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Climate Change, Political Truth, and the Marketplace of Ideas

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Climate Change, Political Truth, and the Marketplace of Ideas Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2012 Climate Change, Political Truth, and the Marketplace of Ideas Karl S. Coplan Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Environmental Law Commons, and the Science and Technology Law Commons Recommended Citation Karl S. Coplan, Climate Change, Political Truth, and the Marketplace of Ideas, 2012 Utah L. Rev. 545, http://digitalcommons.pace.edu/lawfaculty/861/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. CLIMATE CHANGE, POLITICAL TRUTH, AND THE MARKETPLACE OF IDEAS Karl S. Coplan* INTRODUCTION In an interview last year in Time magazine, Environmental Protection Agency (EPA) Administrator Lisa Jackson commented on congressional efforts to undo her greenhouse gas (GHG) 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.”1 Proponents of aggressive action to control GHGs are frustrated that 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 also a paradigm for our system of self-governance. This marketplace of ideas has historically had mixed success in its truth-seeking function—indeed, there have been many instances where political truth in the United States was 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 is comparable to other social systems for determining such truths. The climate science consensus has itself emerged from the system of academic truth-seeking based on reproducible experiments, calculations, and * © 2012 Karl S. Coplan; Professor of Law, Pace University School of Law. B.A., Middlebury College, 1980, J.D., Columbia University School of Law, 1984. The author would like to thank the participants at the October 2011 Environmental Scholarship Symposium at Vermont Law School, and particularly Professor Sean Nolon, for helpful feedback on the initial draft of this Article. I would also like to thank my research assistant, Nicholas Goldstein, Pace Law School 2013, for his tireless efforts in tracking down sources and correcting drafts. All errors remain the responsibility of the author. 1 10 Questions for Lisa Jackson, TIME (Apr. 3, 2011), http://www.time.com/time/ magazine/article/0,9171,2062448-1,00.html. In its endangerment finding pursuant to Section 202(a) of the Clean Air Act, 42 U.S.C. § 7521(a) (2006), EPA determined that the current and projected concentrations of the six greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66496 (Dec. 15, 2009). This finding was the statutory predicate to EPA regulation of greenhouse gas emissions from mobile sources such as cars and trucks, as well as for regulation of greenhouse gas emissions from new stationary sources such as power plants. 545 546 UTAH LAW REVIEW [NO. 2 observations—all subject to peer review. The system of expert administrative agencies making regulatory determinations, including the Clean Air Act endangerment finding, is also a system of truth-seeking that operates somewhat independently of the political marketplace for truth. The economic marketplace also incorporates a truth-seeking function, as business entities make long-term plans based on future forecasts, with economic success dependent on accuracy. Each of these alternative truth-seeking systems operates in a subordinate position to the political marketplace of ideas in the United States system. There are explanations for the competitive disadvantage of the scientific climate consensus in this marketplace of ideas. Economic actors with a vested interest in the status quo carbon economy have enjoyed greater access to the media compared to the scientific community, an access preference that has been endorsed by recent Supreme Court First Amendment decisions.2 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 hold socially accepted patterns of individual consumption responsible for devastating negative impacts on the global ecosystem, especially where there is a lack of direct personal experience with these negative impacts.3 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 GHG 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 until some event occurs that results in a paradigm shift in the political marketplace, efforts to internalize the future costs of climate change in the United States will need to embrace the current political uncertainty associated with climate science—though contrary to the scientific consensus—if they hope to succeed. Such methods might include measures that impose contingent future liability on significant industrial contributors of GHG emissions for climate change impacts, where the contingency perhaps consists of a specified threshold increase in global temperatures or sea level. Litigation efforts to establish such liability are already underway, but these efforts have had limited success so far.4 Legislation 2 See discussion infra Part III.B.1. 3 See JANET SWIM ET AL., PSYCHOLOGY & GLOBAL CLIMATE CHANGE: ADDRESSING A MULTIFACETED PHENOMENON AND SET OF CHALLENGES 64–68 (2010), available at http://www.apa.org/science/about/publications/climate-change.aspx/; S. Stoll-Kleemann et al., The Psychology of Denial Concerning Climate Mitigation Measures: Evidence from Swiss Focus Groups, 11 GLOBAL ENVTL. CHANGE 107, 110–15 (2000), available at http://www.gis.uni-greifswald.de/agnw/shared-data/Files/Publications/Stoll-ORiordan- JaegerGEC.pdf. 4 See David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?, 64 FLA. L. REV. 15, 18 n.4 (2012). 2012] CLIMATE CHANGE, POLITICAL TRUTH, AND THE MARKETPLACE OF IDEAS 547 based on the “polluter pays” principle, similar to that found in the Comprehensive Environmental Response Cleanup and Liability Act (CERCLA),5 could eliminate the uncertainties associated with common law liability, leaving only whatever legitimate scientific uncertainty exists. Like CERCLA, such liability could be made strict, joint, and several. Legislation establishing such future liability might meet less political resistance than regulatory measures because its justification would not depend on the near certainty that climate change is occurring—a fact not yet politically accepted. Rather, its justification would depend on the substantial risk of catastrophic climate change together with the principle that should such climate impacts occur, those actors primarily responsible should bear the economic risk. Clawback provisions might prevent responsible enterprises from avoiding future liability by distributing pre-contingency profits to shareholders and management. Such contingent future liability principles could have immediate GHG reduction impacts, as emitting industries would have to plan for future liability based not on political considerations, but on a rational business analysis of the scientific consensus. Additionally, such industries would have an economic incentive not just to avoid liability, but also to prevent the occurrence of the climate change trigger for liability. This Article first examines the role of the marketplace of ideas in First Amendment freedom of expression doctrine as well as its role in our constitutional system of self-government. In Part II, the Article examines challenges facing the conclusions of climate science in the American political marketplace of ideas, including individual cognitive factors, the role of cultural cognition, and the problems of enhanced market access for opponents to the scientific climate consensus. Part III of this Article then considers possible corrections for these market failures in the context of climate science, including administrative agency bypasses of the political marketplace, regulation of the climate debate, and direct market
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