Title: “Reading West Virginia v. EPA with the Lenses of Plato”
Dear Professor Koundouri, Dear Professor Sachs,
Dear Ladies and Gentlemen,
It is an honor to address this very interesting workshop today on how the ancient wisdom could provide answers in contemporary issues, in relevance to climate change.
Let me begin with a very recent judicial decision, specifically a USA Supreme Court ruling, that it has been considered as capable to change the entire climate mitigation strategy, policy and laws that the US administration has adopted thus far and delay climate action. Only a few days ago, in West Virginia v. EPA, the Supreme Court of the USA ruled against the Environmental Protection Agency (EPA) by limiting its competence to regulate Greenhouse Gas (GHG) emissions. The Federal Government will now lose some of its power, when it comes to tackling the climate crisis, following a 6-3 decision that ruled against the Clean Power Act.
It is to be noted that West Virginia energy mix is based on coal power. The State has argued that given the EPA members are unelected, they should not be allowed to determine how the state runs its energy and economy. Other U.S. States too, such as Kentucky and Texas backed West Virginia.
The Supreme Court has sided with its argument, with Chief Justice of the US, John Roberts, writing: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day’. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
There are fears that this decision could now dismantle the Federal Government – as states take power. Congress will now have to provide clear consent to the EPA for the agency to act on technical rules that implement the environmental policies, reducing the agency effectiveness. The UN Spokesperson Stéphane Dujarric said: “This is a setback in our fight against climate change, when we are already far off-track in meeting the goals of the Paris Agreement.”
According to the Court, the Congress should provide an explicit delegation of the decision making to the EPA regarding this particular
matter. But is this explicit delegation of powers necessary? Was the EPA acting beyond its powers all these years, when it was deciding about the cap of the CO2 emissions on the federal level?
One of the Justices of the court did not agree to this judgment of the Supreme Court. More specifically, Associate Justice of the Supreme
Court, Elena Kagan, wrote: “First, 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” such as EPA. This ruling will now place the regulatory power in the hands of those who are elected but not experts. Justice Kagan indirectly referred implicitly to Kelsen’s separation between the primary laws set by the law makers and the secondary legislation set by experts.
A vast majority of legal systems at both the domestic and the international level are based on this separation between the primary
legislation and the secondary legislation. This secondary legislation is being decided by experts, because in many cases it entails technical and scientific matters more or less important that only expert bodies could and should decide upon. The contemporary system of climate
change governance is built upon this assumption. The overall Technological Mechanism of the UNFCCC/Kyoto/Paris is built on this
assumption, as well. In general, the full body of environmental legislation is built upon this assumption.
It seems, however, that the debate on who should hold the legislative power is as old as the Socrates and the Plato philosophy. In this case, as in many other cases, the Greek philosophers have offered the answer from the very beginning, laying thus the foundations for the
contemporary thinking. Plato is among the very first philosophers to take up the debate on whether one should govern by technocracy or by democracy in many of his works, including “Gorgias” and, most prominently, “The Republic”. In “Gorgias”, written among his early works in 380 B.C., Plato at para 452e, notes that rhetoric is one of the main means to exercise democratic governance in Athens. At para. 455b Socrates comments: “…I cannot yet make up my mind what to think about it. When there is a public meeting in Athens to elect a doctor of a shipwright or any other professional, the purpose of the meeting is actually to choose the person with the greatest experience for each post. So, it is not going to be a rhetorian that advices them under these circumstances, is it? They are not going to use rhetorians to advise them when there are fortifications to be build or harbors or dockyards to be constructed: they will use master builders.”
Democratic regimes with the participation of democratically elected representatives, according to Plato, should not be run based upon arbitrary opinions, upon authority that has no solid foundation in knowledge. Democratic groups that have no knowledge regarding the topic upon which they have to vote, enjoy no solid foundation for decision-making. The “kings”, the rulers of a state, according to Plato, should be philosophers, too, namely very well educated (“philosopher-kings”). Lacking the basic foundation of knowledge, a democratically elected representative would still not be very appropriate as a governor and a lawmaker. Supreme Court Justice,
Prof. Stephen Breyer, in his book “Breaking the vicious circle” has developed the theory that the appropriate regulator of environmental
law, by regulating basically a scientific matter rather than a social matter at heart, should hold expert knowledge.
Environment and climate legislation should be exercised commonly by institutions and processes that hold expert knowledge in parallel with the democratic rule. No lawmakers without any expertise could hold the decision-making powers in such matters.
From Plato’s years on, many other philosophers, such as Aristoteles, and even more modern ones, such as important philosophers even in the age Enlightment and the age of reason contributed to the formulation of the contemporary environmental governance institutions. In the 18 th century, E. C. Spary submits that the classifications used by naturalists “slipped between the natural world and the social… to establish not only the expertise of the naturalists over the natural, but also the dominance of the natural over the social.” The dominance of nature over the social structures is one other element that justifies the technocratic approaches in environmental law making. From Francis Bacon and the technocrats up to the 60s and the 70s and the Stockholm Conference in 1972 there is an emphasis on the need for the injection of more science in environmental legislation. Notions, such as “ecotechnocracy” had also been evolved, putting, however, a disproportionate emphasis on the expert knowledge.
Overtime, building on ancient wisdom, the contemporary system of lawmaking has been very well developed both in the USA and in
Europe and a better equilibrium between the democratic and the expert bodies has been developed. As a result, the democratic bodies, such as the Congress, decide about the primary, more general legislation, and the broad guidelines of the issues, whether they delegate the more technical issues to the more expert bodies, such as the agencies, as the EPA. This is the heritage regarding our environmental and climate governance structures that society has gained over the centuries, from more than 2,500 years now, from Ancient Greece to Washington, D.C. and Paris.
According to Plato, the ruling of the US Supreme Court in West Virginia
v. EPA is wrong.
Thank you very much.
