Document Type

Article

Publication Date

Winter 12-1-2017

Abstract

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying on" different compliance choices through the rulemaking process prompted policy-learning by state officials, spurred new interagency coordination, and developed new support for policy insights that would not have happened in a top-down rulemaking. It also led to the development of innovative opt-in regulatory structures that reduce interstate coordination burdens and facilitate use of diverse state energy policies. These insights further recent federalism scholarship, which shows that the dynamic, iterative process of cooperative federalism can produce public policy benefits missed by earlier analyses. They also show how the development of the Clean Power Plan will leave a lasting, positive contribution, regardless of whether the Clean Power Plan is implemented in its current form.

Publication Title

Georgetown Environmental Law Review

Volume

29

Issue

2

First Page

301

Last Page

368

Included in

Law Commons

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