Climate Change, Lawyers and the Limits 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. Climate change and the creed of expertise

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.

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.

This creed can be helpful, in certain contexts. Massachusetts v. EPA. "protect expertise from politics"

BUT: mentioned above: ultimately a moral problem. About taking things from some people and giving them to other people who need them more.

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.