A Rebuttal to Tribe’s Reply

by Jody Freeman and Richard Lazarus
March 21, 2015

Read the Entire Debate

Our colleague Larry Tribe’s response to our initial posting serves as a reminder of why he is widely celebrated as one of the nation’s most effective advocates. On the merits, though, we are no more persuaded. We will keep our rebuttal short.

The Right to Say No and the Tenth Amendment
To review briefly, our colleague is wrong that the Clean Power Plan “commandeers” the states in violation of the Tenth Amendment. The reason is simple: the States retain the fundamental right to say no. We know that this is a genuine right of refusal and not something illusory because States have exercised this option in the past. When States have failed to file State plans in other contexts, EPA has simply filed its own plan and borne the brunt of regulating the sources directly. The same will happen here.

There is no plausible basis for the claim that EPA is pointing a “gun to the head” of States. There is no gun. There is not even the legal equivalent of a stick because under the Clean Power Plan EPA has no legal power to punish the states for not submitting a plan. Not by denying States highway funds. Nor by imposing any of the other sanctions that Professor Tribe says would force states to “knuckle under” – the linchpin of his claim of unconstitutionality. His argument confuses the proposed rule here with a different statutory program dealing with a very different kind of State plan, which contemplates the possibility of some sanctions. There is no viable Tenth Amendment claim against the Clean Power Plan. None.

But should states still opt in, and write their own plans, rather than “just say no” to EPA? Of course they should. States have always understood that it is in their best interests and that of their citizens to file plans and design their own pollution reduction programs themselves—for the straightforward reason that nobody knows a State’s own political and economic priorities better than they do. And even a well-intended federal government may not possess the plenary authority necessary to make the precise tradeoffs the States would make if they were in charge.

There are clear advantages to being in control, as States well know, and these advantages are lost whenever States decide they would rather abdicate their policy and lawmaking expertise in favor of the federal government stepping in. This is the very reason why EPA crafted its proposal to let States develop their own plans for meeting the carbon reduction targets using whatever mix of measures they think best.

Tribe claims that under the Clean Power Plan, “States are left with no control over their regulatory programs” and with only the “trivial ability (at most) to fine-tune a few details.” But this is just not true. States that do file plans are committing to meet EPA’s performance standard—that’s all. How to do so is up to them. If they are rich in natural gas (now cheaper than coal; many States are switching already), they can bring more natural gas on-line; if they have great potential for renewable power, they can build some; if they wish to invest in the cheapest compliance option of all, energy efficiency, they can do that too.

Many States are already well on their way to meeting the proposed targets because of steps they have already taken, for economic or other state-driven policy reasons that have nothing to do with EPA’s proposal here. And although Professor Tribe has repeatedly asserted that EPA has given states a mere “13 months” to comply, this is also inaccurate. States have up to 2018 if they ask for more time; the compliance period does not even begin until 2020; and the rule would not phase in fully until 2030. All of our colleague’s arguments are meant to present EPA as radical, extreme and out of control. But the actual proposal shows very clearly otherwise.

Still, the Constitution does give States the right to opt out. Tribe has testified that this will lead EPA to implement a “total overhaul of each state’s way of life.” It is true that if States choose not to file plans, EPA will do so instead, but by law, they must do so reasonably. What will this look like? Everyone, including EPA, agrees on the need for flexible approaches to compliance to prompt creativity and keep costs down. So EPA will file plans for each State that give power plants the flexibility to reduce their carbon emissions through a variety of cost-effective measures (for example, by relying on market mechanisms, like carbon trading, and by approving banking, averaging and borrowing), and to phase in the pollution cuts over fifteen years. In other words, they will implement classic pollution control. There is nothing remotely radical or extreme about it.

What is extreme is the coal industry claim, which our colleague uncritically embraces, that the proposed rule threatens the reliability of the nation’s electricity system. That claim is flatly contradicted by numerous independent studies. By express statutory command, EPA can impose restrictions based only on emission reduction measures that have been “adequately demonstrated.” Setting limits on carbon dioxide from power plants, based on measures that have already been demonstrated to work, will not make the lights go out.

The threat of blackouts is an effective tactic, but it borders on the disingenuous. Even if you do not trust EPA, or believe any of the independent studies showing that there is ample flexibility to implement pollution control while ensuring reliability—as grid managers have done for decades—the Federal Energy Regulatory Commission is legally required to ensure the reliability of the system. FERC will do its job. The nation’s electricity grids are not going to fail as a result of the proposed Clean Power Plan.

The Non-Taking Issue
We were pleased to see in our colleague’s response a quiet, yet unmistakable retreat from his earlier pronouncements that the Clean Power Plan is an unconstitutional taking of private property in violation of the Fifth Amendment. All that could be mustered, presumably upon further reflection, is that EPA’s proposal “would run right up against the Fifth Amendment and would thereby require any reviewing court to resolve yet another tough constitutional question.” We are unsure what “run up against” means since the issue isn’t tough at all. Greenhouse gas emissions have been found to endanger public health and welfare – a scientific determination supported by an overwhelming consensus of scientists worldwide. And, whatever the “vagaries of Fifth Amendment analysis,” governmental restrictions on such harmful emissions do not amount to takings of private property requiring the government to pay industry to stop polluting. There is no plausible taking here.

