Harvard Law’s Lazarus and Freeman discuss federal court Power Plan hearing, Tribe arguments 

Source: By Monica Trauzzi, E&E • Posted: Tuesday, April 21, 2015

How could constitutional scholar and Harvard Law School professor Laurence Tribe’s involvement in last week’s U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan affect the future of the rule? During today’s OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law, explain why they believe the government came out ahead during last week’s federal court hearing. They also rebut Tribe’s arguments against the constitutionality of the Power Plan.

Click here to watch today’s OnPoint.

Monica Trauzzi: Hello and welcome to OnPoint, I’m Monica Trauzzi. With me today are Richard Lazarus and Jody Freeman, both are professors at Harvard Law School. Professors, thank you for joining me.

Jody Freeman: Thank you.

Richard Lazarus: Yeah, great to be here.

Monica Trauzzi: So you were both present at the D.C. Circuit Court’s hearing of arguments on EPA’s Clean Power Plan. Professor Freeman, what were your impressions of how the arguments went and what sort of stood out to you?

Jody Freeman: I think it was a pretty good day for the government and not a particularly good day for industry. There were pretty strong signs from the bench. Certainly from Judge Griffith, and I think to not quite the same extent, but still from Judge Kavanaugh that they’re really not too happy about hearing the case this early. That is, it may be premature. EPA hasn’t had a chance to finish its rulemaking and you could just see from them these questions like Judge Griffith opened up very early with, is there any case that you can cite to us, to the petitioners counsel, any case that you can cite to us where we have halted a rulemaking?

And he couldn’t. And he said, this is extraordinary, and you just kept hearing it from the bench, this would be extraordinary and throw a wrench into normal typical agency process.

Monica Trauzzi: Same impression? I mean, there is this question about whether or not this is premature.

Richard Lazarus: No, very much the same impression. What was I think striking about it, this was a potentially sympathetic panel in some respects. I think industry was pretty pleased when they heard the announcement. The panel, the way the D.C. Circuit works, there are a lot of judges on the D.C. Circuit, but any three will hear a motion like this and it’s a lottery and the three included three judges who are sort of known to be more conservative. But that turned out to sort of work against them here in a certain respect because the conservative judges, Judge Griffith and Judge Cavanaugh, they both took a very traditional conservative position and that is, it’s too soon. It’s not time for the court to come in yet. The normal course of these things, you wait till there is a final rule.

Why in the world should we do something now when we can do something later? So it doesn’t tell us, necessarily, what they will do on the merits in the future, this court. But it certainly was a very good day for the government in the sense that there was very little interest, except maybe Judge Henderson.

Jody Freeman: Yes.

Richard Lazarus: But Judge Henderson did seem to have some interest in addressing the merits now, reaching it, but the other two did not. Judge Griffith was quite, I think, well-prepared and very demanding of the petitioners here.

Jody Freeman: Just one word on Judge Henderson. She said some really clear things that indicated her position, she said, basically, the EPA has made a decision, that it has legal authority and she said, nothing will make them stop unless the court tells them to stop, so she made her views quite clear.

Monica Trauzzi: So, how did your colleague, Laurence Tribe, do?

Richard Lazarus: I think Larry had a good day before the court. I think that judges enjoyed having him there, that was quite clear. They were sort of smiling when he was arguing before the court. Larry Tribe is obviously a grand figure in constitutional law, perhaps some of the judges had him when they were students, I’m not sure. They were smiling when he argued. I also noticed they gave him a lot more time than he was supposed to get under the court’s rules. I think they gave him very liberal.

But I don’t think that has any particular impact on the merits. I think it’s certainly clear they enjoyed having them there. He’s a very skilled advocate.

Jody Freeman: And let me just say about this, we are colleagues and friends of Larry’s, but on the merits of the argument, he was continuing to use this rather overheated rhetoric about the commandeering of the states that would result from this rule and he used analogies in references to things like the sword of Damocles. And to all these terrible things that would befall the states, and it didn’t sound terribly persuasive. It sounded somewhat extreme. I am not sure anybody was quite buying that argument.

Richard Lazarus: But I think they enjoy the skilled advocate who is making allusions to sort of the Lindbergh kidnapping case and the rest, he’s a very well-read person, on the other hand, I thought, during his argument there were a couple telling moments that even though they were very respectful enjoying watching the real … advocate. There was the point that was made by Judge Griffith where he seemed to be of the view that the constitutional arguments that professor Tribe later were making, actually cut against their jurisdictional arguments that if there was some reason here to not act, in other words, if you are worried that the EPA might be doing something unconstitutional, then that’s the very reason why you wait until the EPA acts. You don’t anticipate it. So he took Larry’s constitutional avoidance argument and he says, well actually, I hear you, but I think that’s inconsistent with your argument that we should hear the case now.

