Barack Obama

Obama's War on Coal Is Unconstitutional, Says Harvard Law Professor Laurence Tribe

Maybe Congress can't "turn back the clock" on the EPA's lawless Clean Power Plan, but the courts may well do so.

|

War on Coal
frontpage

As part of his efforts to address the menace of climate change, President Obama directed the Environmental Protection Agency (EPA) to devise a Clean Power Plan (a.k.a. the War on Coal) that aims to force states to cut carbon dioxide emissions from electric power generation plants by 30 percent below their 2005 levels by 2030. The EPA claims that its new regulations "will lead to climate and health benefits worth an estimated $55 billion to $93 billion in 2030." Regulations evidently produce only benefits, never costs.

On the other hand, a study by the consultancy Energy Ventures Analysis commissioned by Peabody Energy calculates that the Clean Energy Plan will boost annual power and gas costs for residential, commercial and industrial customers by $173 billion dollars in 2020 over what they paid in 2012, a 37 percent increase.

Quibbles over money aside; is what the EPA doing actually legal? Likely not. At least 12 states are now suing the EPA on constitutional law grounds to halt the imposition of the agency's new power plant regulations. Now, in a Wall Street Journal op-ed Harvard law professor Laurence Tribe agrees that the agency is acting unconstitutionally. From the op-ed:

…the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation's electric generating system and power grid. It does not.

To justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act. The EPA cites Section 111 of the Clean Air Act as authority for its proposal. In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112—one involving hazardous pollutants.

Last spring, the Supreme Court read the statute in precisely that way in Utility Air Regulatory Group v. EPA. The EPA acknowledges that the Clean Air Act "appears by its terms to preclude" its proposal. That is an understatement. And the problem can't be dismissed as a quirk in the statute. The language at issue has been a feature of the Clean Air Act for decades. That's why, in 2008 (New Jersey v. EPA), the D.C. Circuit struck down a far less ambitious EPA rule under exactly the same statutory constraint involved here. Today the agency is again circumventing the checks Congress deliberately built into the Clean Air Act and distorting it to justify a wide-ranging carbon rule in a way Congress never intended or authorized.

Frustration with congressional inaction cannot justify throwing the Constitution overboard to rescue this lawless EPA proposal—especially when the EPA itself, through Senate testimony by its administrator, Gina McCarthy, has touted its proposal as "an investment opportunity" that isn't really "about pollution control" at all.

In his State of the Union speech last night, President Obama vowed to continue his efforts to "combat climate change" and warned that he would "not let this Congress endanger the health of our children by turning back the clock on our efforts." Maybe Congress can't "turn back the clock" on the Clean Power Plan, but the courts may well do so.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

46 responses to “Obama's War on Coal Is Unconstitutional, Says Harvard Law Professor Laurence Tribe

  1. Might be time for some impeachment – the various EPA swine who led this charge could be hauled in front of Congress and cashiered.

  2. Didn’t Laurence Tribe mold Obama’s approach to constitutional law?

    When even your con law prof, who also shares your politics, disagrees with your interpretations of the constitution…

    1. When the totalitarians have lost Larry Tribe . . . .

      1. If only John Roberts had half the balls Tribe does.

      2. Obama is ROGUE.

        So far off the lefty reservation former lefties are disavowing him. He’s to them what Che was to Castro!

  3. The EPA cites Section 111 of the Clean Air Act as authority for its proposal. In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112?one involving hazardous pollutants.

    Five of the SCOTUS justices are more than willing to defer to EPA as to what constitutes a “hazardous pollutant.” Essentially, if EPA declares that CO2 is a pollutant, even a hazardous one, who are we to judge?

    Watch the Obama Administration rely on Massachusetts v. EPA if any of this makes it before the Court.

    1. The EPA declared Green House Gasses (like CO2) to be a dangerous pollutant in 2009.

  4. “President Obama vowed to continue his efforts to “combat climate change”

    Similarly, i want to assure people here that I am doing everything in my personal power to Stop Plate Tectonics.

    1. He and his ilk are really that self-unaware and arrogant.

    2. Once again you guys callously throw out ideas like this, with no regard to how seriously they can be taken. Remember the reporter who asked the rhetorical question about whether or not an earth quake was related to global warming??

      Shhhhhhhhhhhhhh!!!!

    3. He didn’t say he would “stop” climate change, just “combat” it. He can’t kick billions of dollars to his cronies every year in perpetuity if he “stops” it.

      1. Yeah, solving an actual problem is verboten in the lexicon of big gubmint supporters.

  5. The Supreme Court’s finding was that the EPA could regulate CO2. So it went to the court, they decided, and here we are. From USAToday covering the case:

    “But the court said the EPA can regulate greenhouse gas emissions from industries already required to get permits for other air pollutants. Those generally are the largest power plants, refineries and other industrial facilities responsible for most such emissions.”

    Problem with what the Supreme Court found?

    “Sen. Rand Paul (R-Ky.) urged his conservative audience to reject the legal philosophy known as judicial restraint and instead embrace an “activist” Supreme Court that’s willing to strike down offensive state and federal laws. “What happens when a legislature does bad things?” Paul asked the crowd. “Should we have an activist court that comes in and overturns that?” Paul answered that question with a resounding yes.”

    And where is that from? Reason.

    https://reason.com/blog/2015/01…..traint-say

    1. Sure. The commentariat is pretty much in favor of SCOTUS striking down unconstitutional laws.

      That this is now regarded as a radical call for “judicial activism” says much. None of it good.

