Vape pen manufacturers. Meat and poultry producers. Fossil fuel behemoths. These are the companies that believe they have what they stand to gain if the Supreme Court makes it harder for the government to legally defend its regulations.
They can get their way: In January, the Supreme Court accepted arguments by conservative lawyers that expert agencies should not be given special weight in legal disputes over their rules.
If the justices rule on it later this year, it would be the latest in a long line of Supreme Court decisions that increasingly defer to corporations and criticize federal regulators who try to rein them in.
“Simply put,” said Bitsy Skerry, regulatory policy fellow at Public Citizen, “corporations will win at the public’s expense.”
In a pair of disputed cases in January – Loper Bright Enterprises v. Raimondo and Against Relentless Trading – lawyers for the herring fishing industry filed a case against the Supreme Court for killing the 40-year-old man Chevron A doctrine that allows federal agencies like the EPA to decipher obscure language in laws passed by Congress like the Clean Air Act.
The Supreme Court did not apply Chevron for nearly a decade, lawyers for herring fishermen told justices that lower courts were still using the doctrine to the detriment of the business.
In Runner Bright and Mercilessfor example, federal appeals courts are used Chevron to support a NOAA Fisheries rule requiring herring vessels to pay for monitors that prevent overfishing. The cost can be as high as $700 a day, or about 20 percent of the ships revenue.
The herring fishery is not the only industry to benefit financially from the end Chevron.
81 “friend of the court” ballots were submitted Runner Bright and MercilessAccording to a recent analysis by Skerry and Amit Narang, counsel for the Public Citizen and Vulnerable Protection Coalition, nearly all trade associations that care about the lawsuits have opposed the doctrine.
Public Citizen filed its amicus brief in favor of protection Chevron.
Industry groups fighting the doctrine “represent the interests of America’s largest and most powerful corporations,” the report said.
Groups include the US Chamber of Commerce, which counts oil companies such as Chevron and Exxon Mobil as members. Agricultural interests such as the North American Meat Institute also punched above their weight Chevron dismantling, as a trade organization representing e-cigarette companies.
Lawyers affiliated with Americans for Prosperity, a conservative advocacy group associated with petrochemical billionaires Charles Koch and the late David Koch, are representing the herrings.
“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 Varko, deputy general counsel for the Chamber’s Judicial Center.
When used by courts Chevron doctrine, the federal government tends to prevail, wrote attorneys for the North American Meat Institute and other farming and homebuilding trade organizations, many of which are fighting the EPA regulations in court.
Trade groups write that these government victories have financial implications. They cited a 2016 federal appeals court decision that applied Chevron to support Fish and Wildlife Service conservation for the dusky gopher toad—an estimated cost of $20 million to $34 million to landowners and loggers.
The Supreme Court later overturned that decision, admonishing the lower bench for bowing to the agency’s interpretation of a vague term in the Endangered Species Act — “habitat.”
But the high court cannot intervene to overturn everything Chevron-friend power trade groups wrote.
“There is no doubt about it Chevron “distorts the results of legal proceedings,” they write. “This doctrine tips the scales heavily on the agencies’ side.”
Corporations win in Roberts lawsuit
Industry groups have a good chance of convincing the Supreme Court that it should shut down Chevron Doctrine.
Under Chief Justice John Roberts, appointed by former President George W. Bush in 2005, the Supreme Court has been closer to business than any court in the past 100 years, according to a study published in 2022. Minnesota Law Review.
In cases on the Roberts court, businesses won about 63 percent, up from about 48 percent under former Chief Justice William Rehnquist, who died in 2005 and was replaced by Roberts.
Under William Taft, who presided over the court from 1921 to 1930 after serving as president, justices ruled in favor of 47 percent of businesses, according to a law review article co-authored by university law professor Lee Epstein. G. Mitu Gulati of the University of Southern California and Virginia.
The Roberts court, wrote Epstein and Gulati, was “the first Court in 100 years to rule in favor of business.”
Gulati said the trend began before the court switched from a 5-4 to a 6-3 conservative majority in 2020.
While conservative justices favor industry interests, the liberal wing of the court also often votes in favor of corporations, he said. The study attributes this trend to several factors, including the increased experience of large law firms in Supreme Court litigation and the ability of large companies to spend heavily on their legal defense.
The change may have less to do with the judges’ business mood than with an interest in handcuffing the executive branch, he said. But litigation needs litigants to get the ball rolling.
“It takes work to push it,” he said. “You need them to open the case.”
“It’s really about agencies”
Some of them Chevron critics have raised concerns that the doctrine’s survival would be more harmful to small businesses than to large corporations.
While larger companies have the resources to influence the way federal agencies regulate, smaller businesses do not, said Devin Watkins, an attorney with the Competitive Enterprise Institute. Chevron overcome
“It’s not really about big business trying to get their way with this lawsuit,” he said. “It really depends on the agencies and whether they get their way.”
He added: “The big fear in my mind is that ordinary everyday citizens are against the agencies.”
Other small businesses defended Chevron.
A coalition of small business leaders, state chambers of commerce and climate-focused companies filed an amicus brief describing the doctrine as a way to put regulatory decision-making in the hands of a single federal agency rather than the nation’s various courts.
“For a small business, anything that reduces risk, increases stability and predictability makes it more possible to launch, survive and grow,” the brief said.
“Chevron became a proxy”
Chevron not inherently anti-corporate.
The theory of law was born from an incident in 1984 – Chevron v. Natural Resources Defense Council – which approved Reagan-era EPA air regulations over the objections of environmental groups.
In the 1984 case and subsequent court proceedings, Chevron NRDC often worked for industry and against environmental groups. Runner Bright and Merciless.
“However, we recognize broader values Chevron The judicial review framework serves and what could be lost without it,” the group wrote.
Chevron Kristin Hickman, a law professor at the University of Minnesota, has also come up with litigation that does not pit the corporation against the agency rule. The doctrine also comes into play in disputes over who is entitled to tax or welfare benefits, and in which federal agencies mediate battles between various business interests.
Briefing Runner Bright and Merciless shows that Chevron it has become a critique of federal agency powers regardless of the doctrine’s real-world impact.
“Chevron over time and across countless agencies has become a proxy for how you feel about administrative management, which I think has become somewhat, if not entirely, divorced from the nuances of the actual application of the doctrine,” he said.