Green Panic: Supreme Court Nominee Thinks Government “Experts” Should Sometimes Lose

Government Experts at Work in the Gold King Mine Disaster.

Government Experts at Work in the Gold King Mine Disaster. By Riverhugger (Own work) [CC BY-SA 4.0], via Wikimedia Commons

Guest essay by Eric Worrall

At least one green is worried that Judge Neil Gorsuch, a potential replacement for Supreme Court Judge Antonin Scalia, who died in 2016, thinks courts should sometimes be able to rule against the advice of government experts.

Counterpoint: Gorsuch Could Make It Harder to Address Climate Change

Posted to Politics February 18, 2017 by Billy Corriher

Editor’s Note: For an alternative viewpoint, please see: Point: Neil Gorsuch Should be Confirmed to the Supreme Court

Judge Neil Gorsuch was not on President Donald Trump’s first list of potential Supreme Court nominees. Judge Gorsuch did, however, appear on a revised list just weeks after he wrote a controversial manifesto arguing that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies like the Environmental Protection Agency.

Anyone concerned about the health of our environment should oppose Judge Gorsuch’s nomination. If Judge Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.

At the heart of Judge Gorsuch’s August 2016 manifesto is the Supreme Court’s 1984 decision in a case known as Chevron v. NRDC. In Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.

The court’s Chevron ruling was a common-sense approach to judging voluminous, complicated regulations. In practice, this approach means that when the Clean Air Act is unclear, the scientists who decide what level of air pollution could harm human health should get the benefit of the doubt. In other words, judges — whose expertise is in the law, not environmental science or public health — should let agency experts fill in the blanks.

Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs. Furthermore, if courts move away from Chevron, some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations, banking fraud and patents. This is an impossible standard for any judge to meet.

Read more: http://www.insidesources.com/counterpoint-gorsuch-climate-change/

To their credit Inside Sources have also published an alternative viewpoint, an endorsement of Judge Gorsuch.

I like this judge. In my opinion, excessive deference to government experts is a big part of the reason why climate policy is so messed up. Government experts are human like the rest of us, and as subject to sloppy thinking, incompetence, and just being plain wrong as anyone else. When it comes to a court of law, government representatives should be subject to the same scrutiny as any other party.

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124 thoughts on “Green Panic: Supreme Court Nominee Thinks Government “Experts” Should Sometimes Lose

  1. There are striking similarities between the way a court approaches an issue and the way science does – both use testimony amd evidence from various viewpoints in an attempt to get at the truth.

      • The big difference is in the treatment of “expert” testimony. Science takes no regard of the credentials or status of a practitioner, only his evidence and arguments. To the contrary, courts are likely to weigh up the proffered credentials of the opposing experts testifying, as their main method of determining credibility.

        For this reason, I generally have little faith in the courts to make defensible decisions on matters of controversial science.

    • This is emphatically not true in the case of regulations put forward by the Administrative State. In fact, it is nearly the complete opposite. All “fact finding” is done at the agency level in what is referred to with a straight face as “notice and comment rule making.” The agency publishes a notice in the Federal Register. People who care send in their comments. The Agency responds to the comments and presses on. If the rule is appealed, it is appealed on the record made at the agency level. There is never any cross-examination of anybody. The Agency is the plaintiff, judge and jury, and the verdict is always to their liking.

      At the appellate level, the Court defers to the agency’s interpretation of law. When it comes to agency scientific determinations, though the Courts apply “super deference.” Effectively, the Court says “we don’t know nothing ’bout no science, so we’re gonna do whatever those civic minded and pure-hearted bureaucrats say, unless it’s arbitrary and capricious.” If there are two conflicting scientific points of view, the Agency can pick the one they like and the Court won’t touch it. The theory of phlogiston would still prevail under this system. In other words, judicial review of agency scientific findings is like Bigfoot – people talk about it, but nobody has ever actually seen it, except in some grainy photographs from the Reagan Administration.

      The Agencies know this, and so they frame as much of their agenda as possible as scientific determinations, knowing that doing so makes that position effectively invulnerable to challenge. Under this system, the Agencies have ratcheted up their claims of power and regulatory authority to ridiculous and Leviathan levels – the puddle in your back yard is subject to draconian EPA regulation under the WOTUS rule. Because “science.” See Sackett v. EPA. The only really effective checks are the conscience of the regulators – a joke – and the ballot box. Now that the voters have risen up against their administrative overlords, the regulators are in open and notorious revolt, when they are not tearfully whimpering at the onset of the long dark night of fascism. This will be an extremely bitter conflict for the duration of the Trump Administration. Scott Pruitt has his hands full, as Neil Gorsuch’s mother did in the Reagan Administration.

      A Justice Gorsuch will pull this back a little bit, but only barely and incrementally.

      • “in Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.”

        Normal judicial precedent for unclear or vague, especially when big government is pitted against citizens, is a decision for null and void.

        Neither judges nor alleged experts should pretend they can interpret a law/regulation’s intent, especially when it negatively affects citizens.

        The ‘Willis’ rule that should be operating is, first; Do no harm!
        Any evidence of error on the part of an agency makes for “complete do-overs!”.
        The old “where there is smoke, there is fire” adage works when evidence of any error or doubt exists.

      • “A Justice Gorsuch will pull this back a little bit” Maybe, just maybe between Gorsuch and Congress the Data Quality Act will receive some teeth.

    • “And with the pace of climate change now reaching devastating levels, . . .”

