Laurence H. Tribe, professor of constitutional law at Harvard University and former mentor to Barack Obama, said in an article last week that the EPA’s Clean Power Plan is unconstitutional.
Writing in the Wall Street Journal on Dec. 22, Tribe asserted that as a father and grandfather he wants “to leave the Earth in better shape than when I arrived", but that he nonetheless has filed comments with the EPA urging the agency to withdraw the Clean Power Plan. “Coping with climate change is a vital end, but it does not justify using unconstitutional means,” wrote Tribe.
Tribe was retained by Peabody Energy to perform independent analysis of the EPA’s proposed rule. He defended his opinion saying it reflects his “professional conclusions as an independent legal scholar”, and that he only says what he believes, whether he works “pro bono, or in this case having been retained by others”.
“After studying the only legal basis offered for the EPA’s proposed rule,” Tribe wrote, “I concluded that the agency is asserting executive power far beyond its lawful authority."
He further noted that the Clean Power Plan would “effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan,” a move that would be in direct opposition to Supreme Court precedent that holds “such federal commandeering of state governments defeats political accountability and violates principles of federalism that are basic to our constitutional order”.
Tribe continued by saying that, like every government agency, the EPA is “constitutionally forbidden to exercise powers Congress never delegated in the first place,” and that “frustration with congressional inaction cannot justify throwing the Constitution overboard”.