Constitution scholar Laurence Tribe sells his soul to Big Coal, makes terrible arguments
I’m not sure how much Peabody Coal pays Harvard law professor Laurence Tribe to serve as his spokesperson, but it can’t be enough.
Tribe is a respected constitutional scholar, a lawyer who has appeared dozens of times before the Supreme Court, a longtime Obama mentor and adviser, and a liberal in good standing.
So it is absolutely baffling to find him defending, on behalf of a rapacious company that has recently fucked up workers pensions and health care benefits, against delays in EPA regulations on carbon emissions. It is particularly remarkable that he does so with arguments which are clearly terrible.
Like I previously mentioned, Submissive tribe comments to the EPA on the carbon rule that looks like a angry blogger’s rant. Now it’s fair testified in Congress on behalf of Peabody, making many of the same flawed arguments, going so far as to accuse Obama of “burning the Constitution.” So much for the mentor relationship. And respect.
Let’s start with Tribe’s first and most serious accusation: “EPA’s proposal violates the principles of federalism by requisitioning state governments in violation of the Tenth Amendment.” The 10th Amendment says the federal government cannot “requisition” the regulatory powers of state governments – cannot, in other words, force states to regulate to achieve federal goals. By putting a metaphorical weapon on states’ heads, threatening to impose a federal plan if states don’t develop theirs, authorities are effectively forcing states to regulate, thus requisitioning – at least that’s what Tribe says.
Is there something to this argument? Ha ha, no. Congress could easily have given the EPA the power to directly regulate all air pollutants (as it does for hazardous air pollutants). Instead, at the behest of the Conservatives, it gave states flexibility – it allowed states to create their own state implementation plans (SIPs) before the federal government intervened with a Federal Implementation Plan (FIP). But the EPA cannot and does Obligate states of making plans; it just gives them the chance. There is therefore no requisition.
All of this has been established by decades of legislation and precedents. Here is a respected constitutional scholar arguing that since the federal government simply gives states the option to develop a plan, but offers a federal plan to states that do not want it, “nothing the court has done will poses a constitutional problem ”.
Here he is a little later at the same event, affirming, clearly as day, that “the existence of a federal relief plan brings him out of the requisitioned world”.
This constitution specialist is a Laurence Tribe, circa 2012, before Peabody’s checks began to land in his bank account.
So what is the explanation for Tribe’s rocking? Well, he addresses it here, in response to a question from a lawmaker:
He argues that because states do know what is in the FIP – maybe it is socialism killing the economy! – they are indeed forced to make their own plans.
It’s… word salad. The Clean Air Act does not require that an FIP be drafted before states (or not) develop their own SIPs. Once before, under George W. Bush, for the Clean Air Interstate Rule, the EPA issued a FIP in advance, but it is a favor to the states, not something required by law. The basic FIP / SIP model has been used in the National Ambient Air Quality Standard (NAAQS) program for 45 years; never before has anyone done this novel “we don’t know what’s in FIP so it’s requisitioning” argument. Also, “Russian roulette”, really? Could the EPA shoot states in the head? Yeah.
Either way, the EPA plans to release a FIP template for carbon standards this summer, before states (or not) develop SIPs. will know in advance what it contains. The whole argument is just vaporware.
(By the way, the argument I’m making here was also made directly to Congress by New York University law professor Richard Revesz, whose testimony you can read. here.)
This is not the first time the court has heard a question like this, about the scope of the EPA’s powers. In 2000, in Whitman vs. American Trucking Associations, the plaintiffs argued that the EPA’s NAAQS ozone program is unconstitutional because it rests with Congress to cede legislative authority to the EPA. A respected constitutional expert submitted a in short in this case, on behalf of General Electric, arguing that the case perfectly demonstrated “the risks that Congress abdicates responsibility for critical political judgments and that politically irresponsible agencies take power to pursue their own political agendas.”
It looks serious! But it wasn’t, really, and the Supreme Court ruled against 9-0, with hyperconservative judge Antonin Scalia writing the decision.
Can you guess who the respected constitutional scholar was? Yes, Laurence Tribe, whose analysis of EPA authority seems oddly dependent on the big company that hired him.
