An Autopsy of the Clean Power Plan
44 Ecology Law Currents 109 (2017)
8 Pages Posted: 23 Feb 2018
Date Written: February 12, 2018
The fate of EPA's vaunted Clean Power Plan was sealed a little after midnight on Wednesday, November 9, 2016, when the election results indicated that Donald Trump will serve as the next President. My conclusion is that the CPP was probably legal, but that was precisely the problem. Multiple legal doctrines needed to be stacked on top of one another in order to sustain the rule. In other words, the CPP rests on the understanding that a statute enacted 47 years ago to reduce harmful air pollution also delegates lawmaking power to an agency that did not exist at the time to choose between two conflicting statutory provisions to regulate emissions of a categorically different kind of pollutant, even though those regulations displace traditional state authority over energy generation and even though Congress refused to enact such a statute specifically authorizing such regulations. I will examine each of these issues in turn, and then explain why they are especially troubling when combined.
Keywords: Clean Power Plan, Clean Air Act, EPA, delegation, Chevron, Congress
JEL Classification: K32
Suggested Citation: Suggested Citation