By Taylor Kuykendall

Laurence Tribe, a professor of constitutional law at Harvard University's law school with a history of supporting liberal causes, is calling for the withdrawal of the U.S. EPA's Clean Power Plan.

In comments submitted to the EPA, Tribe claims that the agency has reached beyond its constitutional authority and is acting outside of the law. Tribe was retained by Peabody Energy Corp. to provide analysis of the rule, and a press release announcing the comments said Tribe's opinions do not represent those of Harvard Law School or Harvard University.

"EPA's actions serve as a breathtaking example of executive overreach and an assertion of power beyond the agency's authority," Tribe said in the news release. "The proposed rule lacks legal basis. It also represents an improper attempt by EPA unilaterally to remake a portion of the American economy on the basis of a hitherto obscure provision of the Clean Air Act, which is a fatally flawed interpretation."

The Clean Power Plan proposes a 30% reduction in greenhouse gas emissions from existing power plants based on 2005 emissions levels in an attempt by President Barack Obama's administration to address climate change. The rule is expected to have a broad impact, though various analyses have suggested varying degrees and types of effects the rule may have on the economy.

While many of his arguments have been presented in various forms in the flood of comments the EPA received in response to its proposal, Tribe's renown in the realm of constitutional law and a history of supporting liberal causes make his comments stand out.

In 2010, Obama appointed Tribe senior counselor for access to justice at the U.S. Justice Department. Tribe also argued a Supreme Court case on behalf of former Vice President Al Gore in the disputed 2000 presidential election.

Tribe has said his beliefs in racial, gender and sexual equality and economic justice have not changed throughout his legal career, The Harvard Crimson reported in 2012 .

At Harvard, Obama was once a student of Tribe. According to an NPR report published in 2012, Tribe and Obama remained close as Tribe continued to play the role of a "mentor and information adviser to the president."

David Doniger, chief global warming lawyer for the Natural Resources Defense Council, said Tribe has "extensive" experience working for companies, which he warned may alter his opinions from those a law professor might typically express. Tribe, who works with law firms Massey & Gail LLP and Shook Hardy & Bacon LLP, also represents the Alliance to Protect Nantucket Sound, a group backed by billionaire William Koch, over a wind energy project.

"He's available to work for corporate clients," Doniger said. "When you look carefully at some of these comments, it's hard to believe he — let's put it this way: It seems to be work done by Peabody's people or other lawyers for Peabody because the arguments are quite, well, let's just stick with weak."

Beth Sutton, Peabody's vice president of global advocacy communications, told SNL Energy that Peabody was supporting policy that keeps energy costs low and advances technology solutions to address environmental goals. She added that "everyone deserves access to low-cost electricity, and everyone wants the air to be a bit cleaner every day."

"Professor Tribe is an expert in constitutional law," Sutton said in a statement. "His analysis clearly demonstrates that EPA is reaching beyond its constitutional authority and acting outside the bounds of the law on policies that will do little more than hurt American families with high energy costs."

In the past, Tribe has said he does not doubt that humanity is "exacerbating global warming." In an April 16, 2011, op-ed in The Boston Globe, Tribe was critical of those who use the judiciary branch to impose global warming policy. Tribe was critiquing a lawsuit that was asking "federal courts to wade into the global warming debate and legislate a policy solution."

"Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by a Supreme Court ruling in favor of Massachusetts when the state sued the EPA to compel it to take up the problem," Tribe wrote. "The courts should reject the political and administrative roles that would be thrust upon them by litigants dissatisfied with Congress's decision to entrust the EPA with this challenging mission — or by those dissatisfied with the efforts of the president and the State Department to engage in the international diplomacy required to cope with an obviously international problem."

The rule is already tied up in legal challenges that have been brought by various states and companies that fear the potential effects of the rule. The EPA has repeatedly asserted that the agency "writes solid rules and they stand up in court."

Tribe's 4-prong attack on rule

Tribe attacks the rule based on four primary arguments outlined in the comments. According to his interpretation, the Clean Power Plan repudiates past policies encouraging coal use, raises multiple questions of constitutionality, violates due process and the takings clause of the Constitution, and violates structural limits on the EPA's authority and principles of federalism.

“The defects in the proposed rule transcend political affiliations and policy positions and cut across partisan lines.”

 Laurence Tribe, professor of constitutional law, Harvard Law School

In his comments, Tribe wrote that the proposal of Obama's EPA is a "remarkable example of executive overreach and an administrative agency's assertion of power beyond its statutory authority."

