Professor Tribe’s Reply

by Laurence Tribe
March 22, 2015

Read the Entire Debate

I appreciate the opportunity to respond to the rebuttal of my colleagues Jody Freeman and Richard Lazarus, who continue to take issue with my legal objections to EPA’s “Clean Power Plan.” I was tempted just to let them have the last word, because I don’t think their rebuttal effectively answers my original post, but I write to correct a few misimpressions and inaccuracies.

Let’s start with the basic question: Does EPA have the statutory authority to adopt its plan under the Clean Air Act? To recap briefly, in May 1990 the House adopted a substantive amendment changing Section 111(d) to bar regulation under that provision for any source category (like coal-fired power plants) already regulated under Section 112. This amendment followed (and superseded) an April 1990 Senate amendment that was simply a clerical or “conforming” one updating a statutory cross-reference in the previous version of Section 111(d) by deleting the text “(1)(A),” to reflect other proposed changes to the statute. That tiny change was all the conforming amendment did. The Senate Conferees expressly stated in the October 1990 Conference Report that they were receding to the House version. Both versions do indeed appear in the Statutes at Large, as my colleagues emphasize. But once the House amendment was made law, the Senate amendment was rendered moot and could not be executed (because it referred to language that no longer existed), as the Office of Law Revision Counsel in the House of Representatives properly concluded in finding that the conforming amendment “could not be executed.”

My colleagues face a steep climb. They admit that their “Dueling Amendments” theory assumes that “for decades the United States Code” has been wrong and posits that the Office of Law Revision Counsel was wrong in 1990 (and is wrong again today, as it seeks to recodify the statute as amended substantively by the House). My colleagues are claiming that EPA itself was wrong as well in 1995, 2004, 2005, and 2008 when it agreed with my reading of the statute. In 1995, for example, the Clinton administration EPA said the moot conforming amendment should be ignored because it “is a simple substitution of one subsection citation for another.” My colleagues further assume that the D.C. Circuit was wrong in 2008 in describing the statute my way, and that the Supreme Court too was similarly wrong in 2011 – in short, that virtually everyone who has ever looked at the issue has been dead wrong. Indeed, they ask us to believe that the Solicitor General representing the Obama administration EPA was wrong in February 2015 when he reprinted (as part of the usual statutory appendix) the standard version of the statute rather than their “dueling” version in the brief filed in the Supreme Court. That’s a tough sell.

The undeniable fact is that, since Congress enacted the 1990 amendment, EPA has never adopted a regulation based on my colleagues’ novel interpretation of the statute. It’s just not credible to contend that the new-found power asserted here is vital to the end of “exempt[ing] an entire category of sources from regulation,” as my colleagues claim without ever responding to my explanation that, in fact, the standard interpretation does not “exempt” any such category, including power plants, from close EPA regulation. And it is even less credible to assert that this newly minted power is in reality a key part of the agency’s toolbox.

To make their remarkable story more palatable, my colleagues say that, “if one opens the Statutes at Large, both amendments are there, for all to see.” Well, maybe with panoramic vision: they are hardly side-by-side and in fact are 107 pages apart in the Statutes at Large. The substantive amendment is located in § 108 of Public Law 101-549 (the 1990 amendments), as part of a substantive provision occupying five pages of the Statutes at Large (104 Stat. 2,465-2,469 (1990)). This provision rewrites Section 111 of the Clean Air Act and aligns with the focus of the revised Section 112 on source categories. The substantive House language is placed in a subsection entitled “Regulation of Existing Sources,” and it makes clear that EPA may not invoke Section 111(d) for emissions “from a source category which is regulated under section 112.” This provision has all the hallmarks of a substantive legislative change.

In contrast, Congress placed the conforming amendment on which my colleagues rest their case some 107 pages later, in § 302 of Public Law 101-549, a short section expressly entitled “Conforming Amendments,” which contains a potpourri of eight small clerical changes to six different parts of the Clean Air Act. This is a scrivener’s grab-bag, not even remotely comparable to the congressional treatment of the substantive House amendment. That amendment appears in the body of the law; the supposedly “dueling amendment” appears in a kind of appendix of discarded parts. The two are far from being in pari materia. Talk about hiding an elephant in a mousehole! Let me put it bluntly: To premise the most extensive environmental program in American history – one that will re-engineer our nation’s system of generating, distributing, and consuming electricity – on a moot conforming amendment that did nothing more than delete the text “(1)(A)” and that might as well have been included in a “deleted” folder of “Conforming Amendments” tucked away more than 100 pages after the subsection containing the law’s operative regulations is, well, ridiculous.

