Conservatives are brimming with justifiable glee now that President Obama’s mentor Laurence Tribe is once again chomping at the bit over EPA’s administration of the Clean Air Act (see his 1990’s amicus in American Trucking, he’s had his concerns for a couple decades now). Tribe filed both blistering comments and fiery congressional testimony aimed at scorching the EPA’s Clean Power Plan. He goes so far as to allege the agency is “setting the Constitution on fire.”

Tribe argues that the EPA’s Clean Power Plan upends federalism, violating the 10th amendment, the 5th amendment, Separation of Powers, and the plain statutory language. Strong words, indeed. But other equally distinguished Harvard law faculty contend that Tribe’s constitutional attacks on the Clean Power Plan are a stretch. “Were Professor Tribe‚Äôs name not attached to them, no one would take them seriously,” write Jody Freeman and the nation’s pre-eminent environmental law scholar, Richard Lazarus. Whether or not Tribe’s theories get traction in the judicial system depends upon the outcome of King v. Burwell, per both Tribe and Jonathan H. Adler. Both think the Court’s opinion in the Affordable Care Act case will reveal its appetite for similar challenges to the Clean Power Plan.

The Clean Power Plan is not without legal vulnerabilities, including much stronger ones than outlined in Tribe’s comments and testimony. My personal bet on a winning challenge to the Clean Power Plan is the contention that EPA overreaches its statutory authority with the “outside the fenceline”  approach to regulation. With 111(d), EPA is poised to regulate well beyond the physical point of pollution for the first time in Clean Air Act history. In plainer language, the question is, can programs outside a physical plant itself, such as relying on the importation of renewable energy from another state, count as a “system of emissions reduction” under the Clean Air Act? Usually when one thinks of a “system of emissions reduction,” it is pollution control technology installed at the plant site, as opposed to the sweeping adjustments to state energy mixes envisioned by the Clean Power Plan. The agency’s authority to reduce emissions in this fashion is untested in the courts.

Two other arguments of some merit are outlined by David Bookbinder and David Bailey here. The first is a scrivener’s error, and it is noted by Tribe. The problem is a poor reconciliation of House and Senate versions of the 1990 Clean Air Act Amendments. A court favorably inclined could easily uphold the regulation against this challenge with classic Chevron deference. We shall soon know how the argument fares, because it is one of the major components of the Murray Energy cases the DC Circuit will hear next month. The second interesting challenge involves mechanics pertaining to the relationship between carbon-capture-and-sequestration requirements under 111(b) and 111(d). This is also ably explained by Bookbinder and Bailey.

Time and the courts will tell if the Clean Power Plan can survive judicial scrutiny. We would all be wise to remember, however, that the Supreme Court has upheld the authority of the EPA to regulate greenhouse gas emissions via the Clean Air Act not one, not two, but three times. Should the Clean Power Plan combust in Professor Tribe’s constitutional inferno, the EPA will be back with another grand, expensive scheme to address climate change through the Clean Air Act.  Addressing the potential unconstitutionality of the Clean Power Plan itself may ameliorate symptoms, but it’s not a cure.