Abby L. Harvey
GHG Monitor
3/20/2015
The Environmental Protection Agency, in its attempt to regulate carbon emissions through its proposed standards for existing coal fire power plants, is “attempting an unconstitutional trifecta, usurping the purgatives of the states, Congress and the federal courts all at once,” Harvard constitutional law professor Lawrence Tribe told lawmakers during a House Energy and Commerce Committee hearing this week. Tribe, who was retained by Peabody Energy to provide an independent analysis of the proposed rule, argued that the rule presents 10th Amendment issues. The proposed rule, Tribe said, “would commandeer state governments, treating them more like marionettes, dancing to the tune of a federal puppeteer than like laboratories of democracy. It would dictate the CO2 emissions target each state must adopt within a year, commanding every state to enact an EPA approved package of laws. … Reducing states to this submissive roll would confound the political accountability that the 10th Amendment guarantees,” Tribe said. “Much is up for grabs in the complex area but burning the constitution of the United States, about which I care deeply, cannot be part of our national energy policy to deal with the problems of climate change.”
During the hearing, Richard Revesz, Lawrence King Professor and Dean Emeritus at New York University School of Law, countered that the proposed rule does not challenge the 10th Amendment because it does not require any specific actions. “It does not [violate the Constitution] and the reason is that states are not required to do anything. States are given the option to come up with state implementation plans and if they don’t EPA can impose federal implementation plans on the sources of pollution and because EPA imposes those directly on the pollution sources and not on state institutions, there is no 10th amendment problem,” he said.
The EPA regulations in question set state specific carbon emission reduction goals and require the states to develop action plans to meet those goals. If a state does not produce a state developed action plan, under the regulations, EPA would have the authority to implement a federally developed action plan. Several legal challenges have been brought against the proposed regulation, with many making the argument that the section of the Clean Air Act under which the regulations where developed, 111(d), grants EPA authority to require states to regulate existing-source emissions, but it excludes the regulation of air pollutants emitted from a source that is already regulated under Section 112. Coal-fired power plants are already regulated under Section 112 of the Clean Air Act. The EPA has argued that an error in the amendments to the Clean Air Act has created an ambiguity, allowing the agency to develop the regulations.
Congressional Action Needed to Legally Regulate Carbon
For carbon to be legally regulated, Congress must “get its act together,” Tribe said. “It seems to me that an act of Congress or a series of Congressional enactments is the only legal way. Congress has the power. It did have the power to pass for the United States what California has done within California, a cap and trade plan, but it didn’t succeed,” Tribe said, referencing the failed American Clean Energy and Security Act of 2009. “If Congress were able, I hate to say this, to get its act together, if Congress really could act effectively, there are a lot of things it could do.”
Congress’s failure to act was also noted by Rep. John Yarmuth (D – Ky.) who suggested later during the hearing that Congress may have been better able to treat coal states like his own fairly. “While we were debating the Waxman Markey bill several years ago … that was kind of the motivating factor I think for many of us at that point,” he said, referring a failed bill that would have created a national cap-and-trade system. “That if the Supreme Court had said that we have to regulate carbon dioxide, wouldn’t it be better for Congress to act and create a mechanism for dealing with it than trusting the EPA to be flexible enough to deal with state’s like my own?”
