Koch Industries And Their War On The Administrative State: A Defeat For The Climate

On June 28th 2024, the United States Supreme Court overturned the long-standing ‘Chevron doctrine’. Driven by conservatives and industrialists, this decision poses a significant risk to global climate action and broader human rights in the United States. Koch Industries has taken advantage of the conservative Supreme Court majority to advance their goal of undermining environmental regulation.

by Reinout Debergh

Over the last two years, several court decisions weakened the ability of the Environmental Protection Agency (EPA) to tackle pollution and climate change [1]. It dates back to the case in 2022 (West Virginia vs EPA) when courts applied the major questions doctrine (MQD) as it ruled that Congress did not give the EPA the authority to set emission limits based on generation shifting. Last June, the Supreme Court increased the power of the MQD as it overturned the Chevron doctrine (CD), making it harder for government agencies to tackle issues such as pollution and climate change [1, 2]. This is just the latest in a series of anti-environmental court decisions, as will be discussed later in this article [1].

What Is The Chevron Doctrine?

A court case in 1984 established the CD: Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc,a legal test for courts to determine whether to follow an agency’s interpretation of a statute. The first question is whether Congress’ intent in the statute was clear. If not, the court followed the agency if their interpretation was reasonable [3]. A landmark case, the CD has been used extensively over the past 40 years with over 18,000 judicial opinions, an average of 450 times a year. The CD is not only used in environmental regulation, impacting a number of sectors: healthcare, housing, finances, taxes, telecommunications, consumer protection, transportation, energy and education [4]. Under the CD, policy decisions could be made by experts, those who know their field best, rather than politically driven judges as will now be the case [5].

Who Is Behind It?

The overturning of the CD did not come out of the blue. It is not the first attempt to do so as the same lawyer tried already to overturn it several years ago [5, 6]. Secondly, overturning the CD is part of a wider strategy by conservatives and industrialists to reduce the power of federal agencies, dubbed the ‘war on the administrative state’. A name that comes up often in these cases is Koch [5]. The case overturning the CD involved fishermen wanting to remove the obligation to pay a fee for scientists to observe in order to prevent overfishing and violating other laws [7]. They were supported by pro bono lawyers from Cause of Action and court records show they work for Americans for Prosperity, a group funded by Koch [8]. 

The Koch network has been coordinating an attack on federal agencies for years and since the supermajority of conservative judges on the Supreme Court, they have been, to use their own words, “doubling down on this strategy”. Koch Industries, the second-largest privately-held company in the US, consists of energy and chemical companies, who seek to profit from reduced environmental regulations and worker protections. Through legal action and donations, they seek to exert their influence with their central goal being to undermine government regulations [9].They hide their intentions behind concerns for the working class and in this case, fishermen. Even though the fishermen had already been fully reimbursed for their costs by the federal government [7].

What Does It All Mean For Future Climate Action In The US?

With the CD gone, the MQD will dominate, allowing judges to make decisions based on their personal and political beliefs [2]. It will make it harder for federal agencies like the EPA to take action as the statutes they use are typically broadly worded. The exact interpretation of when the MQD applies however, differs among courts, leading to an inconsistent application across states and increasing regulatory uncertainty [2]. The decision may also lead to the overruling of past cases where the CD was applied [6].

While Democrats try to advance climate action in the US, the recent decisions may limit their options. Patrick Parenteau, expert on environmental law at Vermont Law School, said that the decisions mean that they are “not going to be able to do much else on the environment, particularly on climate”. [1]. Difficulties at the national level may also impact the standing of the US at international climate negotiations, even if the Democrats would win the elections [10]. What could turn the tide is the remobilization of Congress through a Democratic 3/5th majority in the senate to overcome filibustering [1, 11]. Though that seems very unlikely to happen [12].

Other Climate Cases: A Brief Summary

Last July, a federal judge in Louisiana ordered that review of LNG projects which were halted by the Department of Energy must resume. Now about 20 projects are expected to become operational over time. The same judge earlier blocked federal efforts to investigate environmental racism in Louisiana [13]. 

The Supreme Court has even ruled before any decisions were made by lower courts, showing its increased aggressiveness through two major decisions [1]. Last June, the Supreme Court halted the enforcement of the ‘good-neighbour rule’ in 11 states, which required power plants to address groundlevel ozone formation to reduce cross-border pollution. [14]. Last year, wetlands that are not connected to another federally protected body of water at its surface were judged to not fall under the Clean Water Act and are therefore not protected [15]. This opens up large areas for development such as for mining [16, 17].

Conclusion

Overturning  the Chevron doctrine shows those seeking profit over people and planet using the judiciary branch to weaken the government and people’s rights. From climate change to worker protection, the decision is a significant blow to justice. The coming elections will give people, especially young people, a chance to give a clear signal to those in power that democracy and justice still matter in America.