      No devastation in the real world. This is pure propaganda and fear-mongering, which is a very good reason that the EPA should be taken to task for new regulations that are too extreme or illogical.

      The EPA holds to the principle that any level of mercury is too much, completely ignoring that mercury is in the environment naturally and that “the toxicity is in the dose.” With the EPA’s approach, their mercury regulations make sea air illegal and their ozone rules make our national parks in violation on a sunny day—plants release ozone.

      Do not forget that these regulations are supposed to go to Congress and then voted up or down after it is examined and discussed. Most regulations in recent years from the EPA are illegal.

      • It was my understanding that the congress up or down vote articulated on descent only vote. In other words if an elected representative did not like/want a particular EPA new regulation, a NO vote would be cast. If 49% No’s were cast, the regulation passed into law. If 51% cast no, the regulation was heard on the floor. All the while 90% of these elected did not know what the regulation did or meant to say. Examination, unfortunately, is done by a small select group in some committee. Committee’s have become special-special Interest lobbyist for or against some Legislative process.

      • “And with the pace of climate change now reaching devastating levels”

        Yes, I had a problem with that statement, too. My question: Where is this devastation happening?

        And they assume too much when they claim they know “the pace of climate change”. We can’t even measure human-caused climate change, so how do they measure the difference between a moderate climate change pace and a faster climate change pace? Answer: They don’t, they just pulled that statement out of thin air. Like most of these studies do, it assumes too much, such as that human-caused climate change is happening now. They couldn’t prove it if their lives depended on proving it, but they assume it for their studies. Not the scientific method.

      • My question: Where is this devastation happening?

        Like many other things going on these days, the “proof” is the repetition of “news” stories. Absurd.

        Although it takes a trivial amount of effort on the Gish Galloper’s part to make each individual point before skipping on to the next (especially if they cite from a pre-concocted list of Gallop arguments), a refutation of the same Gallop may likely take much longer and require significantly more effort (per the basic principle that it’s always easier to make a mess than to clean it back up again).

    • Government input for the last eight years has been mostly based on political agenda than the truth or expertise, especially from rogue agencies like the EPA (which needs to be placed in a straight-jacket or put out of its misery).

    • “that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies like the Environmental Protection Agency.”

      The leftist progressive judiciary use precisely that approach, although mostly in the social engineering realm.
      I cite the most obvious recent travesty relating to President Trump’s immigration pause.

    • What planet are these people on, with “the pace of climate change now reaching devastating levels?” Mars? This is 100% made-up stuff, and the BIGGEST job climate realists have to do now that this can be discussed, is to DEFEAT THE LIBERAL MEME that energy companies etc. WANT to pollute, destroy, impoverish, and “devastate.” We’ve been swallowing this shit for 50 years, ENOUGH already of the lies!

      • So according to left-liberals, these self-interested capitalist bodies are practicing what amounts to selfless evil? (e.g. We’re gonna destroy the world! [that we’re standing on] )

        Riiiiight.

  2. Equality before the law is one of the foundations of civilisation, democracy and modern society. And therefore it seems highly likely that the idea that some are “more equal than others” will lead us nowhere good.

  3. We used to fish 50 years ago in the Animas River in Colorado in summer…it is so sad what has happened has destroyed all life forms in that river.

      • Where do you people get your data? even “Trout Unlimited” disagrees. This website deserves better than poorly researched alarmism.

        http://coloradotu.org/2015/10/dateline-durango-animas-after-the-spill/

        “Lost among the “Orange River” pictures, the apocalyptic commentary with words like disaster, catastrophic, etc., and the hyperbolic ventilating about the impact to the fishery has been the good news: the Animas River has weathered the spill and the fishery through the Town of Durango is doing well.

        If you didn’t know to look for very faint traces of iron residue, you wouldn’t even know we had this insulting event in early August. The Animas is back to its usual state of water quality. As to the fishery, there has been no fish mortality documented from the spill, while bug sampling by an aquatic biologist with Mountain Studies Institute indicates a still thriving population of mayfly nymphs and caddis pupa. Colorado Parks and Wildlife (CPW) had installed pens of fingerling trout in the Animas before the plume arrived – a canary in a coal mine, if you will. None of those fish died either. In the past few weeks we have seen Baetis, midges and Tricos coming off. CPW ran an electro-shocking episode after the “Spill” with the usual re-capture protocol and got essentially the same results as the year before.”

      • @ Doug,
        And if this had been a private company that created the spill that same agency that states it is all well would bemoan the fact that this happened and it will never recover. Color me unimpressed that a government agency is covering for another government agency.

      • Trout Unlimited is hardly a government agency. If the river were void of “all life forms, they would speak up loud and clear.

        “The bottom line is Durango is still a great place to visit and to be your base for fly-fishing outings.

        – Buck Skillen, President, Five Rivers Chapter TU

        The latest fishing report/forecast from Duranglers:

        Except for some rain events the Animas has been fishing very well with solid Trico and midge hatches. Streamers have been effective as well.”

      • I’ll believe the report. Aquatic ecosystems are remarkably resilient. However, I really doubt the “no fish mortality”. That water was not survivable in its initial concentrations, and I do not believe that we could avoid all fish kills in that.

  4. Government experts are often paid by government in some way or another anyway, so there’s more to this than I’m reading here. Government has spent decades funding only one point of view on the climate change issue, for example, so demanding that government only hear opinions it has already bought and paid for won’t really further anyone’s interests other than whatever government faction has been funding the development of the so-called expertise. So in that light, if someone is suggesting that experts must make their case before the court, and then allow the court to decide based on the strength of the argument and not on whether or not that person is an expert, I’m not really seeing a problem.

