The EPA’s recently developed “Clean Power Plan” is causing quite a bit of controversy. In a nutshell, the Plan does two things. First, the Plan requires states to adopt their own clean power plans to meet EPA greenhouse emissions reduction goals. If a state fails to adopt an emissions reduction plan that the EPA will approve, the Clean Power Plan allows the EPA to design and enforce its own plan for greenhouse gas reduction within that state. Second, the Plan sets requirements for greenhouse emissions reductions in each state, based loosely on the amount of emissions that state passes on to downwind states. This second portion of the Plan is referred to as the “good neighbor provision.”
Legal scholars from both the left and the right have questioned whether the the EPA’s threats to state legislatures under the Plan may violate the Tenth Amendment by being unduly coercive. No doubt, a Tenth Amendment challenge to the Plan will be working its way through the courts soon enough. However, the “good neighbor” provision may raise a more novel question; namely, to what extent may the federal government treat states differently?
Recently, in Shelby County v Holder, the United States Supreme Court addressed that question for the first time in a generation. In that case, Shelby County, Alabama challenged the constitutionality of the preclearance provisions of the Voting Rights Act (VRA). Under the VRA, certain jurisdictions (mostly states located in the Old South) had to seek federal approval before making any changes to election procedures.
Shortly after its adoption in 1965, the VRA was challenged in court on the grounds that it violated the constitution by treating the states unequally. At the time, the Supreme Court acknowledged that the Federal Government was running dangerously close to violating the Constitution by treating states differently, but found that the disparate treatment of certain jurisdictions under the VRA was sufficiently tailored to the facts on the ground at the time which showed rampant voter discrimination against African-Americans in covered jurisdictions.
By the time Shelby came around, nearly fifty years later, the facts on the ground had changed dramatically. By 2009, African-Americans occupied 628 seats in state legislatures nationwide. In some states originally covered by preclearance, like Mississippi, Alabama, and Georgia, nearly one-fourth of all state legislative seats were occupied by African-Americans. That number is comparable to the percentage of African-Americans in those states. Yet, despite these changed circumstances, the formula for determining what states were covered under the VRA’s preclearance requirements remained essentially unchanged. Accordingly, the Court found the preclearance formula had become unconstitutional. In striking down the old preclearance formula, the Court explained that when the federal government treats states differently, the disparate treatment is inherently suspect and must be justified by the facts on the ground.
Which brings us to the Clean Power Plan. Under the Plan’s good neighbor provision, the EPA sets various greenhouse gas reduction goals for each state. Yet, as many states have already pointed out, some states, like Texas, have been singled out to reduce their greenhouse gas production far more than the amount by which they contribute to national pollution. To the extent these complaints are true, it could present a problem for the Clean Power Plan. If the Court meant what it said in Shelby, disparate treatment of the states by the federal government must be justified by the facts on the ground. If the EPA is really just picking on certain states without a really good, empirically verifiable reason, the Clean Power Plan will not meet that burden.
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