EPA rebuffs liberal legal icon’s criticism of power plant plan 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Tuesday, January 6, 2015

U.S. EPA today struck back at Harvard Law professor Laurence Tribe’s criticism of the agency’s landmark proposal to regulate greenhouse gas emissions from power plants.

Tribe, a mentor to President Obama, called the proposal a “breathtaking example” of regulatory “overreach” in comments submitted to EPA on behalf of himself and Peabody Energy Corp., one of the world’s largest coal producers (Greenwire, Dec. 8, 2014).

He also penned a Wall Street Journal editorial that echoed those comments and, in particular, criticized the proposal’s requirements for states to meet specific emissions limits. Such a mandate, he said, exceeds EPA authority and “violates principles of federalism that are basic to our constitutional order.”

EPA General Counsel Avi Garbow dismissed those arguments in a Wall Street Journal editorial today.

He argued that the proposal would give states considerable implementation flexibility.

“In developing its proposal,” Garbow wrote, “EPA has conducted unprecedented outreach with states and as a result of what we learned, our proposal sets up a national framework that gives states the power to chart their own customized path to meet the carbon-dioxide-emissions targets proposed for each state.”

EPA in June released its proposal to limit greenhouse gases from existing power plants for the first time. The standards, expected to be finalized this year, would cut carbon pollution by 30 percent by 2030 from 2005 levels. The standards would dramatically shift the country from coal-based power to renewables including wind and solar.

The power sector has sharply criticized the proposal.

Garbow emphasized that the Supreme Court has held that EPA has authority under the Clean Air Act to regulate greenhouse gases.

He added that “the many approaches” states may take to comply include “cutting energy waste and leveraging cleaner energy sources — which many states and utilities are already doing.”

Tribe has argued more than 30 cases before the Supreme Court and counts Obama, Chief Justice John Roberts and Justice Elena Kagan among his former students.