Article updated at 2:20 p.m.
Laurence Tribe’s days as a liberal icon are over for green groups and many environmental law professors.
One of the country’s best-known constitutional scholars, the Harvard law professor has made headlines for his two-fisted attack on President Obama’s proposed greenhouse gas standards for power plants, a pillar of the administration’s effort to combat climate change.
Tribe, working on behalf of one of the world’s largest coal producers, called U.S. EPA’s Clean Power Plan "fatally flawed" and a "breathtaking example" of regulatory "overreach." He hit the same notes in a Wall Street Journal op-ed. And he testified before Congress that Obama is "burning the Constitution" (Greenwire, March 17).
Tribe’s advocacy has sparked a maelstrom of criticism from environmentalists and, notably, law professors who are lambasting Tribe’s motives and questioning his legal theories. They have called him a "mercenary," "sellout," "pathetic" and "outlandish." More than one dubbed his arguments "complete bullshit."
"Tribe is, in my view, destroying his reputation as one of the most important and thoughtful constitutional scholars in the country," UCLA environmental law professor Ann Carlson wrote in a blog post.
But to those who have followed his career — from his work on gay rights to his representation of Al Gore at the Supreme Court in the 2000 presidential election — Tribe’s comments aren’t entirely surprising. They say something has gotten lost in the narrative surrounding Tribe’s remarks. It’s simple, they say: Tribe is not an environmentalist.
Tribe has a history of plowing into high-profile environmental cases, typically on behalf of major industry clients like General Electric Co. He has fought other Clean Air Act regulations, and for about a decade tried to undermine a key provision of the Superfund cleanup law as unconstitutional. In nearly all of those instances, Tribe has been unsuccessful in court.
"He has a record of bringing constitutional challenges to major environmental programs," said Richard Revesz, director of New York University’s Institute for Policy Integrity. "And, despite his fame and his great accomplishments, he has taken positions that the Supreme Court has rejected."
Nowadays, Tribe, 73, is just as well-known for his students as his own work. He mentored Supreme Court Justice Elena Kagan and had Chief Justice John Roberts as a student. He has called Obama, another Harvard law grad, the best student he ever had.
Tribe has argued before the Supreme Court on more than 30 occasions, typically seeking to advance progressive ideals. He has worked predominantly on minority and gay rights, and, in 1987, he was among the most vocal opponents of Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court. Senate Democrats ultimately blocked the conservative judge from confirmation.
Early in his career, Tribe won over environmentalists with a 1974 Yale Law Journal article, "Ways Not to Think About Plastic Trees."
Tribe expressed a critical view of environmental policy at the time that he said would lead to the degradation of irreplaceable natural resources. In a radical view, he considered endowing natural objects with legal rights similar to those of humans. He called his theory "part of a structure for approaching a shared agreement about our responsibilities as persons — responsibilities to one another and to the world."
He also took the "pro-environment" side in a 1983 Supreme Court case, Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission, that challenged California’s moratorium on nuclear power plants. Arguing on behalf of the commission, he won a unanimous ruling from the high court.
In an email exchange about the outrage his recent comments have generated, Tribe said "strong criticism comes with the territory if you don’t let your lawyering follow the political winds or be influenced by how it might affect your image.
"I’ve always done what I thought was right and let the chips fall where they may," he added. "I’ve never let the fact that my opinions might prove unpopular with many, including with some people who are my allies in many a political and legal fight, deter me from speaking my mind.
"As long as I (and those who know me best) don’t doubt my integrity or my motives, I’m okay with the situation."
Three-headed argument
EPA is scheduled to finalize its first-ever greenhouse gas standards for power plants this summer. The Clean Power Plan will cut carbon pollution 30 percent from 2005 levels by 2030, largely by shifting the country from coal-based power to renewables like wind and solar.
Tribe’s constitutional criticism of the plan is threefold.
Hired by Peabody Energy Corp., Tribe first argues on states’ rights grounds, saying that the regulations would violate 10th Amendment federalism principles by imposing state emission rate reduction requirements. The rule, he wrote in public comments, "trenches on state agencies currently exercising authority over electricity regulation."
"All of the important decisions have already been made by EPA, depriving the State of its prerogative to set its own policies," Tribe wrote, adding in congressional testimony that it "usurps" state authority.
Second, he contends there is a property rights problem, claiming the proposal amounts to a "taking" of private property without just compensation, a violation of the Fifth Amendment. Takings challenges typically involve the condemnation of physical property, such as the creation of an easement across someone’s land, or a regulation that unjustly limits how someone can use their property.
Here, however, Tribe argues that there is a regulatory taking because the regulation would set out rigorous requirements for specific parties — coal and power companies — and they would shepherd most of the cost of reducing greenhouse gases without the government compensating them for the system upgrades or coal that would not be burned in the future.
"Forcing a narrowly selected set of victims to make the proposed reductions in [carbon dioxide] emissions would have an imperceptible effect on worldwide greenhouse gas levels but at an inordinate cost to those of whom the most would be demanded," Tribe wrote. "The Proposed Rule thus raises serious constitutional questions under the Fifth Amendment."
Third, Tribe contends that the proposal would violate the so-called non-delegation doctrine. Under this argument, EPA is exercising authority beyond what Congress delegated to it in the Clean Air Act.
Other law professors revel in deconstructing Tribe’s arguments, saying they would never stand up in court.
Specifically, they point out that the challenges to the proposal — already filed in federal appellate court — barely refer to these constitutional issues.
That litigation focuses largely on a statutory ambiguity regarding the section of the Clean Air Act that EPA is using to issue the rules.
