Experts debate the constitutionality of the president’s climate change plan

Noted constitutional law professor Laurence Tribe ’66, Carl M. Loeb University Professor, has made headlines with his Congressional testimony that the Environmental Protection Agency’s Clean Power Plan is unconstitutional. Testifying before the Energy and Power subcommittee of the House Energy and Commerce Committee on the EPA’s proposed rule for existing power plants, Tribe said, “In my considered view, EPA is off on a constitutionally reckless mission.” His written testimony is available here and a video of his testimony is here.

Two leading Harvard Law professors with expertise in environmental law, administrative law, and Supreme Court environmental litigation, take an opposing view. Jody Freeman LL.M. 91 S.J.D. 95, Archibald Cox Professor of Law and director of the Environmental Law Program, and Richard Lazarus ’79, Howard and Katherine Aibel Professor of Law, have written a response to his testimony, which is published in full here. They argue that, “EPA has a strong legal basis for its power plant rule, and a good chance of winning the argument in court.”

Professor Tribe has written a reply, which is published in full here.  He writes, “My central argument is that the text, context, and history of the 1990 statutory provision that EPA invokes to support the rule it seeks to impose on all fifty States does nothing of the sort but in fact destroys EPA’s claim of congressional authority.”

Professors Freeman and Lazarus have written a rebuttal (3/21/15). Read more.

Professor Tribe responds to Lazarus and Freeman’s rebuttal (3/22/15). Read more.

Freeman and Lazarus reply (3/27/15). Read more.

Tribe posts a rebuttal (3/29/15). Read more.

 

Is the President’s Climate Plan Unconstitutional?

Professors Jody Freeman LL.M. '91 S.J.D. '95 and Richard Lazarus '79

Professors Jody Freeman LL.M. ’91 S.J.D. ’95 and Richard Lazarus ’79

The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector is the centerpiece of the President’s plan to address climate change, and the foundation for U.S. leadership on an international climate agreement. In an effort to kill the rule, the coal industry has shrewdly hired Larry Tribe, our Harvard Law School faculty colleague and perhaps the nation’s most famous constitutional law professor, who is arguing on their behalf that the rule is unconstitutional. Like most proposed rules, the Administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously. Read more.

Why EPA’s Climate Plan is Unconstitutional

Professor Laurence Tribe

Professor Laurence H. Tribe ’66

When my friends Jody Freeman and Richard Lazarus defend the legality of the EPA’s power plant rule by saying that no one would take the constitutional arguments against the rule seriously were my “name not attached to them,” they no doubt mean to be complimentary. But I take my arguments very seriously indeed and hope, by bringing them into the public forum, that I will be able to help others understand why – despite my lifelong devotion to environmental causes, my deep concern about climate change, my agreement with the need to address it urgently, and my admiration for the president whose plan to address that vital problem is at stake and for those (including Jody and Richard) who are defending that signature initiative – I regretfully feel obliged to oppose their views. Read more.