President Obama’s law school mentor, Laurence Tribe, testified before Congress this week that “burning the Constitution of the United States, about which I care deeply, cannot be a part of our national energy policy.”
“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts — all at once.”
The House Energy and Commerce committee’s Energy and Power subcommittee held a hearing Tuesday about the “legal and cost issues” surrounding the EPA’s proposed 111(d) Rule for Existing Power Plants. Usually the lineup for hearings like this is easily divided into a larger group of conservative witnesses selected by the Republican majority, and a smaller group of more liberal or moderate witnesses selected by the Democratic minority.
The GOP clearly saw Tribe as their big get, a liberal icon who had trained his sights on a centerpiece of President Obama’s climate agenda. Several Republican committee members heaped praise on Tribe, with one saying that while he may disagree with the Harvard law professor on many other issues, he was “honored” to be in the same room as him.
His “burning the Constitution” statement referred to the President’s plan to clean up power plant carbon pollution using a section of the Clean Air Act, something that has passed legal scrutiny before. It will get another hearing in the U.S. District Court of Appeals on April 14 following challenges from the coal industry.
Tribe made clear later in the hearing that his zinger was not hyperbole.
“When I use the metaphor that burning the Constitution is not a good source of fuel for dealing with these problems, I was being metaphorical only in part,” he said. “When you tear the Constitution apart, bit by bit, and give it the death by a thousand cuts, what else will we sacrifice the Constitution for?”
Richard L. Revesz, the Lawrence King Professor of Law and Dean Emeritus at the New York University School of Law, provided an energetic counterpoint to each of Tribe’s statements. He responded to each question from skeptical GOP committeemembers, walking them through the constitutional soundness of the EPA’s actions, and how much flexibility it affords the states to comply with the Clean Air Act.
“The Clean Power Plan is not, as its opponents argue, an unprecedented approach that risks economic calamity,” he said. “Instead, it is just another example of EPA doing its job to ensure that polluters account for the cost of their pollution in a manner that will result in substantial net economic benefits to the public.”
The primary reason the EPA is trying to regulate greenhouse gases is because it’s required to under the Clean Air Act: a bill the legislative branch passed, the executive branch signed into law, and the judicial branch affirmed. In 2011, the Supreme Court reaffirmed its Mass. v. EPA decision that under the Clean Air Act, the EPA must rein in carbon pollution, since it found carbon dioxide endangered public health. After a compromise effort to address carbon pollution failed in Congress when the Senate did not take up the cap-and-trade bill passed by the House, the administration proceeded first with a proposed rule for new power plants, and second with this rule for existing power plants.
In challenging the legality of the proposed rules, Tribe referred to a conflict over whether the Clean Air Act allows EPA to go after emissions “inside” or “outside” the fence. That refers to a debate over whether the EPA can allow states to limit carbon from coal plants by using more renewable energy — a solution that comes from “outside the fence” of the coal plant itself. Tribe called EPA’s use of outer-fence tactics “a radical change.”
“Yes, many people think there are problems that need to be addressed, the question is do we care about the rule of law in how we go about addressing them,” he said.
However, many legal experts, as detailed by Grist’s David Roberts, note that allowing power producers to comply with the rule using several “outside the fence” options lowers costs and also has legal precedent. EPA is more legally vulnerable if they issue a rule that limits power producers’ options to inside their fencelines. EPA is also required to use a systems-based approach, setting performance standards at the state level, which allows emitters a wide menu of options to cut their emissions instead of just shutting down coal plants. Tribe obviously disagrees.
In December, the liberal legal lion raised many eyebrows when he signed his name to a legal analysis attacking the basis for the EPA’s proposed rule to limit carbon pollution from existing power plants under the Clean Air Act. Because Obama was Tribe’s principal research assistant when he was a student at Harvard Law School, the document unsurprisingly received some attention.
Tribe also received criticism for doing the analysis on retainer for Peabody Energy, the largest coal company in the world. The “independent analysis of EPA’s proposals as a scholar of constitutional law” Tribe submitted to Congress before the hearing was also a result of his Peabody retainer according to a footnote. “The views expressed are his own,” the footnote continued, in an effort to distance the analysis from Harvard University. The amount of his retainer has not been made public by Tribe nor Peabody Energy.
President Obama, in a Vice interview, argued that “in some cases, you have elected officials who are shills for the oil companies or the fossil fuel industry and there’s a lot of money involved.”
Senate Majority Leader Mitch McConnell recently recommended that states refuse to cooperate with the EPA on the proposed rule.
Subcommittee Chair Ed Whitfield (R-KY) referred to the Clean Power Plan as an illegal “power grab,” and that view was echoed down the GOP side of the dais. Committee Democrats made clear the importance of reining in carbon pollution and lessening the impacts of climate change.
Rep. Jerry McNerney (D-CA) began his statement with words of warning to the committee. “Climate change is here! It’s happening now!” He later said that EPA action under the Clean Air Act “has already been held up in the courts.”
When Rep. David Loebsack (D-IA) asked Tribe to explain what else Congress could do, given the fact that Tribe believed something should be done about climate change, he said Congress should “get its act together” but not at the expense of “the law and the Constitution.”
“A lot of people think that the best solution is to pay countries not to do so much deforestation, and that would take an expenditure of money,” he said. “I think if Congress were able — I hate to say this — to get its act together, if Congress really could act effectively, there are a lot of things it could do.”
The Democrats on the committee voiced skepticism at the fossil fuel industry’s legal arguments against EPA’s proposal carbon rule, even if they are voiced by such a prominent legal scholar as Laurence Tribe.
“I guess I’ve been around long enough to know that you can get constitutional lawyers on both sides to say anything,” said Rep. Frank Pallone, who also highlighted the reality of mainstream climate science and said his Republican colleagues just had their “heads in the sand.”