Issues to Consider When Drafting Clean Power Plan Multi-State Compliance Approaches: The Compact Clause

Media Type: 
Document
Date: 
Tuesday, September 1, 2015

The Clean Power Plan establishes carbon dioxide (CO2) performance targets for existing electric generating units (EGUs, or power plants) and requires states to submit plans for implementing these targets. EPA’s rule encourages states to consider cooperative compliance options, ranging from limited trading of emission credits between states with similar compliance strategies, to formal agreements along the lines of the northeast Regional Greenhouse Gas Initiative.

Some have raised constitutional and practical implementation issues related to multistate compliance approaches, perhaps most notably when Senator McConnell argued that Congress would have to approve each multi-state plan. While Senator McConnell was offering an interpretation of the Clean Air Act, his argument also implicates the Constitution's “Compact Clause.” 

This paper focuses on the Compact Clause and Section 102(c) of the Clean Air Act and concludes that states may work together to achieve reductions of CO2 emissions within the confines of the Compact Clause and without additional Congressional approval.

The online version of this paper includes hyperlinks and enables readers to share new case law and legal perspectives on key issues. (Available at http://environment.law.harvard.edu/wp-content/uploads/2015/08/Issues-Con...)