I’m in Palo Alto, enjoying the lack of humidity and thinking about the Clean Power Plan. What else would you think about in California?
What might kill the plan in the courts? Well, I have been talking with some libertarian-leaning lawyers, and here is what they tell me. In order from least plausible to most:
- The “wrong target” argument: The Clean Power Plan (CPP) does not regulate power plant operators directly. Rather, it enjoins state governments to limit their overall CO2 emissions from all power plants. That is new; the regulations should be targeting the emitters directly. A challenge on these grounds seems unlikely to succeed; at worst it would force the federal government to write the state plans, which even now it will do if a state refuses to come up with a plan.
- The “beyond the fence” argument: This is very similar to the above argument. By imposing state-level limits, the CPP is acting “beyond the fenceline” of the power plants that it is regulating. After all, some power plants might not be affected at all, should a state decide to join one of the existing cap-and-trade systems. This argument is a little stronger, but does not seem to have much basis in either the Clean Air Act or in constitutional law.
- The fact that the law, like the Affordable Care Act, is terribly written and contains its own contradictions.
Let me briefly unpack that last one.