Laurence Tribe Fights Climate Case Against Star Pupil From Harvard, President Obama

Source: By CORAL DAVENPORT, New York Times • Posted: Tuesday, April 7, 2015

Laurence H. TribeCreditSam Hodgson for The New York Times 

Mr. Tribe went on to serve in the Justice Department during Mr. Obama’s first term and has argued in favor of the legal standing of Mr. Obama’s signature health care law and executive orders on immigration.

Which is why so many in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming.

Mr. Tribe, 73, has been retained to represent Peabody Energy, the nation’s largest coal company, in its legal quest to block an Environmental Protection Agency regulation that would cut carbon dioxide emissions from the nation’s coal-fired power plants — the heart of Mr. Obama’s climate change agenda.

Next week Mr. Tribe is to deliver oral arguments for Peabody in the first federal court case about Mr. Obama’s climate change rules. Mr. Tribe argues in a brief for the case that in requiring states to cut carbon emissions, thus to change their energy supply from fossil fuels to renewable sources, the E.P.A. is asserting executive power far beyond its lawful authority under the Clean Air Act. At a House hearing last month, Mr. Tribe likened the climate change policies of Mr. Obama to “burning the Constitution.”

To Republicans who oppose Mr. Obama’s climate change agenda, Mr. Tribe is a celebrated convert. “When I saw the brief, I thought, this is dazzling,” said Michael McKenna, a Washington energy lobbyist. “And the fact that it was written by a guy on the other side made it even better.”

Senator Mitch McConnell of Kentucky, the Republican majority leader, has frequently cited Mr. Tribe’s brief in speeches and letters as part of a campaign urging governors not to comply with the climate change rules. “As iconic left-leaning law professor Laurence Tribe put it, the administration’s effort goes ‘far beyond its lawful authority,’ ” Mr. McConnell wrote in an op-ed article in The Lexington Herald-Leader last month.

To many Democrats and professors at Harvard, Mr. Tribe is a traitor. “The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website. “Were Professor Tribe’s name not attached to them, no one would take them seriously.”

Mr. Tribe’s legal claims, they concluded, are “ridiculous.”

“I feel very comfortable with my relationship with Peabody,” he added. “Somebody wanted my help and it happened to coincide with what I believe.”

But a number of legal scholars and current and former members of the Obama administration say that Mr. Tribe has eroded his credibility by using his platform as a scholar to promote a corporate agenda — specifically, the mining and burning of coal.

In addition to the brief, Mr. Tribe wrote a lengthy public comment on the climate rules that Peabody submitted to the E.P.A. Mr. Tribe’s critics note that his comment, which he echoed in an op-ed article in The Wall Street Journal in December, includes several references to the virtues of coal, calling it “a bedrock component of our economy.”

The comment also has phrases frequently used by the coal industry. The use of such language, Ms. Freeman and Mr. Lazarus suggested, is typical of paid industry advocates but not of impartial scholars.

“The best way to evaluate his claims is to treat them as advocacy and not scholarship,” Ms. Freeman and Mr. Lazarus wrote.

Anger from within the Obama administration about Mr. Tribe’s actions is particularly fierce, although officials declined to comment on the record for fear of escalating the situation.

“Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan,” said one former administration official.

Thomas Reynolds, a spokesman for the E.P.A., reacted to Mr. Tribe’s brief by saying that agency officials remained confident in the legal arguments behind the regulations. “We have a recent record of court wins, proving our work is grounded in a sound understanding of the law,” Mr. Reynolds said in an email.

Mr. Tribe said he could not help it if Republicans embraced his arguments. He has never met or spoken with Mr. McConnell, he said, and disagreed with Mr. McConnell’s advice to states to ignore the rules, since states could face steep fines for failure to comply with the rules while they are still in place.

While Mr. Tribe is one of the nation’s foremost experts on constitutional law, and has argued some Supreme Court cases related to environmental law, he said he has never specialized in the Clean Air Act. Although Mr. Obama has been speaking publicly since 2013 of his use of the Clean Air Act to carry out climate change regulations, Mr. Tribe said that he was unaware of the regulations until last fall.

Mr. Tribe said he was retained by the company as an independent expert to provide his own views and not to repeat the company’s. But the public comment is signed by both Mr. Tribe and Peabody officials.

“That a leading scholar of constitutional matters has identical views as officials of a coal company — that his constitutional views are the same as the views that best promote his client — there’s something odd there,” said Richard L. Revesz, director of the Institute for Policy Integrity at the New York University School of Law.

In the meantime, Mr. Tribe said he admires Mr. Obama — a former professor of constitutional law — as much as ever.

“I’m sure he’s motivated by a deep concern for climate change, and he believes he is following the Constitution as he understands it,” Mr. Tribe said.

“It hasn’t affected my esteem for him,” he said, adding, “but I don’t take responsibility for views of former students that I think are misguided.”

Mr. Tribe said he has not heard from Mr. Obama about his efforts to dismantle the climate change rules, although he has, he said, received dismayed emails from other students.

The Republicans who are citing Mr. Tribe’s work are not surprised. Mr. McKenna, the Republican lobbyist, said dryly, “He’s about to be banned from a lot of cocktail parties.”

It is widely expected that the fight over the E.P.A. regulations will eventually go before the Supreme Court. If it does, Mr. Tribe said that he expects he “may well” play a role in that case — which would be argued before two other former students, Chief Justice John G. Roberts Jr. and Justice Elena Kagan.