Laurence Tribe, Obama’s legal mentor, attacks EPA power plant rule

Source: By ERICA MARTINSON, Politico • Posted: Monday, March 23, 2015

Lawrence Tribe is pictured in 2011, at the ACLU Bill of Rights Dinner. | Getty
Senate Majority Leader Mitch McConnell is attaching himself to an unlikely bedfellow in his growing efforts to take down President Barack Obama’s climate plan.

Liberal legal lion Laurence Tribe, a Harvard law professor who taught constitutional law to President Barack Obama, is the new GOP darling in the fight against the Environmental Protection Agency’s upcoming climate regulations for power plants. Tribe handed Republicans a ready-made talking point during a House hearing this week, when he accused his former student of “burning the Constitution” in the effort to combat global warming. And two days later, McConnell pointed to Tribe in a letter Thursday to the governors of all 50 states, urging them to refuse to comply with EPA’s climate rules

Since submitting scathing comments on the rule in December on behalf of Peabody Energy — the world’s largest private sector coal company – Tribe, who had represented Al Gore in Bush v. Gore, has gone from green hero to Republican talking point.

Tribe, appearing on Tuesday before the House Energy and Power Subcommittee along with prominent Hunton & Williams partner Allison Wood, laid out one legal argument after another that opponents can use in the upcoming court battles to prevent EPA from implementing the greenhouse gas rules it plans to finish this summer.

“You know, I’ve cared about the environment ever since I was a kid. And you know, I taught the first environmental course in this country, and I’ve won major victories for environmental causes. But I’m committed to doing it within the law,” Tribe said.

“Burning the Constitution should not become part of our national energy policy,” he added.

Tribe’s appearance this week in the House and his dogged opposition the Obama administration’s climate plan rankled greens who have considered him part of their movement.

“Laurence Tribe must not have been sworn in over a Bible today before testifying before Congress, because if he had been, that Bible would have burst into flames after his phony testimony about EPA’s legal authority to set standards for unlimited carbon pollution from power plants,” said David DiMartino, adviser to the Climate Action Campaign. “

“But I guess we shouldn’t be surprised— a wad of coal industry money burning a hole in your pocket can make you do strange things,” he added.

McConnell (R-Ky.), one the EPA’s fiercest critics, lauded the “iconic” Tribe’s appearance in the House in a Facebook post late Tuesday, saying it proves that “the legal basis for this regulation is flimsy at best.”

And on Thursday, McConnell cited the Harvard scholar while pushing the GOP’s “just say no” campaign on EPA’s climate rule, in which the Kentucky senator is pressing states to refuse to submit plans to the agency for cutting their power plants’ carbon pollution.

“Some have recently suggested that failing to comply with the EPA’s requirements would be to disregard the law. But the fact is, it is the EPA that is failing to comply with the law here,” McConnell wrote. EPA, he said, is asking states to do more to cut carbon than the agency is authorized to do on its own.

McConnell’s letter quotes Tribe, who called the plan “constitutionally reckless.” The majority leader added: “I believe you will find, as I have, that the EPA’s proposal goes far beyond its legal authority and that the courts are likely to strike it down.”

EPA Administrator Gina McCarthy has defended the agency against those kinds of attacks. “EPA has been working with the states well before we put pen to paper on this rule,” she said after a recent hearing. “That will not stop. And we continue to have tremendous dialogue with the states — including the state of Kentucky.”

States that fail to submit adequate plans for cutting pollution will have to live with a federal anti-pollution plan crafted by EPA. But the agency’s requirements would probably be much more expensive and onerous than any plan a state would create for itself, many analysts say — mainly because states would have the legal power to choose from a broader array of options than EPA could for throttling back their greenhouse gases.

Democrats at Tuesday’s committee hearing turned to Richard Revesz, director for the Institute for Policy Integrity at New York University Law School, to counter the Tribe and Wood.

One key legal issue centers on EPA’s authority to regulate greenhouse gases from the nation’s existing power plants under Clean Air Act section 111(d). Opponents argue that because power plants emissions of hazardous air pollutants are regulated under section 112, the law precludes EPA from regulating power plants under section 111.

But EPA and its supporters argue that the House and Senate never reconciled conflicting amendment language in the 1990 Clean Air Act Amendments, and the agency should be given commonly afforded legal deference to decide the right path forward.

That issue could be handled in a trio of cases that the D.C. Circuit Court of Appeals will hear April 16. Or the court could turn the plaintiffs away since the rule isn’t final – a common response, but opponents are hoping for more.

