Aristotle defined rhetoric as “the faculty of discovering in any particular case all of the available means of persuasion.” Today, rhetoric is broadly defined as “a mode of altering reality…by the creation of discourse which changes reality through the mediation of thought and action.” In layman’s terms, rhetoric concerns the discourse regarding how situations are framed. Environmental rhetoric, by extension, encompasses the way environmental situations or events (e.g., the climate crisis) are framed through writing, oration, conversation, etc.
Framing a rhetorical situation is controversial, yet vital to effective discourse. A rhetorical situation is the “context or set of circumstances” from which text and speech arise. There are two leading approaches to framing: the Bitzer and Vatz approaches. Lloyd F. Bitzer believes that situations invite rhetoric. In the climate context, he would argue that climate change exists, and rhetoricians respond to it through discourse. Richard E. Vatz contrarily believes that rhetoric creates a situation — that nothing has inherent meaning or existence before a rhetorician discusses it.
In the environmental rhetoric space, some have adopted Vatz’s stance, believing that “‘there is no objective environment in the phenomenal world, no environment separate from the words we use to represent it.’” Essentially, these folks argue that, because we use language to refer to the environment, and because we all use and understand language differently, there is no objective reality concerning the environment — only individual perceptions.
The main issue with Vatz’s approach is that it invites anthropocentrism. He posits that humans alone generate reality. Nothing excised from human experience can be “real” or worthy of worry. In the climate change context, by urging that rhetoric creates the situation of climate change, Vatz would deny the objective reality of a changing climate, which is quite harmful. Bitzer’s approach is more environmentalist, acknowledging the environmental issues as real, and proceeding from that assumption. It matters which camp you rest in, for how you choose to discuss environmental issues depends on how you view the rhetorical situation.
To effectively communicate, rhetoricians — persuasive and informative speakers, orators, or conversationalists — must also know their audience. Speaking in English to a room full of French-speaking folks is unquestionably futile. However, communication is not always as black and white as a language barrier. An equally insurmountable barrier to discourse is positionality. Positionality and politics affect decision-making: with whom we have relationships, where we choose to live, how we navigate and cope with global pandemics, etc.
In the climate change context, the Yale Program on Climate Change has identified “Global Warming’s Six Americas:” six distinct audiences within the American public that respond to the climate crisis differently. Each “America” is characterized by its unique psychological, political, and cultural reasons for either participating in the global effort to reduce greenhouse gas emissions or writing it off as hyperbole or fiction. To name just a few: (1) the “Alarmed” is the most concerned and motivated America, filled with folks who understand the gravity of climate change and have even taken “individual, consumer, and political action to address it”; (2) situated in the middle of the pack, the “Disengaged” have heard of climate change, but know nothing about it and would rather stew in that ignorance than attempt to learn, perhaps because they are more concerned with immediately perceptible issues; and (3) the “Dismissive” folks are convinced that climate change is a hoax and are active in its opposition.
Rhetoricians must know who they are talking to before they attempt to inform or persuade. For example, if an individual from the Alarmed America finds herself speaking with a Dismissive individual about the climate crisis, it is imperative that she does not assume the reality of climate change in her discussion, even if doing so feels unnatural. The proper course would be for her to delve into a conversation about why the Dismissive is so sure that the climate crisis is fake, lightly introducing to him scientific studies, statistics, empirical data, etc. so as to persuade him that climate change exists without scaring him so much that he effectively closes himself off from engaging in the discourse.
Justices of the Supreme Court of the United States: Attitudes vs. Paths
The Supreme Court of the United States (SCOTUS) plays a critical role in American government. Primarily, it is tasked with ensuring that “the changing views of a majority do not undermine the fundamental values common to all Americans” (e.g., fundamental rights and freedoms). It must (1) produce decisions that align with and reinforce the rights and freedoms of the U.S. Constitution and government system, (2) remain anchored to the record, (3) produce reliable precedents, and (4) depend on statutory interpretation and canons of construction when deciding cases. Yet, despite these articulable responsibilities, judging is sometimes described as “artistic creation” rather than structured decision-making.
