Jennifer Golinsky is on the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate.
When the EPA released its draft of the Clean Power Plan (CPP) in June 2014, commentators were quick to draw comparisons to Obamacare (i.e., the Patient Protection and Affordable Care Act, hereinafter the ACA). One journalist even dubbed the CPP “Obamacare for the Air” because the Clean Power Plan and the healthcare reform law are both “intensely polarizing” and “numbingly complex in an effort to ensure flexibility and fairness, based on a market system . . . likely to transform a key sector of the economy for decades to come.”
From a technical standpoint, both the CPP and ACA offer a variety of tools and federal assistance to help states decide how to comply. Under both schemes, states can choose to run their own system, run a system in partnership with the federal government, or not run any system at all (at which point the federal government steps in to run the system for that state). And, once a state decides on a compliance program, it is not stuck with it: both the CPP and the ACA allow a state to transition later on to a different level of involvement in running its own system. Finally, both the CPP and the ACA drew fierce legal challenges immediately upon their promulgation and enactment, respectively.