And Judge Cavanaugh did some of the some things when Larry was arguing about sort of the commandeering problem. Cavanaugh was sort of intimating, but we don’t know what the rule is yet. And so, I think they listened, but they know he’s a lawyer and a very good lawyer.

Monica Trauzzi: And you have both have this sort of ongoing back and forth with professor Tribe over the things that he said about the Clean Power Plan. I mean, he’s gone as far as to say that Obama is burning the Constitution, which is relatively significant. Why do you think your opinions differ so much on this regulation?

Jody Freeman: So let me just say this, it’s fair to say about this case there are hard statutory arguments about the extent of EPA’s authority here and the choices it’s making about how to regulate, it’s fair enough to battle over those and there are some pretty plausible arguments on both sides. What we responded to was the assertion that the rule is somehow unconstitutional. That it violates the Fifth Amendment. That it takes the private property of the coal industry, that it commandeers the states as Larry argued today, when in fact, there is precedent only and exclusively on the side that says, nothing here is unconstitutional.

So we were responding because we think that there is just not any legal basis to say that an industry is forever free from regulation for its harmful pollution or to say that it commandeers the states when they have a choice to say we don’t want to follow the plan and the EPA can come in with its own plan. There is just case law building on case law that says, this is perfectly constitutional.

Richard Lazarus: And the way we try to be pretty clear about this as Jody said, there are some issues which are harder and some issues which are easier. We are not just being peer advocates here. And we are willing to acknowledge when issues are harder. But the constitutional argument, it’s not hard. There is really nothing to it at all. So the best way I look at the arguments that Larry is making here is they are the kind of arguments that I really expect a really gifted zealous industry lawyer to give on behalf of their client. That’s what they sound like to me. They are interesting to hear. But it’s not the same thing as a detached neutral observer.

Monica Trauzzi: So is there a financial motivation here, do you think?

Jody Freeman: We’re not speaking to that, that’s not our concern. There’s just some special deference and respect you get to being a very well-known, well-established constitutional law professor and when you are not speaking in that voice, when you are speaking as an advocate, it’s important that people understand that’s the position you are taking and then they can assess your arguments in that light.

Richard Lazarus: Right. Right, it’s not a question of whether one is being paid or not, or how much, that’s irrelevant. You are a lawyer for a client. And when you are a lawyer for a client, you have fiduciary responsibility to give the best and most zealous possible argument in favor of that client. And that’s part of our profession. There is nothing wrong with that. But that’s, I think, the best way to view what Larry is doing here. He’s representing his client in a very zealous way.

Monica Trauzzi: So how significant is the outcome of this case, many have called it historic. Do you think it’s in fact historic?

Jody Freeman: I think it will be. But it’s going to take a while to find out the outcome. This was just the opening salvo, and it looks pretty good for the government on this question of is it too early to review the rule. But of course the minute that rule is final, they’ll be running to file again to challenge it on these issues that the court won’t reach right now, so the question of the EPA’s legal authority and the question of how stringent the standard could be, that’s all going to be litigated.

So it will, no matter what happens, ultimately be a blockbuster case, but it’s going to take us some time to get there.

Richard Lazarus: In fact, add just one more point because I thought it was really interesting what Sean Donahue in his argument before the court today, he is representing the environmental, nongovernment organizations. He made a very interesting point. He did a very effective rebuttal on the merits, on jurisdiction. But then he said, notice who is not here on the other side. Notice that Texas and a whole bunch of other industry petitioners who normally challenge these things, they are not here. And the reason they are not there and he knows it and he knows the court knows it. Is they know there is nothing to this. That this is too soon. The show is yet to come. The show will come when the final rule is done and this is a completely premature exercise.

Jody Freeman: But what this means, of course, is industry has another at-bat. You know, if they lose on this issue, they say, OK, we lost on the issue. It was a long shot anyway, we will be back, see you later. So we were also looking for clues to see, what was this panel thinking about the merits argument. They may not hear that argument, but it’s sort of, this was a road test in a way of the merits arguments and it was interesting to watch the interaction on that.

Monica Trauzzi: All right, it was a fascinating discussion. We could keep going on for an hour talking about this. I appreciate both of you coming in.

Richard Lazarus: Well, thanks a lot. Thank you.

Jody Freeman: Thank you.

Monica Trauzzi: Thanks for joining me. And thanks for watching. We will see you back here tomorrow.