Obama Harvard Law Professor Tribe Calls Key EPA Rule ‘Overreach’

Dec. 5 (Bloomberg) — Harvard University law professor
Laurence Tribe, a mentor to PresidentBarack Obama, said the
administration’s carbon rule for power plants is “a remarkable
example of executive overreach” that raises “serious
constitutional questions.”

Tribe, who submitted joint comments to the Environmental
Protection Agency with coal producer Peabody Energy Corp., said
the agency should withdraw its plan to cut emissions from power
plants because it reverses decades of federal support for coal.

“The Proposed Rule lacks any legal basis and should be
withdrawn,” Tribe and Peabody wrote in their filing, which law
firms for the company said was submitted to EPA on the Dec. 1
deadline. Peabody, the nation’s largest coal producer, has
declined more than 44 percent in trading since the EPA plan was
unveiled at the beginning of June.

Calls and e-mail messages left with Tribe’s assistant at
Harvard weren’t immediately returned. Lawyers at two law firms
listed on the filing confirmed that Tribe’s comments were
genuine.

The EPA’s plan is the centerpiece of Obama’s effort to
combat global warming. The proposal would require a 30 percent
cut in carbon emissions by 2030 from 2005 levels. The plan is
designed to replace coal as the chief source for electricity
generation with natural gas, renewable power and efficiency.

1.6 Million

The EPA said it is combing through the more than 1.6
million comments it has received on its proposed rule, which is
set to be finalized next June.

The agency responded today, saying Supreme Court decisions
have given it the authority to regulate greenhouse gases, which
are blamed for causing global warming.

“History has shown us that EPA writes solid rules and they
stand up in court,” Liz Purchia, an agency spokeswoman, said in
an e-mail. “Courts have reaffirmed our science and reasoning
time and time again.”

“The Supreme Court made clear in 2007, and affirmed
recently that EPA has an obligation to limit carbon pollution
because it’s a harm to human health,” she said.

Tribe, who has called Obama his most impressive student at
Harvard Law School, raised a series of criticisms of the EPA’s
power rule, calling it “an extravagant and impermissible
overreach by the agency,”

First it “repudiates a policy of prudent use of coal”
that dates back to the administration of President John F.
Kennedy in the early 1960s, according to the filing.

‘Radial Shift’

Second, the EPA plan violates the Fifth Amendment, because
it takes private property without due process. “The Proposed
Rule represents a radical shift in federal policy that upsets
settled, investment-backed expectations,” the company and Tribe
wrote in their 36-page submission. The EPA is “forcing the
United States’ power plants and energy industry to bear the
global burden of lessening carbon dioxide emissions.”

Third, contradictory provisions in the amendments of the
Clean Air Act mean that the section being used by the agency to
establish these rules “ignores basic principles of statutory
construction,” and raises separation of powers issues.

“At bottom, the Proposed Rule hides political choices and
frustrates accountability. It forces states to adopt policies
that will raise energy costs and prove deeply unpopular, while
cloaking those policies in the garb of state ‘‘choice’’ – even
though in fact the polices are compelled by EPA,” the filing
concluded.

Tribe has taught at Harvard since 1968, argued 35 cases at
the Supreme Court and authored 115 articles or books. In 2010
Obama appointed him senior counselor for access to justice at
the Justice Department. Tribe also argued a Supreme Court case
on behalf of former Vice PresidentAl Gore in the disputed 2000
presidential election.

To contact the reporter on this story:
Mark Drajem in Washington at
mdrajem@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at
jmorgan97@bloomberg.net
Steve Geimann

About BloombergNEF

BloombergNEF (BNEF), Bloomberg’s primary research service, covers clean energy, advanced transport, digital industry, innovative materials and commodities. We help corporate strategy, finance and policy professionals navigate change and generate opportunities.

Available online, on mobile and on the Terminal, BNEF is powered by Bloomberg’s global network of 19,000 employees in 176 locations, reporting 5,000 news stories a day.
 
Sign up for our free weekly newsletter →

Want to learn how we help our clients put it all together? Contact us