President Obama’s Harvard Law School mentor delivered a stinging indictment of the president’s flagship climate change rule this morning, telling a packed House hearing that the Clean Power Plan violates both the Clean Air Act and the Constitution.
Laurence Tribe, a noted constitutional scholar, told an Energy and Commerce subcommittee that EPA’s proposal for carbon dioxide from existing power plants seeks to remake both the 1990 Clean Air Act amendments and the constitutional division of powers between state and federal governments.
The EPA proposal conflicts with settled principles of federalism and Supreme Court precedents, he said, “because it would commandeer state governments, treating them more like marionettes dancing to the tune of a federal puppeteer than like laboratories of democracy.”
Tribe, who was once a liberal icon, noted that he had often represented interests seeking to increase environmental regulation. But he said the proposal EPA released last June represented a “breathtaking power grab” on the part of an Obama administration that had evidently grown frustrated waiting for Congress to legislate on climate.
“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress and the federal courts all at once,” he said. “Burning the Constitution should not become part of our national energy policy.”
Tribe has become a controversial figure in the struggle over the Clean Power Plan since he submitted comments on the draft rule last December on behalf of coal producer Peabody Energy Corp., calling it “fatally flawed” (Greenwire, Dec. 8, 2014).
Tribe’s presence at today’s Subcommittee on Energy and Power hearing raised its profile considerably, prompting supporters and opponents of the rule to trade press releases trumpeting his pre-released opening statement or bashing his motives.
Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity, said in a statement that “should EPA refuse to withdraw or significantly alter its Clean Power Plan, the rule will almost certainly be struck down by the courts, costing taxpayers and electricity ratepayers millions of dollars in legal fees.”
John Coequyt, the Sierra Club’s director of federal and international climate campaigns, said Tribe’s words were “exactly what the coal industry wants to hear.”
“That makes sense, because he is on their payroll,” he said, highlighting legal scholars who disagree with Tribe and polls that show the rule has public support.
The issue of industry support for experts – both legal and scientific – has flared recently, with congressional Democrats highlighting the recent revelation that scientist Wei-Hock Soon received at least $409,000 from a subsidiary of Atlanta-based utility Southern Co. to support his research challenging the consensus on climate science.
Obama said in an interview with the website VICE, released yesterday, that Capitol Hill is populated by “shills” for the fossil fuels industry who spread unfounded doubt about the state of climate science.
“Typically, in Congress, the committees of jurisdiction, like the energy committees, are populated by folks from places that pump a lot of oil and pump a lot of gas,” he said.
Tribe’s statements were praised by panel Republicans, including subcommittee Chairman Ed Whitfield (R-Ky.), who said EPA had followed a “tortured and circuitous route” in promulgating its rule. Subpanel ranking member Jerry McNerney (D-Calif.) said the rule is “reasonable” and addresses the crucial issue of climate change.
‘Ghost and non-ghost versions’
One of the chief arguments highlighted during this morning’s hearing was a discrepancy in the Clean Air Act amendments of 1990 that resulted in the apparent enactment of two different versions of the statute – one crafted by the House, the other by the Senate (Greenwire, Oct. 24, 2013).
The House language bars EPA from using Section 111(d) to regulate source categories – such as power plants or refineries – that are already subject to hazardous emissions rules under the Clean Air Act. The Senate’s, meanwhile, prevents its use to regulate a source category for a pollutant that is already being regulated.
EPA has promulgated a rule for mercury and other toxics from existing power plants, so opponents of the Clean Power Plan point to the House language to argue that the agency lacks authority to regulate carbon from the same sources. This glitch has already figured in litigation to head off the proposal, which is due to be finalized this summer.
EPA addresses this issue by saying that the statutory language is ambiguous, and that common sense dictates that Congress did not intend to bar the agency from putting forward rules for different pollutants simply because it is regulating other pollutants from the same source.
But Tribe said EPA seems bent on rewriting the Clean Air Act amendments to suit its own purposes. He called the Senate-produced language a “ghost version” of the law.
“I don’t think the court would accept the agency’s interpretation,” he said.
But Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, quipped, “I never knew that laws came in ghost and non-ghost versions.”
He noted that both versions of the statutory language were signed by the president.
“That makes them law,” he said. And even the House version alone includes enough ambiguity to support EPA’s interpretation that it can use Section 111(d) to tackle greenhouse gas emissions, Revesz said. Courts have sided with agencies in the vast majority of comparable cases, he added.
Revesz also took aim at Tribe’s argument that the rule “commandeers” state governments to implement its rule, noting the flexibility EPA has incorporated into its proposal and the possibility of federal implementation.
“States are not required to do anything,” he said.
Allison Wood, a partner at Hunton & Williams, testified that EPA is limited by law to promulgating restrictions not only “inside the fence line” of a power plant, but at the electric generating unit itself. The agency has instead promulgated a rule that draws emissions reductions from renewable energy deployment, demand-side efficiency and other sources – effectively mandating that the existing coal fleet be used less, she said.
“It’s as if EPA were requiring car owners not only to have catalytic converters on their cars, but also to travel a certain amount of days per week by bus, purchase a certain number of electric vehicles and work from home one day per week,” she said.
But Revesz countered that EPA is regulating the product – electricity – not the means of producing it. And power can be generated through many means other than coal, with less carbon emissions, he noted.
The hearing’s first panel this morning did not focus heavily on the “just say no” strategy of state implementation. Rule opponents including Senate Majority Leader Mitch McConnell (R-Ky.) have suggested that states have little to fear by refusing to comply with the rule and inviting a federal implementation plan (FIP).
But Tribe said EPA’s threat of a FIP is a “phantom” that encourages states to write rules that would remake their power sectors for fear of facing a more onerous federal model. And Wood said that while the EPA rule might be on shaky legal ground, states would spend money and resources on compliance while waiting for judicial review.
EPA has pledged to release a model FIP this summer, when it will also finalize the Clean Power Plan and rules for new and modified power plants.
The Energy and Power subpanel is also set to hear this afternoon from state officials who would be tasked with implementation of the rule.
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