A followup from Freeman and Lazarus

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

For the purposes of what we hope to be our final rebuttal, we will confine ourselves to just one topic: the essential distinction between legal advocacy and legal scholarship. Our silence on other matters should not, however, be misunderstood as acquiescence. None of Tribe’s constitutional arguments (separation of powers, Tenth Amendment,

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Laurence Tribe’s reply to Professors Jody Freeman and Richard Lazarus

Professor Laurence Tribe Professor Laurence H. Tribe ’66

I appreciate the opportunity to respond to the rebuttal of my colleagues Jody Freeman and Richard Lazarus, who continue to take issue with my legal objections to EPA’s “Clean Power Plan.” I was tempted just to let them have the last word, because I don’t think their rebuttal effectively answers my original post, but I write to correct a few misimpressions and inaccuracies. Read more.

or Takings) possesses a scintilla of merit. And while we have always freely acknowledged that, by contrast, EPA’s statutory arguments do present hard legal questions, there is a response to each and every one of Tribe’s statutory arguments, and certainly to his claim that everyone, including the government and the Supreme Court, has already agreed with his reading of the law. These replies are in the legal briefs filed by the government and amici in Murray Energy v. EPA, and we see no benefit in repeating them here. Our bottom-line view continues to be that EPA’s arguments have sufficient force to warrant judicial deference.

Tribe has suggested throughout this process that the views he is expressing are his own, quite apart from his paid representation of Peabody Coal. The clear suggestion is that he is playing the role of a zealous advocate for his client and, simultaneously, a dispassionate legal scholar; that the two are not mutually exclusive; and that he is entitled to be evaluated on the basis of both roles. Indeed, it is precisely because of his reputation as a scholar that his views are receiving such widespread attention. We have no reason to doubt the sincerity of our colleague’s claim, but it seems undeniably true that playing both roles is a hard thing to do. Our concluding point in this long exchange is simply to note that, judging by the facts Tribe has been willing to embrace, and the exaggerated rhetoric of the legal arguments he has made based on those facts (e.g., The President is “burning the Constitution”), the best way to evaluate his claims is to treat them as advocacy and not scholarship.

To support our point, we need cite only a few of many possible examples of the

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Freeman and Lazarus: A rebuttal to Tribe’s reply

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

Our colleague Larry Tribe’s response to our initial posting serves as a reminder of why he is widely celebrated as one of the nation’s most effective advocates. On the merits, though, we are no more persuaded. We will keep our rebuttal short. Read more.

extreme factual claims Tribe has asserted about the proposed Clean Power Plan’s impact on the coal industry and the nation’s electricity grid.

“The NERA Economic Consulting Study.” Our colleague repeatedly relies on the National Economic Research Associates’ Consulting Study for the claim, essential to his constitutional argument, that the proposed Clean Power Plan will “seriously threaten the reliability of the nation’s electric supply.” He cites to the report and quotes a letter from 17 Republican State Attorneys General who relied on the NERA report to reach that conclusion. What Tribe fails to mention is that the NERA study was funded by and prepared for a group of industry organizations that are staunch political opponents of EPA’s plan, including the American Coalition for Clean Coal Electricity, American Fuel & Petrochemical Manufacturers, Electric Reliability Coordinating Council, and the National Mining Association. No legal conclusion based on such unquestioning reliance on an industry-funded study can be treated as credible. The views of the NERA study may be relevant with regard to economic impacts, but a truly independent assessment would have taken account of the study’s sponsors, and also considered the host of competing reports, by reputable research groups and foundations, that have reached contrary conclusions. These other reports have

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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.

concluded that the proposed EPA plan will not cause reliability problems because the nation’s grid managers have all of the tools they need to address any shifts in supply that may result from compliance with the new rule. Of course it is entirely legitimate to raise questions about how any new pollution rule might impact reliability; indeed it is responsible to do so. And it is completely normal for grid operators to run analyses in advance of shifts in the electric power industry, and to identify what issues could occur if no one did anything to address them.  But historically, the organizations responsible for managing the electricity system have always addressed reliability issues such as these. It is important to look at industry studies with a skeptical eye. Some of the reliability concerns raised by critics of the Clean Power Plan make dubious assumptions about the inflexibility of implementation and are based on worst-case scenarios. EPA’s competing analysis concludes that the regulators, together with the entities responsible for grid reliability and the market participants, already possess the authority and capacity to ensure the lights will not go out, and that they have been using these tools to ensure reliability for decades. Tribe is free to disagree, but a full analysis would account for the competing views rather than uncritically embrace the industry-funded view.

