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These industries pitched 𱹰Dz’s demise to a pro-business Supreme Court

By Pamela King | 02/06/2024 01:30 PM EST

Corporations want a clearer path to victory in the courts. The justices appear to be listening.

The U.S. Supreme Court building.

The Supreme Court. Chip Somodevilla/Getty Images

Vape pen manufacturers. Meat and poultry producers. Fossil fuel behemoths. These are the types of companies that believe they have something to gain if the Supreme Court makes it harder for the government to legally defend its regulations.

They may get their wish: The Supreme Court in January appeared receptive to conservative lawyers’ claims that in legal brawls over their rules.

If the justices hand down a ruling to that effect later this year, it would be the latest in a long line of decisions by a Supreme Court that is increasingly deferential to corporations — and critical of federal regulators that attempt to rein them in.

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“Putting it simply,” said Bitsy Skerry, regulatory policy associate at Public Citizen, “corporations would be the winners at the expense of the public.”

In a pair of cases argued in January — Loper Bright Enterprises v. Raimondo and Relentless v. Commerce — attorneys for the herring fishing industry made the case that the Supreme Court should strike down the 40-year-old Chevron doctrine, which gives federal agencies like EPA leeway to decode murky language in laws passed by Congress, such as the Clean Air Act.

While the Supreme Court hasn’t applied Chevron in nearly a decade, lawyers for herring fishermen told the justices that lower courts are still using the doctrine to the detriment of business.

In Loper Bright and Relentless, for example, federal appeals courts used Chevron to uphold a NOAA Fisheries rule that requires herring vessels to pay for monitors who prevent overfishing. The cost can run as high as $700 per day, or about 20 percent of the vessels’ revenue.

The herring fishery isn’t the only industry that sees financial benefit from an end to Chevron.

In 81 “friend of the court” briefs filed in Loper Bright and Relentless, nearly all the trade associations that weighed in on the cases argued against the doctrine, by Skerry and Amit Narang, a consultant for Public Citizen and the Coalition for Sensible Safeguards.

Public Citizen submitted its own .

Industry groups that are fighting the doctrine, the report says, “represent the interests of the largest and most powerful corporations in America.”

The groups include the , which counts oil majors like Chevron and Exxon Mobil as members. Agricultural interests like the North American Meat Institute have also thrown their weight behind 𱹰Dz’s dismantlement, as has a trade organization .

Lawyers associated with Americans for Prosperity, a conservative advocacy group affiliated with petrochemical billionaires Charles Koch and the late David Koch, .

“Businesses cannot plan and invest for the future when agencies are free to unilaterally change the basic rules that govern them at any time,” said Andrew Varcoe, deputy chief counsel of the Chamber’s Litigation Center.

When courts use the Chevron doctrine, the federal government tends to win, wrote and other farming and homebuilding trade organizations, many of which have fought EPA rules in court.

Those victories for the government have financial consequences, the trade groups wrote. They cited a 2016 federal appeals court decision that applied Chevron to uphold Fish and Wildlife Services protections for the dusky gopher frog — at an estimated cost of $20 million to $34 million to landowners and timber harvesters.

The Supreme Court , admonishing the lower bench for yielding to the agency’s interpretation of an ambiguous term — “habitat” — in the Endangered Species Act that critics of the rule say resulted in overly broad protections.

But the high court can’t step in to undo every Chevron-friendly ruling, the trade groups wrote.

“There is no doubt that Chevron distorts the results of litigation,” they wrote. “That doctrine puts a heavy thumb on the scale on the side of agencies.”

Corporations win in the Roberts court

Industry groups have a good shot at convincing the Supreme Court that it should extinguish the Chevron doctrine.

Under John Roberts, whom former President George W. Bush appointed to serve as chief justice in 2005, the Supreme Court has become more friendly to business than any court in the last 100 years, according to .

In cases before the Roberts court, businesses win about 63 percent of the time, up from about 48 percent under former Chief Justice William Rehnquist, who died in 2005 and was replaced by Roberts.

Under William Taft — who led the court from 1921 to 1930 after serving as president — the justices ruled in favor of businesses 47 percent of the time, according to the law review article, which was co-authored by law professors Lee Epstein of the University of Southern California and G. Mitu Gulati of the University of Virginia.

The Roberts court, Epstein and Gulati wrote, “is the first Court in the last 100 years that rules in favor of business more often than not.”

The trend began before the court’s transition in 2020 from a 5-4 to a 6-3 conservative majority, said Gulati.

Although conservative justices tend to favor industry interests, the court’s liberal wing also frequently votes in favor of corporations, he said. The study attributes the trend to several factors, including the growth of big law firms’ Supreme Court litigation practices — and large companies’ ability to pour lots of money into their legal defense.

The shift may also have less to do with the justices’ pro-business sentiments than their interest in handcuffing the executive branch, he said. But the court needs litigants to get the ball rolling.

“You need business to push it,” he said. “You need them to bring the case.”

'This is really about agencies'

Some Chevron critics have raised concerns that the doctrine’s survival would be more harmful for small businesses than for big corporations.

While larger companies have resources to influence the way federal agencies shape regulation, smaller businesses do not, said Devin Watkins, an attorney for the Competitive Enterprise Institute, calling for Chevron to be overturned.

“This really isn’t about big businesses trying to get their way with this court,” he said. “This is really about agencies and whether they get their way.”

He added: “The big fear in my mind is about common everyday citizens against agencies.”

Other small businesses have defended Chevron.

A coalition of small business leaders, state chambers of commerce and climate-focused companies as a way to put regulatory decisionmaking in the hands of a single federal agency, rather than the nation’s various courts.

“For a small business, anything that reduces risk and increases stability and predictability makes opening, survival, and growth more possible,” the brief says.

‘Chevron has become a proxy’

Chevron isn’t inherently anti-corporation.

The legal theory was born from a 1984 case — Chevron v. Natural Resources Defense Council — that upheld Reagan-era EPA air rules over the objections of environmental groups.

In the 1984 case and in subsequent lawsuits, Chevron was often working for industry and against environmental groups, defending the doctrine in Loper Bright and Relentless.

“We nonetheless recognize the broader values that 𱹰Dz’s judicial review framework serves, and what could be lost without it,” the group wrote.

Chevron has also come up in litigation that doesn’t necessarily pit a corporation against an agency rule, said Kristin Hickman, a law professor at the University of Minnesota. The doctrine also comes into play in disputes over who is entitled to tax or social welfare benefits, and where federal agencies are mediating battles between different kinds of business interests.

The briefing in Loper Bright and Relentless illustrates that Chevron has become a stand-in for criticism of federal agency powers, she said, regardless of the doctrine’s real-world impact.

Chevron has become a proxy for how you feel about administrative governance that I think is divorced — not entirely, but to some extent — from the nuances of the actual application of the doctrine over time and across myriad agencies,” she said.