Often, today’s originalist Justices turn to history and tradition, while living constitution Justices thoroughly consider public values and make philosophical value choices when crafting decisions. These tools of statutory interpretation are far more subjective than records on appeal. Proponents of dynamic theories of interpretation, like Natural Law Theory, for example, take no issue with Justices interpreting statutes differently than the original legislature would have endorsed, so long as taking intention out of the picture leads to an optimal state of affairs.
Despite national expectations of a nonpartisan, unpolitical SCOTUS, the reality is that SCOTUS Justices are people just like anyone else. They are susceptible to the influences of rhetoric and discourse. They are allowed to feel strongly about social issues. They are allowed to think climate change is a hoax, or to donate to climate science research institutions, subject to some ethical restrictions. What is expected of them in the courtroom and in chambers, however, is that they will ignore their internal biases and external political pressures — that they will somehow rise above whichever climate change America they are couched in and deliver impartial opinions based on law, fact, and acceptable statutory interpretation. This expectation is impractical.
The Attitudinal Model as developed by Jeffrey A. Segal & Harold J. Spaeth serves as an explanatory tool. A purely Legal Model of SCOTUS jurisprudence suggests that decisions are made solely on a stare decisis basis. This, as Segal and Spaeth argue, is idealistic and not falsifiable. The Rational Choice Model urges that Justices do not imbue their own politics into their decisions, because if they knowingly did so in contravention of stare decisis and their constitutional mandates, then they would expose themselves to an embarrassing legislative override. The theory is that it is the rational choice not to be a partisan judge.
Segal and Spaeth, dissatisfied with both models, theorized a new model which posits that “Justices base their decisions ‘on the facts of the case juxtaposed against their personal policy preferences.’” Adherents to the Attitudinal Model recognize that, while statutory interpretation and stare decisis may inform Justices, “these factors do not fully explain the decisions of the Court — it is the Justices’ ideological inclinations that essentially drive decision-making.” The theory goes as far as to assert that SCOTUS Justices are “virtually unconstrained by [legal] rules” when they decide cases on the merits, and “we should expect their policy attitudes to be the determining factor” in these cases. Elsewhere, attitudes play a crucial, albeit non-exhaustive, role. The central claim “is not that law is without influence, but that it does not keep judges from voting their own ideology.”
Focusing on SCOTUS dissents, Segal and Spaeth tested how strong the “gravitational force” of majority opinions was on justices in future cases. The empirical data demonstrated that justices who previously dissented in prior landmark cases continue dissenting in subsequent landmark cases, even though their dissents were and remain contrary to stare decisis.
While the Attitudinal Model serves as a helpful tool to explain certain trends and the psychology of judicial decision-making, it is not flawless. It, for example, does not account for situations where justices’ attitudes apparently shift.
An adjacent concept to the Attitudinal vs. Legal Model divergence is path dependency. Path dependency, or “the phenomenon of past decisions or events impeding, compelling, or foreclosing subsequent choices or actions,” is often glorified by legal scholars and denounced by social scientists. Michael J. Gerhardt suggests there is a middle ground between those groups by arguing that only some constitutional precedents generate path dependency. Essentially, Gerhardt expounds on the idea that, depending on the type of case, SCOTUS Justices will either adhere to robust path dependency, adhere at least partially to a path, or diverge from paths completely. Some factors Gerhardt points to that determine whether SCOTUS will adhere to the path include changes in court composition, lack of a formal rule for overruling precedents, and constitutional design of the court. The concept of limited path dependency acknowledges that judges may indeed be directed by their own beliefs in their decisions.
Social scientists and legal scholars can and do debate these abstract and normative concepts. That the debate is not about whether personal bias infects court opinions but about how much influence a Justice’s attitude has over her decision-making may be surprising to Americans who believe the Court should be unpersuaded by influence outside the law. However, many argue it is realistic and descriptive of reality. This is not to say, though, that it is a positive thing for “ostentatious partisanship” to contaminate adjudication.
