Lost Tribe

Proving that even the most prominent of progressive legal icons can embrace regressive causes, Harvard Law Professor Laurence Tribe is once again shamelessly shilling for fossil-fuel fiends. Hill Heat’s Brad Johnson notes that this Tribe-called quest to protect the profits of polluters is highly obnoxious even by the low standards of Big Coal:

In a submission to the EPA’s comment period for the Clean Power Plan, Tribe and Peabody Energy’s notorious climate-science-denying lobbyist Fred Palmer argued that coal “…has been a bedrock component of our economy and energy policy for decades. The [Clean Power Plan], which manifestly proceeds on the opposite premise, thus represents a dramatic change in directions from previous Democratic and Republican administrations.

“‘It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority,’ Tribe and Peabody Energy wrote, in strident language reminiscent of Fox News rhetoric. ‘Indeed, the Proposed Rule raises serious constitutional questions.'”

Yes. Like the following: Where, exactly, in the Constitution does it say that corporations have the right to pump their waste products into the atmosphere for free?

Johnson also notes that Tribe has joined the latest effort to stop the Cape Wind project in Massachusetts; the main force behind the anti-Cape Wind cabal is, of course, William Koch, the fossil-fuel baron who is the brother of you-know-who. This is who Tribe wants to consort with?

As NYU Law Professor Richard Revesz observes:

While Tribe cites a number of Supreme Court cases, in fact no decision of the court in our whole history can justify the conclusion that the Clean Power Plan is constitutionally invalid…

Tribe’s past constitutional challenges to our environmental laws on behalf of corporate clients have not been successful. For years, he challenged the constitutionality of a provision of the federal Superfund statute, which imposes liability on polluters for the cleanup of hazardous waste sites. And, in perhaps the most important environmental law case ever decided by the Supreme Court, Whitman v. American Trucking Associations, he argued forcefully that National Ambient Air Quality Standards — the Clean Air Act’s centerpiece — were an unconstitutional delegation of legislative power to the EPA. (I filed a brief on the other side for leading environmental organizations.) The Supreme Court unanimously rejected Tribe’s argument in that case. The author of the opinion was Justice Antonin Scalia, who was widely regarded to be the nondelegation doctrine’s greatest supporter on the Supreme Court. It’s a good thing that Tribe was wrong because some of our most important environmental laws would have been struck down under his arguments. Hundreds of thousands of Americans would have died as a result.

Tribe has long been praised as a trailblazing scholar. In choosing to consort with the contaminators of our climate, he deserves to be condemned as an amoral jerk.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.