Climate Change, Lawyers and the Creed of Expertise

I. A problem: Climate change is a priority justice issue

Climate change is an issue which is frequently cast in popular discourse in scientific terms. This is due in part to the fact that climate change is a highly complex phenomenon which unfolds on a time scale which is rather long compared to contemporary attention spans. But mostly the framing of climate change as a scientific issue is the result of a successful campaign by skeptics and status-quo interests to sow doubt about the science of climate change. The recent kerfuffle over the emails stolen from the East Anglia Climatic Research Unit is an example of these efforts.

Despite these complexities and obfuscations, there is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so.

Having identified a moral problem which needs to be addressed, the next step is to organize a response. Identifying opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan.

II. A resource: The creed of expertise

Creeds and social institutions

A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo.

Creeds are rarely internally rational and their substance matter little, as their primary function is to structure thought and promote unity. Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. Arnold describes how Yale Law School sought to emulate the methods of industrial production of the corporation, before the corporation’s (ultimately temporary) fall from grace in the New Deal.

The creed of expertise

If the New Deal represented in the American imagination a titanic battle between the avatars of government and business, one of the lesser deities which profited from the conflict and developed its own minor creed was the expert. During the New Deal, President Roosevelt recruited a corps of bright lawyers, including Felix Cohen and Thurman Arnold, to help administer the complex new “alphabet soup” of agencies created.

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 only through the wiles of his lesser demon, the expert.

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.

It can be difficult to tease lessons out of the contingency of the past, but the Massachusetts v. EPA case represents an instance in which expertise-based appeals wove a way through the hardened arteries of the federal government and achieved a highly consequential victory for stronger climate policies.