EPA’s Clean Power Plan is Unconstitutional

epa“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the State, Congress and the Federal Courts, all at once. Burning the Constitution should not become part of our national energy policy.” Harvard Constitutional Law Professor, Lawrence Tribe.

Professor Tribe, a liberal scholar of constitutional law, and author of American Constitutional Law (1978), has argued before the Supreme Court 36 times. He testified last week before the House Energy and Commerce panel subcommittee on Energy and Power, that the “EPA possesses only the authority granted to it by Congress. The EPA’s Clean Power Plan is “unconstitutional and outside the agency’s authority. The EPA lacks ‘implied’ or ‘inherent’ powers.”

According to professor Tribe and numerous other legal and energy experts, the EPA’s attempt to exercise lawmaking powers “raises serious questions under the separation of powers…because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts.”

Tribe was previously retained to write a legal brief for Peabody Energy, the nation’s largest coal producer in a suit against EPA climate rules, in which he argued that Obama’s “misuse of the Clean Air Act” to implement regulations was “unconstitutional.” Requiring states to cut carbon emissions by switching from fossil fuels to renewable resources was, in Tribe’s legal opinion, an exercise in “asserting executive power far beyond its lawful authority.”

In an article for the Wall Street Journal, professor Tribe also asserted that the EPA was acting unconstitutionally. “Like every administrative agency, the EPA is constitutionally forbidden to exercise powers Congress never delegated to it. The brute fact is that the Obama Administration failed to get climate legislation through Congress,” and still the “EPA is acting as though it has the legislative authority anyway to reengineer the nation’s electric generating system and power grid.”

According to Tribe, in order to “justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act, Section III. “ In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112, involving hazardous pollutants.”

Last spring, the Supreme Court read the statute in precisely that way in Utility Air Regulatory Group v. EPA. The EPA acknowledges that the Clean Air Act “appears by its terms to preclude” its proposal. That is an understatement. And the problem can’t be dismissed as a quirk in the statute. The language at issue has been a feature of the Clean Air Act for decades. That’s why, in 2008 (New Jersey v. EPA), the D.C. Circuit struck down a far less ambitious EPA rule under exactly the same statutory constraint involved here. Today the agency is again circumventing the checks Congress deliberately built into the Clean Air Act and distorting it to justify a wide-ranging carbon rule in a way Congress never intended or authorized.

Frustration with congressional inaction cannot justify throwing the Constitution overboard to rescue this lawless EPA proposal—especially when the EPA itself, through Senate testimony by its administrator, Gina McCarthy, has touted its proposal as “an investment opportunity” that isn’t really “about pollution control” at all.

An investment opportunity is government doublespeak for wasting taxpayer money to buy votes, push an agenda, and reward friends and donors.


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