"The defects in the proposed rule transcend political affiliations and policy positions and cut across partisan lines," Tribe wrote. "The central principle at stake is the rule of law — the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission."

Tribe's first argument is that both Democratic and Republican administrations have promoted the use of coal for decades in order to promote greater energy independence, reduce imported foreign oil, and produce electricity that is reliable and affordable. In his comment, he points to a number of legislative actions to increase the use of coal, including actions taken after the 1973 Oil Embargo and the 1979 oil crisis.

"U.S. policy — including under the current administration — has always strongly favored advanced coal technologies. … Coal has been a bedrock component of our economy and energy policy for decades. The proposed rule, which manifestly proceeds on the opposite premise, thus represents a dramatic change in directions from previous Democratic and Republican administrations," Tribe wrote.

Overturning that long-standing policy of supporting coal, Tribe writes, would upset settled and investment-backed expectations. He said that by forcing U.S. power plants and the energy industry to bear the global burden of lessening carbon dioxide emissions, the rule retroactively serves to strand the investments the federal government once actively promoted.

"It forces a select set of victims — including coal-reliant consumers, communities, regions, businesses and utilities — to bear a substantial share of the economic burden for a worldwide public policy objective," Tribe wrote. "The stated objective of the proposed rule is global in nature. Forcing a narrowly selected set of victims to make the proposed reductions in CO2 emissions would have an imperceptible effect on worldwide greenhouse gas levels but at an inordinate cost to those of whom the most would be demanded."

“There's no time for any delays. The latest [Intergovernmental Panel on Climate Change] report that came out really showed that we could be the last generation that has the ability to make a change in the climate change fight.”

 Liz Perera, climate policy director, Sierra Club

That the rule constitutes an illegal taking by definition of the Constitution was also raised by North American Coal Corp. in its recent comments to the EPA. The company suggested that the government could be exposed to liabilities as high as $1 trillion, payable in the near term, over stranded assets if the rule was determined to be a regulatory taking.

Doniger said the argument was striking that a "corporate polluter" would need to be compensated for curbing their pollution.

"There is no such requirement," Doniger told SNL Energy. "It's very, very clear. … Not only do you lack a right to be compensated if the government makes you stop, the public has a right to make you stop."

Environmentalists also argue that the U.S. must take first steps so as to show the rest of the world it is serious about taking action. Liz Perera, climate policy director at the Sierra Club, said that while market forces are already moving the economy in the direction of renewable energy sources, the rule is an important step that is necessary for international climate agreements, such as the one recently announced between the leaders of the U.S. and China.

"China and the [European Union] are looking for us to actually have concrete plans and laws to get to our reductions that are on the table. Really, the very people that are saying China and India will never act, they are the ones that are doing that if they continue to attack these commonsense regulations," Perera told SNL Energy. "There's no time for any delays. The latest [Intergovernmental Panel on Climate Change] report that came out really showed that we could be the last generation that has the ability to make a change in the climate change fight."

In his comments, Tribe also lobbed several attacks at the constitutionality of the Clean Power Plan. He begins by suggesting that Obama's directive to the agency made in announcing his Climate Action Plan does not provide authority to the agency to promulgate the rule. He also argues that sections of the Clean Air Act prohibit the regulation and critiques the EPA's interpretation of the Clean Air Act.

"The Constitution would not even permit Congress to delegate to the EPA the kind of law-selecting authority EPA is claiming for itself here; a fortiori, the EPA cannot claim such authority where Congress has not purported to make such an unconstitutional delegation," Tribe wrote.

Defenders of the rule have already stood up to many of these allegations in federal court filings. Joanne Spalding, senior managing attorney for the Sierra Club, told SNL Energy in November that the Sierra Club believes the Clean Air Act clearly requires a limit on carbon dioxide emissions from existing plants.

"Simply stated, it requires standards for pollutants from existing sources if there are standards that cover those pollutants from new sources in the same category, as long as the pollutants at issue are not hazardous air pollutants or subject to a national ambient air quality standard," Spalding said.

In his final argument, Tribe argues that the rule violates structural limits on the EPA's authority and principles of federalism. He said the rule conflicts with state agencies that are already exercising their authority over electricity regulation. By "confusing the chain of decision-making" between federal and state regulators, he said, "the EPA thumbs its nose at democratic principles."

"At bottom, the proposed rule hides political choices and frustrates accountability. It forces states to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the garb of state 'choice' — even though in fact the polices are compelled by EPA."