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What Happens Inside Gaza’s Secret Tunnels? | Unpacked Hamas Torture Bodycam Footage: "These Monsters Filmed it All" | IDF Warfighter Doron Keidar, Ep. 225 EXPOSED: The Dark Truth About the Hostages in Gaza New Task Force Ready To Expose Dark Secrets Egypt Amasses Forces on Israel’s Southern Border | World War 3 About to Start? "Trump wants to dismantle the Education Department. Here’s how it would work" test "Federal Workers Concerned That Returning To Office Will Interfere With Them Not Working" "Yes, the Democrats Have a Governing Problem – They Blame America First, Then Govern Accordingly" Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Laurence Tribe Fights Climate Case Against Star Pupil From Harvard, President Obama Source: [None] URL Source: [None] Published: Apr 7, 2015 Author: Laurence Tribe Post Date: 2015-04-07 12:01:39 by tpaine Keywords: None Views: 3592 Comments: 14 mobile.nytimes.com Laurence Tribe Fights Climate Case Against Star Pupil From Harvard, President Obama WASHINGTON — Laurence H. Tribe, the highly regarded liberal scholar of constitutional law, still speaks of President Obama as a proud teacher would of a star student. “He was one of the most amazing research assistants I’ve ever had,” Mr. Tribe said in a recent interview. Mr. Obama worked for him at Harvard Law School, where Mr. Tribe has taught for four decades. Mr. Tribe went on to serve in the Justice Department during Mr. Obama’s first term and has argued in favor of the legal standing of Mr. Obama’s signature health care law and executive orders on immigration. Which is why so many in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming. Mr. Tribe, 73, has been retained to represent Peabody Energy, the nation’s largest coal company, in its legal quest to block an Environmental Protection Agency regulation that would cut carbon dioxide emissions from the nation’s coal-fired power plants — the heart of Mr. Obama’s climate change agenda. Next week Mr. Tribe is to deliver oral arguments for Peabody in the first federal court case about Mr. Obama’s climate change rules. Mr. Tribe argues in a brief for the case that in requiring states to cut carbon emissions, thus to change their energy supply from fossil fuels to renewable sources, the E.P.A. is asserting executive power far beyond its lawful authority under the Clean Air Act. At a House hearing last month, Mr. Tribe likened the climate change policies of Mr. Obama to “burning the Constitution.” To Republicans who oppose Mr. Obama’s climate change agenda, Mr. Tribe is a celebrated convert. “When I saw the brief, I thought, this is dazzling,” said Michael McKenna, a Washington energy lobbyist. “And the fact that it was written by a guy on the other side made it even better.” Senator Mitch McConnell of Kentucky, the Republican majority leader, has frequently cited Mr. Tribe’s brief in speeches and letters as part of a campaign urging governors not to comply with the climate change rules. “As iconic left- leaning law professor Laurence Tribe put it, the administration’s effort goes ‘far beyond its lawful authority,’ ” Mr. McConnell wrote in an op-ed article in The Lexington Herald-Leader last month. To many Democrats and professors at Harvard, Mr. Tribe is a traitor. “The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website. “Were Professor Tribe’s name not attached to them, no one would take them seriously.” Mr. Tribe’s legal claims, they concluded, are “ridiculous.” Mr. Tribe dismissed the criticism and said that his brief and comments reflect his views as a constitutional scholar, not as a paid advocate for the coal company. “I’m not for sale,” he said. “I’ll say what I believe.” “I feel very comfortable with my relationship with Peabody,” he added. “Somebody wanted my help and it happened to coincide with what I believe.” But a number of legal scholars and current and former members of the Obama administration say that Mr. Tribe has eroded his credibility by using his platform as a scholar to promote a corporate agenda — specifically, the mining and burning of coal. In addition to the brief, Mr. Tribe wrote a lengthy public comment on the climate rules that Peabody submitted to the E.P.A. Mr. Tribe’s critics note that his comment, which he echoed in an op-ed article in The Wall Street Journal in December, includes several references to the virtues of coal, calling it “a bedrock component of our economy.” The comment also has phrases frequently used by the coal industry. The use of such language, Ms. Freeman and Mr. Lazarus suggested, is typical of paid industry advocates but not of impartial scholars. “The best way to evaluate his claims is to treat them as advocacy and not scholarship,” Ms. Freeman and Mr. Lazarus wrote. Anger from within the Obama administration about Mr. Tribe’s actions is particularly fierce, although officials declined to comment on the record for fear of escalating the situation. “Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan,” said one former administration official. Thomas Reynolds, a spokesman for the E.P.A., reacted to Mr. Tribe’s brief by saying that agency officials remained confident in the legal arguments behind the regulations. “We have a recent record of court wins, proving our work is grounded in a sound understanding of the law,” Mr. Reynolds said in an email. Mr. Tribe said he could not help it if Republicans embraced his arguments. He has never met or spoken with