Interestingly, the parties suing to strike down the climate regulation have asked the United States Court of Appeals for the District of Columbia Circuit for 55 minutes to argue their case, but want to give him only five of those minutes to make his case that the rule is unconstitutional. Similarly, in their 306 pages of briefs, challengers to the Clean Power Plan other than Professor Tribe devote only nine pages to constitutional arguments.

He claims that the Clean Power Plan violates the 10th Amendment by letting the federal government commandeer state institutions. But this reading of the Constitution would invalidate not just the Clean Power Plan, but also the Clean Air Act’s centerpiece — the National Ambient Air Quality Standards — which have saved hundreds of thousands of lives. The standard approach of the Clean Air Act is for the federal government to establish statewide pollution reduction requirements and then allow each state to allocate that burden among polluters. If a state declines, the federal government imposes requirements directly on polluters, without commandeering state institutions. The Clean Power Plan does nothing to change this system.

Professor Tribe makes a similarly far-fetched argument that the Clean Power Plan violates the takings clause of the Fifth Amendment, which protects private-property rights. A regulation leads to a takings violation only if it deprives an owner of essentially all of the value of his or her property, which is nowhere near the case here. Even a successful takings claim is not an argument for invalidating the rule; it merely gives the owner the right to pursue compensation.

He also claims that the Clean Power Plan affects the expectations that power plants had when they complied with a 2012 rule involving different pollutants, even though these plants were on notice at least since 2009 that regulation of their greenhouse gas emissions was likely.

Finally, he argues that the E.P.A. is basing its authority to issue this regulation on a “ghost law” and that, in so doing, it is violating the Constitution’s nondelegation doctrine, which bars agencies from exercising legislative power. In 1990, the House and Senate passed arguably inconsistent amendments to the law underlying the Clean Power Plan. Both amendments were then included in a bill passed by both chambers and signed by President George H. W. Bush.