“There are many attorneys in Washington, D.C., and around the country making large sums of money advising clients on which version the” law is correct, Rep. Gene Green (D-Texas) noted at the hearing.

EPA’s legal hurdles mounted this week when the D.C. Circuit Court of Appeals announced that three GOP-judges — Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh — will form the three-judge panel that hears the cases next month.

Henderson was appointed by President George H.W. Bush. Griffith and Kavanaugh were appointed by President George W. Bush, and are both known to be a tough sell for the EPA.

In 2012, Griffith and Kavanaugh joined in a 2-1 opinion to strike down an earlier EPA rule governing air pollution that crosses state lines, saying in part that the agency had reached far beyond the text of the law. The Supreme Court overturned that decision last year.

If the climate case ultimately makes it to the Supreme Court, “I don’t think the court would accept the agency’s interpretation,” Tribe said. “I think the statute is too clear … The fact that greenhouse gases is a terrible problem doesn’t give a blank check to any agency to rewrite the law.”

Tribe doesn’t concede that there are conflicting requirements in the U.S. Code, and called the argument “fantasy” in his extensive 60-page written testimony. And he and Resvesz — who both have several states and utilities backing on their side — don’t even agree on what the Supreme Court has previously said.

“The Supreme court has never said anything that raises any questions about the value of the Clean Power Plan,” Ravesz argued.

But Tribe pointed to a footnote of the Supreme Court’s 2010 ruling in AEP v. Connecticut as backing his argument. That ruling preempted citizens from suing a state over failing to regulate greenhouse gases under the reasoning that EPA has the power to regulate greenhouse gases.

The footnote says there is an exception: “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, [in sections 108 or 110], or the ‘hazardous air pollutants’ program, [in section 112].”

In this case “existing stationary sources” means power plants. And in 2012, EPA regulated hazardous air pollution from power plants under section 112 of the act.

“Footnote 7 is subject to more than one interpretation,” Resvesz argued, pointing to the Justice Department’s arguments in an upcoming court case. “I believe that [Tribe] is wrong, EPA believes that he is wrong, and we’ll find out – this issue will be argued extensively on April 16 before the DC Circuit.”

Rep. Morgan Griffith (R-Va.) sought to score a “gotcha” moment at the hearing, but missed the mark: He noted that because a prior administration once conceded in court that it could not regulate power plants under both sections 111 and 112 of the Clean Air Act and did not appeal the particular issue to the Supreme Court — so “have they conceded the point and they now are thrown out on their backside?” for legal reasons, he asked.

Tribe didn’t give him what he was hoping for though, saying that under that previous case, New Jersey v. EPA, only New Jersey could make that claims. New Jersey is not one of the states suing to stop EPA’s Clean Power Plan.

“EPA is free to make these arguments. I just think that are wrong and will lose,” Tribe added.

On April 16, the appeals court will hear arguments in Murray Energy v. EPA, covering a trio of cases that opponents hope will stop the agency before it releases a final rule this summer.

But Tribe made clear that if the EPA makes it past that hurdle, they’re ready with new legal arguments, many of them with a constitutional bent designed to appeal to the Supreme Court.

Subcommittee Chair Ed Whitfield (R-Ky.) called the constitutional issues “troubling,” and charged the proposed plan with tipping the balance towards “federal dominance over state electricity systems.”

Tribe argued that the proposed rule would give allow the federal government to overtake control of energy regulations, which would violat the Tenth Amendment provisions that say the federal government only has powers conferred to it by the states or the people via the Constitution. The EPA can’t give states a “Hobson’s choice” by forcing them to adopt unpopular policies or face unpopular federal control, he said.

The uncertainty surrounding EPA’s federal plan is countered by the recent Supreme Court ruling in NFIB v. Sebelius, which struck down forced expansion of Medicaid eligibility, Tribe said. The EPA, which distributes more than a third of its budget to the states, could easily use the Clean Power Plan to threaten states with cuts to other types of grants — the same type of action the high court turned away from in NFIB.

Tribe, much to the chagrin of some more liberal members of the committee and on the panel, also argued that the proposed rule could violate the Fifth Amendment’s “takings” clause, by unfairly saddling coal-fired power plants with the costs.

The Harvard professor would not be limited there: he also argued that EPA’s view of the Clean Air Act “raises grave constitutional questions under Article I, Article III, and The Separation Of Powers.”

If EPA is allowed to choose its interpretation of whether it may regulate power plants under section 111(d) and 112, the agency would essentially be making laws itself, according to Tribe.

“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts all at once,” he said.