The Senate Legislative Drafting Manual defines “conforming amendments” as “amendment[s] of a provision of law that [are] necessitated by the substantive amendments or provisions of the bill.” These “include[] amendments, such as amendments to the table of contents, that formerly may have been designated as clerical amendments.” Thus, contrary to my colleagues’ insistence, “the term ‘clerical’” does indeed have a “legal meaning,” and it is precisely the meaning I have attributed to it. The Supreme Court has repeatedly distinguished between substantive and conforming (or “clerical”) amendments. No wonder: the Court understands the reality of the legislative drafting process. And courts routinely disregard moot, non-executable, or otherwise defective conforming amendments. In 2013, for example, the D.C. Circuit disregarded a mistake in renumbering a statute and correcting a cross-reference where it conflicted with a substantive provision.

My colleagues say that the situation here is “certainly unusual.” Well, no. The situation in which a substantive amendment moots a conforming one has arisen dozens of times, and my colleagues’ approach has never previously been accepted. The U.S. Code would be turned upside down if moot conforming amendments caused prior versions of substantively amended statutory provisions to spring back to life. It would be a legislative version of “Night of the Living Dead.”

My colleagues add that “where there is a conflict between the U.S. Code and the Statutes at Large, . . . it is the Statutes at Large that controls.” Their premise is wrong. There is no conflict between the Code and the Statutes at Large. Once the substantive amendment in § 108 of Public Law 101-549 was executed, the conforming amendment in § 302 was mooted. Even if the conforming amendment had been adopted first, it still would be rendered moot by the substantive amendment removing the statutory language in question. Either way, the result would be the single version of Section 111(d) that is currently reflected in the U.S. Code. Further, as I observed in my initial post, and as my colleagues have not questioned, even if both amendments were treated as equally meaningful, each would need to be given full effect by applying both prohibitions – meaning that EPA would still lack the power to adopt its plan under Section 111(d). And even if Congress had enacted two versions of the 1990 amendments – which it did not – my colleagues have no answer to the fundamental point that EPA would have no constitutional authority to pick and choose between them. That’s no “typical bread-and-butter” application of deference to “reasonable” agency interpretations of law under Chevron, as my colleagues would have it. That’s an assertion of lawmaking power that belongs to Congress, backed by authoritative law-interpreting power that belongs to the Judicial Branch.

With respect to the Tenth Amendment, my colleagues say that there can be no coercion because “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” – with respect to regulations involving conventional pollutants like sulfur dioxide, particulates, and nitrogen dioxide. But that assumes that EPA’s new plan is but a “carbon” copy of conventional Clean Air Act rules. It’s not. Both the extent of federal interference and the degree of coercion make EPA’s current proposal qualitatively different from any previous Clean Air Act program. EPA’s plan essentially remakes the agreement between States and the Federal Government that has existed since the Clean Air Act was enacted in 1970. States could not have expected, when they adopted costly implementation plans to regulate power plants’ conventional pollutants like NO2, SO2, and particulates, that EPA would do an about-face and seek to phase out those power plants altogether by dictating sweeping rules to regulate CO2, which is produced by every human activity. That’s why so many States and state officials have objected to EPA’s plan.

My colleagues simultaneously say (1) that States have nothing to fear from a federal plan that will be imposed directly on their electric utilities, consumers, and businesses if they fail to submit their own plans to EPA, but (2) that “nobody knows a State’s own political and economic priorities better than they do” and that “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.” The latter is a polite way of saying that a centrally designed federal plan would put most if not all States at a huge disadvantage if they choose not to file their own plans as EPA’s proposal would direct them to do. The very feasibility of a federal plan is open to question, because EPA has not announced a model and obviously lacks sufficient resources to operate throughout the nation all the utility regulatory programs, energy efficiency programs, or any of the other programs that would be necessary to implement a “federal” plan. And a poorly administered federal plan or one plagued with jurisdictional uncertainties and litigation could paralyze a State’s energy sector, damage its economy, and inflict serious hardship on its citizens. That’s why I see this dispute as strikingly similar to the Affordable Care Act case of King v. Burwell, argued in the Supreme Court on March 4. There, Justice Kennedy, among others, noted the “serious constitutional problem” that would result if a federal statute were interpreted as threatening the citizens of a State with significant injury unless the State agreed to follow federal policies. The same is true here.

