A potentially big Supreme Court case has hidden conservative support
The Supreme Court will hear arguments Wednesday about a group of commercial fishermen opposing a government tax they consider unreasonable. But the lawyers who helped bring their case to the nation's highest court have a much more powerful backer: petrochemical billionaire Charles Koch.
The case is one of the most consequential to come before the judges in years. A victory for fishermen would mean much more than overriding the monitoring fee, part of a system intended to prevent overfishing, which they objected to. It would most likely sharply limit the power of many federal agencies to regulate not only fishing and the environment, but also health care, finance, telecommunications and other activities, legal experts say.
“It may all sound very innocent,” says Jody Freeman, founding director of Harvard Law School's Environmental and Energy Law Program. and a former Obama White House official. “But it is connected to a much larger agenda, which is essentially aimed at eliminating and dismantling federal regulations.”
The lawyers representing the New Jersey fishermen work pro bono and belong to a public interest law firm, Cause of Action, which does not disclose donors and reports that it has no employees. However, court records show that the lawyers work for Americans for Prosperity, a group funded by Mr. Koch, the chairman of Koch Industries and a champion of anti-regulation causes.
The law firm's board of directors includes a top attorney from the firm who has represented Koch Industries in a range of matters, including defending the company against lawsuits related to the business in the past. processing of petroleum cokea by-product of oil refining, and in his opposition to stricter regulations in this area.
The lawyer also represents Koch Industries an ongoing lawsuit filed by the Minnesota Attorney General that accuses the company of misleading practices related to climate change.
Other members of the board include executives at groups funded primarily by Mr. Koch or by Koch Industries, America's the second largest private companyto Cargill.
Ryan Mulvey, counsel for Cause of Action and one of the lawyers litigating the case in the Supreme Court, said the focus “should be on the fishermen and what they are fighting against.”
“This case is about the livelihoods of hard-working, family-run fishing businesses that are threatened by unconstitutional government overreach,” Mr Mulvey said.
A spokeswoman for Cause of Action said the group is within its constitutional rights not to disclose its donors. The spokeswoman, who declined to be identified, said Cause of Action and Americans for Prosperity were separate organizations. Neither Mr. Koch nor Koch Industries were involved in the case, she said. Koch Industries did not respond to requests for comment.
Rolling back the state's power to regulate business has long been a goal of conservative legal activists and their backers, who have worked for years to use the legal system to rewrite environmental law. In 2022, they scored a victory with a Supreme Court ruling that could sharply limit the federal government's power to reduce carbon dioxide from power plants. Emissions from the combustion of fossil fuels are one of the leading causes of climate change.
The legal doctrine challenged in the fisheries case, Loper Bright Enterprises v. Raimondo, No. 22-452 has broader implications. The doctrine, known as the Chevron deference after a 1984 Supreme Court ruling involving the oil and gas giant, gives federal agencies the authority to interpret ambiguities in laws passed by Congress.
Congress is ill-equipped to manage the day-to-day administration of the legislation it passes, the reasoning goes, and so it must rely on federal agencies to implement laws and policies. Weakening or eliminating Chevron deference could limit the power of federal agencies to interpret the laws they administer.
The Biden administration has defended the rule, arguing that executive agencies, unlike courts, are politically responsible.
Supporters of the rule say the case is a vehicle for interests other than the fishermen's complaint.
“These fishing workers are providing cover for what is ultimately a Koch campaign,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official.
As the Supreme Court has shifted to the right in recent years, free-market advocates appear to see an opportunity to trim the wings of federal power, in part by putting carefully selected cases before sympathetic justices.
That shift was helped by groups, including those linked to Mr. Koch, that worked to support the nomination and confirmation of the five most recent Republican appointments to the bench.
At a forum in November hosted by the Federalist Society, a conservative legal group, an attorney explained the strategy.
“To successfully run a campaign like this, you need three things,” Damien M. Schiff, senior attorney at the Pacific Legal Foundation, said at the forum. “Money, legal staff and a judiciary that is receptive to strategically selected and timed legal arguments.”
Conservative groups and their supporters have all these things now, Mr. Schiff said, according to a video. In particular, “money will never be an issue,” he said. “It is easy and cheap to litigate before the Supreme Court.”
“Congratulations,” replied David Doniger, an attorney who attended the meeting and argued the original Chevron case on behalf of the Natural Resources Defense Council 40 years ago. “But to me this is dressing up private interests in high-sounding constitutional arguments.”
In an interview, Mr. Schiff said these types of cases are quickly becoming the preferred way for groups to fight federal regulations. “If you compare how much impact you can have on society by litigating, and especially by winning at the Supreme Court, with lobbying administrative agencies or through political campaigns,” he said, “it is much more efficient.”
His group, Pacific Legal Foundation, is part of a network of conservative research organizations that have received funding from Mr. Koch and other donors.
The Loper Bright case, now consolidated with a similar case involving Rhode Island fishermen, has in many ways provided trial lawyers with a compelling storyline of small businesses fighting for survival. The fishermen are prominently present on a page with information about the case, promoted through Google ads.
“Nobody in a family business wants to be the last to do it, everyone wants to pass it on, and I'm afraid I might not be able to do that,” says Stefan Axelsson, introduced as a third-generation commercial fisherman, in a featured video, titled “Fishermen Fight Back Against Illegal, Job-Killing Government Mandate.” Mr Axelsson could not be reached for comment.
The page does not list Koch affiliations, although a contact form generates an email to Cause of Action, as well as to Stand Together, a nonprofit founded by Mr. Koch, which remains one of the donors.
The Cause of Action Institute has made little public about its funding: A year before it was founded, the Supreme Court's Citizens United ruling had enabled billions of dollars in spending by groups that do not disclose their donors.
Cause of Action founder Daniel Z. Epstein was previously an associate at the Charles G. Koch Foundation. The group's first known address was the same as that of Americans for Prosperity.
In an interview, Mr. Epstein, who later served as an adviser to Donald J. Trump's first presidential campaign and transition team and is now an associate professor at St. Thomas University, said Cause of Action's work with fishermen did not stem from a motivation to overthrow the Chevron Doctrine. “It had everything to do with an observer program that spied on the fishermen,” he said.
He did not want to discuss financing.
Cause of Action has had two cash injections, both from Mr. Koch's Stand Together, according to Stand Together tax filings, including more than $4 million in 2019 and $1.1 million in 2020. In its most recent tax filing, which covers the time Aan the fishermen's case was worked on, the group reported that it had no employees. The case is being prosecuted by lawyers working for Americans for Prosperity, including Mr. Mulvey.
The board leading Cause of Action includes William Burck, managing partner at the law firm Quinn Emanuel, which has represented Koch Industries in lawsuits challenging environmental regulations. Mr. Burck is the lead attorney in the defense of Koch Industries in a separate case before the Supreme Court, the lawsuit brought by Minnesota accusing Koch and other oil and gas companies of undermining the public's understanding of the dangers of burning fossil fuels.
Other board members include Emily Seidel, the CEO of Americans for Prosperity, former director of special projects for Koch Companies Public Sector, the lobbying arm of Koch Industries; and Kurt Level, current deputy general counsel at Koch Companies Public Sector.