SCOTUS Justices themselves even acknowledge the unfortunate influence that politics have on the Court. During oral argument for Dobbs v. Jackson Women’s Health Organization, Justice Sotomayor called attention to the politicization of the court, asking “[will] this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” In her dissenting opinion of West Virginia v. EPA, Justice Kagan expressed her belief that “the Court substitute[d] its own ideas about delegations for Congress’s. And that means the Court substitute[d] its own ideas about policymaking for Congress’s.” West Virginia v. EPA is a prime example of how positionality in the Six Americas, viewing environmental rhetoric through Vatz’s perspective, and the judicial stench of SCOTUS politicization converge to generate damning, binding constitutional law.
West Virginia v. EPA: A Perfect Storm
Carbon dioxide (CO2) emissions are some of the central concerns for climate change. Accordingly, the EPA promulgated the Clean Power Plan, citing Section 111 of the Clean Air Act for authority. The rule was meant to curb CO2 emissions — emissions that are neither subject to NAAQS nor classified as hazardous air pollutants — by establishing a standard known as BSER (best system of emissions reduction). The EPA laid out very specific, albeit rigid, systems they believed they had the power to lay out under Section 111(d). However, the majority disagreed, essentially finding the EPA overstepped beyond its congressionally delegated authority.
The Court decided that, in extraordinary cases, an agency must point to “clear congressional authorization” for the power it claims. Here, the EPA did just that by pointing to Section 111(d), which was effectively a Congressional gap-filler that “empower[ed] the EPA to regulate harmful emissions not already controlled under the Agency’s other authorities.” However, the majority was so entrenched in its own anthropocentrism that it decided the EPA overstepped its delegated authority. The majority frames the EPA’s rulemaking as a “[substantial] restructur[ing] of the American energy market” instead of what it really was — the EPA meeting Congress’s charge to address the “potentially catastrophic harm[s]” of climate change. It is clear that the majority was not concerned with the congressional intent behind passing the Clean Air Act (specifically Section 111), and instead focused its attention on a nuanced issue and dusted off the major questions doctrine in doing so. As Justice Kagan put it in her dissent, “[t]he current Court is textualist only when being so suits it.” The majority hypocritically legislated from the bench by creating unnecessary precedent concerning the rarely used major questions doctrine, while simultaneously slapping the EPA’s wrists for daring to exercise its actual, congressionally delegated authority.
The majority used the words “climate change” only once in the body of its thirty-seven-page opinion, whereas the dissent used the phrase five times in thirty-two pages. This may seem inconsequential or legally irrelevant, but when one considers the crux of the global catastrophe the EPA was attempting to address in promulgating the very rule that is at the heart of this case — reducing CO2 emissions for the specific purpose of combating climate change — the relevance is rendered quite apparent.
It seems as though the majority Justices exist, at best, couched in “Cautious” America. Cautious folks are unsure of climate change as a reality and what may have caused it. They are not focused on the issue, and instead focus, like the Disengaged crowd, on more immediately perceptible issues, like the American energy market.
The Justices in the majority, and arguably even in the dissent, have aligned themselves with the Vatz approach. If the issue isn’t important to the Justice, the Justice will avoid the topic and focus on something else, like the major questions doctrine, delegation issues, etc. In other words, the majority, by not calling this case what it is — a climate change case — framed the rhetorical situation of this opinion as having nothing to do with climate change. Excised from the background section at the beginning of the opinion, the meat of the majority’s analysis avoids discussing climate change. Instead, the Court turned this case into a congressional intent and major questions doctrine case.
SCOTUS Justices hold an immense amount of power over the people of the U.S. What they decide becomes law, and what they write is studied by students and scholars. Their opinions are a form of rhetoric. If their decisions are corrupted by personal ideologies — and they very likely are — the discourse following issuance of said decisions will be focused on those ideologies, i.e., the rhetorical situation the majority has crafted and framed. How can we hold them accountable for letting their politics run rampant throughout their opinions? How is the climate crisis to be mitigated if the highest court in the land refuses to even acknowledge it? Will this country survive the stench that the majority opinion unleashed against progress?