Harvard Law Professor Represents Peabody Energy in Clean Power Plan Case

June 15, 2016 By Ken Silverstein

coal plantConstitutional scholar Laurence Tribe is moonlighting as a lawyer for Peabody Energy Corp., which is a coal producer now in bankruptcy. His day job is as a Harvard law professor. The pay? $75,000 a month, reports SNL Energy.

The pay is for his expertise with the legalities of the Clean Power Plan. It is now at the appellate level after having gotten kicked back down by the US Supreme Court, which has already said that the White House has the authority to regulate carbon under the Clean Air Act. The DC Court of Appeals is expected to take up the case in September.

He says that government cannot “take” private property from industry under the Fifth and Tenth Amendments to the U.S. Constitution. While the plan gives flexibility to the states, he said that it essentially usurps their rights, thereby forcing the retirement of up to 49 giga-watts of coal-fired capacity.

“EPA possesses only the authority granted to it by Congress,” says Professor Tribe, who testified last year before Congress. “It lacks ‘implied’ or ‘inherent’ powers. Its gambit here raises serious questions under the [doctrine of] separation of powers ….”

“The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a ‘power grab,’”he said.

Professor Tribe has been taken to task by his own colleagues at Harvard. They point out that coal plants in this country are on average 42-years-old and pollute a lot more than newer plants. Still, coal is expected to supply 30 percent of the nation’s energy mix by 2030, which they say hardly amounts to a federal confiscation under the Fifth Amendment, at least at the industry-wide level.

The two Harvard professors counter Tribe’s argument that the federal government is “taking” private property from industry by encouraging the switch from coal to cleaner burning fuels, explaining that the courts already have upheld EPA’s right to regulate greenhouse gas emissions. If one buys into the coal industry’s reasoning, they say, power plants have an absolute constitutional right to continue burning greenhouse gases in perpetuity.

“If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative,” write Freeman and Lazarus.

5 comments on “Harvard Law Professor Represents Peabody Energy in Clean Power Plan Case

  1. Given the EPA can regulate the reduction of carbon emissions, I suppose the matter comes down to the picking on coal disproportionately compared to other sources of carbon emissions it may be able to regulate. Also, there are O2 combustion processes from which CO2 can be largely (over 80 per cent) captured. Peabody is certainly not precluded from cleaning up its act to solve this non-taking problem.

  2. Tribe was paid off? Isn’t every lawyer paid off?

    It seems likely his colleagues are also getting some consulting fees for their work in the Energy field.

  3. It seems to me the fundamental issue here is not the constitutionality of the right to enforce new law (this has been decided by SCOTUS) but the use of legal apparatus by affected stakeholders to impose the continuation of their business model. It has been and always will be a continual struggle for private industry to accept the internalization of what formerly were externalities. This is of course the antithesis of business as usual, but as the coal industry would have it we would see a continuation fo the polluter pays principal, which has so far been the only real method for improvement in environmental responsibility for that of private industry. The problem in my opinion with the PPP is that it is wholly reactionary, and absolutely ill-suited to the systemic threat of climate change, because carbon regulation is a matter of prevention, not clean-up which is the risk that most fossil-fuel producing industries are expected to account for.

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