An Autopsy of the Clean Power Plan

44 Ecology Law Currents 109 (2017)

8 Pages Posted: 23 Feb 2018

Date Written: February 12, 2018

Abstract

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

Nagle, John Copeland, An Autopsy of the Clean Power Plan (February 12, 2018). 44 Ecology Law Currents 109 (2017). Available at SSRN: https://ssrn.com/abstract=3122628

John Copeland Nagle (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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