Mitch McConnell, who is leading the fight to stop the Obama administration’s Clean Power Plan, pointed out last week that he has a surprising ally: “Iconic liberal constitutional scholar Laurence Tribe — who was President Obama’s constitutional law professor at Harvard Law School — said he agrees.” The lawsuit to block the Environmental Protection Agency from regulating the greenhouse gas emissions of existing power plants would, if successful, close out the sole realistic channel that might allow the United States to comply with its international climate commitments, and thus likely doom any international agreement to limit the effects of climate change. The endorsement of Tribe, a famous liberal law professor, has become the right’s favorite talking point. Last December, The Wall Street Journal devoted an entire editorial to extolling this smackdown of Obama from an unimpeachably favorable source. “Professor Tribe delivered a constitutional rebuke this week to the Obama Administration,” the Journal gloated, “that is remarkable coming from a titan of the liberal professoriate.” Reason, the Daily Caller, Jonathan Adler, among others, have likewise touted Tribe’s defection to their side.
None of these conservatives managed to note, even parenthetically, what may be a salient fact: Tribe is being paid for his advocacy by a coal company called Peabody Energy. Only the Journal comes close to disclosing the relationship by noting, “Mr. Tribe joined with the world’s largest private coal company,” though “joined with” makes it sound like Tribe volunteered to endorse Peabody's argument, as opposed to being hired to do so.
Tribe is playing an important legal role, which has to be evaluated on its own terms. Other law professors, like Richard Revesz, Jody Freeman, and Richard Lazarus, have called Tribe’s legal argument frivolous and absurd. Tribe has responded. But aside from the legal case Tribe has devised, his advocacy is also playing a crucial public role in the debate — even liberal professor Laurence Tribe noted that Obama’s climate regulations must be unconstitutional, which sounds very different from even coal company lawyer Lawrence Tribe agrees that Obama’s climate regulations must be unconstitutional. Should anybody put weight on Tribe’s endorsement of the anti-Obama lawsuit, any more than they should have taken Harvard law professor Alan Dershowitz’s word for it that O.J. Simpson was innocent?
Tribe, over email, insisted that he personally agrees with his arguments on behalf of Peabody. “I agreed to accept Peabody as a client only on the condition that I’d continue to speak my mind even if not everything I’d say would be to Peabody’s liking,” he wrote.
What makes Tribe’s defense a little strange is that his advocacy has not been limited to narrow legal arguments against the constitutionality of the proposed regulations. Tribe has argued for preserving coal’s cherished place in American economic life. In his legal paper, he writes:
[B]oth Democratic and Republican Administrations have promoted the prudent use of domestic coal in order to reduce dependence on imported oil. In contrast, the Proposed Rule will require a dramatic decline in coal-fired generation of electricity, in order to implement EPA’s system of state-by-state mandates. In fact, under EPA’s plan, the agency envisions that coal generation would be eliminated altogether in 12 states. The Proposed Rule thus reverses policies that reach back to John F. Kennedy. As Hillary Clinton observed in 2007, “I think you have got to admit that coal — of which we have a great and abundant supply in America — is not going away.”
And in his testimony before Congress last week, Tribe calls the administration’s plan to reduce coal use “radical”:
There should be no mistake about how radical EPA’s proposal to phase out the use of coal to generate electrical power actually is. 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.”
He argues instead for subsidizing carbon-capture technology as an alternative means of reducing greenhouse gas emissions:
Today, greenhouse gas emissions from state-of-the-art coal plants are materially (25 percent) lower than those of traditional power plants, due to improved boilers, increased efficiencies, and other innovations. The United States could also support carbon-capture and storage technologies. An “all of the above” energy policy can support all forms of domestic energy production that will minimize carbon emissions, protect consumers and American jobs, and ensure that the U.S. remains independent from unreliable foreign sources of energy. But burning the Constitution is one thing we should not do as part of our national energy policy.
This is an argument made energetically by coal companies but rejected by energy analysts. Tribe is right that coal has grown less dirty than it used to be, but it’s still far dirtier than any other source of electricity.
The Clean Power Plan would allow states to invest in carbon-capture strategies, and they would dearly love this. But it’s a highly expensive technology that isn’t competitive with other forms of clean energy, and therefore isn’t expected to be widely used, because the regulations encourage states to find the most cost-effective ways to reduce emissions. Tribe is advocating a climate policy that makes no economic sense from any standpoint except the self-interest of the coal industry.
I asked Tribe if his guideline about speaking his mind applies to his broader defense of coal or only to his narrow legal arguments. Tribe responded by insisting he was only making narrow legal arguments. His response on this point simply makes no sense to me and seems to contradict the plain meaning of his words. But I will share the whole thing and allow readers to judge:
On the contrary, my advocacy has been confined to arguments about the legality of EPA’s regulatory strategy. In my congressional testimony last Tuesday, for instance, I said: “I want to make clear at the outset that my testimony addresses only the lawfulness of what EPA proposes to do; I claim no expertise in, nor will I be testifying about, the pros and cons of EPA’s plan as a response to the issues posed by climate change. My conclusion as a legal scholar and student of the Constitution is that EPA’s proposal not only exceeds the agency’s statutory and legal authority but also directly violates limits enacted by Congress to restrict EPA’s power and raises serious constitutional questions.”
The fact that the paper I submitted last December quoted statements by Hillary Clinton and others about how, under present policies, “coal . . . is not going away,” doesn’t change that one iota. Those statements were historically accurate (and indeed uncontroversial) descriptions of the situation as it has existed up to now, and they are relevant to my Fifth Amendment point. As I said in my testimony, “a central point of the Fifth Amendment’s combined requirements of Due Process and Just Compensation is that, except when phasing out intrinsically harmful activity that injures identifiable individuals or businesses, the Government is not free simply to pick those whose investment-backed expectations are to be eliminated for the greater good. When regulating an entity out of existence generates diffuse benefits for the public at large that exceed the targeted costs imposed on the unlucky few, the Fifth Amendment’s basic teaching is that the few should be justly compensated by the many. The point is not that the Government is bound by a constitutional duty not to change course — no constitutional principle freezes the Government in its tracks. But when the Government’s change in course drastically undercuts investment-backed expectations that amount to property interests, the Government is bound by a constitutional duty to pay, whether under the rubric of just compensation or under the rubric of due process.”
The same is true of my quotation from Secretary Kerry about the administration’s intent to “take a bunch of [coal-powered plants] out of commission.” That’s exactly what Secretary Kerry said, and I quoted it just to underscore the inaccuracy of the claims that the EPA Clean Power Plan isn’t targeted at that goal. I haven’t expressed any personal opinions or made any policy arguments “on behalf of a coal-inclusive energy strategy” but have made factually indisputable statements about what’s going on insofar as it might be relevant to my legal analysis. And, when you refer to my “policy views on coal,” I truly don’t know what you’re referencing. I have expressed no such views.
I followed up by asking Tribe if he would disclose what percentage of his income has come from energy companies. He replied, “It’s a very small percentage. And I’m afraid I don’t have any more time to devote to this dialogue today, so I’ll need to beg off on further questions.”