This week, Harvard law professor Larry Tribe captivated climate deniers and House Republicans when he went before Congress to attack the President’s Clean Power Plan, a landmark proposal to rein in carbon pollution from power plants. When the country’s most famous constitutional law professor teams up with the country’s most regressive industry to argue that EPA is “burning the constitution” by proposing to limit pollution under the Clean Air Act—well, that’s a spectacle. To his credit, Tribe was a zealous advocate for his client, Peabody Energy, the world's largest private sector coal company. One hopes he was paid handsomely for the irreparable damage he has done to his reputation as a legal thinker.
Invoking states’ rights and separation of powers and citing the Fifth and Tenth Amendments, Tribe asserts that EPA is "commandeering" state governments, "holding a gun" to state heads, and dictating the state energy mix. How to reconcile these grave charges with the action EPA is actually taking? Accounting for the existing power mix in each state, EPA is proposing tailored emission reduction targets that are readily achievable in any number of ways from operating coal-fired power plants more efficiently to investing in energy efficiency to relying more on renewables and gas. States determine their power mix of choice, and if they don't want anything to do with the Clean Power Plan, they can "just say no," as Sen. Mitch McConnell (R-Ky.) is advocating. At that point, EPA steps in and implements the federal rule without requiring any action by the state, much less commandeering state resources. To be clear, not even Tribe contests EPA's authority to regulate carbon pollution from power plants under the Clean Air Act. The Supreme Court has made that clear in three successive decisions.
Tribe also pleads the case of dirty old coal plants that are becoming unprofitable in the face of long overdue regulation of deadly air and water pollution that has gone unchecked for decades — to the extraordinary economic advantage of the coal sector. He claims that any pollution limit that spurs the retirement of a coal plant amounts to an unconstitutional taking of private property. Putting aside the fact that there is no law to support this argument, the proposition that the Constitution recognizes a private property right to pollute is breathtaking and obviously wrong.
Notably, the argument that Tribe develops in any plausible detail is a statutory argument that the Clean Air Act precludes regulation of both air toxics such as mercury and greenhouse gases such as carbon dioxide. Richard Lazarus and Jodi Freeman (also Harvard law professors) nicely debunk this counter-intuitive reading of the Clean Air Act, which conflicts with EPA's longstanding interpretation under administrations both Democratic and Republican, including the George W. Bush administration. But even if Tribe weren't wrong about the statute, his constitutional argument would still be absurd. EPA doesn't threaten the rule of law when it interprets the statutes it implements. The agency is subject to legal challenge, and ultimately the courts will have the power to decide whether the agency is wrong or right. That's exactly what will happen when Peabody Energy exercises its right to file suit over EPA's final Clean Power Plan.
Larry Tribe knows as well as anyone the difference between Constitutional and administrative law. He must know that the Constitution is in no danger. Unfortunately, the planet is. The world would be better off if he were not trying to confuse the issues.
This blog was first posted by The Hill on March 25, 2015.