The power plants that are the target of EPA’s rule represent a fraction of emitters.” If “fraction” is intended to intimate an insignificant amount, that is untrue. The fossil fuel-fired power plants regulated by EPA’s proposal, produce more than a third of total U.S. CO2 emissions in 2013, which, according to the International Energy Agency, constituted approximately 6% of global CO2 emissions. That amount, standing alone, is a significant share of an admittedly

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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.

global problem. Moreover, unless the U.S. demonstrates a serious commitment to reducing its share of greenhouse gases, we will be hard pressed to secure commitments from other nations to do the same. On Tribe’s reasoning, no contribution to global climate change from any sector of any nation’s economy would be significant, so no individual national regulatory policy could ever be justified. That is a showstopper. One is hard-pressed to claim to be sympathetic to the need to address climate change, as Tribe has done, and then belittle a policy that aims to control emissions from the single sector of the U.S. economy that contributes the greatest share of greenhouse gas emissions. And coal is hardly being singled out. The transportation sector is already subject to significant regulation under ambitious new standards that are expected to double fuel efficiency by 2025. Tribe’s characterization is simply best understood as the kind of characterization an advocate for the coal industry makes.

“Phasing Out,” “Regulating Out of Existence,” and “Targeting Particular Energy Plants for Extinction.” Tribe uses these extreme factual characterizations in support of his claim that the Clean Power Plan amounts to an unconstitutional taking of industry’s private property. It is true that this new pollution rule, like all pollution rules, will require coal-fired power plant operators to invest in emissions reduction strategies.  This will surely cost something, although there are a variety of cost-effective compliance strategies, such as energy efficiency, that States may wish to use. And some of the most polluting and less efficient plants will be retired, as naturally happens over time in any industry. But no one—besides politicians or possibly talk radio hosts engaging in hyperbolic rhetoric—could fairly characterize the incremental impact of the Clean Power Plan as leading coal plants to “extinction.” The evidence is that coal has been losing electricity market share to cheaper natural gas for years (most notably since 2008 with the biggest impact in 2012, when coal-fired generation about equaled gas-fired generation for the first time). And the gradual increase in renewable energy under state renewable portfolio standards, along with relatively flat demand for electricity (due to the economy and efficiency gains) is also eating into fossil-fuel market share more generally. An evidence-based analysis would conclude that these developments—the availability of cheaper natural gas, wind power, and solar energy from new technologies, and shifts in demand—have caused a natural decline in coal’s share as much as any regulatory mandate.


Tribe’s characterization of the devastating impact of the proposed Clean Power Plan on the coal industry is here again that of an advocate accepting his client’s version of the facts. EPA’s analysis concludes that “coal production for use by the power sector, a large component of total coal product, will decline by roughly 25 to 27 percent in 2020 from base case levels. The use of coal by the power sector will decrease by roughly 30 to 32 percent in 2030.” This is a real decline. But it is far from phasing out coal, or targeting power plants for extinction. Even after full implementation of the rule, EPA projects that coal will furnish 31% of our electricity. And even if you put not a shred of faith in EPA’s analysis in this regard, it is hard to dismiss the independent system operator for the mid-Atlantic region, known as PJM, which modeled a dozen compliance scenarios. In none of them is coal “phased out.” http://www.eenews.net/assets/2015/03/04/document_ew_01.pdf

We could go on, but there is no need. Legal arguments based on skewed factual claims such as Tribe has repeatedly made, are simply not entitled to the respect and deference normally accorded a thorough, balanced, evidence-based scholarly analysis. It should be clear from these examples that Tribe is being a lawyer representing a client here, nothing more. And his arguments should be understood purely on that basis.