Harvard Law Professor: EPA Climate Rule Is Unconstitutional

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Michael Bastasch DCNF Managing Editor
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The Environmental Protection Agency’s proposed rule to cut carbon dioxide emissions from power plants is unconstitutional because it violates the Tenth Amendment and the Fifth Amendment, according to a noted liberal Harvard law professor.

“In short, coal has been a bedrock component of our economy and energy policy for decades,” writes constitutional law professor Laurence Tribe. “The [EPA’s rule] demonstrates the risk of allowing an unaccountable administrative agency to ‘make’ law and attempt to impose the burden of global climate change on an unlucky and unfortunate few.”

“EPA’s singling out of a mere handful of emitters and limiting (or curtailing) their property is exactly the type of overreaching the Fifth Amendment seeks to prevent,” Tribe, who is on retainer for the coal company Peabody Energy, wrote in his comments to the EPA.

Tribe’s argument that the EPA rule is unconstitutional is one of the strongest charges made against the agency’s Clean Power Plan to date.

The Clean Power Plan “violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment,” Tribe argues. “It raises serious questions under the Fifth Amendment as well, because it retroactively abrogates the federal government’s policy of promoting coal as an energy source. Private companies — and whole communities — reasonably relied on the federal government’s commitment to the support of coal.”

States have challenged the EPA’s authority to regulate carbon dioxide emissions from power plants under the Clean Air Act, arguing the agency is overreaching and intruding on states’ rights to set their own environmental goals.

“[T]he Proposed Rule would usurp the energy producing states’ authority to ‘establish’ performance standards by dictating what the standards must be,” reads a letter from high-ranking from 12 states, led by North Dakota’s chief environmental officer at the Department of Health.

The EPA’s plan aims to cut power plant emissions 30 percent by 2030. The rule has sparked a massive pushback as states worry they will be forced to shutter more coal-fired power plants to comply with EPA mandates.

The EPA itself estimates its plan will increase electricity retail prices 6.5 percent by 2020 and force 19 percent of U.S. coal-fired capacity to shutdown.

A lot of the controversy surrounding the EPA’s Clean Power Plan centers on “goals” the agency has proposed for each state depending on certain factors. But emissions reductions targets vary widely between states. For example, Washington state has a proposed emission reduction goal of 72 percent by 2030 while Texas only needs to reduce carbon dioxide emissions by 38 percent.

But Tribe not only argues the EPA’s power plant rule exceeds its authority under the Clean Air Act, he says it flat out violates the U.S. Constitution.

“The Fifth Amendment’s Due Process and Takings Clauses aim ‘to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,'” Tribe writes. “But this is precisely the purpose of the Proposed Rule: forcing the United States’ power plants and energy industry to bear the global burden of lessening CO2 emissions.”

Basically the EPA is putting the burden of paying for fighting global warming on a select few industries — utilities, coal producers and such. But the thing about global warming is just that, it’s global. Any actions to reduce emissions on the part of the U.S. would ostensibly benefit the whole world.

“It forces a select set of victims — including coal-reliant consumers, communities, regions, businesses and utilities — to bear a substantial share of the economic burden for a worldwide public policy objective,” Tribe writes, adding that the impact of reducing U.S. emissions on global warming would be negligible.

The EPA, however, disagrees with Tribe’s claims of unconstitutionality and argues that the agency has a history of writing rulers that “stand up in court.”

“[T]he Supreme Court made clear in 2007, and affirmed recently that EPA has an obligation to limit carbon pollution because it’s a harm to human health,” an EPA spokeswoman told The Daily Caller News Foundation.

“We appreciate the high level of interest in taking action on climate change demonstrated by the millions of comments received,” the agency spokeswoman said. “As with other rulemakings, EPA will review all the comments we’ve received and consider them before finalizing a common-sense, affordable Clean Power Plan that will move the nation significantly forward in addressing climate change and protecting public health.”

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