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U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century's tools for managing the extraction, transport, and delivery of fossil fuels and electrons. The result, as this Article illustrates, is that we are coming up short in achieving the scale and scope of transformation necessary for planetary stability. The aim of this Article is to push U.S. energy law scholars to expand the bounds of the field in three directions. First, to achieve durable policies that transform the energy system, this Article argues that we must orient more attention to institutions, politics, and power—rather than just substantive solutions—to revive the best of the early-twentieth-century Progressive scholarly tradition. Second, as conversations around the Green New Deal and the relationship of Black Lives Matter to the energy system highlight, there is both a political and moral imperative to shed our disciplinary obsession with economic efficiency and integrate considerations of overlapping societal priorities—most pointedly, racism and inequality—into energy law and policy. Finally, we should expand our idea of what counts as "energy law" beyond the delivery of fossil fuels and electrons, to include a broader and deeper analysis of how energy is embedded and consumed within the economy and society. That means tracing and regulating the flow of energy beyond the point of delivery by examining means of reducing or eliminating fossil fuel consumption across aviation, shipping, automobility, housing, and agriculture. It also means turning our attention to how the law can help build modes of life that better align with a no-carbon future—a new line of inquiry that the Article calls "structural energy conservation."

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP's proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in air quality. At RAP's request, the Center for Climate Change Law has undertaken an analysis of potential legal issues that might arise during the use of IMPEAQ. This white paper assesses the general statutory and regulatory framework applicable to IMPEAQ as a voluntary program for states to adopt for their air quality planning. It first addresses threshold issues: state authority under the Clean Air Act to voluntarily implement integrated planning using IMPEAQ and the permissibility of using a multi-pollutant approach to air quality planning. It then examines two key issues concerning emerging control measures: how states can use energy efficiency and renewable energy (EERE) programs in their State Implementation Plans (SIPs) and to what extent states may allow novel measures to satisfy the Act's source-specific control technology requirements. Our analysis finds that the IMPEAQ approach would be generally permissible under the Clean Air Act and EPA policy, given the wide discretion states have to develop their air quality plans and to choose the control measures they wish to use in their SIPs. Further, emerging control measures identified through the IMPEAQ process, such as energy efficiency and renewable energy programs, may qualify for SIP credit where the state meets the specific statutory and regulatory requirements for doing so. An open issue -- though arguably allowable under the Act -- is the degree to which states could opt to allow offsite programs to substitute for site-specific technology controls. Based on this analysis, we conclude that IMPEAQ represents a viable planning approach for states to voluntarily adopt for integrated, multi-pollutant air quality planning. The proposed general framework is allowable under the Clean Air Act and is consistent with EPA's policy that favors a multi-pollutant analysis and encourages the use of cost-effective measures to improve air quality. However, we must caution that because the specifics of planning under the IMPEAQ approach are still under development, this paper is not intended to assess all potential aspects of IMPEAQ planning.

Regulating leakage presents potential legal challenges: in our federal governmental structure, states are limited by the Constitution in the extent to which they can regulate activities occurring beyond their own borders, and may be preempted by federal statutes from regulating certain interstate activities altogether. This paper analyzes the legal hurdles that RGGI may face should it choose to address emissions leakage through regulating imported electricity. It focuses on two legal issues in particular, which are generally thought to be the most likely arguments raised against imports regulations: (1) whether imports regulations violate the dormant Commerce Clause (DCC) of the Constitution; and (2) whether such regulations are preempted by the Federal Power Act (FPA).