The Clean Power Plan: Testing the Limits of Administrative Law and the Electric Grid

The Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) is one of the most controversial and highest-stake rules ever issued by any agency. Proponents of the rule maintain that it is essential to mitigating the potentially devastating effects of climate change. Opponents, by contrast, argue that it is unlikely to be effective for its intended purpose and that it jeopardizes the reliability of the electricity grid. We are in the awkward position of agreeing with both the proponents and the opponents of the CPP. We want the rule to succeed in accomplishing its intended purpose but we fear that it may have serious unintended adverse effects on the performance of the U.S. electricity grid. Further, we have serious concerns about the ability of administrative law doctrine to manage the litigation that is to come. In this Essay, we consider four issues that have not yet attracted the attention and analysis they deserve: (1) the administrative law issues related to EPA’s statutory authority; (2) what remedy a court should provide at various procedural postures if it detects or believes likely a fatal error in the CPP or the process through which it was issued; (3) the implementation challenges associated with the intermittent nature of the electricity supplies that EPA expects utilities to substitute for the fossil fuels that now provide most of the nation’s electricity; and (4) the implementation challenges associated with the risk that some approaches for state compliance may be preempted by the Federal Power Act (FPA)