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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