A Rebuttal from Professor Tribe

by Laurance Tribe
March 29, 2015

Read the Entire Debate

In previous exchanges with my colleagues Jody Freeman and Richard Lazarus, I have explained why EPA’s Clean Power Plan lacks statutory authority and raises serious constitutional questions that would in fact eliminate any claim by EPA to deference for its revisionist reading of the Clean Air Act. In their most recent post, Freeman and Lazarus make the conclusory assertions – without any substantive elaboration – that my constitutional arguments lack “a scintilla of merit” and that, while my statutory arguments “do present hard legal questions,” “there is a response to each and every one of them.” But we’re left to wonder what those responses might be. Instead, we’re told, “Move along here, there’s nothing to see.”

My colleagues began this series of exchanges by trying to erase the U.S. Code as it is currently written, because they found it didn’t support the EPA plan they want to defend. They buried the 1990 amendments to the Clean Air Act, whose words doomed the EPA’s proposal the moment they emerged from the House on May 23, 1990, and tried to resurrect the “version” of the bill that had emerged from the Senate on April 3, 1990, even though it was only a “conforming” or clerical change. The Senate bill wasn’t actually a “version” of the key Clean Air Act provision (Section 111(d)) at all. It merely deleted “(1)(A)” in a cross-reference and was expressly stuck by Congress in a scrivener’s grab-bag of clerical changes. If there were any doubt about the irrelevance of the Senate “version,” in October 1990 the Senate Conferees expressly “receded” to the House version, which became the only one codified in the U.S. Code for the past quarter century. Not once in the lengthy exchange between me and my colleagues have they responded to that brute fact.

No one disputes that, since the time that Congress enacted the law in question, EPA has never adopted a regulation based on this newly devised doppelgänger of the Clean Air Act. Nor has anyone denied that the situation here – in which a substantive amendment moots a conforming one – has arisen dozens of times in Congress, and that my colleagues’ approach has never previously been accepted. It would turn the U.S. Code upside down. To which my colleagues reply: exactly nothing.

My colleagues have invoked the demonstrably inapplicable deference to which executive agencies are entitled when they resolve genuine ambiguities in a statute’s language. They’ve claimed that EPA is entitled to similar deference when it exercises the obviously very different lawmaking power of choosing the superseded Senate “version” of Section 111(d) over the operative and substantive House version. After I explained why (i) that wouldn’t be a remotely constitutional exercise of executive power but a flagrant usurpation of congressional authority, and (ii) that in any event giving effect to both the House and Senate “versions” would still doom EPA’s plan, they simply dropped the effort altogether in their latest post.

They’ve now decided to take after me personally, insisting that I deserve no deference as a supposedly distinguished academic because I’m representing a private client. How novel: If you don’t like the message, try smearing the messenger.

Well, I’ve not asked for any special deference; I ask only that the defenders of EPA’s authority actually engage me on the merits. Instead, after dropping their attempt to resurrect a moribund version of the 1990 law, my colleagues simply skip over the EPA’s embarrassingly transparent lack of statutory authority and distort beyond recognition my quite serious constitutional arguments showing why, even if Congress had given EPA the power it seeks to deploy – which Congress hasn’t done – for the agency to exercise such power would violate principles of separation of powers, federalism and due process.

Instead, my colleagues mount a second front, aimed at my character. They insist that I have uncritically accepted “the industry-funded view” and that my arguments depend on “extreme factual claims” about the impact of EPA’s plan on grid reliability, about the percentage of CO2 emissions that come from coal plants, and about how many coal plants EPA’s plan will shut down. Actually, those factual issues are wholly irrelevant to EPA’s lack of statutory authority to adopt its plan and aren’t terribly relevant to any of my other points either. My legal arguments have yet to be answered, even under my colleagues’ view of the effects of EPA’s plan. But let me respond briefly to my colleagues’ factual points.

My colleagues focus on the projected impact of EPA’s plan on the reliability of the electrical grid, which is just one of many reasons States have objected to the plan. Freeman and Lazarus slide over the more fundamental point: under EPA’s plan, States face overwhelming pressure to kowtow to federal micro-management of the way energy is produced, distributed, and consumed on an intrastate basis, because States that fail to submit a plan satisfactory to EPA face the danger that EPA will impose a centrally designed and administered “federal plan” (of still hidden dimensions) that will put such States at a huge disadvantage. A centrally designed federal plan that is not adapted to a State’s particular needs and circumstances could paralyze its energy sector, damage its economy, and inflict serious hardship on its citizens. In fact, my colleagues recently wrote in Politico that “[o]pting out may be self-defeating” for States, because a federal plan “will likely be a ‘cookie-cutter’ approach not tailored to each state.” To tell the States, somewhat ominously, that they’d better “understand the real stakes of their choice” (by which my colleagues obviously mean that States would be way worse off if they choose the federal option) takes the carrot out of the proposition that “the choice is entirely up to them” and turns it into a rather big stick. In theory, the States may have an option, but it is purely a Hobson’s choice, and that is the very defect that the Supreme Court identified in striking down the Medicaid expansion in the 2012 ACA case of NFIB v. Sebelius.

