http://thehill.com/policy/energy-environment/239305-the-gops-favorite-law-professor-obamas-mentor By Timothy Cama - 04/19/15 06:00 AM EDT
President Obama’s law school mentor has emerged as a leading critic of the administration’s landmark climate change regulations.
Harvard Law Professor Laurence Tribe has quickly become a darling among the president’s Republican rivals, who increasingly tout the legal scholar as a star liberal lawyer who had the good sense to see when his protege has gone astray.
Tribe, whose expertise in constitutional law, has fought the Environmental Protection Agency’s (EPA) attempts to set carbon dioxide emissions limits from the power sector in all three branches of government, frequently turning to vivid, colorful, attention-grabbing rhetoric and metaphors.
“The EPA (is) coloring outside the lines, attempting to do something the statute clearly forbids and coming up with every imaginable rationale to defend it,” Tribe, arguing on behalf of Peabody Energy Inc., the largest coal mining company in the world, told the federal Court of Appeals for the District of Columbia Circuit Thursday.
He warned that the Obama administration’s legal arguments in favor of the regulations would “upturn the entire constitutional system,” and said the agency wants to turns states into “puppets of a federal ventriloquist,” forcing them into “the federal army.”
Weeks earlier, testifying at a House hearing about the proposed regulations, Tribe declared: “Burning the Constitution of the United States, about which I care deeply, cannot be part of our national energy policy,”
Peabody paid Tribe for the House testimony and formal comments he filed with EPA in December against the rule, which the EPA hopes to finalize this summer.
But Tribe’s advocacy isn’t the only reason why he’s fallen into favor with the GOP.
Tribe employed a young Barack Obama as an assistant while the latter attended Harvard Law.
And his connection to Democratic causes runs much deeper than that.
Tribe fought on former Vice President Al Gore’s behalf in the Supreme Court case that decided the 2000 presidential election, was part of Obama’s 2008 presidential campaign and worked in 2010 on Obama’s Justice Department initiative aimed at improving access to lawyers for poor defendants.
The record has earned Tribe the label of a liberal figurehead among Republicans, which helps them to weaponize him and lend more credence, in their eyes, to their own arguments.
Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Committee’s subcommittee on energy and power, has filed legislation to weaken and delay the climate rule. He frequently highlights Tribe’s work.
“One of the best characterizations of the rule was stated by professor Laurence Tribe, the highly regarded liberal scholar of constitutional law at Harvard University,” he said this week, going on to quote Tribe’s “burning the Constitution” remark.
“No less an expert than Laurence Tribe has testified that this proposed rule exceeds EPA’s statutory authority and raises numerous Constitutional issues,” said Rep. Fred Upton (R-Mich.), the chairman of the full energy panel.
Senate Majority Leader Mitch McConnell (R-Ky.) used Tribe’s arguments in March to urge state governors to ignore the climate rule.
“As Professor Tribe has noted, the Clean Air Act not only fails to authorize the EPA’s plan, it forbids it,” McConnell wrote, adding that Tribe called the plan “constitutionally reckless.”
Rep. Rob Woodall (R-Ga.) brought up Tribe’s work as recently as Thursday on the House floor.
“The president wants to do things differently than the law of the land allows, and he is frustrated, as described by Professor Tribe, that Congress refuses to do what the president wants us to do,” Woodall said.
Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.) has cited Tribe’s work, as have Sens. Chuck Grassley (R-Iowa) and Dan Sullivan (R-Alaska).
Tribe’s advocacy has brought him flack from his own institution. Two of his colleagues, Jody Freeman and Richard Lazarus, called the arguments “baseless” in a blog post on the Harvard Law site, and declared, “were Professor Tribe’s name not attached to them, no one would take them seriously.”
Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, has butted heads repeatedly with Tribe over the climate rule, and he served largely as a counterpoint to Tribe when the two testified in the House.
Revesz argues that the Supreme Court has explicitly told the EPA that it has not only the authority to regulate power plants’ carbon dioxide as it has proposed, but the legal obligation.
Revesz said Tribe’s funding from the world’s largest coal company is not highlighted nearly enough by his supporters. As a lawyer, Tribe is obligated to zealously represent Peabody.
“He’s not, at that point, a liberal professor expressing his independent views, he is a lawyer for a client,” he said. “There’s nothing wrong with Peabody Energy hiring a liberal, a conservative or anyone else. But one has to understand what his role is. And his role is to promote, as vigorously as possible, the interests of his client.”
He said McConnell and others “are somehow trying to portray his position as a different one and not portraying it as a lawyer.”
Further, Tribe’s history shows that he is not the liberal figure Republicans make him out to be when it comes to air pollution.
In one high-profile case in 2000, Tribe, working for General Electric Co., argued to the Supreme Court that the Clean Air Act unconstitutionally gave the EPA the power to set ozone pollution limits. He lost unanimously, with an opinion written by conservative Justice Antonin Scalia.
“He has challenged some of the key provisions of the federal environmental laws representing corporate clients for two decades," Revesz said.
Tribe was not available to comment.