  5. As soon as a government makes the assumption that more regulation is not, by definition, a good thing, then the onus of proof must be on those trying to bring in new legislation, to show that it is warranted, beneficial, and not excessively onerous.

  6. For the climate obsessed law, justice, truth and reason are mere road bumps. All that matters is imposing their will on us taking our money and increasing their power.

  7. When you think about the govt keep in mind that the govt has been involved in perpetrating the biggest lies and frauds:

    Tom Nelson ‏@tan123 24h24 hours ago
    “evidence is emerging that the official climate statistics have been fraudulently altered all over the developed world” https://twitter.com/tan123/status/832928521924272128

    Cut *** ALL *** money for politicized science.

    No more money for the leftists and their climate deceptions!!!

  8. “Furthermore… some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations…. This is an impossible standard for any judge to meet.”

    How hard can it be? After all, the author himself become an expert on climate change: “with the pace of climate change now reaching devastating levels…”.

    • No, government experts are infallible ex cathedra. There is no point checking what they do in a court. They can’t err. It is because they’re above the law.

    • Oh noooo!

      We’re nowhere near peak computer viruses then???

      Remember all the deaths with Y2K? I wouldn’t want to go through that again. I couldn’t get to work for all the heaped up corpses.

    • From the article:
      “It’s also true that the next epidemic could originate on the computer screen of a terrorist intent on using genetic engineering to create a synthetic version of the smallpox virus . . . or a super contagious and deadly strain of the flu.”
      Gene modifying equipment and procedures are getting cheaper/easier by the week and are almost totally unregulated (sometimes oversight is a good thing). While the non-governmental terrorist segment used to be a big bunch of dummies that were lucky not to blow themselves up, that is also changing by the week, so this point does have some merit.

      • It never ceases to amaze me how so many pro-government types naturally assume that all we have to do to protect ourselves against bad guys, is for government to outlaw, or at least heavily regulate the tools used by bad guys.

        Just as they believe that enough government regulations will keep guns out of the hands of bad guys.
        Government regulations will keep gene-splicing equipment out of the hands of bad guys. Even when those bad guys are also governments.

    • Al-Qaeda cell killed by Black Death ‘was developing biological weapons’

      An al-Qaeda cell killed by the Black Death may have been developing biological weapons when it was infected, it has been reported.
      The group of 40 terrorists were reported to have been killed by the plague at a training camp in Algeria earlier this month.
      It was initially believed that they could have caught the disease through fleas on rats attracted by poor living conditions in their forest hideout.
      But there are now claims the cell was developing the disease as a weapon to use against western cities.
      Experts said that the group was developing chemical and biological weapons.

      http://www.telegraph.co.uk/news/worldnews/africaandindianocean/algeria/4294664/Al-Qaeda-cell-killed-by-Black-Death-was-developing-biological-weapons.html

  9. Who are the experts and why are they always “shocked”, “Stunned”, “surprised” or “confounded”?

    • Exactly. If it’s always “worse than we thought” then by definition, the initial “thought” was incorrect. So why trust the revised “thought”? Maybe it will ultimately prove to be “better than we thought”, right? I thought so.

  10. Is a Judge not supposed to be impartial, listen to both sides of the argument and then make a decision on the facts as he/she has had them presented to him/her?
    Or is that too old fashioned?

    • That’s so last century. In modern jurisprudence, the judge is supposed to decide what the right answer is, then figure out a way to distort the law and the facts in order to support the predetermined position.

  11. The job of a judge is to rule on points of law, not make scientific assessments.

    Whether climate scientists are right or not is irrelevant as far as the Supreme Court is concerned

    • Agreed, in principle, but when a law or regulation is vague, (and most of the are), it vests to much power in the agency that administrates that field. It’s the Barney Fife syndrome, given half a chance to flex their muscles some mid-to-low-level operative will go after somebody.

      Chevron deference is a notion that the government “experts” are more “expert” than anyone else. In my reading Gorsuch’s position is that government experts are not more expert than anyone else, and they need to establish that primacy in the eyes of the judge. The notion of establishing an expert basis for statements made before the court is pretty common when dealing with an expert witness in any legal proceeding, so it is entirely consistent with the court’s responsibility.

      • – Is it not possible that many points of argument regarding laws and regulations are in the form of “IF” (the science”)/THEN (what action should be taken)?
        It is perfectly reasonable in most instances to leave the first part, the science to the experts but have reasonable discussion as to how that finding translates into actionable regulation.

        – The obvious exception is when it can be demonstrated to even lay people that the “experts” did not follow an acceptable process in coming up with their conclusion.

        Specifically the SCOTUS said EPA was permitted to declare CO2 a pollutant if they determined it so in their perscribed endangerment process. They threw their own “finding and review” processes out the window and essentially said “If the IPCC thinks it’s dangerous, that’s good enough for us.” That in my mind is something that should be subject to litigation. They either followed the correct process or they didn’t.

    • This is a FAKE issue. Like FAKE news. This issue as absolutely nothing to do with a judge overruling a scientific opinion of a scientist. Nothing, zip, zilch!

      The issue is over the authority to make regulations when the law is vague about authority to make regulations. This is 100% a legal issue. Gorsuch wrote something about how what is called the “Chevron deference” is a decision that should be revisited.