No “Serious” Constitutional Question After All
Perhaps the most baffling aspect of Professor Tribe’s argument is his continued insistence that EPA’s reading of Clean Air Act raises serious questions of constitutional law. It does not. The question whether a federal agency has misread a federal law, which Congress has delegated to them to implement, does not present a constitutional crisis. When President Truman seized steel mills, he did not base his assertion of power on his reading of a statute conferring such authority on the President. Nor did President Lincoln in suspending habeas corpus during the Civil War rely on a reading of congressionally conferred authority. Those were true constitutional crises. But EPA’s Clean Power Plan? To equate them is quite amazing.

As we have freely acknowledged, EPA’s proposal does raise legal questions of a more ordinary sort. The hard legal question is whether EPA’s approach to setting a “performance standard” is reasonable. The Act defines performance standard here as the “best system of emission reduction.” EPA has set the state targets for carbon emissions based on what the entire grid, not just the coal-fired units on-site, can do to cut emissions (e.g., by using more natural gas and investing in energy efficiency). Are all of these considerations reasonably considered part of the “best system” of controlling carbon emissions? Does their availability count toward stringency? Certainly, they are all proven ways to reduce emissions, and they are interchangeable and invisible to electricity customers because they are part of an interconnected electricity system.

This is the kind of typical bread-and-butter question of administrative law that courts handle on a daily basis: whether an agency’s interpretation of statutory language is a reasonable interpretation entitled to judicial deference. We think EPA has a strong argument to support its interpretation, and certainly an entirely plausible case for deference, though we have always said there are credible arguments to the contrary.

But whatever one thinks about this question, there is no constitutional crisis. Professor Tribe says judges should refuse to even consider deferring to EPA because doing so would lead them to confront the multiple potential constitutional violations he has invoked. But there is simply no constitutional issue here, let alone a “serious” one that might justify refusing to defer to an agency’s interpretation. Waving the Constitution, no matter how ardently, is not enough to trigger the constitutional avoidance canon.

The Dueling Amendments Issue over EPA’s Authority
On the question whether Congress passed only one amendment to the Clean Air Act in 1990, as our colleague contends, rather than two simultaneous amendments to the same statutory provision, as we suggest, there can be only one answer: two. Professor Tribe ultimately acknowledges the single most important fact: both amendments “were included in the bill enacted by Congress after Conference and signed by the President on November 15, 1990, and both appear in the Statutes at Large.” As the Supreme Court has repeatedly made clear, the only official record of what Congress has enacted and the President has signed into law is found in the official “Statutes at Large.” And if one opens the Statutes at Large, both amendments are there for all to see.

It is completely irrelevant that for decades the United States Code has failed to include the language of both amendments. The Court has said clearly that where there is a conflict between the U.S. Code and the Statutes at Large because the former mistakenly eliminates language from the latter, it is the Statutes at Large that controls. No employee of the Office of Law Revision Counsel can change that bottom line. Nor can a congressional staffer writing either a “legislative manual” or a legislative “report” undo language passed by both legislative chambers, signed by the President and therefore properly appearing in the Statutes of Large. It makes no difference which chamber passed which amendment.

And contrary to our colleague’s claim, both amendments are substantive, and neither can be dismissed. It does not matter that Congress labeled one of the amendments “conforming” – which Tribe dubs “clerical” – because a label cannot render an amendment non-substantive. The Supreme Court long ago squarely rejected that very claim. Conforming amendments may be substantive in effect. And the term “clerical” has no legal meaning or relevance. It appears neither in the Clean Air Act nor in any of the Supreme Court’s applicable precedent.

The presence of simultaneous amendments to the same statutory provision is certainly unusual, which is why we readily agree that their interpretation presents a novel and, even hard legal issue. But it is clear that EPA is entitled to interpret this language, and to deference as long as it does so reasonably. The Supreme Court has repeatedly held that the executive branch agency charged by Congress with the administration of the statute is entitled to judicial deference so long as its statutory interpretation is reasonable. And this rule applies, the Court said as recently as two years ago, even when agencies are interpreting the scope of their own authority.

EPA’s interpretation strikes us as eminently reasonable. It would ensure against duplicative regulation of the same pollutant under two distinct provisions of the Clean Air Act that have different purposes. This view is consistent with the plain meaning of the Senate Amendment and with EPA’s longstanding practice for two decades prior to the 1990 amendments, which was to avoid regulating under other programs any hazardous pollutant regulated under the toxics program. By contrast, Tribe’s proposed interpretation would exempt an entire category of sources from regulation, regardless of how harmful their emissions. There is no credible reason why Congress would grant coal-fired power plants such an extraordinary exemption. For this reason, although we do not doubt that the House amendment is susceptible to such a reading, we do not believe it is the better one, let alone the only reasonable interpretation of the Act in light of the simultaneous passage of the Senate amendment.

The Importance of Legal Discussion and Debate
We do not question the sincerity of Professor Tribe’s claim that his legal arguments represent his own independent views, although he represents the coal industry. And we take his arguments seriously precisely because he is making them and states that he is not merely representing the views of his client, as lawyers do all the time. We just believe he is wrong. For most law professors, it matters little if they are wrong—we often toil away in anonymity. But Professor Tribe is arguably the most public law professor in America. His arguments have an outsize impact because they are backed by his enormous credibility and reputation. (As just one indication that we are not exaggerating, the Senate Majority Leader has relied on our colleague’s claims in a letter to the nation’s governors asking them not to cooperate in any way with EPA.) This kind of influence requires a higher level of diligence and responsibility simply because it is so powerful. Which is why we feel it so important to call his arguments to account when, as here, they threaten the nation’s first meaningful effort to address the compelling issue of climate change in a comprehensive and responsible manner.