References:

[1] Davenport, C., A String of Supreme Court Decisions Hits Hard at Environmental Rules, The New York Times, https://www.nytimes.com/2024/06/29/climate/supreme-court-epa.html, accessed on 11/07/2024.
[2] Pierce, R., Major Questions Doctrine Hands Power to Judges After Chevron, Bloomberg Law, https://news.bloomberglaw.com/us-law-week/major-questions-doctrine-hands-power-to-judges-after-chevron, accessed on 11/07/2024
[3] Van Dijk, L., Overturning the Chevron Doctrine: The Impact on Climate Litigation in the U.S., Climate Court,   https://www.climate-court.com/post/overturning-the-chevron-doctrine-the-impact-on-climate-litigation, accessed on 20/07/2024.
[4] Gold, R., et al., What’s Next for the Regulatory Landscape Post-Chevron?, Holland & Knight, https://www.hklaw.com/en/insights/publications/2024/07/whats-next-for-the-regulatory-landscape-post-chevron, accessed on 20/07/2024.
[5] Cohen, A., The pervasive influence of political composition on circuit court decisions, VoxEU, https://cepr.org/voxeu/columns/pervasive-influence-political-composition-circuit-court-decisions, accessed on 20/07/2024. 
[6] Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, SCOTUSblog, https://www.scotusblog.com/case-files/cases/guedes-v-bureau-of-alcohol-tobacco-firearms-and-explosives/, accessed on 27/07/2024.
[7] Lavelle, M.? Supreme Court Overturns Chevron Doctrine: What it Means for Climate Change Policy, Inside Climate News,   https://insideclimatenews.org/news/28062024/supreme-court-overturns-chevron-doctrine/?utm_source=cbnewsletter&utm_medium=email&utm_term=2024-07-08&utm_campaign=DeBriefed+Key+climate+MPs+in+new+UK+parliament+Hurricane+Beryl+Biden+calls+deniers+really+really+dumb, accessed on 27/07/2024.
[8] Tabuchi, H., A Potentially Huge Supreme Court Case Has a Hidden Conservative Backer, The New York Times, https://www.nytimes.com/2024/01/16/climate/koch-chevron-deference-supreme-court.html, accessed on 27/07/2024.
[9] Pilkington, E., Surgery, N., ‘Get the right cases to the supreme court’: inside Charles Koch’s network, The Guardian https://www.theguardian.com/us-news/2023/oct/26/charles-koch-us-government-rightwing-supreme-court, accessed on 28/07/2024
[10] FACT SHEET: President Biden to Catalyze Global Climate Action through the Major Economies Forum on Energy and Climate, The White House, https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/20/fact-sheet-president-biden-to-catalyze-global-climate-action-through-the-major-economies-forum-on-energy-and-climate/, accessed on 04/08/2024. 
[11] Desilver, D.? Finding 60 votes in an evenly divided Senate? A high bar, but not an impossible one, Pew Research Center, https://www.pewresearch.org/short-reads/2022/08/26/finding-60-votes-in-an-evenly-divided-senate-a-high-bar-but-not-an-impossible-one/#:~:text=The%20requirement%20was%20changed%20in,moving%20on%20to%20other%20business, accessed on 04/08/2024.  
[12] 2024 Presidential Election Interactive Map, 270towin, https://www.270towin.com/2024-senate-election/, accessed on 04/08/2024. 
[13] Larose, G., Federal court ends pause on LNG export project approvals, Louisiana Illuminator, https://lailluminator.com/2024/07/02/lng-export/, accessed on 28/07/2024.
[14] Daly, M., What it means for the Supreme Court to block enforcement of the EPA’s ‘good neighbor’ pollution rule, AP News, https://apnews.com/article/supreme-court-epa-good-neighbor-air-pollution-ea23421c78999293267339faf4453cdb#:~:text=The%20EPA’s%20%E2%80%9Cgood%20neighbor%E2%80%9D%20rule,areas%20with%20smog%2Dcausing%20pollution, accessed on 28/07/2024.
[15] Turrentine, J., What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways, NRDC, https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa, accessed on 28/07/2024.
[16] Woods, S., The Supreme Court Ruled Against Wetlands in 2023. We Can Still Save Them., Union of Concerned Scientists, https://blog.ucsusa.org/stacy-woods/the-supreme-court-ruled-against-wetlands-in-2023-we-can-still-save-them/#:~:text=In%202001%2C%20the%20Supreme%20Court,and%20their%20immediately%20adjacent%20wetlands, accessed on 28/07/2024.
[17] Allen, J., New federal rule puts 2.5 million acres of wetlands in peril, Coastal Review, https://coastalreview.org/2023/09/epa-corps-final-rule-leaves-isolated-wetlands-unprotected/, accessed on 28/07/2024.