Harvard Law professors fight over EPA’s climate rule

A Harvard Law School professor who taught President Obama is debating with his colleagues on a school blog over the constitutionality of the Obama administration’s climate rule for power plants.

Laurence Tribe, who also used to work in the Justice Department under Obama, is arguing on the blog, in congressional testimony and elsewhere that the Environmental Protection Agency’s (EPA) carbon limits for power plants are unconstitutional and prohibited specifically by law.

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The arguments — and their source — have become a top talking point for Republicans and other opponents of the plan, who hold Tribe as a liberal figurehead who broke with the Democratic Party.

Jody Freeman and Richard Lazarus are saying Tribe’s interpretation of the Constitution doesn’t recognize the efforts the EPA took to let states decide how they comply with the rule and the complexities of the law.

“There is no flexibility in the rigid numerical emissions limits EPA has already set for each state,” Tribe wrote in a March 20 post, days after delivering similar testimony to a subcommittee of the House Energy and Commerce Committee.

“And those limits in turn dictate the energy mix for each state, requiring the shut-down of many coal-fired power plants with a shift to natural gas, just as the Obama administration has at times candidly described the limits as designed to do,” he said.

Tribe, who is being paid by coal producer Peabody Energy Corp. for his work against the power plant rule, also argues that the 1990 amendments to the Clean Air Act prohibit power plants’ carbon emissions to be regulated because other pollutants are also regulated.

But Freeman and Lazarus disagreed, saying that the House and Senate passed two different versions of the law that conflict.

“It is clear that EPA is entitled to interpret this language, and to deference as long as it does so reasonably,” the wrote in a rebuttal to Tribe the next day.

They also wrote that the states retain their freedoms of federalism under the constitution, because “states retain the fundamental right to say no” to the EPA.