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Why EPA’s Climate Plan Is Unconstitutional

March 20, 2016
By Laurence Tribe

The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector, the Clean Power Plan, the centerpiece of the President’s plan to address climate change is unconstitutional.

The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector, the Clean Power Plan, the centerpiece of the President’s plan to address climate change is unconstitutional.

The Clean Air Act, upon which EPA claims authority to determine states' electric power mix, does not grant EPA such authority. As Tribe states, “A mere agency, even one as important as EPA, isn’t constitutionally authorized to say ‘Never mind’ when its legislative mandate doesn’t include a regulatory authority that its administrator and the agency’s supporters believe it ‘should’ have been given." 

Among the other reasons Tribe concludes the CPP is unconstitutional is the CPP raises Fifth Amendment property and due process issues. Tribe says EPA's CPP mandates for coal fired power plants are an illegal form of bait-and-switch unless compensation is paid. Tribe notes, EPA has required coal-fired power plants to install very costly “Maximum Control Technology” under the Clean Air Act’s Section 112, yet now the agency is requiring States to take actions forcing those very same power sources to shut down or significantly curtail their operations, essentially stranding the billions of dollars EPA required them to invest. Citing Ruckelshaus v. Monsanto (1984) Tribe writes, “When EPA initially promised confidential treatment to pesticide makers who submitted proprietary data in their registration applications and then reversed course and publicly disclosed the data, the Supreme Court had no trouble concluding that the manufacturers could sue for a compensable taking.”

 

Tribe notes carbon dioxide is not like other conventional “pollutants that are harmful in themselves and that government has every right to regulate even to the point of driving some emitters of such pollutants out of business, atmospheric carbon dioxide is not such a pollutant.” Carbon dioxide is not toxic or dangerous in and of itself and we all emit it. The CPP targets a narrow set of carbon dioxide emitters, imposing costs on them that rightfully ought to be borne equitably by everyone after requiring those same companies to invest massive amounts of money in reducing their traditional pollutants. As such, the principles underlying the Fifth Amendment’s Due Process and Takings Clauses support a duty to compensate the industry or companies singled out by the rule. Since compensation would have to come from American taxpayers, only Congress, which alone possesses the power of the purse, may authorize such a course of action. As a result, Tribe argues, “Absent clear congressional authorization, such action violates the Constitution because it would indirectly trigger either ‘taxation without representation’ or confiscation without compensation.”