The proposal by the Environmental Protection Agency to reduce carbon emissions from power plants "should be withdrawn" because it violates the rule of law, writes a Harvard Law School professor and liberal constitutional law scholar.
The EPA's
Clean Power Plan violates the Fifth Amendment of the Constitution, principles of federalism under the Tenth Amendment, and it is invalid under the Clean Air Act, said Laurence H. Tribe, professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University, along with officials from the Peabody Energy Corporation, in comments he made to the EPA.
The plan was unveiled by the EPA in June. The goal of the proposal is to cut carbon emissions from power plants down to 2005 levels by 2030.
"The defects in the Proposed Rule transcend political affiliations and policy positions and cut across partisan lines," Tribe wrote.
"The central principle at stake is the rule of law – the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission," he explained.
To that end, Tribe says that "the Proposed Rule should be withdrawn," calling it "a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority."
According to the Harvard Law Professor, "the Proposed Rule will require a dramatic decline in coal-fired generation of electricity, in order to implement EPA’s system of state-by-state mandates.
"In fact, under EPA’s plan, the agency envisions that coal generation would be eliminated altogether in 12 states," Tribe added.
He explains that the EPA has proposed the new carbon emission standards through a misinterpretation of a provision in the Clean Air Act.
The EPA has argued, Tribes says, that it is able to enforce the proposed rule through one of two versions of Section 111 of Clean Air Act amendments added in 1990.
But Tribe contends that "every part of this narrative is flawed."
According to the Harvard Law professor, "if there were indeed two versions of Section 111, EPA’s claim that it is entitled to pick and choose which version it prefers represents an attempt to seize lawmaking power that belongs to Congress," which he says "under Article I, Article II, and the separation of powers [in the Constitution], EPA lacks the ability to make law."
In addition, "the Proposed Rule violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment."
And, "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."
And it's not enough that President Barack Obama announced the rule in a speech he gave in June 2013.
"But this speech cannot provide EPA with the authority to promulgate the Proposed Rule," Tribe explained.
"Presidential speeches do not have the force of law; indeed, the Supreme Court has dismissed them even as aids to statutory interpretation," he said.
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