilities Commission issued its carbon plan order, two months in advance of the filing deadline. The order reflects an earlier settlement agreement among the Public Staff, Duke Energy, and Walmart that allows Duke Energy to build four new methane gas units while marginally increasing the amount of solar, battery storage, and wind resources in its proposed carbon reduction plan. Critically, the selected plan (known as Portfolio 3) fails to meet the 2030 interim carbon reduction timeline in House Bill 951 — the state’s carbon reduction law — and likely delays compliance to 2035.