Federal Implementation Plans and the Path to Clean Power

62 Pages Posted: 19 May 2016

Date Written: May 18, 2016

Abstract

Promulgated under the Clean Air Act in October 2015, the Clean Power Plan requires states to significantly reduce carbon emissions from existing power plants and is the centerpiece of the Environmental Protection Agency’s (“EPA’s”) response to global warming. Many states have judicially challenged the plan and also have vowed that, if unsuccessful, they will refuse to implement it. As urged by Senator Majority Leader Mitch McConnell in a nationally publicized letter to all fifty governors, they threaten to “Just Say No” to the plan. In turn, EPA has issued proposed rules that would implement the Plan by imposing a “federal implementation plan” (“FIP”) under the Clean Air Act upon those recalcitrant states. Thus, the success of the Clean Power Plan may well rest upon this FIP, a regulatory instrument that academic commentary has almost universally dismissed as little used and highly ineffective.

This article first comprehensively examines EPA’s past use of FIPs. Contrary to accepted belief, EPA has imposed FIPs on over fifty occasions, and its use of them has greatly evolved. The article analyzes this evolution and finds that FIPs have altered the “cooperative federalism” structure of the Clean Air Act in important ways. The use of FIPs has centralized more power at the federal level, afforded EPA considerable experience in designing and administering market-trading systems, subordinated the state-centered political geography of the act, and created new compliance incentives for states and regulated industries. The article then employs these conclusions as a lens through which to examine EPA’s proposed FIP for the Clean Power Plan. It finds that the proposed FIP derives logically from EPA’s prior work on FIPs and will benefit from that work. However, the article concludes that the structure and complexities of the Clean Power Plan raise a series of six issues for the proposed FIP that will require both EPA and states to make difficult tradeoffs involving competing regulatory goals.

Suggested Citation

Selmi, Daniel P., Federal Implementation Plans and the Path to Clean Power (May 18, 2016). Georgetown International Environmental Law Review (GIELR), Forthcoming, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-13, Available at SSRN: https://ssrn.com/abstract=2781673

Daniel P. Selmi (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-1098 (Phone)
(213) 380-3769 (Fax)

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