Climate Change, Lawyers and the Creed of Expertise

In my view, the basic problem here is that the essay says a great deal less than it seems to say:

1. Global warming is a serious problem we should do something about;
2. Experts will be tend to be persuasive;
3. Courts may or may not defer to expert opinion, but everything that tends to persuade courts sometimes is useful.

I admit that #3 sounds especially jejune and pitiful, but it's the actual conclusion expressed in the last two sentences of your essay, after all the Arnoldian windup. Quoting my brother is cute, but that does nothing to counteract the "less here than meets the eye" problem, because the statement you quote is nothing but lobbyist boilerplate, as you point out yourself. In the end, it's just another appeal to "the thinking man," who—as Arnold would say—listens to the scientists, not to the politicians.

You push the "Chevron deference" point much too far. Chevron stands for a narrower but still highly important principle, that the agencies are the parties best positioned to understand in context the Congressional intention embodied in the statutes whose provisions they administer. It is understood to mean that when the Securities and Exchange Commission interprets the Securities Exchange Act or the National Labor Relations Board the NLRA, for example, the courts ought not lightly to disturb their readings. This may well lead to the conclusion that the Environmental Protection Agency is entitled to deference concerning its conclusion that carbon dioxide is an "air pollutant" within the meaning of the Clean Air Act. But it doesn't imply that the EPA is entitled to deferential review of all the other sorts of decisions it makes in the course of its business that don't involve statutory interpretation. (Hence the non-deferential view the Court takes on the other critical point involved in the case you discuss, which is whether the agency's conclusion that there exists substantial scientific uncertainty is in itself a sufficient rationale for refusal to regulate.)

There are Arnoldian things to say about the politics of global warming, to be sure. I feel quite sure that you can find some that will result in an interesting essay. But this draft takes too easy a road, and returns with too little to show for the trip.