Elena Kagan’s Blind Love Of The Expertocracy: SCOTUS Slaps The EPA

Elena Kagan’s Blind Love Of The Expertocracy: SCOTUS Slaps The EPA

SCOTUS ruled 6-3 that, in effect, without Congressional authorization, the EPA does not have the power to regulate carbon dioxide. Justice Elena Kagan dissented.

Kagan opened her dissent thus (whole opinion; with my paragraphification for screen readability):

Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is “unequivocal that human influence”—in particular, the emission of greenhouse gases like carbon dioxide—“has warmed the atmosphere, ocean and land.” [Cites IPCC] … The rise in temperatures brings with it “increases in heat-related deaths,” “coastal inundation and erosion,” “more frequent and intense hurricanes, floods, and other extreme weather events,” “drought,” “destruction of ecosystems,” and “potentially significant disruptions of food production.” [Cites, of all things, a case in which this was quoted.]

If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force “mass migration events[,] political crises, civil unrest,” and “even state failure.”

So Kagan has bought and believes, seemingly sincerely, the failed predictions of global warming, which she calls “climate change”. This is her adopted opinion, provided her by climate Experts, who claim there is no “serious doubt” about their theories.

We have seen many times that her (or her Experts’) quoted predictions of doom are false. There have not been an increase, but a decrease, in floods. Same for drought. There is no “destruction of ecosystems.” And just last week a paper appeared—a peer-reviewed paper in the regime-approved journal Nature, going by the name “Declining tropical cyclone frequency under global warming“—which shows the number of tropical cyclones have been decreasing, not increasing.

Here’s a picture from that paper (ignore the straight and red lines, which are models and not the data):

So Kagan’s suppositions about the dooms of global warming are false, and known to be false with only a little investigation. Which she did not make. Nor did Wise Latina, and nor did the other guy who’s now retired and will be quickly forgotten. Both signed Kagan’s dissent.

Their non-curiosity and blind acceptance of the Expert Consensus is point one. And really is our only point, as we’ll see.

Under the Clean Air Act, as Kagan writes, Congress gave power to the “EPA to regulate stationary sources of any substance that ’causes, or contributes significantly to, air pollution’ and that “may reasonably be anticipated to endanger public health or welfare.'”

As we know, EPA called carbon dioxide, the basis of almost all life on earth, the very stuff of your breath, the food of plants, “pollution”. And started to regulate it. Scientifically, this is like the American Medical Association saying “not all women have cervixes”, and allowing the AMA to regulate the English language.

Do people forget, or maybe they never knew, that CO2 is plant food? And not only plant food, but the plant flood. Back in olden days, they used to teach photosynthesis. No longer? Remove CO2 and plants die. Then you die.

So what the EPA did in trying to regulate CO2 was ridiculous—unless you really do believe global warming, a.k.a. “climate change”, is an “existential crisis.” As Kagan, Wise Latina, and Gone Guy believe, or say they do. But which all observations show is not so.

Models, on the other hand, show the “existential crisis” is true. And all models only say what they are told to say. So models are told to say that “climate change” is an “existential crisis.” Experts told models to say this.

Experts, therefore, value models over observation. The Deadly Sin of Reification.

The real problem, then, is letting Experts make decisions based on models which are beautiful, to Experts, but which make lousy predictions. Experts are trusted too much.

Even if you think not, and still believe the models, nothing follows from them. That is, no policy is suggested, implied, or necessary because of the models. Not one. It is separately true that all policies, suggested from any source, have consequences, which may be known to greater or lesser extent—their uncertainty in them also are models.

It is scientism, a fallacy, to say Experts who wrote climate models also know what is best to do about the weather. Scientifically, it is like saying the CDC knows what is the best rate to pay for rent during a disease outbreak. Which they did say. And were rebuked for saying. A rebuke which they ignored. Which may happen here with the EPA, too.

Therefore, even if you believe the models, which stink, a fact that requires only minor effort to check, it does not follow the Experts who created those models, including agents in the EPA, know what is best to do about model predictions.

That power should fall to Congress, and to state and local governments, who have that mandate.

In other words, the Expertocracy, which was in part struck down and which Kagan dissented against, is based on two false assumptions. The first is that Expert models have skill. They do not. And the second, which is independent, is scientism, which is that scientists with expertise in one are are equipped with greater senses of good and evil on all subjects, which is absurd.

Kagan, though, embraces the Expertocracy. She said (her emphasis):

Members of Congress often don’t know enough—and know they don’t know enough—to regulate sensibly on an issue. Of course, Members can and do provide overall direction. But then they rely, as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies. Congress looks to them to make specific judgments about how to achieve its more general objectives. And it does so especially, though by no means exclusively, when an issue has a scientific or technical dimension. Why wouldn’t Congress instruct EPA to select “the best system of emission reduction,” rather than try to choose that system itself?

Second and relatedly, Members of Congress often can’t know enough—and again, know they can’t—to keep regulatory schemes working across time. Congress usually can’t predict the future—can’t anticipate changing circumstances and the way they will affect varied regulatory techniques. Nor can Congress (realistically) keep track of and respond to fast-flowing developments as they occur.

Kagan is quite wrong. For all the reasons we discussed. Congress (as sick as that institution is) does know enough, and it knows vastly more than weather Experts about law. Because it knows, or is supposed to, what laws are, and what laws should do, and what the consequence of laws are. Climate or weather Experts do not. Congress can consult with Experts: “If we pass this law, what are the bounds of uncertainty on this particular weather-effected thing?” That is sensible. But it is rank foolishness to trust weather Experts to decide what laws are best, even if you by subterfuge call those laws “regulations”. And it even more dangerous to trust people who have something to gain, as Experts do, to decide what is “best” to do.

