When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. First, as the headlines pointed out, it’s a dramatic moment when a congressional leader openly tries to rally the states against a new federal policy. And second, McConnell’s legal justification relies on none other than Laurence Tribe—Barack Obama’s former law professor, and one of the nation’s top liberal law scholars—to argue that the upcoming EPA rules are unconstitutional.

As a matter of Kentucky politics, McConnell’s move makes a certain sense. The American power industry is watching the EPA’s carbon-reduction scheme with anxiety. Expected to arrive in final form this summer, the rules will set standards for greenhouse gas emissions from coal-burning plants for the first time. It’s not surprising that a Senate majority leader from a coal state would lead the fight against a new policy that he has characterized as devastating for his home industry. As a matter of national politics McConnell’s step is shrewd, too: He is using this issue to unite Republicans against one of the President’s signature initiatives.

Legally, though, it’s his second move that is more interesting—and potentially more dangerous for the governors who heed it. With Larry Tribe providing the legal backing, McConnell claims the President’s plan is flagrantly unconstitutional. Having Tribe on his side is a coup for the Senate leader. Tribe was an enthusiastic supporter of Obama’s campaigns for President, worked at the Department of Justice during the first term and has been often described as the President’s “mentor.” Which is to say: if you are looking for legal gravitas, and you want to stick it to the President, Tribe is a huge “get.”

But is he right? Larry Tribe is a top constitutional scholar, and a Harvard colleague we greatly respect, but decades of precedent and a close look at the rule suggest he’s completely wrong here.

 

Tribe’s argument—which he has outlined in comments to the EPA, congressional testimony and an opinion piece in the Wall Street Journal—is that the EPA rule would amount to an unlawful “taking” of the coal industry’s private property, trample on states’ rights, and violate the separation of powers. Tribe spares no rhetorical expense here: he likens the EPA’s rule—intended to cut carbon pollution by up to 30% by 2030—to President Truman’s seizing of the steel mills during the Korean War and President Lincoln’s suspension of habeas corpus during the Civil War. The President’s Clean Power Plan, he says, is “burning the Constitution.”

Some of the theatricality of Tribe’s language makes more sense when you realize that he’s a paid counsel for one side here.  Peabody Coal hired him to zealously represent its interests in federal court, and to argue the coal industry’s case in any other forum that might advance its cause, as he has done in Congress and the media.

But Tribe is also a serious constitutional law scholar, and his arguments deserve to be addressed seriously.  

 

Although the EPA is still finalizing the rule, we already know how it is likely to work: the EPA will set carbon intensity targets for each state, and the states can meet these targets using whatever measures they prefer. The targets vary from state to state, depending on their current energy mix; some coal heavy states, including Mitch McConnell’s state of Kentucky, have far less ambitious targets than states with a cleaner energy supply. If states decline to draft their own reduction plans and file them with the EPA, the agency will draft a federal implementation plan itself.

In his legal attack on the rule, Tribe first claims that the new rule would be a form of “taking,” barred by the Fifth Amendment—that the government is essentially seizing the property of power and coal companies without compensation. This is because such regulation, in his words, “drastically undercuts investment-backed expectations that amount to property interests.”

Tribe also argues that the rule would put a “gun to the head” of the states in violation of the 10^th Amendment, which prohibits the federal government from, as the Supreme Court terms it, “commandeering” state institutions for federal purposes. Finally, he argues that the rule would violate separation of powers by usurping the role of both Congress and the judiciary.

The takings argument, for one, has no foundation. In 200 years of precedent, there is not a shred of support for Tribe’s notion that it can be a “taking” when the government regulates industry to prevent harms to the public health or welfare, by, for example, emitting dangerous pollution, like greenhouse gases. The Supreme Court has repeatedly made clear that the Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. Tribe is right that the Constitution protects “reasonable investment-backed expectations,” but there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare, as the Court has repeatedly said. And the notion that this rule regulates coal out of existence, as both McConnell and Tribe have implied, is false. The EPA projects that coal will still provide over 30% of our electricity in 2030. The independent grid manager for the mid-Atlantic, known as PJM, also modeled a dozen compliance scenarios and in none of them is coal “phased out.”