47 Pages Posted: 27 Jan 2012
Date Written: January 26, 2012
In a recent interview in Time magazine, EPA administrator Lisa Jackson commented on Congressional efforts to undo her greenhouse gas endangerment finding under Clean Air Act section 202: “I don't think that history will forget the first time that politicians made a law to overrule scientists.” Proponents of aggressive action to control greenhouse gases are frustrated that the international scientific consensus that disruptive climate change is highly probable and caused by anthropogenic emissions has not prevailed in the political marketplace of ideas in the United States. This truth-seeking, open marketplace of ideas is not just a recognized foundational principle in First Amendment protection for freedom of expression, but is a paradigm for our system of self governance. This “marketplace of ideas” has historically had mixed success in its “truth-seeking” function, with many instances where political truth in the United States as demonstrably at odds with objective historical or scientific truth. Nevertheless, few would argue that these market failures in the marketplace of ideas justify restrictions on speech or limitations on the principle of self-governance, substituting some means of establishing political truth other than democratic self-governance.
The public, political marketplace of ideas as a means of determining truths worthy of social response can be compared to other social systems for determining such truths. The climate science consensus has itself emerged from the system of academic truth-seeking based on repeatable experiments, calculations, and observations all subject to peer review. The economic marketplace also incorporates a truth-seeking function, as business entities make long term plans based on a future forecasts, with economic success dependent on accuracy.
There are explanations for the competitive disadvantage of the scientific climate consensus in the political marketplace of ideas. Economic interests with a vested interest in the status-quo carbon economy have preferred access to the media compared to the scientific community, an access preference that has been endorsed by recent Supreme Court First Amendment decisions. Even without this preferred access by proponents of the status quo, climate science must confront cognitive bias and framing issues in the polity: the public at large will ordinarily resist scientific theories that posit that socially accepted patterns of individual consumption will be responsible for devastating negative impacts on the global ecosystem, especially where there is a lack of direct personal experience with these negative impacts.
In light of this nation’s fundamental commitment to an open marketplace of ideas and self-governance based on the results of this marketplace, efforts to force internalization of the future environmental costs of climate change into current marketplace decision making are likely to continue to be unsuccessful. These efforts, such as regulatory limits on greenhouse gas emissions implemented through cap-and-trade market systems or regulatory regimes, seem unlikely to prevail as long as the political marketplace of ideas fails to accept the scientific consensus. This suggests that efforts to internalize the future costs of climate change that embrace the current political uncertainty associated with climate science (contrary to the scientific consensus) may be more successful in the United States, at least until some event occurs that results in a paradigm shift in the political market place. Such measures might include measures which impose contingent future liability for climate change impacts on significant industrial contributors to greenhouse gas emissions, where the contingency might consist of a specified threshold increase in global temperatures or sea level.
Keywords: Climate Change, First Amendment, Freedom of Expression, Environmental Law, Administrative Law, Cultural Cognition
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