    2. there is this thing called checks and balances. You are evidently unaware of it. One function of the judiciary is to keep the executive and legislative within their respective cages.

      1. And what you are unaware of the evident selective use of judicial activism employed by Libertarians and their supporters.

        Rand Paul evidently doesn’t mind an activist Supreme Court when it overturns a law he would disagree with. Its would be just as “activist” to expand a law in its definition. You don’t get to pick and choose how a court decides to be activist.

        Unless of course you just don’t like it when its a decision you disagree with.

      2. Hey, I’ll put it this way…Reason is telling us that Rand Paul thinks the judiciary should not be restrained!

        That’s a “libertarian” for you. At least one hiding in GOP regalia.

        1. Who said Rand Paul was a libertarian? He sure didn’t. I sure didn’t.

          1. You’d think he was if you read Reason.

            1. Re: Jackand Ace,

              You’d think he was if you read Reason.

              Except I don’t think that. That may be your conclusion, but unless Reason states it so, then Reason hasn’t said it is so.

          2. But its why I put it in quotes…should have given it away.

          3. By the way, that article on Reason I quoted is by Damon Root. In it he cites a book he wrote about the need for less judicial restraint. This is from the Amazon blurb:

            “Today’s growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts to police the other branches of government, striking down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.”

            How about Damon? Is he a Libertarian?

      1. Re: Jackand Ace,

        My reply.

        https://reason.com/blog/2015/01…..nt_5035382

        By the way, read the things you link to, next time. You made an ass of yourself.

        1. Re: Jackand Ace,

          My replies:
          https://reason.com/blog/2015/01…..nt_5035665

          Again, you’re arguing that since the consensus that AGW is real then climate catastrophe is real. That’s NOT what has been proven. Your argument is a non sequitur. Scientists reached a consensus (presumably) that global warming exists and that it can be explained through AGW theory. That’s IT. That does NOT translate to “We MUST do something!”

          Your links to websites managed by advocacy groups do NOT represent evidence that curbing emissions will achieve what you want. Those same websites only talk about mitigating risks, possibilities, “coulds” and “mays”. That’s NOT science. That’s guessing. There is NO compelling reason to believe that doing NOTHING is worse than doing SOMETHING, precisely because there’s no scientific PROOF that “doing A will achieve B.” Science didn’t do that.

    3. You’re new here, aren’t you?

  6. Why even mention the constitution? Nothing these a-holes do is constitutional. They haven’t followed the constitution in 200 years.

    1. I sometimes think it was never meant to be followed, but that it was just a ruse to get the rubes to agree to a strong central government.

      1. We should have stopped with the articles of confederation.

        1. They wouldn’t have followed that either. The document is only as good as the nation’s willingness to follow it.

          1. That would be interesting political fiction: growing an out of control Federal Behemoth while keeping the Articles of Confederation as the nominal law of the land instead of the constitution.

  7. It should be noted that Tribe is one of the best known liberals in the legal field. The fact that Progs have lost tribe on this issue is strong evidence of how fascist they have become. At this point, they just don’t care. See Jackland Ace above for an example of this when he contends anytime a court strikes down a statute it is ‘judicial activism’.

    Tribe is a liberal but he is a serious person. Progressive are not.

    1. When we can make comments about “progressives” being “fascist” without being ironic, it’s past time to worry. We’re in a post 1984 world now, boys.

      1. Yeah. I was not being ironic. They are real no shit fascists.

    2. That of course is not what I said. I quoted Reason’s take on what Rand Paul said, which is that he is not in favor of judicial restraint, and he embraces an activist Supreme Court.

      Among the duties of the SC is, yes, determining the constitutionality of passed laws. But it also interprets the meaning of those laws, and forever has it been thus.

      If you want an activist SC, one that has little restraint, you don’t get to pick and choose how it is activist when it is fulfilling its duties.

      Not me…Rand Paul.

  8. It’s a lot easier for Democrats to get you to board the government dependence train when you’re shivvering in the dark.

    1. Electricity prices are higher than ever. Electric bills are a real hardship on the poor and middle class. But people like Jackland Ace think making electricity is fabulous. Remember, they care about people and evil right wingers like you and I don’t.

      1. If it gets too expensive just create a government program to help the poor pay for it. Problem solved.

        1. Free electricity for all. What could possibly go wrong?

    2. “It’s a lot easier for Democrats to get you to board the government dependence train when you’re shivvering in the dark.”

      Which is why FDR purposely prolonged the Great Depression for close to decade. He had Americans so desperate they were more than happy to trade away their essential liberties for a little temporary “security” and a nice bowl of soup.

      1. You give FDR too much credit. In order to purposely prolong the Depression he would have had to have understood what was going on. Nothing FDR did indicates that he or anyone in his Administration had any idea what was going on or why. FDR spent his first 8 years in office frantically throwing shit up on the wall and trying anything his advisers could think up. In fact, one of the worst things about FDR was that not only did he enact stupid policies, he was incapable of even sticking with those and was constantly enacting new bad policies depriving the market of the chance to adjust to them.

        1. So like Obama, then.

  9. Regulations evidently produce only benefits, never costs.

    A truer statement has never been said…

  10. As the Google engineers working on the RE < C project (peer reviewed) said, “Alternative energy simply won’t work,” to reduce CO2 in the atmosphere. Nevertheless, the lefties move forward with their war against prosperity. We should all remember that, according to the left, women earn only 76 cents for every dollar men earn, and ask the question, who will be most adversely affected by higher energy prices?

    The war on women continues.

Please to post comments

Comments are closed.