Larry Tribe Smacked Down by Professors Revesz, Freeman and Lazarus

Argument that Clean Power Plant an “Unconstitutional Power Grab” Ridiculed

tribeFamed constitutional law professor Lawrence Tribe is serving red meat to opponents of  climate change regulation.  Not only is he  representing Peabody Coal in a pending court challenge to the Environmental Protection Agency’s Clean Power Plan, but this week he testified before the House Energy and Commerce Committee  that EPA, in adopting the plan, is “burning the Constitution.”  In the process, Tribe is, in my view, destroying his reputation as one of the most important and thoughtful constitutional scholars in the country.

Tribe’s arguments against the Clean Power Plan are so outlandish and unsupportable that two of his own colleagues at Harvard Law School, Jody Freeman and Richard Lazarus, penned a response today calling Tribe’s arguments “ridiculous,” “wholly without merit,” “preposterously extreme,” and “radical.”    And Professor Richard Revesz of NYU Law School, at the same House hearing Tribe appeared at, gave incredibly powerful testimony about why the Clean Power Plan is legal. He then proceeded to destroy Tribe’s arguments that EPA is relying on a “ghost law” in regulating carbon emissions from power plants, that the Tenth Amendment prohibits the regulations and that EPA is violating the non-delegation doctrine.   In my favorite excerpt from Revesz’s testimony, he reminded the committee that Tribe had lost a non-delegation argument 9-0 in a famous Supreme Court case that also involved the Clean Air Act (and in which Tribe also represented industry), Whitman v. American Trucking.  Justice Scalia wrote the opinion rejecting Tribe’s argument.

Freeman, Lazarus and Revesz have shredded Tribe’s arguments and, in my view, his credibility, and I won’t rehash the complex back and forth about the various legal issues.  One example, though, demonstrates just how crazy Tribe’s position is.  In his Congressional testimony, he argues that the Clean Power Plan, in regulating greenhouse gas emissions from existing power plants, raises serious constitutional concerns as a potential taking under the 5th Amendment.  This is simply ridiculous.  Freeman and Lazarus decimate his  argument:

The clear implication of Tribe’s novel view of the [Fifth Amendment to the] Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

Tribe is obviously being paid huge sums of money by his coal industry client to make arguments that seem so plainly wrong.  But he’s also made clear (including in his testimony) that the views he is espousing are his own, independent of his representation.  It’s hard not to conclude that all that money has addled his judgment.

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Reader Comments

4 Replies to “Larry Tribe Smacked Down by Professors Revesz, Freeman and Lazarus”

  1. Dear Ann,
    You and and your cohorts cannot produce any conclusive scientific proof that carbon dioxide is the driving force in climate change. Mr. Tribe recognizes this fact and is an honest man. The proposed Clean Power Plan does indeed raise serious constitutional and scientific questions and this is why it will probably be defeated and never become law. Professor Tribe is right and once again you are wrong. Your commentary is shallow incoherent name-calling and baseless allegations.

  2. As much as one may disagree with Professor Tribe’s opinion or its legal validity, Professor Carlson’s attack on his integrity goes beyond the pale of legitimate criticism. She owes him and her readers (particularly those who also disagree with Professor Tribe, such as I do) a humble and abject apology for her shameful ad hominem comments.

  3. This article voices the author’s views that Professor Tribe is advancing ridiculous arguments, and has lost all credibility as a constitutional scholar. She offers conclusory statements that his arguments are outlandish and unsupportable, ridiculous, wholly without merit, preposterously extreme, etc., and states her view that Tribe’s arguments were destroyed and shredded by others, that he was smacked down, etc.

    None of that suggests a rational argument. Sp what’s the point of such a vituperous diatribe (pun intended)?

  4. Ann apparently thinks EPA can regulate any component of air, whether it is a legitimate “pollutant” or not, based on NO evidence. Because, in fact, EPA had presented no evidence to back its rulemaking and has refused to do so. That was the whole reason for the recent “Secret Science” bill presented in Congress.

    The entire basis of EPA’s authority is the interstate commerce clause. The EPA has shown NO evidence — ZERO — that CO2 moving from one state to the next will affect interstate commerce in even a theoretical way.

    While “liberal” scholars might disagree with Tribe, it is they whose ideas are radical. The law, and the intent of Congress in creating the EPA and granting it regulatory authority, on the other hand, are quite clear.

    The EPA does not get to regulate everything in sight, based on no evidence or rational justification for its regulations. Further, it has ignored its Congressional mandate to account for, and report on, financial impact of its proposed regulation.

    EPA officials have been caught lying to Congress over this issue, and where not lying professing ignorance of the supposed fundamental basis of their own rulemaking.

    All this is a very clear attempt to trash the Constitutional basis of EPA’s authority — which was pretty thin to begin with — and replace it with a bureaucratic hegemony unlike any ever seen in the US.

    Tribe is correct. His detractors are not. Ann is way off base.

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Ann Carlson

Ann Carlson is the Shirley Shapiro Professor of Environmental Law and the co-Faculty Director of the Emmett Institute on Climate Change and the Environment at UCLA School…

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