Can Congress Legislate Scientific Facts?

by Karl Coplan

In an interview in Time magazine last week, EPA Administrator Lisa Jackson bemoaned Congressional efforts to undo EPA’s Greenhouse Gas Endangerment Finding under Clean Air Act Section 208:

Congress would essentially be passing a law that says, We, as a bunch of lawmakers, have decided what the science is on this issue. I don’t think that history will forget the first time that politicians made a law to overrule scientists.

According to the New York Times, bills suspending or reversing EPA’s GHG regulatory authority were narrowly defeated in the Senate, while the House is expected to pass legislation reversing the endangerment finding as soon as today.

All those who care about our global ecosystem and have heeded the warnings of the scientific community that human GHG emissions are likely to wreak climate havoc can feel nothing but horror and deep frustration that our elected bodies seem so close to denying scientific reality — to “make a law to overrule scientists” as Lisa Jackson puts it. But our system of government is based on the premise that the political marketplace of ideas is the best and most reliable determinant of truth, and that there shall be no orthodoxy in our society. This foundational principle of first amendment law is at odds with the idea that EPA can establish a “truth” that is beyond reversal by the political system.

Right now, climate science has won the debate hands down in the scientific academy based on all of the academy’s tools for determination of scientific truth (theory, experimental proofs, measurements, all subject to peer review). But in this country, at least for now, climate science is not winning in the political marketplace of ideas.

There are plenty of reasons to question whether the “marketplace of ideas” is a reliable method of determining social truth — certainly, one can think of plenty of examples where prevailing political truths in this country have been demonstrably at odds with objective historical or scientific fact — think about Saddam Hussein’s supposed weapons of mass destruction, or of the numerous state laws prohibiting the teaching of evolution, for example. There are also reasons to think that the conclusions of climate science are at a distinct disadvantage in the political marketplace of ideas. After all, climate science tells Americans that the energy consumptive activities considered basic to our standard of living are going to cause global catastrophe, running headlong into the cognitive biases of voters. And climate science directly attacks the sustainability and viability of energy industries with huge economic power and all of the media access and political access that comes with that power.

But would we really want to abandon the idea of letting the political marketplace of ideas contradict the orthodoxy of social institutions — whether those institutions are the scientific academy, religious institutions, or government agencies? Which commitment is deeper — our commitment to self governance by majority rule, or our commitment to protecting the global ecosystem?

To put it another way, if you could make EPA’s findings about greenhouse gases and other environmental threats completely immune from political oversight or reversal, would you really take that chance?

I don’t think I would — not because I don’t trust the current administrator to get it right if she were freed from all political accountability (I do) , but because I wouldn’t trust the next one. As Winston Churchill put it (loosely), democracy is the worst possible form of government, except for all the others. I would rather take my chances that we as Americans will eventually see the truth of global warming and adopt the cultural changes to address it, than to take my chances with a self-perpetuating orthodoxy in government.

I am going to be working on a paper along these lines this summer and am interested in hearing other ideas. In particular, I am interested in other examples of the body politic reaching conclusions at odds with objective reality — and not just examples that prove that “reality has a liberal bias.” There must be examples out there where environmentalists have succeeded in obtaining legislation based on “truths” that were at odds with scientific facts. I’d love to hear some examples.


  1. You are not alone in wondering about the tradeoffs between democratic values and environmental values. Tom Friedman wrote an op-ed in 2005 in which he expressed jealousy about China’s ability to solve its problems, including cleaning up the air. It seems to me historical examples of China and the rusty, hulking, old Soviet Union aren’t helpful analogies about the tradeoff between democratic values and environmental values — the question to me is which system of government is more able to change with changing knowledge about environmental harm. One would think that it would be democratic systems, because they encourage a wider range of inputs. It seems though, with the rise of environmental NGOs in China, China is recognizing *some* of the knowledge diffusion values of an open society.

    Also, it seems to me that aboriginal societies that had histories of sustainably managing resources were hardly democratic. Bruce Johnsen has written about these societies, although I am sure that Bruce would bristle at the notion that the anti-democratic features of Pacific Northwest aboriginal peoples are something we should model, at least on a large scale.

    Keep plugging, this is fun and big.

  2. Prof. Coplan, Karl S.

    Good points, Shi Ling, and thanks for the reference to Tom Friedman’s Op Ed from 2005.

    As I recall, Jared Diamond’s book “Collapse” seems to suggest that hereditary monarchies do a better job of long term management of environmental resources than other forms of government — I am thinking of his use of the examples of Haiti (corrupt dictator) and Dominican Republic (more benevolent hereditary rulers) and also Japan history of forest conservation under the rule of the emperors.


  3. I’m not sure where this would be located on the liberal / fact chart, but the de-listing of wolves in the northern Rockies appears to be one of those cases where Congress is essentially legislating facts. (Though in a somewhat roundabout administrative law sort of way.) According to a still-pending budget rider, regulations to delist wolves in Idaho and Montana must issue, and those regulations cannot be challenged in court. No science necessary.

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