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Promulgated under the Clean Air Act in October 2015, the Clean Power Plan (“CPP”) requires states to significantly reduce carbon emissions from existing power plants and is the centerpiece of the Environmental Protection Agency’s (“EPA”) response to global warming. Many states have filed lawsuits challenging the CPP and some states have vowed that, if those suits are unsuccessful, they will refuse to implement it. In turn, EPA has proposed rules that would implement the CPP by imposing a “federal implementation plan” (“FIP”) upon those recalcitrant states under the authority of the Clean Air Act. Thus, the success of the CPP may well rest upon this FIP, a regulatory instrument that academic commentary has almost universally dismissed as highly ineffective.

This Article first comprehensively examines EPA’s past use of FIPs. Contrary to accepted belief, EPA has imposed FIPs on numerous 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, altered the state-centered political geography of the Clean Air 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 CPP. It finds that the proposed FIP derives logically from EPA’s prior work on FIPs. However, the Article concludes that the structure and complexities of the Clean Power Plan raise a series of issues for the proposed FIP that will require difficult tradeoffs involving competing regulatory goals.


Environmental Law | Law