Legal icon calls EPA’s power plant rule an ‘unconstitutional trifecta’ 

Source: Scott Detrow, E&E reporter • Posted: Thursday, March 19, 2015

How crucial has Harvard Law professor Laurence Tribe’s opposition to U.S. EPA’s Clean Power Plan become for the congressional Republicans who oppose the unprecedented new carbon emission rules?

So crucial that Texas Rep. Joe Barton (R) spent a considerable portion of his question window during a hearing yesterday morning simply reading from Tribe’s prepared statements on the proposal’s legal flaws. This was despite the fact that Tribe was sitting just a few feet away at the witness table and had delivered that opening statement just a half hour earlier.

When Senate Majority Leader Mitch McConnell urged states to ignore the attempt to lower the power sector’s carbon footprint by 30 percent and not simply submit compliance plans to the EPA, the Republican cited Tribe’s argument that the agency is exceeding the authority granted by the Clean Air Act (Greenwire, March 4).

And environmental groups are quick to point out coal giant Peabody Energy hired Tribe to oppose the plan. John Coequyt of the Sierra Club told Greenwire yesterday that Tribe’s arguments were “exactly what the coal industry wants to hear.”

“That makes sense,” he said, “because he is on their payroll” (Greenwire, March 17).

Given all the focus, both positive and negative, it’s no surprise that Tribe was the center of attention during yesterday’s Energy and Commerce Committee session on the Clean Power Plan. The professor, who has argued numerous cases before the U.S. Supreme Court, delivered some fiery testimony.

He warned that EPA’s proposed rule raises “grave constitutional questions” and would “commandeer state governments, treating them more like marionettes dancing to the tune of a federal puppeteer” by requiring regulators to drastically overhaul their states’ energy markets.

“EPA is attempting an unconstitutional trifecta,” he said. “Usurping the prerogatives of the states, Congress and the federal courts all at once. Much is up for grabs in this complex area. But burning the Constitution should not become part of our national energy policy.”

Al Gore’s former mouthpiece doubts EPA’s power

Tribe has championed environmental causes before. He was even part of Vice President Al Gore’s legal team during the recount of the Florida presidential vote in 2000. He told the panel he would have no problem with a broad national cap-and-trade system, provided Congress gave EPA authority to create one.

“It seems to me an act of Congress or a series of congressional acts is the only legal way,” he said. “Congress has the power to pass for the United States what California has done … but it didn’t succeed. Congress could … put a huge amount of emphasis on solar, on wind, on geothermal. It really would take an act of Congress,” though, he argued. “It’s just not enough for an agency to do on its own.”

EPA and its defenders say such authority exists in the Clean Air Act and subsequent Supreme Court rulings that have clarified the agency’s right to identify and regulate carbon dioxide as a pollutant.

Tribe did concede the type of authorization he mentioned is unlikely, though, given the current political environment. “If Congress were able — I hate to say this — to get its act together — if Congress could act effectively, there’s a lot of things it could do,” Tribe said.

‘Ghost’ legislation gets resurrected

Analogies and hypotheticals peppered testimony, as Tribe and his fellow witnesses, lawyer Allison Wood and New York University legal professor Richard Revesz, attempted to explain a complex set of policies and legal history to the House subcommittee. Wood compared EPA’s building blocks approach to an attempt to regulate vehicle emissions “by requiring car owners to shift some of their travel to buses, or by requiring there to be more electric vehicle purchases.”

The comparisons ventured into the comical and surreal. Wood’s car scenario led to questions about whether EPA could regulate electric toothbrush use. Tribe at one point referred to the Clean Power Plan as “an attempt to hide a constitutionally troubled elephant in a very tiny mouse hole.” And after continued reference to “ghost” legislation resulting from the House and Senate passing two slightly different versions of the Clean Air Act in 1990, Revesz asked at one point to “take a moment to say something about ghosts.”

Holding a copy of the Constitution at another point, Texas Republican Rep. Pete Olson said, “I’m looking through this document, it has also the Declaration of Independence and the 27 amendments — I don’t see a ghost version anywhere in this document.”

The U.S. Court of Appeals for the District of Columbia Circuit will hear arguments about the Clean Power Plan’s legality on April 16. Yesterday afternoon, the court announced that Judges Karen Henderson, Thomas Griffith and Cornelia Pillard will hear the case (E&ENews PM, March 17).