Investigating the Constitutionality of EPA’s Clean Power Plan

Directly below, I’ve posted an issue brief whose purpose is to investigate the constitutionality of EPA’s Clean Power Plan, a subject that has been at the center of a lively public debate between Harvard Professors Laurence Tribe, Richard Lazarus, and Jody Freeman. While undoubtedly edifying, this professorial skirmish has occurred on a conceptual basis that is largely removed from the nuts and bolts of how the Clean Air Act actually works in practice. In the working paper that follows, my intention is to fill this analytic lacuna by exploring the constitutionality of the Clean Power Plan against a backdrop of how the rule would be implemented in the real world. Specifically, I address the constitutionality of EPA’s range of statutory options to effectuate the Clean Power Plan in a State that refuses to comply with the rule.