Opinion: The Supreme Court dealt a huge blow to our ability to fight climate change
By overruling the Chevron doctrine that required courts to defer to federal agencies when it came to implementing broadly written laws, the Supreme Court will make it much more difficult for the federal government to regulate pollution — including, but by no means limited to greenhouse gas emissions — among many other issues related to health, labor, consumer welfare, taxation, and on and on.
I am profoundly upset at the damage that this decision will almost certainly inflict on our environment and the fight against climate change. But more philosophically, this decision is also upsetting because it represents a demotion of science and expertise in government.
In the federal government, agencies are where detailed knowledge about specific, complex issues reside; in a healthy society, they would have some authority to manage those issues. In other words, the agencies are the ones that know stuff, and if government is to be effective, they should be able to do stuff.
Yet this is a situation where the principle and the practice are not necessarily the same. In principle, the pro-democracy rhetoric behind the court’s decision is defensible. Congress has the authority to make laws. Federal agency staff, though experts in their domains, are not elected and generally not directly accountable to the public. The majority’s logic in this decision is that when Congress gives agencies broad leeway to interpret and implement laws, it is unconstitutionally granting them some of its power to legislate.
What’s at issue here is the specific manifestation, in the American government context, of a broader issue that is more complex than many — including many scientists — acknowledge.There is a genuine tension between expert judgment, inasmuch as that is something held by individuals as a result of their educations and experiences, and democracy, which bestows power through elections.
Legitimate governance needs both to work together.
Science can’t single-handedly adjudicate conflicts between the claims and demands of different constituencies in society, like the rights of polluting businesses vs. the rights of citizens to live free of pollution. Because those conflicts involve values as well as facts, resolving them has to involve politics.
My colleague at Columbia, Gil Eyal, draws on a range of examples in his book, “The Crisis of Expertise,” to show how neither expert knowledge nor electoral politics on its own can reliably deliver public trust, or solve complex problems like climate change that have both scientific and political dimensions. Slogans like “listen to the science” gloss over this complexity. So one can’t simply say as a matter of principle that the experts in agencies should have some specific amount of power and no less. But they need to have some power; experts and elected officials need to collaborate for the system to work in the public interest. The status quo under Chevron was a way of allowing that.
Politicians by themselves lack the expertise to deal with the rapid-fire onslaught of new problems we face in our technologically advanced society. Think of artificial intelligence, as a particularly hot example. Congress does not have the expertise, capacity or flexibility to write laws that can anticipate all the wrinkles that will come up.
As another example, new chemical pollutants are continually appearing; does a new law need to be passed for each one? Could Congress really sort through the complex evidence to decide how best to write those laws, even if it were inclined to do so? Isn’t it better to write broader laws spelling out some principles about how to regulate pollution, and give the EPA some latitude to figure out how to deal with each new hazard?
Not only has the Supreme Court just hamstrung the experts in our federal agencies, but also the reality of our dysfunctional Congress means that it’s nearly impossible to pass any meaningful legislation.The Republican Party has opposedalmost all environmental legislation since 1990. The ruling against Chevron will not be followed by new environmental laws meeting a higher standard of specificity, but by none at all. Instead, countless existing agency rules will be challenged in the courts — whose judges are no more democratically elected than agency staff members are, where technical expertise is no more present than in Congress and where many rules will eventually likely be shot down by the same justices who made this ruling.
The probable outcome will simply be much less regulation. Yet regulation is how government balances the interest of the public to be free of pollution against that of corporations that would benefit from greater freedom to pollute. It is the primary defense we have to protect public health, the environment, and other public goods.
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The country will become more toxic, and the planet will get hotter faster, to all of our detriment. But polluters, and others whose private interests conflict with the public’s, will face fewer restrictions. And given the string of anti-environmental decisions from this court leading up to this one, and the underlying free market fundamentalist ideology of the presidents who nominated the justices in the majority, that seems to have been the real objective.
There can and should be a legitimate, good-faith debate about the role of expertise in government, and the balance of power and responsibility between federal agencies and Congress, given the necessity for government action to protect the public interest against environmental and public health hazards.
If we’d had that in the Supreme Court, we wouldn’t be here, under threat of a future where our government has to address climate change, pollution, and a range of other hazards to the public’s well-being with one hand tied behind its back.
This decision to limit the power of federal agencies in interpreting and implementing laws could lead to a variety of opinions among experts and policymakers regarding the impact on environmental regulation. The ongoing debate about the balance between expert judgment and democracy in governance is further complicated by this ruling.
