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< | Climate Change, Lawyers and the Creed of Expertise | >
> | Climate Change, Lawyers and the Limits of Expertise | | | I. A problem: Climate change is a priority justice issue | | | The vast American administrative state came to be legitimized through a creed of expertise. Congress justifies delegating great decision-making discretion to agencies, and thus avoiding themselves the political costs of making a decision, on grounds of the powers that experts possess a unique ability to identify the correct answer to the problems at hand. The power of these agencies is legitimated through a belief that it is not politics which motivates their decisions, but apolitical expertise. Thus, the devil of government interference gains a toehold in the American imagination through the wiles of his apprentice demon, the expert. | |
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> | III. Climate change and the creed of expertise | | | | |
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< | III. A strategy: Climate change and the creed of expertise
Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals or politics. As Damon Moglen, Global Warming Campaign Director for Greenpeace, put it in a recent interview: "Our position is that we have to listen to the science, not the politics."
It can be difficult to tease lessons out of the contingency of the past, but the 2007 Supreme Court case Massachusetts v. EPA represents an instance in which expertise-based appeals found a way through the byzantine pathways of the federal administrative state and achieved a highly consequential victory for stronger climate policies. | >
> | Climate change brings the issues of expertise, the thinking man, and politics to a head. It's an issue that pits the scientific community against powerful status quo interests. This presents a dangerous temptation for many lawyers. Lawyers, especially of the type produced by self-styled elite law schools, have a soft spot for left-brained, linear arguments about policy and expertise. In fact, a section of Torts at Columbia this fall skipped intentional torts altogether, spending the bulk of the semester on products liability policy. | | | | |
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< | MA v. EPA originated as a rulemaking petition in 1999, which requested that the EPA regulate greenhouse gas emissions under the Clean Air Act. The Bush administration denied the petition in 2003, and environmental groups sued under Section 307 of the Clean Air Act, which authorizes the D.C. Circuit to overturn agency decisions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This provision enables the punishment of agency decisions which a court finds stray from expertise into caprice or politicization. The D.C. Circuit ruled in favor of EPA, but on appeal, the Supreme Court found the EPA’s decision to be “arbitrary and capricious,” and ordered EPA to conduct a formal endangerment finding to determine whether greenhouse gases constitute a threat to human health and welfare, and issue the regulation if they find they do. | >
> | As Arnold observes, however, appeals to the thinking man rarely carry the day in American politics - because of the power of creeds over social psychology. Yet, as argued above, expertise can be conceptualized not only as a check on the influence of creeds on the thinking man, but as a creed itself. Scientists in the United States benefit not only from scientific authority emanating from their curriculum vitae, but also a kind of moral authority emanating from their white lab coats. | | | | |
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< | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.”
As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA.
The decision of how to regulate greenhouse gases profoundly affects who gets what, when, and how, and therefore, to paraphrase Harold Lasswell, is essentially political. However, framing the issue as a technical one, and formulating an appeal before the judiciary that draws on the tropes of the creed of expertise can sometimes provide a means of intervening into the policymaking process of the other political branches. Whether the Court will continue to be sympathetic to these expertise-based appeals for judicial intervention in the future is uncertain. However, any addition to the quiver of those seeking stronger policies may be welcomed.
In my view, the basic
problem here is that the essay says a great deal less than it seems
to say:
- Global warming is a serious problem we should do something about;
- Experts will be tend to be persuasive;
- 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. | >
> | This creed can be helpful, in certain contexts. Massachusetts v. EPA. "protect expertise from politics" | | | | |
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> | BUT: mentioned above: ultimately a moral problem. About taking things from some people and giving them to other people who need them more. | | | | |
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> | Lawyers: cannot be bewitched by the science. Larry Lessig. The difference between a scholar and a lawyer. "When Eric Eldred's crusade to save the public domain reached the Supreme Court, it needed the help of a lawyer, not a scholar."
Examine the politics of Massachusetts v. EPA: the rationale of the decision was it was defending administrative expertise from executive-branch political interference. However, many observers believe the key to winning the 5-4 decision was the way in which the arguments were set up to win Anthony Kennedy's swing vote. Special solicitude to states. State attorneys general. |
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