[U.S. Coal] ET TU, TRIBE? – by Andrew Rice (New York Magazine – July 28, 2015)


LAURENCE TRIBE, the president’s longtime confidant, is fighting the White House climate plan on behalf of Big Coal. His friends are furious at him, which breaks his heart.

Just after noon on June 18, Laurence H. Tribe, the nation’s foremost scholar of constitutional law, fired off an angry and anguished self-defense. “I just finished my roughly half-hour interview on WNYC with Brian Lehrer,” he wrote in an email to the publishers of his most recent book about the Supreme Court, Uncertain Justice. “I suppose I did well enough, but the interview was a complete disaster. Please let the Brian Lehrer Show know that I felt totally sandbagged.”

The appearance had begun innocuously, with a discussion of the most recent Supreme Court decisions — what the Harvard Law professor later called June’s “series of thunderclaps.” Tribe’s credentials as a liberal legal activist are the stuff of legend — counsel in Bush v. Gore, slayer of archconservative Supreme Court nominee Robert Bork — and he is as informed about the Court’s opaque inner workings as any outsider can be.

He taught Elena Kagan and John Roberts at Harvard and played an unusually involved role in Barack Obama’s education in the law; for a brief time during Obama’s first term, he served at the Justice Department. At 73, Tribe is accustomed to his preeminence. So he bristled when Lehrer courteously but insistently turned the conversation to his other role, as a highly compensated litigator for a coal company fighting Obama’s climate-change initiative.

“Can a scholar take a client like that and maintain an appearance of independence?”

“Well, I’ve been doing this kind of thing for decades,” Tribe replied, the ice creeping into his voice. “And I’m just not for sale.” He had the urge to hang up the phone then and there. But he fought it off and handled another 90 seconds of questioning with superficial aplomb.

“I have had a career that I’m proud of. I’ve represented causes that I believe in,” he said. “And whether I believe in the cause or not is not a function of whether the client is corporate or noncorporate.” Inside, though, Tribe was churning. “It was an inexcusable ambush,” he wrote immediately afterward, an “awful caricature.” He was flummoxed that people involved with a friendly NPR show would prove to be “such venomous snakes.”

Tribe’s emotions might seem extreme in light of the tenor of the conversation and the fact that he should have known the questions were inevitable. But the controversy over his role in the climate case had upended his place in the world, setting friends and colleagues against him and shaking two pillars of his reputation: his liberal idealism and his legal brilliance.

The reversal dates to last year, when Tribe got involved in a constitutional challenge to Obama’s plan to curtail power-plant carbon emissions. His client, Peabody Energy, is the world’s largest private-sector coal company. The bare facts of the case concern dueling interpretations of an arcane passage of the Clean Air Act, but the political ramifications are monumental.

Enemies of the climate initiative, which aims to cut emissions from the power sector by 30 percent from 2005 levels, see it as a naked abuse of executive power intended to put companies like Peabody out of business. Proponents say the new regulations fall well within the Environmental Protection Agency’s authority, and that the coal industry is destroying the planet.

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