EPA's Clean Power Plan: An Emerging New Cooperative Federalism?

Abstract

The Obama Administration created a stir when it recently proposed widely varying greenhouse gas emission reduction targets for each state’s electricity sector. This article examines the bases for these varying targets, concluding that they may present a new model of cooperative federalism. Under cooperative federalism’s traditional structure, the federal government is the standard-setting body and the states are the implementers of those standards. Under the new model, the federal government “federalizes” state policies by using them as the basis of federally-enforceable standards. While EPA’s approach facilitates the economic and even political feasibility of climate change mitigation efforts, by pegging state emissions targets to state capacity to reduce emissions, as opposed to contribution to greenhouse gas concentrations, it also presents issues of fairness and moral hazard. Whether EPA is charting new cooperative federalism territory or simply regulating in an area already well-trodden by states, remains to be seen.

Keywords: carbon-intensity targets, Clean Air Act, cooperative federalism, interstate global pollution,agency interpretation