TESTIMONY OF LAURENCE H. TRIBE before HOUSE COMMITTEE ON ENERGY AND COMMERCE
The Environmental Protection Agency’s “Clean Power Plan” would command every State by the year 2016 to develop a package of EPA-approved laws requiring coal-fired power plants to shut down or reduce operations, consumers and businesses to use less electricity and pay more for it, and utilities to shift from coal to other energy sources – a total overhaul of each State’s way of life. Noncomplying States would face sanctions, including the potential loss of federal highway funds, and the takeover of their energy sectors by an inflexible federal plan of uncertain scope that would inflict significant economic damage.
EPA lacks the statutory and constitutional authority to adopt its plan. The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do. Even if the Act could be stretched to usurp state sovereignty and confiscate business investments the EPA had previously encouraged and in some cases mandated, as this plan does, the duty to avoid clashing with the Tenth and Fifth Amendments would prohibit such stretching.
EPA possesses only the authority granted to it by Congress. It lacks “implied” or “inherent” powers. Its gambit here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts. The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a “power grab.”
EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Burning the Constitution should not become part of our national energy policy.
HOUSE COMMITTEE ON ENERGY AND COMMERCE
Subcommittee on Energy and Power
EPA’S PROPOSED 111(d) RULE FOR EXISTING POWER PLANTS: LEGAL AND COST ISSUES
March 17, 2015
TESTIMONY OF LAURENCE H. TRIBE
Carl M. Loeb University Professor, Harvard University and Professor of Constitutional Law, Harvard Law School1