The impetus for the Expertocracy, and the faith in it, is there in Kagan’s words. She reasons, in effect, that Experts know more than anybody else on their subjects of expertise, therefore we have no right to interfere with their decisions on any subject.

It is a bad argument because Experts don’t always know best about their own subjects, as we see now everywhere. And even if Experts do know best about their subjects, they don’t know what is best to do about them.

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  1. Whitney

    Kagan. ‘Nuff said

  2. Robin

    “Those people are found in agencies. Congress looks to them to make specific judgments about how to achieve its more general objectives.”

    What? WHAT? Congress ‘looks’ to government agencies? Why do we have a Congress then, dear Justice Kagan? Why do we have any elected officials at all?

    Ahhh, I forgot, Justice Kagan is one of those un-elected officials. Got it.

  3. awildgoose

    Unfortunately this creature will continue to insert these sorts of poison pills into the judicial record for years to come.

  4. Hagfish Bagpipe

    That’s all well and good Briggs, but why the hell is some crazy foreign revolutionary squatting on our Supreme Court in the first place?

  5. Jim Fedako

    Even if we are doomed by inaction to human-induced climate change, the Constitution is silent on a response. If Congress does nothing, so be it. The court has no say.

  6. BDavi52

    From, “An Inconvenient Math”, 2017 essay by Michael Bernstam (https://www.hoover.org/research/inconvenient-math)

    “Climate change faces a neglected actuarial problem. Too many conditions must be met to warrant a policy action on climate change. The following four stipulations must each be highly probable: 1. Global warming will accumulate at 0.12 degrees Celsius or higher per decade. 2. It is anthropogenic, due largely to carbon dioxide emissions.3. The net effect is harmful to human well-being in the long run. 4. Preventive measures are efficient, that is, feasible at the costs not exceeding the benefits.
    But even if the probability of each of these stipulations is as high as 85percent, their compound probability is as low as 50 percent. This makes a decision to act or not to act on climate change equivalent to flipping a coin.”

    “These (conditions) are not random, nor are they arbitrary. To see this, one can run a thought experiment and drop or ignore any of the above foursome. At once, the entire call for action on climate change becomes pointless. If global warming is not ongoing, there is no need to stop it. If it is not anthropogenic, there is no need to curb carbon dioxide emissions. If it is not harmful, there is no need to worry. If preventive measures are inefficient, they would not help and there is no use applying them. It follows that all four conditions are necessary. If just one of them does not hold, action is unnecessary or useless.”

    But obviously the biggest factor of all is ignored. If the DE’s (Designated Experts) tell us ‘X is true and Y must follow’….well then we salute, snap out a snappy “Sir, Yes Sir!” and do “Y”. I mean they are DE’s after all! And we are but sheep.

  7. PhilH

    Reading your thoughtful, accurate summaries are like a breath of fresh air, with a healthy amount of carbon dioxide, about 800 ppm.

  8. Kip Hansen

    Briggs ==> We can see by the history of this case and its recent precedents that the experts, and here specifically Kagan means the EPA experts, have reversed themselves three times — Obama’s experts, Trumps experts and now Biden’s experts — on precisely the same issue. It is impossible to believe that The Real World suddenly reversed itself on the CO2 issue in the same time period.

    Thus, it is proven that the EPA experts are political tools — not Arbiters of Truth about Physical Reality.

  9. Yaddamaster

    >>Members of Congress often don’t know enough

    But she of course does understand enough to know she must hand it over to experts.

    These people are intentional idiots

  10. Patrick Gibbs

    “Our sacred democracy” is when unelected mediocrities and zealots control every aspect of your daily life in the service of a faddish cult

  11. Johnno

    Between the vexxines and starving all plant life to death, the experts are colluding to commit mass-genocide of all life.

    We have to try and sentence the Experts to death.

    Oxygen overdose is a fitting end.

  12. Robin

    The first three articles of the US Constitution created the Executive, Legislative and Judicial branches of government. Kagen wants to create the fourth branch, the Administrative.

  13. Cary Cotterman

    It’s possible to recognize that an expert in one discipline or another knows more about that subject than I do, but simultaneously to see that he is a corrupt, lying, incompetent hypocrite with an ideological agenda or greed motive, or on a power trip (e.g., Mann, Fauci, et al.). I don’t have to be an “expert”, I just have to have well-developed bullshit radar.

  14. Milton Hathaway

    “In her dissent, Kagan blathered on, irresponsibly spouting activist personal beliefs irrelevant to the acceptable thought processes of an impartial US Supreme Court Justice, prompting renewed calls for her impeachment for gross incompetence.”

    There, fixed it for you.

    Unfortunately, the deep human desire to shirk accountability won’t end with this ruling, and Congress will continue to write fuzzy legislation and rely on unelected bureaucrats to do their dirty work. I would like to see an expiration date on all government rules and regulations, requiring re-authorization by Congress on a rule-by-rule basis. The fact that this would be hugely impractical means that there are far too many rules and regulations.

    BDavi52 – thanks for the “Inconvenient Math” pointer – excellence in brevity.

  15. It is instructional to note that a sitting Supreme Court Justice made no reference to the Constitution or federal laws in her basic arguments, and in fact argued that Congress had little or no part to play in the governance of the nation.

  16. Forbes

    Appropriate to repeat my definition of an expert:

    Someone who knows more and more about less and less until they know everything about nothing.

  17. OneGuy

    If only this was “non-curiosity and blind acceptance of the Expert Consensus”. I suppose for many it is but for those behind this huge grift it is part of the great reset and massive redistribution of money and power. Most of the most vocal in this grift are bullies and thieves and belong in jail for what they are doing.

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