My colleagues’ ad hominem assertion that I have “uncritically” embraced “the coal industry claim” that EPA’s proposal threatens the reliability of the nation’s electricity system is misplaced. In fact, the North American Electric Reliability Corporation (NERC), which is a not-for-profit international regulatory authority specifically tasked by Congress with monitoring grid reliability, and which operates under supervision by FERC and governmental authorities in Canada, has determined that “Essential Reliability Services may be strained by the proposed” rule, and that the rule’s requirements “represent a significant reliability challenge.” Grid operators representing more than 60% of the electricity produced in the United States filed comments with EPA expressing strong concerns about the proposal’s threat to grid reliability. At a July 29, 2014 congressional hearing, FERC Commissioners warned of potential conflicts between EPA and federal energy regulators, with one predicting a jurisdictional “train wreck.” A group of state legislators representing States that amount to 43% of the total electricity generation in the United States filed comments objecting to EPA’s plan. A group of 17 state attorneys general submitted comments to EPA citing a study by NERA Economic Consulting finding that EPA had underestimated its plan’s impact on power plant retirements by some 46 to 169 gigawatts. The attorneys general explained that “[r]etirements on this scale are likely to seriously threaten the reliability of our nation’s electric supply.” For the record, grid reliability is hardly a “coal industry claim,” and I do not “uncritically” accept industry’s or anyone’s views on these issues. I call it as I see it.

A small but illustrative point: My colleagues say that my statement that States face a 13-month deadline for the submission of their plans is “inaccurate” and that “States have up to 2018 if they ask for more time.” Not exactly. EPA itself is very clear in the Federal Register notice announcing its plan that “states should submit plans by June 30, 2016, which would provide states thirteen months” from when EPA expects to finalize the rule. EPA is also clear that a State cannot simply obtain an extension by (in my colleagues’ words) “ask[ing] for more time” – as though the process were akin to obtaining an extension on a term paper. EPA explains that “[t]o qualify for an extension of the June 30, 2016 deadline for submitting a complete plan, the state must submit an initial plan that demonstrates the state is on track to develop a complete plan and that includes meaningful steps that clearly commit the state to complete an approvable plan.” EPA’s proposed rule provides that “[i]f a state does not submit an approvable plan or initial submittal to implement and enforce the emission guidelines contained in this subpart by June 30, 2016, the EPA will implement and enforce a Federal plan.” EPA has announced at least nine criteria that an “initial plan” must meet (such as submission of “copies of draft or proposed regulations, draft or introduced legislation, or draft implementation materials”). Preparing an initial plan is thus no mean feat. A group of States now suing EPA in the D.C. Circuit have submitted declarations from state officials describing the crushing burdens on their offices and the thousands of hours already expended as a result of EPA’s plan, which for many States will require the enactment of legislation and the creation of entirely new governmental programs.

My colleagues err in describing my position on the Fifth Amendment as a “quiet, yet unmistakable retreat.” I have made no such retreat. They have misunderstood my argument from the beginning.

My point has always begun with the proposition that, despite the well-known rule, cited by Professors Freeman and Lazarus in their latest post, that restrictions on harmful emissions do not ordinarily “require[e] the government to pay industry to stop polluting,” what EPA seeks to do here by targeting particular energy plants for extinction is uniquely arbitrary both because of the ubiquity of CO2 emissions and because of the massive investments EPA has required these very plants to make in anti-pollution efforts over the past quarter century. Compelling any group to make substantial investments and then turning around and retroactively rendering those investments worthless bears little resemblance to the standard “restrictions on . . . harmful emissions.” If the Supreme Court were to agree with this distinctive bait-and-switch objection under the Fifth Amendment, the upshot would be a requirement that the U.S. Treasury provide just compensation to those injured by the plan – despite Congress’s failure to authorize that plan (to put it mildly!) with the clarity demanded by the Article I principle that the power of the purse belongs to Congress alone.

My colleagues seem quite sure that the Supreme Court would require no compensation here. In truth, none of us can be confident either way. But from the outset I have stressed that the rule of constitutional avoidance cannot mean that courts must resolve constitutional questions in order to avoid answering them. As long as the questions are substantial, as this one surely is, courts have applied the avoidance rule by, for example, striking down FCC regulations that raised Fifth Amendment concerns, without actually having to decide the Fifth Amendment issues presented. The same fate awaits EPA’s plan.