Harvard Law Professor: EPA Climate Rule Is Unconstitutional

The Environmental Protection Agency’s proposed rule to cut carbon dioxide emissions from power plants is unconstitutional because it violates the Tenth Amendment and the Fifth Amendment, according to a noted liberal Harvard law professor.

“In short, coal has been a bedrock component of our economy and energy policy for decades,” writes constitutional law professor Laurence Tribe. “The [EPA’s rule] demonstrates the risk of allowing an unaccountable administrative agency to ‘make’ law and attempt to impose the burden of global climate change on an unlucky and unfortunate few.”

“EPA’s singling out of a mere handful of emitters and limiting (or curtailing) their property is exactly the type of overreaching the Fifth Amendment seeks to prevent,” Tribe, who is on retainer for the coal company Peabody Energy, wrote in his comments to the EPA.

Tribe’s argument that the EPA rule is unconstitutional is one of the strongest charges made against the agency’s Clean Power Plan to date.

The Clean Power Plan “violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment,” Tribe argues. “It raises serious questions under the Fifth Amendment as well, because it retroactively abrogates the federal government’s policy of promoting coal as an energy source. Private companies — and whole communities — reasonably relied on the federal government’s commitment to the support of coal.”

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