      Now in sympathy to environmentalists the decision by the Supreme court rejected an environmental corporation’s lawsuit against an agency for making a decision to the benefit of Chevron. (it allowed an existing plant to get permits for new equipment that did not meet standards as long as the total emissions from the plant itself did not increase). There are a lot of cases like this. Recently the EPA has been more likely to be tougher rather than more lenient in those kinds of decisions.

      Today more and more the decisions are extending regulatory authority over the regulated in vague situations (like CO2).

      What is fascinating about this is the EPA Administrator that allowed the loosening of the noose on Chevron was Neal Gorsuch’s mother, Anne Gorsuch, EPA administrator under Ronald Reagan.

      Further Gorsuch’s reasoning was largely an acknowledgement that this would seem to be squarely in the province of judicial authority. By not hearing these kinds of cases or dismissing them was likely an abdication of judicial authority to interpret the law.

      Another twist is that it is likely the “chevron deference” could see a lot of use under the Trump EPA. The Chevron case has been called “regulations made easy” and equally applies to “deregulating made easy” as in the original case.

      The anti-Gorsuch people just don’t want Gorsuch because he is a conservative and all this is about is rallying the masses to that cause. Its a FAKE issue because it is not about overruling government experts in science or economics, its about overruling government legal opinions and legal experts regarding their legal authority. Need I say more?

      Ah heck why not. One of the links in the above article argues that Gorsuch wants to make it harder for the EPA to address Climate Change. That’s FAKE too. All that would happen if Chevron is reversed would be the court might actually hear the case as to whether the EPA has the authority to regulate CO2 and certainly the Supreme Court is the best equipped to make that decision.

      So here we have the anti-Gorsuch crowd doing exactly what they are slamming Trump for doing. . . .again. . . .namely questioning the political view point of judge or appeals court. LOL! Let him who is without sin cast the first stone.

      If you want to read a good article much better written than mine see: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/24/should-chevron-be-reconsidered-a-federal-judge-thinks-so/?utm_term=.764297b0efd7

      • “So here we have the anti-Gorsuch crowd doing exactly what they are slamming Trump for doing”

        If you want to know what a liberal is planning. Look at what he is accusing others of doing.

    • Exactly! Laws do not have to be scientific, and indeed most are the antithesis of science (feel good is not science).

      The point to influence the laws is at the creation, not in the courts.

    • Correct.
      As has recently been proven as per President Trump’s temporary immigration hold. …oh wait!

    • Which is why Greens are panicking that their experts aren’t being listened to. They haven’t worked out that reliable electricity might help getting any message across for starters.

  12. Gorusch seems like a good appointment from Trump. Possibly the most sensible act so far. He seems to be in the mold of Scalia. He will not be afraid to sand up to the president or anyone else to uphold the law and set aside personal preferences.

    Experts should be listened to within their area of expertise. Doctors tell us about medicine, but they cannot tell us whether policy should be to promote healthcare over, say computer access. In other words experts must be used to quantify costs and benefits and determine on whom these will fall, but the same experts cannot decide which costs and benefits bundle we prefer.

    Simple example, economists can tell us that progressive tax policy is distortionary. Yet we still prefer to bear those costs to promote some form of equality.

    So we mus listen to experts but we don’t have to do what they say, as long as we do it with eyes open.

  13. The so-called Chevron Deference has very little to do with deference to an agency’s scientific expertise but with an agency’s legal opinion:

    Chevron Deference
    One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.

    .

    See https://www.law.cornell.edu/wex/chevron_deference.

    • The interpretation of a statute often has a scientific basis, (or pseudo scientific basis). Look at EPA Title IX on Noise Abatement and Control. It’s couched in the notion that noise has psychological impacts, (I don’t disagree), but those impacts are equivocal, as is much of the field of psychology. In order to interpret that mandate one must make a “scientific” judgment of the psychological impacts, since the code itself says nothing about the temporal are physical nature, (frequency and dB), of the auditory stimulus. Subsequently, it almost always reduces to the notion of expert opinion in the interpretation of the statute or regulation.

  14. The “experts” convinced the SCOTUS that CO2 was a pollutant. Imagine what a totalitarian state can do with that kind of ruling? Eisenhower saw from the inside just how dangerous “experts” can become, and the threat they pose a free nation.
    Climate “Science” on Trial; The Prophet Eisenhower Warned Us About Climate Scientists
    https://co2islife.wordpress.com/2017/02/09/climate-science-on-trial-eisenhower-warned-us-about-climate-scientists/

    To make matters worse, the “experts” have become corrupted and now have become emboldened to the point where they feel free to manipulate the data to get the “expert” conclusion they desire.
    Climate “Science” on Trial; Cherry Picking Locations to Manufacture Warming
    https://co2islife.wordpress.com/2017/02/18/a-tale-of-two-cities-cherry-picking-locations-to-manufacture-warming/

    What the SCOTUS has to do is demand robust research from both sides, from disinterested parties, and from methods like double blind studies that don’t allow the conclusion to be reached in any biased manner. Once again, the SCOTUS was convinced that CO2 is a pollutant. You exhale air that is 40,000 ppm CO2. That makes humans polluters from the day they are born.
    https://i2.wp.com/co2islife.files.wordpress.com/2017/02/soon10.png?ssl=1&w=450

    • No. Mass v. EPA was not about whether CO2 is a pollutant. It was about whether the CAA gave the EPA the power to make such a determination. Because of the circular CAA definition of a pollutant as that which pollutes, the EPA could and did. The CAA needs amendment. SCOTUS cannot fix it.

