Constitutional 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.