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An Obama Friend Turns Foe on Coal

LAURENCE H. TRIBE, the liberal icon and legal scholar, has grabbed headlines in recent weeks for publicly attacking President Obama’s signature climate change initiative — the Clean Power Plan — which would regulate carbon emissions from power plants. He was retained as an independent expert by Peabody Energy, the world’s largest private-sector coal company, and is representing it in a lawsuit that seeks to invalidate the plan.

Professor Tribe represented Al Gore in Bush v. Gore and taught the president constitutional law at Harvard (and later served in his administration). Now he is arguing passionately that Mr. Obama’s plan is unconstitutional, using language more at home on Twitter and the Fox News ticker than in a courtroom.

In a House of Representatives hearing last week, he compared the plan, which would most likely lead to the closing of many old coal-fired power plants, to “burning the Constitution.”

In the estimation of his Harvard Law School colleagues Jody Freeman and Richard Lazarus, “Were Professor Tribe’s name not attached to” these arguments, “no one would take them seriously.” But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation.

Interestingly, the parties suing to strike down the climate regulation have asked the United States Court of Appeals for the District of Columbia Circuit for 55 minutes to argue their case, but want to give him only five of those minutes to make his case that the rule is unconstitutional. Similarly, in their 306 pages of briefs, challengers to the Clean Power Plan other than Professor Tribe devote only nine pages to constitutional arguments.

He claims that the Clean Power Plan violates the 10th Amendment by letting the federal government commandeer state institutions. But this reading of the Constitution would invalidate not just the Clean Power Plan, but also the Clean Air Act’s centerpiece — the National Ambient Air Quality Standards — which have saved hundreds of thousands of lives. The standard approach of the Clean Air Act is for the federal government to establish statewide pollution reduction requirements and then allow each state to allocate that burden among polluters. If a state declines, the federal government imposes requirements directly on polluters, without commandeering state institutions. The Clean Power Plan does nothing to change this system.

Professor Tribe makes a similarly far-fetched argument that the Clean Power Plan violates the takings clause of the Fifth Amendment, which protects private-property rights. A regulation leads to a takings violation only if it deprives an owner of essentially all of the value of his or her property, which is nowhere near the case here. Even a successful takings claim is not an argument for invalidating the rule; it merely gives the owner the right to pursue compensation.

He also claims that the Clean Power Plan affects the expectations that power plants had when they complied with a 2012 rule involving different pollutants, even though these plants were on notice at least since 2009 that regulation of their greenhouse gas emissions was likely.

Finally, he argues that the E.P.A. is basing its authority to issue this regulation on a “ghost law” and that, in so doing, it is violating the Constitution’s nondelegation doctrine, which bars agencies from exercising legislative power. In 1990, the House and Senate passed arguably inconsistent amendments to the law underlying the Clean Power Plan. Both amendments were then included in a bill passed by both chambers and signed by President George H. W. Bush.

Professor Tribe ignores one of these amendments. He claimed before the House committee that this “ghost” version of the law doesn’t exist. He argues that the E.P.A. is acting as if that version does exist and is improperly choosing that provision over the other, usurping Congress’s lawmaking authority. But any amendment passed by Congress and signed by the president is the law, plain and simple. Agencies are often tasked with interpreting seemingly inconsistent provisions of a law, and this exercise of discretion is hardly unconstitutional.

While Professor Tribe’s claims seem unlikely to persuade a court, they certainly generate bad press for the Clean Power Plan, potentially giving state lawmakers or Republicans in Congress cover to cripple it by other means. The Senate majority leader, Mitch McConnell, Republican of Kentucky, is using Professor Tribe’s credibility to bolster his own effort to convince states to resist the climate plan. The Republican-led House committee tweeted Professor Tribe’s “burning the Constitution” line last week before the hearing even ended.

When a prominent scholar with a connection to President Obama keeps repeating that line, efforts to dismantle the policy look less extreme. That, sadly, is what the coal industry and its friends in Congress seem to be hoping for.

source: http://www.nytimes.com