Mr. McConnell, he said, and disagreed with Mr. McConnell’s advice to states to ignore the rules, since states could face steep fines for failure to comply with the rules while they are still in place. “I’m worried about being used to encourage the states to take risks that may be unwise,” Mr. Tribe said. While Mr. Tribe is one of the nation’s foremost experts on constitutional law, and has argued some Supreme Court cases related to environmental law, he said he has never specialized in the Clean Air Act. Although Mr. Obama has been speaking publicly since 2013 of his use of the Clean Air Act to carry out climate change regulations, Mr. Tribe said that he was unaware of the regulations until last fall. Mr. Tribe said he was retained by the company as an independent expert to provide his own views and not to repeat the company’s. But the public comment is signed by both Mr. Tribe and Peabody officials. “That a leading scholar of constitutional matters has identical views as officials of a coal company — that his constitutional views are the same as the views that best promote his client — there’s something odd there,” said Richard L. Revesz, director of the Institute for Policy Integrity at the New York University School of Law. In the meantime, Mr. Tribe said he admires Mr. Obama — a former professor of constitutional law — as much as ever. “I’m sure he’s motivated by a deep concern for climate change, and he believes he is following the Constitution as he understands it,” Mr. Tribe said. “It hasn’t affected my esteem for him,” he said, adding, “but I don’t take responsibility for views of former students that I think are misguided.” Mr. Tribe said he has not heard from Mr. Obama about his efforts to dismantle the climate change rules, although he has, he said, received dismayed emails from other students. The Republicans who are citing Mr. Tribe’s work are not surprised. Mr. McKenna, the Republican lobbyist, said dryly, “He’s about to be banned from a lot of cocktail parties.” It is widely expected that the fight over the E.P.A. regulations will eventually go before the Supreme Court. If it does, Mr. Tribe said that he expects he “may well” play a role in that case — which would be argued before two other former students, Chief Justice John G. Roberts Jr. and Justice Elena Kagan. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: tpaine (#0) Tribe betraying the hottists is comparable to Ted Olson, former GOP solicitor general, arguing the gay marriage case against Prop 8 in CA. McConnell is beside himself over Tribe taking this client. And the Left is apoplectic.     : ) Tooconservative  posted on  2015-04-07   12:21:38 ET  Reply   Trace   Private Reply   #2. To: TooConservative (#1) "Mr. Tribe has eroded his credibility by using his platform as a scholar to promote a corporate agenda" Hey, he can't do that! Why, he can only use his platform as a scholar to promote a government agenda! misterwhite  posted on  2015-04-07   15:17:17 ET  Reply   Trace   Private Reply   #3. To: misterwhite (#2) “He’s about to be banned from a lot of cocktail parties.” You can bet on that. Tooconservative  posted on  2015-04-07   15:22:33 ET  Reply   Trace   Private Reply   #4. To: tpaine, TooConservative, misterwhite (#0) www.masseygail.com/pdf/Tribe-Peabody_111(d)_Comments_(filed).pdf Here excerpted - Title page and Executive Summary at 3-5. Footnotes omitted. Complete document at link, 36pp. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units 79 Fed. Reg. 34830 (June 18, 2014) Docket ID No. EPA-HQ-OAR-2013-0602 COMMENTS OF LAURENCE H. TRIBE AND PEABODY ENERGY CORPORATION December 1, 2014 Table of Contents [...] EXECUTIVE SUMMARY These comments are submitted by Laurence H. Tribe, professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University, and Peabody Energy Corporation. The defects in the Proposed Rule transcend political affiliations and policy positions and cut across partisan lines. The central principle at stake is the rule of law - the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission. The Proposed Rule should be withdrawn. It is a remarkable example of executive overreach and an administrative agency's assertion of power beyond its statutory authority. Indeed, the Proposed Rule raises serious constitutional questions. Both Democrats and Republicans should stand in strong support of the rule of law. And both Democratic and Republican Administrations have promoted the prudent use of domestic coal in order to reduce dependence on imported oil. In contrast, the Proposed Rule will require a dramatic decline in coal-fired generation of electricity, in order to implement EPA's system of state-by-state mandates. In fact, under EPA's plan, the agency envisions that coal generation would be eliminated altogether in 12 states. The Proposed Rule thus reverses policies that reach back to John F. Kennedy. As Hillary Clinton observed in 2007, "I think you have got to admit that coal — of which we have a great and abundant supply in America — is not going away." 3 - - - - - The Proposed Rule lacks legal basis and represents an improper attempt by EPA unilaterally to remake a vast portion of the American economy on the basis of a hitherto obscure provision of the Clean Air Act, Section 111. This section previously has been used in only a handful of instances. Nothing like the Proposed Rule has ever been premised on Section 111 before. Just last Term, in Utility Air Regulatory Group v. EPA, the Supreme Court