      • ristvan

        (In all seriousness) why not? They “fixed” the Obamacare law.

        Sure looks to this finance guy like the court fixes some things and not others.

      • Javert Chip February 19, 2017 at 6:59 pm

        SCOTUS did not fix Obamacare. They declared the so called “fair share contribution” for not having health insurance a tax. Roberts also stated that only Congress can change a a tax, not SCOTUS. It has been a failure on the part of the Congress to change that tax and no one else.

  15. I doubt that Mr. Gorsuch is a Scalia – that is a fur piece to go. But we may hope. Scalia was a truly devout Catholic, one of his sons is a priest, his faith was foundational to his juridical approach. He did believe fervently in ultimate goodness, ultimate Truth. How he was able to engage his silly opponents as Ginsburg with true friendship was a measure of the man that few could achieve.

    • Agree Shawn. Gorsuch was whining about how judges are treated. I fear he might be a leftist wolf in sheep’s clothing some what like Rogers who gave us Obamacare originally.

  16. Following up on the above comment, therefore, it is quite appropriate for a Judge to second guess an agency when it attempts to provide a legal interpretation of a statute that is unclear.

    In fact, I would say that is precisely a judge’s job, and that the Chevron Deference was, therefore, wrongly decided.

    I wasn’t always of that opinion, but with age and experience, I have come to believe that agencies, no less than than other institutions and (many) individuals, will always try to maximize their reach and/or enforce their biases.

    • Indur

      “…[W]ith age and experience, I have come to believe that agencies, no less than than other institutions and (many) individuals, will always try to maximize their reach and/or enforce their biases.”

      You’re kidding, right? This realization actually required “age and experience”? What happened to common sense?

      In any event, welcome to the world.

  17. Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts

    The Left is over about their efforts to “politicize” the SCOTUS by selecting only highly activist judges. What makes anyone think they won’t support the politicization of science and government organizations? The key word in this following quote is government expert.

    At least one green is worried that Judge Neil Gorsuch, a potential replacement for Supreme Court Judge Antonin Scalia, who died in 2016, thinks courts should sometimes be able to rule against the advice of government experts.

    Once again, Eisenhower warned us about the threat of government paid experts. And he had a front row seat.
    Climate “Science” on Trial; The Prophet Eisenhower Warned Us About Climate Scientists
    https://co2islife.wordpress.com/2017/02/09/climate-science-on-trial-eisenhower-warned-us-about-climate-scientists/

  18. Government “experts” at work:

    In May 1963, Rachel Carson appeared before the Department of Commerce and asked for a “Pesticide Commission” to regulate the untethered use of DDT. Ten years later, Carson’s “Pesticide Commission” became the Environmental Protection Agency, which immediately banned DDT. Following America’s lead, support for international use of DDT quickly dried up.

    The results were horrific:

    After DDT was banned, malaria reemerged across the globe:
    • In India, between 1952 and 1962, DDT caused a decrease in annual malaria cases from 100 million to 60,000. By the late 1970s, no longer able to use DDT, the number of cases increased to 6 million.
    • In Sri Lanka, before the use of DDT, 2.8 million people suffered from malaria. When the spraying stopped, only 17 people suffered from the disease. Then, no longer able to use DDT, Sri Lanka suffered a massive malaria epidemic: 1.5 million people were infected by the parasite.
    • In South Africa, after DDT became unavailable, the number of malaria cases increased from 8,500 to 42,000 and malaria deaths from 22 to 320.
    Since the mid 1970s, when DDT was eliminated from global eradication efforts, tens of millions of people have died from malaria unnecessarily: most have been children less than five years old.

    http://www.thedailybeast.com/articles/2017/02/04/how-rachel-carson-cost-millions-of-people-their-lives.html

  19. Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts

    Hopefully they will apply the general rule that extraordinary claims require extraordinary evidence.

    • PaulH

      Hopefully ristvan sees this and comments:

      IMHO, no judge should be put in the position of second-guessing an expert witness. No single individual could credibly do this.

      By analogy, just as corporate executives need to know when to involve expert lawyers, judges should have the discretion to invoke a process to validate an expert witness (different from second guessing). What little I know of court procedures (not much) leads me to believe said procedures actually work against such validation.

      I’m assuming one of the risks here is a judge’s failure to use this process may be yet another reason for overturning a decision (if you do it for one, you have to do it for all).

      • I believe that the problem is a tendency to give precedence to the governments experts vs. any private sector expert.

  20. When it comes to science, there are experts outside of government as well as within. I think the deference was based on the fact that the agencies had a long experience in writing and enforcing regulations within their purview. When it comes to the underlying science, I don’t think they deserve such recognition.

  21. One man’s expert is another man’s fool.

    Would you allow an expert like Peter Wadhams or Michael Mann to formulate policy???

    I thought not.

  22. Government Experts!
    A contradiction in terms,at best.
    Given the demonstrated ethics of far too many branches of “government” combined with their work ethic..Good Enough for Government is a standard all by its self.

    Then the hiring and promotion system of our bureaus..a block of wood can rise to “lead” your average department, by the simple expedient of long service.
    Especially a well connected block .

