Liberal Harvard professor Laurence Tribe doesn’t think of himself as aligned with Senate leader Mitch McConnell, but the two men agree that the regulations proposed by the EPA to control greenhouse gases emitted by coal-fired plants is an abuse of executive power. Both are tossing hand grenades into President Obama’s efforts to tackle climate change, and although they’ve never talked and don’t know each other, they are a formidable team.
Tribe mentored the young Obama and taught him constitutional law at Harvard, so it was a shock to hear him testify last month at a hearing of the House Energy and Power committee that Obama’s plan to gradually reduce pollution from coal-burning plants was the equivalent of “burning the Constitution.” In the same hearing, Tribe tried to distance himself from McConnell, calling the GOP leader’s “just say no” strategy on climate change “reckless” and “irresponsible.”
In a lengthy email, Tribe says he had misgivings about the EPA regs when he first became aware of them late last year. He says this occured well before he was retained by Peabody Energy, the largest coal company in the world and one of McConnell’s biggest campaign contributors, “and long before I knew anything about McConnell’s position or had any idea how, if at all, he might react to mine.”
Tribe’s financial relationship with Peabody Energy makes him more than a dispassionate legal scholar, but that shouldn’t matter, says Don Stewart, a spokesman for McConnell. “I don’t think that takes away from the constitutional argument that exists,” he says, noting that conservative lawyer Ted Olson “changed his view after he was hired by a pro-same-sex marriage group. I don’t think anyone’s screaming about that. Lawyers are lawyers.”
McConnell’s views on coal are well known. He won reelection in Kentucky promising to fight Obama’s “war on coal.” Tribe says McConnell tried to “wrap himself around my legal position” and “take advantage of my liberal street-cred” when the Kentucky senator realized the two agreed on Obama’s alleged overreach.
Despite his protestations, Tribe is quite a catch for McConnell and the pro-coal lobbyists fighting EPA in Washington. In a letter last month to all 50 of the nation’s governors, McConnell urged the states to defy the administration and refuse to produce a plan to reduce greenhouse gases under the EPA’s Clean Power Plan Rule that was put forward last year.
In the letter, McConnell cites Tribe’s view that the EPA compelling states to act exceeds the agency’s authority, and he describes Tribe as “an otherwise strong supporter of President Obama who taught the first course in environmental law in the United States.”
Tribe points out that he started teaching that class in 1969, and he remains a strong proponent of combating climate change, but not at the cost of overruling the Constitution. Thirteen states have already filed legal objections, and the core of McConnell’s argument is that the states shouldn’t risk taking economically costly steps on behalf of an environmental plan that is likely to get thrown out in the courts.
The Tenth Amendment and the “takings” clause are at the heart of Tribe’s objections, and he says that while he can’t predict what the lower courts will rule, “I do think that the U.S. Supreme Court will agree with my position once the issue gets up there.”
EPA rulemaking in the Clean Power Plan is based on the “science, law and reasoning” that the Supreme Court affirmed last year under the Clean Air Act of 1990, agency spokesperson Liz Purchia told The Daily Beast. She says that the EPA has “an obligation to address carbon pollution,” and that the agency is asking the states to develop their own plans to meet statewide requirements set by EPA; if the states fail to take action, the federal government steps in and does it.
“Kind of like Obamacare,” says Stewart. “Either come up with your own plan or we’re going to give you a federal plan.”
The battle lines are set on climate change, and with Obama’s term winding down, he’s ratcheting up the stakes and inflaming the debate with the GOP. On Tuesday, the administration filed documents with the United Nations pledging U.S. carbon emissions would be lowered 26 to 28 percent from 2005 levels by 2025. Anticipating the announcement, Stewart told The Daily Beast, “There are things we can do and things we can’t do, like shutting down the economy.”
“There’s always scary forecasts,” Stewart said when reminded that, even with these reductions, climate change would remain a significant and even existential challenge for future generations. “The climate is better now than it was five years ago despite the growing economy. The president brags about how much he’s done.” Yes, but Obama is the first to say it’s not nearly enough. “Maybe he shouldn’t be bragging then,” Stewart countered.
In one email response that ran 1,388 words and reads like a lawyer’s brief, Tribe addressed the question of whether his position is creating any discomfort for him as President Obama’s former law professor.
“Yes and no,” he said. “I’m definitely unhappy to find myself on the other side from the President on a legal and constitutional issue so important to him and to the future of the planet—and, for that matter, I’m unhappy to find myself on the other side from so many of those who have been my friends and allies in the environmental wars…But I feel entirely comfortable about the fact that, in case after case, I’ve called it the way I’ve seen it, letting the personal chips fall where they may.
“That’s part of what the President and those around him know has accounted for my legal credibility: it helps them politically when I happen to agree with them on the law, and they’re mature enough to take the bitter with the sweet when I don’t happen to agree with them legally.”
Noting that he defended the legality of Obama’s executive actions on immigration, health care and gay rights, Tribe says he “wasn’t going to clam up just because I admire and have worked with this President and have known him and liked him a great deal ever since he was my law student and research assistant back in the late 1980s.”
Tribe will be one of the lawyers arguing the case against the EPA’s climate regulation in the U.S. District Court. Two of his Harvard Law School faculty colleagues, Jody Freeman and Richard Lazarus, write in a Harvard Law journal that the coal industry has “shrewdly hired Larry Tribe…perhaps the nation’s most famous constitutional law professor.” Still, they call his arguments about unconstitutionality “baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously.”
What the courts will do is hard to predict, but having the liberal Tribe weigh in on the conservative side could tip the scales of justice.