Professor Laurence H. Tribe has had a long and distinguished career as a progressive legal thinker and a tireless advocate for such worthy causes as freedom of speech and LGBT rights. He won a 1982 Supreme Court victory for California and NRDC upholding the state’s moratorium on new nuclear power plants. He has also chosen to represent corporate polluters on more than a few occasions, for example, in unsuccessful challenges to the constitutionality of Clean Air Act air quality standards and Superfund clean-up requirements. Now he’s lending his name and fame to coal-giant Peabody Energy in comments attacking EPA’s proposed limits on dangerous carbon pollution from the nation’s power plants, known as the Clean Power Plan.
Admittedly, these are only comments to EPA, not a brief to the Supreme Court, and so it’s possible that Professor Tribe didn’t give Peabody’s cause his full attention. For overall, the arguments in the Peabody/Tribe comments are much more Peabody than Tribe.
The comments begin with a paean to the virtues of coal that is pure Peabody, and has nothing to do with the legality of the Clean Power Plan.
After that, the comments argue that EPA’s Clean Power Plan violates the Takings Clause of the Constitution. Peabody and the professor contend the public needs to pay the carbon polluters to make them stop. This is a breathtaking argument. If it had any force, it would have been impossible for the government to take toxic lead out of gasoline or paint, to ban cancer-causing asbestos insulation, to eliminate ozone-destroying CFCs, and on and on, without each time paying the polluters.
The Supreme Court has repeatedly held that the Constitution does not require taxpayers to pay corporate polluters to stop polluting. Rather, it is a proper role of federal, state, and local governments to limit industrial activities that endanger public health and welfare, without compensating the companies that create the risks. For example, in 1962, a unanimous Supreme Court held that a town may prohibit a company from operating a quarry in a residential area without having to compensate the company for its lost business. In 1992, Justice Scalia wrote that “the owner of a lake-bed … would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others’ land,” and that the “the corporate owner of a nuclear generating plant” would not be entitled to compensation “when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault.” The same principle, endorsed in countless other Supreme Court cases, applies when the corporate owner of a coal power plant is directed to stop emitting a dangerous pollutant like carbon dioxide.
Peabody and Professor Tribe offer a new twist: the government lured hapless coal and power companies into investing in this blameless fuel in the first place, and now unfairly seeks to put the costs of preventing disastrous climate change on the same hapless corporations. Pardon me while I tune my violin.
Next, the comments advance one of the coal industry’s favourite statutory arguments: that the Clean Air Act forces EPA to choose between regulating power plants’ mercury pollution or their carbon pollution, but that EPA may not do both. Because EPA has already set standards for power plants’ mercury pollution, the argument goes, their carbon pollution gets off scott free. This is an argument so weak that many mere Washington lawyers have chosen not to bring it. See here for more on why this one is a loser.
There’s a part of this argument that would receive little attention but for the fact that the comments cite a Supreme Court case for the very opposite of what it actually says. The issue is a bit obscure: When Congress passes and the president signs a law, it is published as enacted in the official digest of our laws called the Statutes at Large. Subsequently, a little-known office (called the Office of Law Revision Counsel) codifies the new law into the US Code, the volumes to which most lawyers turn to find federal law. But mistakes happen; in this case Congress enacted two amendments to the same sentence – one from the House and one from the Senate – without reconciling them in conference committee. Both appear in the Statutes at Large, but only one of the two amendments made it into the US Code.
The question arises, when the Statutes at Large and the US Code don’t exactly match, which is the real law? Peabody and Professor Tribe asserts that for EPA to look to the Statutes at Large – what Congress actually enacted – rather than the US Code, “would raise separation of powers concerns by according no weight to the judgment of the Office of Law Revision Counsel as to how the 1990 amendments should be construed when using the US Code.” They cite a Supreme Court case called United States v. Welden. But Welden, in fact, held the exact opposite: that the Office of Law Revision Counsel’s codification decisions are entitled to “no weight” and that it is the Statutes at Large that reign supreme. Take a peek at footnote 4 of the case: “Certainly where, as here, the ‘change of arrangement’ was made by a codifier without the approval of Congress, it should be given no weight.”
The comments’ final claim is that the Clean Power Plan violates the Tenth Amendment to the Constitution by commandeering states to perform federal functions. Here, Professor Tribe directly contradicts himself. In a 2012 presentation following the Supreme Court’s Affordable Care Act decision, Tribe noted that the Clean Air Act calls for states to submit air pollution control plans; if they choose not to, then the Act requires EPA to implement a federal plan. This, Tribe stated in 2012, was perfectly constitutional. “[T]he existence of a backup federal plan,” he argued, alleviates any Tenth Amendment concerns. For Peabody, however, Professor Tribe flip-flops and argues the opposite.
Peabody has every right to employ Professor Tribe to put a shine on the company’s claims. But their claims aren’t actually very strong, with or without his patina.
David Doniger is director of the Natural Resources Defense Council's Climate and Clean Air Program, and its chief global warming lawyer. Article reproduced with permission.