    As noted above,we are awash in examples of government employees,passed off as experts,at great expense to taxpayers, when their only qualifications for such title is,
    X;an unknown quantity.
    Spurt; a drip under pressure.
    And the pressure is about to become intense on many of these “experts”.
    Other peoples money is running out,the Poly Ticks are feeling the hate, somebody has to be thrown to the mob to facilitate their escape.
    Who better than, Government Expert?

  23. I’ve thought that it would be good to have an actual court case involving global warming. By bringing the case to court, there would be forced conditions where BOTH SIDES of the issue would be aired. Today, too much of the public discussion is one sided, and, in particular, the “science is settled” dogma oh the left sees to it that debate is avoided.

    Unfortunately, most court battles are dominated by lawyers. That can be OK, provided that the “right” lawyers and judge are involved. I’m not sure that a random court case will let that happen. I was involved in a highly technical court case a number of years ago, and though the judge was bright and willing to learn, he simply did not fully understand all of the engineering issues in the case.

  24. Look at the big picture. They are outnumbered at least narrowly all along the line; in all three branches. So what do they do? Mindlessly attack all along the line. A lot like bad computer AI, actually. And their new executive order seems to be that every time Trump screws up, they have to screw up twice as much and twice as bad.

    When the GOP was on the skids after 2008, the GOP marshaled its forces, garnered its favors and struck back hard on two issues. The climate bill was defeated, and Obamacare passed by a whisker. The Tea Party nailed down the house and the Old Boys wooed back the senate. Both wings (largely) set their differences on social policy aside and concentrated on what they agreed on (economics, regulations, role of agencies, etc.).

    Poor Schumer. He gets all this. But every time he tries to apply any sense of tactics to the herd of krazy kats he’s shackled to, he’s got his own party tromping on his lawn chanting, “What the **** Chuck.”

    So, let’s hope this Movement achieves the same sort of political success it did last time ’round in 1968 (i.e., 20 out of 24 years of GOP presidents and the short rise and long fall of the “veto-proof congress”). Yer beautiful; don’t ever change — Resist, Peace, Out.

  25. You can read a summary of Judge Gorsuch’s opinion here, and the entire thing here.

    Billy Corriher’s take seems like overhyped panic to me. Gorsuch is noting the increasing excesses stemming from the Chevron deference and making the case that it’s time to overturn or constrain it.

  26. The following excerpt from Justice Gorsuch’s opinion is worth a read:

    But even this doesn’t fully resolve the problem. When the political
    branches disagree with a judicial interpretation of existing law, the Constitution
    prescribes the appropriate remedial process. It’s called legislation. Admittedly,
    the legislative process can be an arduous one. But that’s no bug in the
    constitutional design: it is the very point of the design. The framers sought to
    ensure that the people may rely on judicial precedent about the meaning of
    existing law until and unless that precedent is overruled or the purposefully
    painful process of bicameralism and presentment can be cleared. Indeed, the
    principle of stare decisis was one “entrenched and revered by the framers”
    precisely because they knew its importance “as a weapon against . . . tyranny.”
    Michael B.W. Sinclair, Anastasoff Versus Hart: The Constitutionality and
    Wisdom of Denying Precedential Authority to Circuit Court Decisions, 64 U. Pitt.
    L. Rev. 695, 707 (2003).

    Yet even as now semi-tamed (at least in this circuit), Brand X
    still risks trampling the constitutional design by affording executive
    agencies license to overrule a judicial declaration of the law’s meaning
    prospectively, just as legislation might — and all without the inconvenience of
    having to engage the legislative processes the Constitution prescribes. A form of
    Lawmaking Made Easy, one that permits all too easy intrusions on the liberty of
    the people.

    This is hardly the raving of someone who feels he is entitled to overrule scientific experts on matters of science, but a thoughtful jurist pointing out that as currently practiced, the Chevron deference requires the courts to defer to administrative agencies on matters of law, even if it overrules their own prior decisions. As he states, if agencies disagree with judicial decisions, their remedy is to get new legislation explicitly endorsing their interpretation.

    All of which seems perfectly reasonable to me.

  27. approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change

    the EPA’s charter is limited to air and water pollution and does not include climate change. the EPA is not a climate change agency.

  28. If you wish to judge things, especially in a Supreme manner, surely it is imperative to be capable of challenging experts? What is imperative is to be able to understand the fundamental postulstes being claimed and whether the mechanisms asserted to be valid as evidence streams are robust enough to be relec upon.

    I find it highly worrying thwt anyone should take supreme decisions based on an admitted limited level of understanding. It is for bog standard judges to follow precedent. Those considered worthy of setting such precedents must be of an altogether higher standard. Those thinking otherwise should admit they are unfit for the highest levels of judicial office.

    Assuming that Supreme Court Judges are not just political pimps hired to deliver judgements for their masters to order….

  29. Politically directed and warped expertise behind the front armor of government is the worst case. Then using unqualified celebrities from other fields to defend the wrong is the tip off that it’s worse than everyone feared.

  30. Judge Gorsuch is not a “potential replacement for Antonin Scalia.”

    Gorsuch **will be** the replacement for Antonin Scalia. If the Dems do initially succeed in a filibuster on bringing his nomination to a floor vote, then Senate Majority Leader McConnell **will** change the filibuster rules (as Harry Reid did for lower court judges and executive branch nominees) to get Gorsuch on the Supreme Court with a simple majority vote.