Indeed, even with respect to grid reliability, my colleagues’ reassurance that we should put our faith in EPA – an agency with no prior experience or expertise in managing the grid – seems at best misplaced. My colleagues’ point that “historically, the organizations responsible for managing the electricity system have always addressed reliability issues such as these,” is exactly right. That is why I have cited (and my colleagues have inexplicably pooh-poohed) warnings by: (i) the North American Electric Reliability Corporation (a not-for-profit international regulatory authority specifically tasked by Congress with monitoring grid reliability and operating under supervision by the U.S. and Canadian governments), which cautioned that “Essential Reliability Services may be strained by the proposed” rule, and that the rule’s requirements “represent a significant reliability challenge”; (ii) Commissioners of the Federal Energy Regulatory Commission, who cautioned of potential conflicts between EPA and federal energy regulators, including a prediction of a jurisdictional “train wreck”; (iii) grid operators representing more than 60% of all the electricity produced in the U.S.; and (iv) a group of state legislators representing states that amount to 43% of the total electricity generation in the U.S., also objecting to EPA’s plan. Should all of these warnings simply be dismissed out of hand, on the apparent view that anyone who does not already agree with the Administration’s position must have an “agenda” and can’t be trusted?

My colleagues lambaste me for mentioning a letter by 17 state attorneys general to EPA raising concerns about grid reliability, because that letter cited (as just one of its points) an industry-funded study by NERA Economic Consulting finding that EPA had severely underestimated its plan’s impact on power plant retirements. Really? NERA Economic Consulting is in fact one of the world’s foremost economic consultancies, has been in business half a century, has served clients in 130 countries across the world (including many governments), and employs many distinguished economists (including former federal officials). Should we dismiss it out of hand, too, as simply a “hired gun,” rather than engaging its analysis on the merits?

My colleagues accuse me of making “extreme factual characterizations” by describing EPA’s plan as a proposal to “target” coal plants or “phase them out.” But they fail to acknowledge that I’m merely repeating what the Administration itself has said. Secretary of State John Kerry described U.S. policy regarding coal-fired power plants: “We’re going to take a bunch of them out of commission.” Daniel P. Schrag of the President’s Council of Advisers on Science and Technology explained: “The one thing the president really needs to do now is to begin the process of shutting down the conventional coal plants.”

My colleagues seem to believe that my Fifth Amendment analysis rests on an assumption that EPA’s plan would shut down every last coal plant in the country. Thus, they cite a projection by one regional grid manager showing that coal would not be “phased out” entirely in the mid-Atlantic States. (Funny how my colleagues rely on industry studies when it suits them, but criticize me for the same thing when the studies don’t support EPA. But I digress.) Whether some coal plants will remain in the mid-Atlantic region under EPA’s plan is totally beside the point. A complete phase-out of all coal plants is not remotely necessary to my argument, and in any event, for some States and utilities, the plan in practical terms will mean exactly that. For example, the director of the Arizona Department of Environmental Quality testified before Congress that “[b]y our calculations, switching from coal to natural gas by 2020 is the only building block available to Arizona for meeting EPA’s proposed goals.” Other States are in the same situation. That’s why EPA’s own Regulatory Impact Analysis says that its proposal will decrease coal production for the electric power sector by 25% to 27% by 2020.

But my objection doesn’t depend on precisely how these facts will shake out. The point, to which Freeman and Lazarus never respond, is the government’s more fundamental bait and switch: after encouraging extensive investments in coal production for decades and mandating that coal-fired power plants install billions of dollars’ worth of “Maximum Achievable Control Technology” under the Clean Air Act, the government has now turned around and told the States to take actions that would significantly curtail their operations, essentially stranding the vast sums that EPA has required them to invest.

I don’t deny that coal plants make up a substantial fraction of U.S. CO2 emissions, but it’s also undeniable that we are all CO2 emitters and that atmospheric CO2 is the intermingled result of all human activity. Fifth Amendment principles support a duty to compensate those singled out to bear a burden that ought to be borne by the public as a whole. And to the extent my colleagues seek to leave the impression that I’m challenging the Clean Air Act as a whole or questioning EPA’s authority to reduce the hundreds of congressionally listed “hazardous air pollutants” (a category that excludes CO2) that it has been regulating at stationary sources like coal-fired electric power plants for many years, they surely know better. Far from ever challenging that broad swath of statutory authority, I have simply argued that the Clean Air Act itself prohibits the EPA from targeting those plants under an entirely different section of the Act, one that expressly forbids regulating power plants already being regulated at the source with respect to their hazardous emissions, in order to cope with substances like CO2 that aren’t on the congressional list of hazardous air pollutants at all.

A word on the distinction about which my colleagues seek to lecture us, between “legal advocacy and legal scholarship.” I would draw a different line: between (i) substantive, rational discourse that fairly engages opposing arguments and avoids distorting the relevant facts, and (ii) efforts to impugn the opposing side’s motives and introduce distracting irrelevancies. I believe in the power of ideas to stand or fall on their own merit. I have insisted throughout this discussion – and indeed throughout my career as an academic and a lawyer – that the ideas I am expressing are my own. My colleagues purport to trust my motives but none-too-subtly challenge my ability to live up to my own standards. If people don’t accept my sincerity or my integrity, that’s their own business. I can live with that. But it doesn’t relieve others, whatever their agendas might be, of the obligation to answer my legal objections substantively and on the merits. My colleagues stress the need for “a thorough, balanced, evidence-based scholarly analysis.” My point exactly.

And, finally, what has happened to the rule of law in all of these discussions? Is our position as a nation going to be that the “ends justify the means” with respect to climate change? That of course is essentially what President Truman argued in the Steel Seizure case, when he insisted that the military imperatives of our war in Korea required him to take over the steel mills without waiting for Congress, whatever the law might require. It is what many have argued throughout world history. But our Constitution has always stood for a different proposition – that we are a nation of laws, not men (and women). And so the Obama Administration’s laudable desire to send a message of a “serious international commitment” on climate change (even if EPA’s plan were necessary to that goal) does not mean that it is permissible to ignore the rule of law or to sacrifice a few lambs to get there. Regardless of my colleagues’ differences with me, I hope that is a proposition on which we can all agree.