Incidentally, in this case, Tribe also joined in a brief claiming that ozone regulation would impose “massive costs” for “speculative” benefits and therefore it was “unthinkable” that Congress would allow l ‘EPA to do so. Those familiar with recent history will recall that the costs of ozone regulation turned out to be relatively small and the benefits that are both significant and tangible. (Unless children with asthma are speculative.)
Why is Tribe so concerned about this particular EPA program? It has to do with the problem I identified here, namely that compliance will involve many actions that take place ‘beyond the fence’ of the power plants themselves – states can comply with renewables and energy efficiency, for example.
The Conservatives have interpreted this in their usual judicious way, saying it gives the EPA control over our entire life and possibly our precious bodily fluids as well. Tribe follows them into hysteria:
This type of “plant-to-plug” regulation would allow the EPA to regulate any use of electricity as long as it affects CO2 emissions – a standard that would reach virtually all uses of electricity in the United States. There is no limiting principle. The Affordable Care Act may not require Medicare consumers to eat or buy broccoli, but the EPA is looking to interpret the Clean Air Act to allow it to regulate every watt used in growing broccoli. broccoli and bring it to market – along with every watt used for any other activity within a state.
Every watt, I tell you! Derp!
It is also nonsense. The EPA cannot force states to use renewables or energy efficiency. It also does not control all watts. Or any of the watts, really. He does not have such authority.
What the EPA can do is take potential for renewable energies and energy efficiency when determining a state’s carbon target. And it can, when developing a FIP for a state, establish a trading program that allows power plants to purchase renewable energy and efficiency credits as a way of compliance.
But a) buying credits is something power plants do, not something beyond the fence, and b) the EPA doesn’t have the power to Obligate any power station to buy credits. States and power plants can comply as they wish; there is enormous flexibility. The EPA only measures carbon emissions from power plants and its only coercive power is to require power plants to meet carbon targets or pay a penalty. He has no authority over broccoli.
(Incidentally, the EPA’s Acid Rain program also allows power plants to comply with renewable energy and efficiency credits. So far, the constitutional republic has survived.)
Another thing. In 2011, there were a few lawsuits in which people sued power plants in an attempt to recover climate damage under the nuisance law. Tribu wrote a costume editorial. Although he has described himself as “someone who is neither a doubter about humanity’s role in exacerbating global warming, nor a shrinking violet about the judicial role in extending human rights. man with new frontiers ”, he nevertheless opposed the lawsuits and urged the Supreme Court to dismiss them.
Why? Because the courts are not the right place:
Congress, through the Clean Air Act and other measures, authorized the Environmental Protection Agency to regulate greenhouse gases, and that agency began to do so, prompted by a Supreme Court ruling in Massachusetts favor when the state sued the EPA to compel it to address the problem. The courts should reject the political and administrative roles entrusted to them by litigants dissatisfied with Congress’ decision to entrust the EPA with this difficult mission …
So: don’t continue, because the EPA is on it.
But now, testifying before Congress, Tribe says the EPA isn’t quite the right place either – indeed, its plan is unconstitutional. (That, uh, burns the constitution.)
So is the WTF the right way to fight climate change?
I understand the frustration of those who insist that the government must take action to fight climate change. In fact, there are many alternative policies that the federal government could pursue within the law, and some that it is already pursuing, that would not violate the Clean Air Act or the Constitution. For example, the federal government has always supported new energy technologies, including cleaner ways to use existing fuels. Today, greenhouse gas emissions from advanced coal-fired power plants are significantly (25%) lower than those from traditional power plants, due to improved boilers, increased efficiency and other innovations. The United States could also support carbon capture and storage technologies. An “all of the above” energy policy can support all forms of domestic energy production that will minimize carbon emissions, protect American consumers and jobs, and ensure that the United States remains independent from foreign energy sources. reliable.
It’s understood? Don’t sue climate polluters. Don’t regulate climate pollution. You just need to subsidize “clean coal”.
This is Tribe’s propaganda parroting Peabody, to the detriment of the climate and, more directly, to the detriment of the most important accomplishment of the second term of his student and friend Barack Obama. It’s hard to imagine how much dirty money it takes to wash it all away.
UPDATE: This response to the tribe from colleagues at Harvard Law is also worth reading. “If Professor Tribe’s name was not attached to [these arguments], no one would take them seriously.