The Nuclear Option: What Can States Do to Encourage Clean Energy After Hughes and EPSA?

In the absence of federal climate change policy, many states have adopted programs that encourage clean energy generation from sources such as wind, solar, and nuclear. Nuclear energy in particular remains an attractive option for a number of states pursuing clean energy policies because of its ability to generate electricity without producing any greenhouse gas emissions. Thus far, attempts by state regulators to encourage intrastate clean generation have also been trailed by fierce legal challenges from industry and consumer groups.

This Comment distills the case law on state clean energy programs, and focuses on the legal issues that have been raised in litigation involving New York and Illinois’s zero emission credit programs. It then proposes best practices that state regulators can adopt when designing clean energy programs so as to reduce litigation risk. By insulating their clean energy programs from legal challenges, states will be better equipped to achieve their individual climate change goals.

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