September 10, 2014

Constitutional law scholar Laurence Tribe takes on Cape Wind

Mary Moore, Reporter | Boston Business Journal | Sep 9, 2014 |

After losing in U.S. district court in May, opponents of the Cape Wind energy project in Nantucket have taken their case to the U.S. District Court of Appeal and added a new voice to their legal team.

Laurence Tribe, a professor of constitutional law at Harvard Law School, who also works with Washington D.C. law firm Massey & Gail LLP, is representing the Alliance to Protect Nantucket Sound. Tribe was very involved in drafting the initial brief for the federal appeal and he may handle the oral arguments for the case, as well.

In their U.S. district court case, the project’s opponents sued state agencies among other defendants, attempting to invalidate Cape Wind’s agreement with NStar over its purchase of power from the proposed wind farm. The judge ruled that the 11 th Amendment prohibited Cape Wind’s opponents from suing the commonwealth of Massachusetts in federal court.

Cape Wind spokesman Mark Rodgers said the opponents are making the same arguments in their appeal as they did in federal district court. The federal district court judge’s ruling was “firmly rooted in case law and we’re confident that his dismissal will be upheld,” Rodgers said.

In his appellate court brief, Tribe argues that the judge’s ruling was “gravely flawed.” In an email exchange with reporter Mary Moore, Tribe explains why.

How did you come to represent the Alliance and why did you decide to take on this case?

I was asked by the Alliance whether I would be willing to represent it in appealing the district court’s decision to dismiss this case. I carefully read the district court’s opinion, concluded that it was not only wrong but clearly wrong and that, if left unreversed, it would establish a deeply problematic precedent for anyone trying to obtain prospective relief in federal court from state actions violating federal constitutional or statutory rights. To make matters worse from my personal perspective, the district court relied for its decision on something I had written in the third edition of my treatise on the U.S. Constitution (published in 2000) and, in doing so, seemed to me to misunderstand the point I had made. I’m pleased to see my treatise cited so frequently, but not when I believe it has been misconstrued, however unintentionally. So it was close to a no-brainer that this was a decision that I wanted to help overturn even though I have my hands more than full with other commitments and activities.

How often do you take on cases?

I take on cases very rarely, especially at the lower court level. Most of the cases I have taken on are cases in the U.S. Supreme Court, and I do relatively few of those these days, focusing mostly on my teaching, writing and public lecturing.

What’s your area of expertise and how does it relate to this appeal?

You’d probably want to ask others about my expertise; I don’t feel comfortable blowing my own horn. I suppose I can tell you that I’ve published many books and articles about the U.S. Constitution and have received 11 honorary degrees from various universities, most recently Columbia University, describing me as a leading expert, or the leading living expert, on the U.S. Constitution and the law surrounding its application. Whether that’s accurate is for others to say. I can add, though, that I’ve done a great deal of research and writing on the 11th amendment in particular, both in my treatise on American constitutional law (cited more often than any other) and in various scholarly articles.

What does the 11th amendment say in terms that are easy to understand and how does it relate to this case?

Basically, as interpreted by the U.S. Supreme Court, the 11th Amendment says that states and their agencies cannot be sued in federal court without their consent for such retrospective relief as monetary damages to be collected from the state treasury. The fundamental point of the amendment is to ensure that states retain control over their public funds and yet remain subject to suit, with or without their consent, for relief that is prospective in character – that is, for relief that tells them to comply with federal law going forward but does not compromise their fiscal sovereignty. Unless such prospective relief remained possible despite the 11th Amendment, there would be no way for the supremacy of federal law, including the U.S. Constitution, to be enforced against recalcitrant states and state actors. That would pretty much spell the end of the union as we know it.

What do you believe the court get wrong in its decision on the Nstar/Cape Wind contract?

The district court got the 11th Amendment entirely wrong. It reasoned that, even though the relief sought by the Alliance and by the Town of Barnstable sought not a penny of damages and would not involve any of the dangers to state fiscal sovereignty against which the 11th Amendment was aimed, the mere fact that a ruling for the Alliance and for the town would require, as a first step, a determination that the state had violated the U.S. Constitution and federal statutes by forcing Nstar into a contract that would cost Massachusetts consumers far more over the next 15 years than they would otherwise have had to pay for their electric energy somehow meant that the relief sought from the federal court was barred by the 11th Amendment. Precedents of the U. S. Supreme Court and of the U.S. Court of Appeals for the First Circuit clearly establish that this reasoning was legally incorrect. It should be reversed.

What have you filed so far and when do you think the case may be heard?

We filed our opening appellate brief with the First Circuit on August 25, 2014.

Do you think the original decision will be overturned on appeal? Why?

I have great respect for the judges of the First Circuit and believe that they will follow the applicable law. I’ve explained above why I think the law clearly establishes that the district court’s decision was legally indefensible.

Under what circumstances might the case not be overturned on appeal?

I have no way of answering this purely hypothetical question. It’s not for me to say why the First Circuit might fail to follow the Constitution and laws of the United States. It would surprise me very much if that were to occur here. As I believe I said publicly when I agreed to take this on this appeal, I am confident that the U.S. Supreme Court would agree with the views I have expressed about the relevant law and would disagree with the district court.

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