voiced powerful concerns regarding EPA's unilateral assertions of power that are equally apposite here: EPA's interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast "economic and political significance." The Proposed Rule rests on a fatally flawed interpretation of Section 111. According to EPA, in enacting the 1990 amendments to the Clean Air Act, Congress effectively created two different versions of Section 111, and the agency should be allowed to pick and choose which version it wishes to enforce. According to EPA, since 1990 the U.S. Code has reflected the wrong version of Section 111, and EPA has discovered a mistake made by the Office of Law Revision Counsel of the House of Representatives - the part of Congress responsible for compiling enacted bills into statutory books. According to EPA, both the D.C. Circuit and the U.S. Supreme Court have previously misinterpreted Section 111. According to EPA, the two different versions of Section 111 have created "ambiguity" triggering deference to the agency's statutory construction under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. 4 - - - - - Every part of this narrative is flawed. The 1990 amendments did not create two different versions of Section 111. The Senate amendment was a substantive amendment, and the House amendment was a conforming one that merely updated a statutory cross-reference. Both were enacted. Once the Senate amendment was made law, the House amendment was rendered moot, as the Office of Law Revision Counsel in the House of Representatives properly concluded. Such a situation – where a substantive amendment moots a conforming one - is a familiar occurrence in the U.S. Code, and EPA's position would call into question dozens if not hundreds of statutory changes throughout the Code. Instead of harmonizing legislation, as Supreme Court precedents instruct, EPA's argument would lead to chaos. Moreover, EPA's interpretation of Section 111 would raise serious constitutional questions. If there were indeed two versions of Section 111, EPA's claim that it is entitled to pick and choose which version it prefers represents an attempt to seize lawmaking power that belongs to Congress. Under Article I, Article II, and the separation of powers, EPA lacks the ability to make law. Further, the Proposed Rule violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment. 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. These constitutional concerns eliminate any deference EPA would otherwise receive under Chevron. The Proposed Rule lacks any legal basis and should be withdrawn. 5 - - - - - = = = = = At page 16, Professor Tribe argues that "The Proposed Rule is Invalid Under Section 111(d) of the Clean Air Act." On its face, the Proposed Rule violates Section 111 of the Clean Air Act, 42 U.S.C. § 7411, because the statute expressly forbids the regulation of any air pollutant emitted from a source category that EPA already regulates under Section 112 of the Clean Air Act, 42 U.S.C. § 7412. Section 111(d) (1) provides: The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408 (a) of this title or emitted from a source category which is regulated under section 7412 of this title …. 53 53 42 U.S.C. § 7411(d) (emphasis added). Section 111(d) contains an additional limitation. Section 111(d) permits regulations for existing sources only if there already exist corresponding regulations for subsection (b) “new” sources. There must be a “standard of performance under [§ 7411 that] would apply if such existing source were a new source.” 42 U.S.C. § 7411(d)(1)(A)(ii). Currently, there is no 111(b) regulation applicable to “new” stationary sources of CO2 that would correspond to the proposed 111(d) regulations. EPA acknowledges that 111(b) regulations for CO2 are a necessary prerequisite and has stated that it intends to complete at least one of two Section 111(b) regulations concerning CO2 emissions from new fossil fuel-fired EGUs before it finalizes the current 111(d) rulemaking, in order to satisfy what it acknowledges is a “requisite predicate for” the 111(d) rules. Legal Memo (rev. 2) at 6. The link goes to the complete section 111 as codified at 42 U.S.C. 7411, and the cited 111(d) is excerpted below. http://law.justia.com/codes/us/2012/title-42/chapter-85/subchapter-i/part-a/section-7411/ PDF 2012 US Code Title 42 - The Public Health and Welfare Chapter 85 - AIR POLLUTION PREVENTION AND CONTROL (§§ 7401 - 7671q) Subchapter I - PROGRAMS AND ACTIVITIES (§§ 7401 - 7515) Part A - Air Quality and Emission Limitations (§§ 7401 - 7431) Air Quality and Emission Limitations - 42 U.S.C. § 7411 (2012) §7411. Standards of performance for new stationary sources [...] (d) Standards of performance for existing sources; remaining useful life of source (1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies. (2) The Administrator shall have the same authority— (A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under section 7410(c) of this title in the case of failure to submit an implementation plan, and (B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 7413 and 7414 of this title with respect to an implementation plan. In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies. [...] nolu chan  posted on  2015-04-07   17:08:08 ET  Reply   Trace   Private Reply   #5. To: nolu chan (#4) Tribe is offering an interesting argument, one that reaches beyond EPA to other unlawful executive actions and other federal agencies. Tooconservative  