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The Legal Attack on President Obama’s Greenhouse Gas Regulations

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The Obama Administration this summer is scheduled to release final rules meant to reduce carbon dioxide pollution from coal-fired power plants by nearly a third within 15 years.

The so-called Clean Power Rule would be a significant step forward in addressing climate change, because power plants are the largest single source of carbon dioxide in the U.S.   The EPA regulations would eliminate as much greenhouse gas pollution as taking 150 million cars off the road – almost two thirds of America’s vehicles.

Before the rule can take effect, however, Senate Majority Leader Mitch McConnell of Kentucky has been meeting with governors and offering states a legal blueprint to challenge the Constitutionality of the regulations. His goal is to stop the rules by tying them up in court. 

An initial legal challenge by more than a dozen states was heard on April 16 in U.S. District Court of Appeals in Washington.

“These are regulations that would threaten the middle class without having a meaningful impact on the global climate, anyway,” McConnell said. “The legal issues here will resolve themselves eventually, but whatever our party or ideology the federal government should not be punishing hardworking families just to score political points as the states await a legal clarification.”

Bob Deans, spokesman for the Natural Resources Defense Council, said McConnell's claim is baseless and obscures what’s really happening, politically.

“What’s going on is that we have a senate majority leader who has received three million dollars in campaign contributions over the course of his career from the fossil fuel industry -- basically, coal, oil and gas,” Deans said.  “And he is trying to anchor our future in the dirty fuels of the past, at the expense of our children’s future, which is being threatened by the dangers of climate change.”

Deans said that shifting some electricity generation from coal to cleaner sources like solar and wind will likely create far more jobs than would be lost among coal miners in Kentucky and other states.

“We have in this country right now 80,000 coal miners,” Deans said.  “Every one of those jobs is important, Tom. We have in this country 240,000 people who get up every day and help us get power from the wind and the sun. Those jobs are important, too.  Those jobs are the future.”

To bring legal firepower to his fight, Senator McConnell has enlisted Harvard Law Professor Laurence Tribe, a former law school mentor of Obama. Tribe is being paid to fight the rules by the largest coal company in the world, Peabody Energy.

“EPA is attempting an unconstitutional trifecta – usurping the prerogatives of the states, Congress and the federal courts all at once,” Tribe said.  “Much is up for grabs in this area. But burning the Constitution of the United States about which I care deeply cannot be part of our national energy policy to deal with the problems of climate change.”

Other eminent law scholars, however – not on the payroll of coal companies – say this argument is specious and that the Clean Power Rule is constitutionally sound.

Jody Freeman, a Harvard Law Professor and former councilor to President Obama on climate change issues, said it is wrong to claim that the regulations usurp state power or dictate to states. The rules are so flexible, in fact, they do not even set carbon dioxide limits for coal fired power plants.  Instead, the regulations create overall pollution reduction goals for states. And then they give states the liberty to meet those goals by their preferred methods, which could include increasing mass transportation, insulating homes, or encouraging more wind power, for example.

She noted that the courts, since the 1970 passage of the federal Clean Air Act, have allowed this regulatory model  – in which the federal government sets goals, and then the states create the plans to determine how they get there.

“That arrangement, which is known as cooperative federalism, has been running smoothly for 40 years plus,” Freeman said. “And so for Tribe and McConnell to say that this scheme is commandeering the state, it’s so coercive it’s taking over the states, it’s just completely baseless.  And if they were right, the Clean Air Act would have been unconstitutional 40 years ago.” 

It is true that some coal fired power plants are closing. But this is mostly not because of President Obama’s regulations, but because of competition.  Hydraulic fracturing has made natural gas a cheaper fuel than coal. 

So what’s being burned is not the Constitution, but the logic in Laurence Tribe’s argument.

Tom Pelton, a national award-winning environmental journalist, has hosted "The Environment in Focus" since 2007. He also works as director of communications for the Environmental Integrity Project, a non-profit organization dedicated to holding polluters and governments accountable to protect public health. From 1997 until 2008, he was a journalist for The Baltimore Sun, where he was twice named one of the best environmental reporters in America by the Society of Environmental Journalists.