At issue: Two versions of the section were passed into the pollution law — one from the House and one from the Senate — and challengers contend EPA is misreading the ambiguous directive. Law professors, even those who support the rule, acknowledge this issue has not previously been resolved in court, and EPA’s plan could be vulnerable because of it (Greenwire, March 10). (Tribe also hits on this issue in his comments.)
"These are not plausible arguments," Revesz said of Tribe’s constitutional claims. "Those arguments for the most part are not being taken seriously by the parties in the case."
With regard to the federalism claim, Harvard law professors Richard Lazarus and Jody Freeman countered that the principle at issue in the climate rule — setting targets for states to meet, then leaving it to them to meet them — is the basis of a host of existing environmental regulations, including most standards under the Clean Air Act.
In an article on Harvard Law’s website, they wrote that EPA has no legal authority to punish a state for not submitting its own plan. In that circumstance, EPA will implement its own plan, they wrote, but it must do so reasonably.
They also summarily dismissed the takings claim.
"[G]overnmental restrictions on such harmful emissions do not amount to takings of private property requiring the government to pay industry to stop polluting," they wrote. "There is no plausible taking here."
Tribe’s non-delegation argument also appears to be on shaky ground, his critics say. For one, non-delegation challenges typically don’t get far at the Supreme Court. Revesz noted that the high court has only overturned laws or regulations based on a non-delegation challenge in less than three instances, all-stemming from ambitious programs that were part of President Franklin D. Roosevelt’s New Deal.
(The Supreme Court heard a non-delegation case this year involving whether Congress gave Amtrak too much authority in negotiating regulations for on-time performance and other standards that affect its business. But the court sidestepped the non-delegation issue in its ruling last month [Greenwire, March 9].)
Tribe has tried the non-delegation argument before. In 2000, he represented General Electric in challenging EPA’s standards for ozone, a main component of smog. In a case that reached the Supreme Court, he contended that the standards violated the doctrine by giving EPA too much authority to set the important standards without considering implementation costs.
He didn’t win a single vote. In a unanimous decision written by conservative Justice Antonin Scalia, the court deferred to EPA’s interpretation and upheld the standards.
Common themes
Tribe has challenged EPA in other areas, as well.
For several years, Tribe represented GE in seeking to undermine a key component of the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which created the Superfund cleanup program.
Tribe, in a series of lawsuits, contended that EPA’s ability under the law to unilaterally force responsible parties to clean up their pollution violated the Constitution’s due process protections — meaning the responsible parties did not have the opportunity to challenge the requirements in court.
Those efforts were also unsuccessful, but Tribe’s environmental work has adhered to a common theme, said Jonathan Adler, an environmental law professor at Case Western Reserve University School of Law.
"He has been interested in the concern that in our efforts to enhance environmental protection, we have sometimes given short shrift to important constitutional values about the way the government operates," he said.
Adler noted that similar concerns were on display in the 2012 Supreme Court case, Sackett v. EPA, which didn’t involve Tribe. In that case, the Supreme Court ruled unanimously that EPA Clean Water Act compliance orders could be challenged in court.
Tribe’s contentions about the greenhouse gas proposal, Adler said, are "certainly aggressive."
But, he added, "I don’t think it’s fair to suggest that his position here is just the product of getting a big check."
Others were less forgiving. They noted that Tribe sought to represent various industry groups in a 2011 Supreme Court case of whether state common law could be used to hold power companies liable for greenhouse gas emissions. The court held that the Clean Air Act pre-empts any such claims — the desired outcome of the Obama administration, as well as Tribe’s clients, including the Petroleum Marketers Association of America and Peabody.
Tribe, however, was forced to remove himself from the case because he had served in the Obama administration’s Justice Department shortly before joining the litigation, violating the department’s conflict-of-interest policy prohibiting private work on matters still before the department within a certain time period of leaving it (Greenwire, Feb. 11, 2011).
More recently, Tribe also filed an amicus brief on behalf of Peabody in this year’s Supreme Court case challenging EPA’s standards for mercury and other hazardous air toxics (Greenwire, March 25).
And the professor also signed on to represent opponents of Cape Wind, a large proposed wind farm off the coast of Massachusetts.
Some professors found these efforts off-putting.
"It’s the pathetic spectacle of the aging scholar," said Robert Percival, a environmental law professor at the University of Maryland’s Francis King Carey School of Law. "He’s selling out to whomever the highest bidder is."
‘Sacrificial lamb’
Others noted that Tribe’s environmental work underscores a common theme in legal academia: The liberal constitutional scholar who picks one issue on which to be conservative.
"This fits within the tradition of famous constitutional scholars choosing an issue that progressives care about and treating it as a sacrificial lamb," said Justin Pidot, a former DOJ environmental attorney and now a professor at the University of Denver Sturm College of Law.
In essence, Pidot added, Tribe is saying, "I’m true to my principles because I am willing to attack environmental issues."
Other scholars have taken similar steps. John Hart Ely, the late Stanford Law dean and former faculty member at Yale and Harvard, is among the most cited legal scholars in the country’s history.
He is particularly cherished among liberals because of his open view of constitutional interpretation that stressed protecting the democratic process itself, such as ensuring minority voting rights and fighting racial discrimination.
And he firmly opposed "textualism" and "originalism," formalist ways of reading the Constitution based solely on its words and the intent of the framers when it was written.
Ely, however, staked out a conservative position in 1973 that criticized the Supreme Court’s landmark decision that year in Roe v. Wade that established a woman’s right to an abortion.
Ely’s criticism of the Roe decision was based in his theories of constitutional interpretation. Pidot, however, had difficulty rationalizing how Tribe’s criticism meshed with his legal scholarship.
"What’s strange to me about Tribe," Pidot said, "is some of his arguments are just so outlandish when you think of the last century of constitutional law, that it is hard to see it being part of a comprehensive view of the Constitution."
