Last week, Harvard law professor Laurence Tribe sent out a broadside he wrote with the world’s largest privately-held coal company attacking the Environmental Protection Agency’s proposed rule to regulate carbon pollution from existing power plants under the Clean Air Act. The document submitted by Tribe and coal behemoth Peabody Energy calls the proposed rule a “remarkable example of federal overreach,” that “lacks legal basis,” to regulate carbon, resting on a “fatally flawed interpretation of Section 111” of the Clean Air Act.
Because this rule is a significant component of President Obama’s plan to tackle climate change, and because Obama was Tribe’s principal research assistant at Harvard Law School, the document unsurprisingly received some attention. The Wall Street Journal editorial board put it thusly, “Professor Tribe Takes Obama to School.”
The press release notes that Tribe “was retained by Peabody Energy to provide an independent analysis of the proposed EPA rule as a scholar of constitutional law,” and includes the disclaimer that Tribe’s views are his own, and not representative of Harvard University or Harvard Law School. The amount of his retainer has not been made public by Tribe nor Peabody Energy.
Before making several constitutional arguments, the document first presents a defense of the coal industry’s role in governmental history, alleging that a rule regulating carbon “repudiates a policy of prudent coal use shared by Democratic and Republican Administrations for decades.”
Georgetown law professor Lisa Heinzerling, an expert who specializes in environmental and natural resources law, administrative law, and the economics of regulation told ThinkProgress that this is unusual. “More substantively I think it was honestly a patently political document.”
“It starts off with a kind of paean to coal, and to coal’s place in our history and our politics,” she said. “It’s just not clear where that first section about the history of our political relationship with coal belongs, legally speaking. It’s a kind of hint that you shouldn’t change anything — that’s the way it’s always been, it’s upset some powerful interests, and therefore you shouldn’t change it. It’s just a document that’s meant to say that these interests have always held sway, and they should continue to do that.”
There are two references to Hillary Clinton making the argument that coal “is not going to go away” in the document, which Heinzerling says is “funny, because there’s no particular obvious purpose to that legally speaking.”
Though Heinzerling is back teaching at Georgetown, in 2009 she joined the EPA to help craft the Supreme Court-mandated carbon regulations. The Court has already decided the EPA has the authority to regulate carbon dioxide emissions — and is required to do so — under existing law. Even when Tribe and Peabody’s arguments shifted to constitution questions, Heinzerling says, they fail to make serious arguments.
“Each of the constitutional arguments are not made in a way that seems seriously pitched to legal actors. They seem much more like a kind of political declaration for an argument pitched to politicians.”
Tribe and Peabody Energy do not raise any new points that are relevant from a legal perspective in this document. The strongest argument against the proposed rule is a statutory question about when Section 111 applies to pollution sources that emit different kinds of pollutants. “They talked about that,” Heinzerling said, “but it didn’t strike me as breaking new ground, but it was in line with a number of comments on that issue.”
The document accuses EPA of “fabricating an impermissibly broad delegation of authority and then acting on it — in effect, asserting the power to ‘make law.'” He has used this argument before.
“Professor Tribe has represented General Electric in a case before the Supreme Court,” Heinzerling said, referring to Professor Tribe’s amicus brief he wrote while representing General Electric in Whitman v. American Trucking Associations. “In that case the argument was made that the Clean Air Act violated what’s called the non-delegation doctrine — the idea that Congress cannot give its authority to the executive branch — because it gave too much discretion.”
“Well, he lost. 9-0. Justice Scalia wrote for the Court, and upheld the Clean Air Act against the constitutional challenge.”
Where will the courts likely focus after the dust settles?
“If you clear away all the hyperbolic constitutional arguments, there is, at the heart, a statutory question about this part of the Clean Air Act — and whether it applies when the sources in question have been regulated under another provision in the Clean Air Act,” Heinzerling continued. “That is a meaningful statutory question. There’s disagreements among the parties what the statute does. Agencies get a lot of deference when things are unclear in statutes.”
“That’s a serious point: it’s a standard statutory question, and I think that question can be and should be resolved without all this other constitutional noise. When you really peel away the stuff that doesn’t seem to me to be a serious argument, that argument is the one that remains.”
Greg Boyce, Peabody’s CEO, told the Financial Times that with a GOP Congress, and plenty of opportunities for judicial delay through industry lawsuits, implementing the rule “was never going to happen in the near-term.”
The rule requires states, through extremely flexible, yet tailored plans, to drop carbon emissions the equivalent of 30 percent by 2020. For the most part this can happen through switching from coal to natural gas, though each state can meet its target however it likes. Some in the utility sector, including the Edison Electric Institute and Ohio-based FirstEnergy, noted the flexibility in the rule and how easy it would be to cut emissions. Even still, EPA has said it’s considering an alternative timeline after serious lobbying from some utilities, which could weaken the overall target.
Republican senators and governors are looking for ways to torpedo the rules, ranging from readying lawsuits to possibly threatening a government shutdown. Rep. Mike Kelly (R-PA) compared the rules to terrorism, while Bob Murray, CEO of the largest privately-owned mine operator in the U.S., called carbon regulations “evil.”
Tribe has been critical of judicial action to address climate change in the past, but has acknowledged the EPA’s role in doing so under the Clean Air Act. In 2011, he wrote an op-ed in the Boston Globe criticizing cases wherein victims of climate impacts such as Alaskan villagers and Louisiana coastal residents sued greenhouse gas-emitting fossil fuel companies that emit the greenhouse gases that drive climate change, saying the lawsuits “represent a profoundly dangerous perversion of the judicial process.” That case, American Electric Power v. Connecticut, resulted in a unanimous decision that agreed with Tribe’s position that climate change was not solvable through such judicial tactics. Instead, the Court reaffirmed its decision, in Mass. v. EPA the year before that under the Clean Air Act, the EPA must rein in carbon pollution, since it found carbon dioxide endangered public health. Tribe’s op-ed seems to acknowledge this, saying that “Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by” Mass. v. EPA. The document authored by Tribe and Peabody Energy does not mention EPA’s Endangerment Finding, nor public health.
Tribe is making these arguments on behalf of Peabody Energy, the largest private-sector coal company on the planet. With an increasing share of its profits coming from foreign coal mines (2 percent in 2003, 40 percent today), Peabody has still seen its market cap drop so steeply this year that the S&P 500 dropped it from its stock index.
It recently embarked on a PR blitz to reposition coal as a “clean” solution to combatting energy poverty instead of a leading cause of the carbon pollution that drives climate change. The campaign does not mention how the global poor are among the most vulnerable to the impacts of climate change, and cutting emissions saves lives.
Professor Tribe did not respond to a request for comment as of publication time.
As Brad Johnson notes, Tribe has also done work on behalf of William Koch opposing the Cape Wind project, which would be the first offshore wind farm in the United States. His Harvard Law School page that lists potential conflicts of interest shows him to be serving as counsel for the Alliance to Protect Nantucket Sound. The billionaire Koch brothers’ other brother, William Koch, has contributed over $5 million to the Alliance because he is concerned that the turbines would impact the view from his Nantucket estate, though they will be 5.6 miles offshore. According to Gale Courey Toensing, a team of lawyers, including Tribe, filed suit in the First Circuit Court of Appeals in Boston on behalf of the Alliance, alleging the state strong-armed NStar into agreeing to buy power from Cape Wind.