Former Obama Law Professor Eviscerates EPA

Laurence Tribe is a Harvard Law Professor who has described President Obama as “the best student I ever had” and donated to his political campaigns. It might come as a surprise, then, to learn that Professor Tribe also believes the foundation of the Obama administration’s anti-coal agenda is unconstitutional.

Testifying before Congress this week, Tribe condemned the Environmental Protection Agency’s (EPA) proposed carbon dioxide rule for existing power plants as a “constitutionally reckless mission” and a “power grab.” In written testimony, Tribe explains how the EPA’s proposal “offends democratic principles” in favor of regulatory fiat:

EPA’s plan represents an unprecedented attempt to change how electricity is generated, transmitted, and consumed throughout the United States…EPA’s plan will force States to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the Emperor’s garb of state “choice” – even though in fact the polices are compelled by EPA. Such sleight-of-hand offends democratic principles by avoiding political transparency and accountability.

Tribe’s oral testimony was even more pointed. He said EPA’s plan would make states “marionettes dancing to the tune of a federal puppeteer.” Tribe believes EPA’s plan runs afoul of the Fifth and Tenth Amendments and the Clean Air Act.

Tribe’s testimony echoes earlier comments submitted to EPA. In those comments, Tribe describes the proposed rule as “remarkable example of executive overreach” and called on EPA to withdraw the rule. As Tribe explains, EPA is misinterpreting a key section of the Clean Air Act to seize authority it does not have under the law.

Essentially, Tribe explains EPA does not have the authority to regulate power plants under both Section 112 and 111(d) of the Clean Air Act—the agency must choose one, and it’s already regulating mercury emissions under Section 112. Thus, EPA’s proposal to also regulate carbon dioxide emissions from those same power plants under Section 111(d) would violate the Clean Air Act. Even if EPA’s proposal didn’t violate the Clean Air Act, Tribe contends the courts will invalidate the rule on constitutional grounds.

Tribe concludes his written testimony:

EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Burning the Constitution should not become part of our national energy policy.

Click here to read Tribe’s full testimony.

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