Laurence Tribe—an iconic legal scholar and longtime mentor to President Obama—offered up blistering criticism on Thursday of the administration’s efforts to tackle climate change.
Regulations crafted by the Environmental Protection Agency to limit carbon pollution from power plants violate the Constitution and overstep executive authority, Tribe argued in the opening act of a major legal challenge at the U.S. Court of Appeals for the D.C. Circuit.
Obama’s plan would “upturn the entire constitutional system” and force states to become “puppets of a federal ventriloquist” that would be “brought into the federal army,” Tribe told the three-judge panel.
Arguing on behalf of industry and state opponents of the rule, Tribe denounced the rule as a massive overreach, saying, “It is clear that they are trying to make law not execute law.” The administration was clearly “coloring outside the lines,” he added.
The case, brought by coal company Murray Energy and a coalition of states led by West Virginia, is highly unusual since it takes aim at a regulation that has not yet been finalized. It stands as the first wave in what is expected to be an onslaught of litigation against the rule, which Obama hopes to use as leverage to extract pledges from other nations to slash greenhouse-gas emissions during international climate talks later this year.
Tribe’s attack against the regulations has become a defining feature of the debate over its survival. The famed constitutional scholar is considered a mentor to Obama and taught the president during his time at Harvard Law School. But Tribe has turned against his former student in a legal challenge that could determine the fate of the president’s climate legacy.
Republicans, including Senate Majority Leader Mitch McConnell, have reveled in Tribe’s seeming defection, an outcome they say stands as proof of the problems with Obama’s climate agenda. McConnell has relied on legal arguments spelled out by Tribe as he attempts to throw a wrench in Obama’s plans by convincing governors across the United States not to comply with the regulations.
At issue in the case heard Thursday is whether EPA was justified in regulating carbon pollution from power plants under the Clean Air Act when the agency has already regulated mercury and other toxic air pollution. Opponents of the rule say it should be challenged even before a final version emerges, because it has already begun to inflict economic harm on the energy industry.
Two of the three judges vehemently pushed back against the idea that the rule should be subject to review before it is final.
“It really is quite unusual,” Judge Thomas Griffith said, saying that he was not “certain we would do that which we have never done before,” by attempting to judge the rule before it is finished.
Judge Brett Kavanaugh added that he was “having trouble seeing the line,” that would merit the unusual challenge.
“It’s a bit like the sword of Damocles, which doesn’t have to be drawn to have its intended effect,” Geoffrey Barnes, a lawyer for Murray Energy, argued.
Tribe chimed in to agree during his arguments, saying that “one needn’t wait to see “¦ [when] the guillotine is going to drop or whether it will cut off the head.”
Lawyers defending the administration countered, saying that the agency was justified in the actions it has taken.
Congress “wanted to cover more pollutants under more programs,” Amanda Berman, a lawyer for the Justice Department argued, asserting that Congress clearly gave the agency authority to regulate carbon pollution under the law in the way that the agency has done.
“If there is even a scintilla of a shred of ambiguity,” in the law, Berman argued, EPA must be given the chance to determine whether to regulate and how.
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