Climate Change, Lawyers and the Creed of Expertise

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

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 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.

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 through the wiles of his apprentice 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 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.

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.

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.