    The Democrats would be utterly stupid to filibusterGorsuch though. (not that that has ever stopped them, to wit: Harry Reid’s changing the filibuster rules in 2013.) The clear thinking folks realize that President Trump may have 2 more SCOTUS vacancies before 2020. Ginsberg and Kennedy are quite likely to depart by 2020. One naturally, and one by retirement. Having the filibuster rule removed for SCOTUS would then make Ginsberg’s replacement with a young ultra-Conservative unstoppable. The Dems can throw a tantrum now and lose their ability to argue against a future conservative Ginsberg replacement, just as they had no ability to stop Trump’s cabinet picks (esp. DeVos and Pruitt) because Harry Reid was foolishly stupid in 2013.

    Like now, the irony is the Dems trying to engineer an outcome (block a well-regarded Gorsuch) get exactly what they didn’t want in the future exactly because of their foolish drive to placate their far Left zealots.

  31. Judge Gorsuch is not a “potential replacement for Antonin Scalia.”

    Gorsuch **will be** the replacement for Antonin Scalia.

    If the Dems do initially succeed in a filibuster on bringing his nomination to a floor vote, then Senate Majority Leader McConnell **will** change the filibuster rules (as Harry Reid did for lower court judges and executive branch nominees) to get Gorsuch on the Supreme Court with a simple majority vote.

    The Democrats would be utterly stupid to filibuster Gorsuch though. (not that that has ever stopped them, to wit: Harry Reid’s changing the filibuster rules in 2013.)
    The clear thinking folks realize that President Trump may have 2 more SCOTUS vacancies before 2020. Ginsberg and Kennedy are quite likely to depart by 2020. One naturally, and one by retirement. Having the filibuster rule removed for SCOTUS appointments would then make Ginsberg’s replacement by Trump with a young ultra-Conservative unstoppable. The Liberal teeth gnashing they threw in response to Scott Pruitt at the EPA would be mild relative to that.
    So the Dems can throw a tantrum now and lose their ability to argue against a future conservative Ginsberg replacement, just as they had no ability to stop Trump’s cabinet picks (esp. DeVos and Pruitt) because Harry Reid was foolishly stupid in 2013.

    Like now, the irony is the Dems trying to engineer an outcome (block a well-regarded Gorsuch), they would get exactly what they didn’t want (in the future) exactly because of their foolish drive to placate their far Left zealots.

  32. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.”

    That sentence literally did leave me Rolling on the floor, laughing my ass off!!! Funny!
    It just amazes that people may actually believe that crap.

    • joelobryan

      Some among the chronically under-scientifically-educated will swear to you that they can actually feel the effect of cumulative global warming.

      Since retiring to Florida 4 years ago, I have asked a few of these people usually, millennial children of acquaintances at social function) how much global warming has taken place in the last hundred years – general answer is 10-15 degrees.

  33. Futility defined: Attempting to end the practice of arbitrary and capricious Federal law enforcement. We have long-since passed the point of no return on the popular conception that we are a country of ‘laws, not men’. Obviously the Judiciary knows this and does little to deal realistically with the facts. A cursory ‘Google’ of ‘How many Federal laws there are…’ produced this (below) for starters:

    http://www.kowal.com/?q=How-Many-Federal-Laws-Are-There%3F — 20,000 laws on firearms alone!
    They’ve been accumulating, of course, for more than 200 years.  When federal laws were first codified in 1927, they fit into a single volume.  By the 1980s, there were 50 volumes of more than 23,000 pages.
    And today?  Online sources say that no one knows.  The Internal Revenue Code alone, first codified in 1874, contains more than 3.4 million words and, if printed 60 lines to the page, is more than 7,500 pages long.  There are about 20,000 laws just governing the use and ownership of guns.
    New laws mean new crimes.  From the start of 2000 through 2007, Congress had created at least 452 new crimes, so that at that time the total number of Federal crimes exceeded 4,450.

    So, want to prosecute anybody, anytime? Pick your law, there’re plenty to go around.

  34. ‘Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs.’

    I see it as forcing those who bring flawed science to bear on anything, to go back and do a better job of it the first time, or give up on trying to force bad science and flawed decisions down our throats.

  35. “…making it much harder for those who draft regulations to do their jobs.”

    A better way to phrase this would be:
    “…making it necessary for those who draft regulations to do their jobs competently.”

  36. Experts are not dispassionate gods. They are fallible humans subject to the same cognitive foibles as everyone else. Their predictions of the outcomes of most things are no more accurate than those of a dart-throwing monkey.

    What experts do have is more facts at their disposal than everyone else. No matter whether they are right or wrong, they will always win arguments with ‘civilians’ based on their superior knowledge. The crude way of saying it is that ‘bullcrap baffles brains’. Thomas Frank nailed it. The liberal elites love complexity because it makes them feel smart. That has served the rest of us poorly.

    … the law was deliberately “written in a tortured way” with a “lack of transparency” that was meant to confuse evaluators and thus get it past the clueless and bewildered public. (Gruber’s exact phrase was “the stupidity of the American voter.” 2) This is repugnant, but it seems plausible. We know that complexity serves exactly this purpose in other branches of professional practice— think of the baffling opacity of Wall Street’s technical dialect, which is designed to make outside scrutiny difficult if not impossible. Why not here, too?

    • Agreed. My thesis advisor used to tell the group that if we were unable to explain the importance of our science “to a truck driver in a honky-tonk bar in Texas”, then should ask ourselves why we should expect such people to pay for it.

