Obama’s professor on Clean Power Plan — Wrong on the facts and law

Laurence Tribe — President Obama’s constitutional law professor at Harvard Law School, Vice President Gore’s Supreme Court lawyer in Bush v. Gore, and one of our nation’s leading constitutional law scholars — raised eyebrows across the legal community last week when he joined the world’s largest private-sector coal company, Peabody Energy, in an attack on the Obama administration’s most significant effort to combat climate change. In joint comments filed before the Environmental Protection Agency (EPA), Tribe and Peabody argued that the Clean Power Plan, a proposed regulation limiting the greenhouse gas emissions of existing power plants, is unconstitutional and should be withdrawn.

When advocating for clients, attorneys often take positions that don’t reflect their personal opinions. But here the comments indicate that “Professor Tribe was retained by Peabody to provide his independent analysis as a scholar of constitutional law,” implying that he is acting as an independent expert and not as the company’s lawyer. It is unusual that a liberal icon and the biggest player in the most environmentally destructive industry would turn out to have such perfectly aligned views on such a broad range of important issues.

Tribe states that “coal has been a bedrock component of our economy and energy policy for decades” and that the Obama administration’s measure therefore “represents a drastic change in directions from previous Democratic and Republican Administrations.” He is flatly wrong. For the past quarter of a century, each president, Democratic and Republican, has taken measures to regulate the emissions of existing power plants because they are the nation’s largest sources of many harmful air pollutants, including mercury, which adversely affects the nervous system; sulfur dioxide, which forms deadly particulates and falls back to Earth as acid rain; and carbon dioxide, which causes climate change.

{mosads}Under the George H.W. Bush administration, Congress enacted the 1990 amendments to the Clean Air Act, which capped sulfur dioxide emissions from existing power plants and other sources and established an innovative emissions trading program to ensure that reductions could be achieved as cheaply as possible. Later, the administrations of Bill Clinton, George W. Bush, and Barack Obama each promulgated important regulations requiring existing power plants to reduce emissions of smog precursors that negatively affect air quality in downwind states, again using cost-effective, flexible trading mechanisms. And finally, both the George W. Bush and Obama administrations issued rules limiting emissions of mercury from existing power plants (the former rule was struck down because it had relied on the wrong section of the Clean Air Act). Similarly, Obama’s Clean Power Plan will cost effectively reduce carbon pollution from existing power plants through a flexible program that enables states to rely on traditional regulation, emissions trading or any other tool they prefer.

Like the earlier regulations of existing power plants, the Clean Power Plan will put coal at a competitive disadvantage compared to natural gas and other sources of energy. It will do so for good reason: The pollution produced by coal is so much greater than that from available, cleaner sources of energy. But one of the main challenges coal now faces is wholly unrelated to policies of the Obama administration. It is the record-low price of natural gas, which stems from improvements in hydraulic fracturing technologies and the discovery of significant reserves — developments that Tribe overlooks, presumably because they don’t fit his narrative.

Tribe is equally wrong on his major constitutional arguments. While Tribe cites a number of Supreme Court cases, in fact no decision of the court in our whole history can justify the conclusion that the Clean Power Plan is constitutionally invalid.

Tribe first claims that there is a problem with the way Congress delegated regulatory power to the EPA in the somewhat obscure Clean Air Act provision underlying the Clean Power Plan, because in 1990 the House and Senate passed arguably inconsistent amendments to the provision (which were then both included in a conference bill passed by both chambers and signed by President George H.W. Bush). In all of our history, the Supreme Court has struck down only two statutory provisions as constitutionally impermissible delegations to an administrative agency, both in 1935, during its skirmishes with the Franklin Roosevelt administration over the New Deal. It has never done so on the grounds that Tribe advances: that a statute has arguably inconsistent provisions. The court has consistently dealt with this problem by finding ways to develop a consistent and workable interpretation of the statute.

Tribe makes a similarly farfetched argument that the Clean Power Plan violates the Takings Clause of the Fifth Amendment, which protects private property rights. A regulation leads to a takings violation only if it deprives an owner of essentially all of the value of his or her property, which is not the case here. And even a successful takings claim is not an argument for invalidating the regulation. Instead, it gives the owner the right to pursue compensation.

And Tribe claims that the Clean Power Plan runs afoul of the 10th Amendment’s prohibition against the commandeering of state institutions by the federal government. But this argument would invalidate the core provisions of the Clean Air Act, not only the statutory section on which the Clean Power Plan rests. The standard approach of the Clean Air Act is for the federal government to establish statewide pollution reduction requirements and for the states to then choose how to allocate the burden of this reduction among sources in their jurisdiction. And if a state declines to take action, the federal government imposes requirements directly on polluters within the state. As a result, no state institution is commandeered.

Tribe’s past constitutional challenges to our environmental laws on behalf of corporate clients have not been successful. For years, he challenged the constitutionality of a provision of the federal Superfund statute, which imposes liability on polluters for the cleanup of hazardous waste sites. And, in perhaps the most important environmental law case ever decided by the Supreme Court, Whitman v. American Trucking Associations, he argued forcefully that National Ambient Air Quality Standards — the Clean Air Act’s centerpiece — were an unconstitutional delegation of legislative power to the EPA. (I filed a brief on the other side for leading environmental organizations.) The Supreme Court unanimously rejected Tribe’s argument in that case. The author of the opinion was Justice Antonin Scalia, who was widely regarded to be the nondelegation doctrine’s greatest supporter on the Supreme Court. It’s a good thing that Tribe was wrong because some of our most important environmental laws would have been struck down under his arguments. Hundreds of thousands of Americans would have died as a result.

Clean Air Act regulations of existing power plants implemented by presidents of both parties over the past quarter of a century have achieved vitally important protections for public health and the environment through regulatory tools carefully designed to minimize costs. By following in the footsteps of earlier rules, the Clean Power Plan could be similarly transformative. The claim that it is unprecedented and unconstitutional is wrong on the facts and wrong on the law.

Revesz is dean emeritus and Lawrence King Professor of Law at New York University School of Law. He is also the director of the Institute for Policy Integrity at NYU Law School, which filed comments last week in support of the Clean Power Plan.