Liberal legal icon Tribe slams EPA’s ‘fatally flawed’ power plant rule 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Tuesday, December 9, 2014

A Harvard Law School professor and mentor to President Obama is calling U.S. EPA’s landmark proposal to regulate greenhouse gases from power plants a “breathtaking example” of regulatory “overreach” and called for them to be withdrawn.

Laurence Tribe, a pre-eminent constitutional scholar, made his remarks in comments to EPA on behalf of Peabody Energy Corp., one of the world’s largest coal producers.

“The proposed rule lacks legal basis,” Tribe said in a statement on Friday. “It also represents an improper attempt by EPA unilaterally to remake a portion of the American economy on the basis of a hitherto obscure provision of the Clean Air Act, which is a fatally flawed interpretation.”

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

The agency expects to finalize the rule by next summer, and last week marked the deadline for submitted comments on the proposal. EPA says it has received more than 1.6 million submissions.

The power sector, which accounts for a third of the countries’ carbon emissions, has sharply criticized the regulations.

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

In his submission to EPA, Tribe wrote that the “defects” of the rule “transcend political affiliations” and “cut across partisan lines.”

EPA spokeswoman Liz Purchia pushed back at Tribe’s remarks, saying EPA has a strong track record of writing air regulations that survive legal scrutiny.

“History has shown us that EPA writes solid rules and they stand up in court,” she said. “Courts have reaffirmed our science and reasoning time and time again.”

In particular, she noted the Supreme Court’s 2007 decision in Massachusetts v. EPA that said EPA has authority under the Clean Air Act to regulate carbon as a air pollutant.

Tribe also works in private practice at Massey & Gail LLP. In the comments submitted to EPA, he argued that the proposal would reverse policies dating back to President John F. Kennedy and end coal generation in a dozen states.

Further, he claimed that the regulations are not on sound legal footing.

Tribe took to a contention raised by several of the proposal’s challengers related to the section of the Clean Air Act that EPA is using to issue the standards, Section 111(d).

Technically, two versions of the section were enacted — one by the House and one by the Senate. The Senate version prevents EPA from regulating a pollutant that is already covered by another section, 112.

The House version, however, bars EPA from using Section 111(d) to regulate a source already covered by Section 112. That would scuttle EPA’s power plant standards right out of the gate.

EPA has argued that the so-called legislative “glitch” is an ambiguity and their interpretation should be granted deference under the 1984 Supreme Court precedent, Chevron v. Natural Resources Defense Council.

Tribe disagreed. He said that an “ambiguity” that qualifies for Chevron deference is the “existence of more than one possible meaning in the language” of a law.

EPA’s argument that it may choose which version of 111(d) it wants is an “entirely novel” argument, he said.

“Because of these constitutional questions,” Tribe wrote, “EPA is not entitled to deference under Chevron.”

Click here for Tribe and Peabody’s comments.