    • In the case of climate they do not know more than the rest of us, but all they have to do is claim the information was got by hacking as the UEA did and it can no longer be used publicly. Few individuals can afford to fight the whole resources of a rich university and it is impossible to prove you did not hack it rather than they were just incompetent at using email and did not remember not to use the curry club list instead of the works one.
      The climate temperature data set miserably fails the QA requirements used for products sold in Poundland which is reasonably demanding given the budget nature of their goods but nowhere near the requirements of life critical products which the greens are claiming is the nature of climate change. No station measurement setups have to be annually verified let alone before each batch of readings. The skewed urban dominated measurement distribution is so extreme this would also constitute cooking the books in the QA standards.

  37. Who drafted the law may be important.
    In English Contract law, if there is a disputes regarding the interpretation of any clauses within any signed Contract such as vagueness or even ambiguity, then judgement is normally against the Party that drafted the contract. Whether this applies in the USA – I am not certain! Whether a regulation or law can be considered to be a contract between the government (agency) that drafted and issued the law or regulation and the people or legal entities to which this law or regulation applies – I don’t know. Any lawyers here who can comment on this?

  38. … Government experts are human like the rest of us, and as subject to sloppy thinking, incompetence, and just being plain wrong as anyone else. When it comes to a court of law, government representatives should be subject to the same scrutiny as any other party.

    That may be giving government experts too much credit. Based on their performance on the climate file, there’s a case to be made that they are MORE subject to incompetence, error and corruption than others and therefore need MORE scrutiny.

  39. Judges should have the power to say prove it beyond all reasonable doubt or yes the experts not only can be ignored but should be ignored. Beyond all reasonable doubt should mean the experts must be able to show they have previously had to prove their case to an external body of experts from fields like statistical analysis and engineering to show the data is of good quality throughout and has not been adjusted in the direction of the case claimed to any detectable degree.
    After all we are being heavily fined for crimes against the climate so we should have the right to a FAIR trial.

  40. The legal problem is not with EPA or the Courts, but Congress.

    The Clean Air Act delegates authority to the Administrator to declare any substance a pollutant, presumably Chanel No.5 if the Administrator doesn’t like it.

    The SCOTUS failed by focusing on the text that delegates discretion over designating a pollutant and ignoring the explicit purpose of the Act.

    The purpose of the Act is to protect public health and welfare. The SCOTUS should have considered evidence that the designation of CO2 as a pollutant will contribute to protecting the health and WELFARE of the AMERICAN public. The former Administrator is on record as having stated before a Congressional Committee that the purpose of the regulations to control CO2 was in support of foreign policy, to mainain US leadership in controlling global climate. She could not tell the Committee by what amount the regulations would reduce the rate of global warming.

    I can’t remember which SC justice (SCJ Alito? Scalia?) who asking in oral questioning to what extent is EPA bound to consider the economic and financial impacts of its regulations.

    That was a start. But the matter must be resolved by an amendment to the Clean Air Act to the effect that for a substance to be defined as a pollutant itv must be toxic to humans in the concentrations measured within the US and its territorial waters.

    CO2 should be specifically excluded from the list of pollutants. Submariners breathe it at concentrations 10 to 20 times higher than its concnetration in the atmosphere, 400 parts per million.

    If Congress decides that some agency should control the climate, or the phases of the moon, or the number of sunspots, the new agency could pass regulations and the Scotus will have to allow them, as long as the Congress omits any statement of purpose that the regulations fail to fulfill.

    There is much debate about what an “originalist” justice stands for, but I have not heard much discussion of ordinary rules of statutory interpretation in the context of originalism. As I understand it, the text of a statutory provision should be interpreted in the context of the entire statute. Often, justices have to infer purpose from the context alone.

    But with the Clean Air Act the justices do not have to go to the trouble of inferring purpose, because Congress clearly defined the purpose of the Act, and it was not to control global climate.

  41. I come late to this discussion but as a veteran (on the receiving end) of multiple agency rulemakings, I would recommend everyone scroll back to the top and read Quinn the Eskimo’s comments. He absolutely has the process described down to the last, cynical and agency-serving comma.

    The appropriate judicial remedy is not for the courts to become experts in scientific questions, but to identify and throw out lazy lawmaking when they find it: Overturn vague law and if Congress really. really wants to, it can write something everyone can understand. The alternative is what we’ve had for a couple of generations, i.e., government by pandering press release, and we’ve seen how that works.

  42. If congress writes vague laws, the solution is to go back to congress and get them to write better laws.
    The solution is not to declare that whatever the agency decides to do must be OK.

    In the past there was a legal principle that vague laws were invalid laws.

  43. It is annoying when an article talks about what someone (Gorsuch) implied or meant without quoting or pointing to what he actually said, or even naming the case where he said it.

    There are enough clues to find the case, and the case text. (Commenter Alan Watt kindly supplied one link.) The case is
    Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 – Court of Appeals, 10th Circuit 2016

    This is an immigration case. The main decision is a highly technical determination of which of conflicting laws and decisions apply to which instances. Gorsuch’s additional remarks suggest that the “Chevron” and “Brand X” decisions may have given agencies de facto legislative power inappropriately.

    This case does not indicate how Gorsuch regards supposed expertise, scientific or otherwise. These words occur nowhere in the text: expert, expertise, science, scientific, scientist, technical.

  44. “…excessive deference to government experts is a big part of the reason why climate policy is so messed up.”

    Hmmm… so now we have changed the government experts and he could rule against them, i.e. rule against defunding climate change! Wouldn’t that be sweet!

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