posted on  2015-04-07   18:48:23 ET  Reply   Trace   Private Reply   #6. To: TooConservative (#5) Tribe is offering an interesting argument, one that reaches beyond EPA to other unlawful executive actions and other federal agencies. Yeah, like DHS and DHHS with immigration and Obamacare. Administrative agencies are usurping the authority of Congress to legislate. Tribe struck a sensitive spot. nolu chan  posted on  2015-04-07   21:48:20 ET  Reply   Trace   Private Reply   #7. To: nolu chan (#6) Of course. What is the point of voting for Congress or state legislators when you have a president that won't faithfully execute the laws? More Dems should be as mindful as Tribe, given that a Republican will hold the WH again in a coming election. I don't think they want a tinpot president of the other party behaving lawlessly as Obola has done. A guy like Tribe makes his mark by taking a very long term view of the law and the separation of powers. I always thought Tribe would have made a better choice for USSC than the other Dems that got appointed. He's far less a partisan. Tooconservative  posted on  2015-04-08   9:34:19 ET  Reply   Trace   Private Reply   #8. To: TooConservative (#7) I always thought Tribe would have made a better choice for USSC than the other Dems that got appointed. He's far less a partisan. He would have been highly qualified and less partisan than some who have been confirmed. However, Tribe wrote the legal textbook, American Constitutional Law, which became the most cited legal text published since 1950, as well as other publications. That creates a record. Recent SCOTUS candidates have the advantage of practically no record of personal legal beliefs to be assailed in confirmation hearings. That can get a candidate "borked." Some candidates came with almost no known qualifications. They sort of had to confirm them to find out what was in them. nolu chan  posted on  2015-04-08   13:51:44 ET  Reply   Trace   Private Reply   #9. To: nolu chan (#8) However, Tribe wrote the legal textbook, American Constitutional Law, which became the most cited legal text published since 1950, as well as other publications. It's not especially controversial. Look at how many grads of Harvard took Tribe's courses at Harvard, using that textbook. If Tribe is too much, his students would be as well. We shouldn't have to have stealth nominees for the Court. Tooconservative  posted on  2015-04-08   17:04:32 ET  Reply   Trace   Private Reply   #10. To: TooConservative (#9) If Tribe is too much, his students would be as well. One his students is now Roberts, CJ. A former research assistant is now Kagan, J. nolu chan  posted on  2015-04-08   19:19:39 ET  Reply   Trace   Private Reply   #11. To: nolu chan (#10) A few other students are Ted Cruz and Barack Obama. Maybe Tribe couldn't get appointed by two Dem presidents because they knew he was nonpartisan about the law. Tooconservative  posted on  2015-04-08   23:26:40 ET  Reply   Trace   Private Reply   #12. To: TooConservative (#11) Maybe Tribe couldn't get appointed by two Dem presidents because they knew he was nonpartisan about the law. Bork was nominated in 1987 and the confirmation hearings got a bit hostile. Tribe was considered during the Clinton administration but Ruth Bader Ginsburg was nominated. After a series of failed nominees (for AG/Asst AG) Clinton wanted a very safe nominee. https://en.wikipedia.org/wiki/Bill_Clinton_Supreme_Court_candidates Liberal lawyers wanted Harvard Law professor and constitutional scholar Laurence Tribe, but Clinton and his aides next considered several candidates as "outside-the-box" choices. Clinton played with the idea of nominating a brilliant political philosopher instead of a practicing attorney. Professors Stephen L. Carter of Yale and Michael Sandel of Harvard would have fit the bill, but Clinton then hit upon what he considered to be a "sexy" idea: the nomination of his wife, Hillary Rodham Clinton. However, there was a huge problem associated with such a selection. George Stephanopoulos, a Clinton aide at the time, has written that the idea was dropped because the president's, "choice had to be ratified by the Senate, where Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination." Stephanopoulos quotes Clinton himself saying, "We don't need another gang-that-couldn't-shoot-straight story." Zoe Baird and Kimba Wood were failed nominees for AG. (NannyGate) Guinier was Clinton's failed nominee for Assistant AG. nolu chan  posted on  2015-04-09   16:40:03 ET  Reply   Trace   Private Reply   #13. To: nolu chan (#12) linton played with the idea of nominating a brilliant political philosopher instead of a practicing attorney. Professors Stephen L. Carter of Yale and Michael Sandel of Harvard would have fit the bill, but Clinton then hit upon what he considered to be a "sexy" idea: the nomination of his wife, Hillary Rodham Clinton. The Xlintons were so ghastly that you do forget all the slimiest and most scandalous plans they tried to enact. It makes the idea of a lawless Hitlery in the White House something to dread. Tooconservative  posted on  2015-04-09   17:13:23 ET  Reply   Trace   Private Reply   #14. To: TooConservative (#13) It makes the idea of a lawless Hitlery in the White House something to dread. You have my iron clad guarantee that I will not vote for her. nolu chan  posted on  2015-04-09   18:20:36 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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