The Supreme Court is set to hear arguments on Wednesday that, on paper, involve a group of commercial fishermen who oppose a government fee they say is unreasonable. But the lawyers who helped push 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 that has come before justice in years. A victory for the fishermen would do much more than scrap the monitoring fee, part of a system meant to prevent overfishing, which they objected to. It would likely drastically limit the power of many federal agencies to regulate not only fisheries and the environment, but also health care, finance, telecommunications and other activities, legal experts say.
“It may all sound very innocuous,” said Jodi Freeman, founder and director of Harvard Law School’s Environmental and Energy Program. and former Obama White House official. “But it’s tied to a much bigger agenda, which is essentially deregulation and deregulation.”
The New Jersey-based attorneys representing the fishermen work pro bono and belong to a public interest law firm, Cause of Action, which does not disclose donors and says it has no employees. But court records show the lawyers work for Americans for Prosperity, a group funded by Mr. Koch, the chairman of Koch Industries and a champion of anti-regulatory causes.
The law firm’s board includes a top attorney at the firm who has represented Koch Industries in a number of cases, including the company’s previous defense of lawsuits related to petroleum coke handlinga by-product of oil refining, and opposed to stricter regulations on the substance.
The attorney also represents Koch Industries in the an ongoing lawsuit filed by the Minnesota attorney general which accuses the company of misleading practices related to climate change.
Other board members include executives of groups funded primarily by Mr. Koch or by Koch Industries, America second largest private companyafter Cargill.
Ryan Mulvey, a lawyer for Cause of Action and one of the lawyers trying the case before the Supreme Court, said the focus “should be on the fishermen and what they are fighting for”.
“This case is about the livelihoods of hard-working, family-owned fishing companies threatened by unconstitutional violations by the government,” 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 named, said Cause of Action and Americans for Prosperity are separate organizations. Neither Mr. Koch nor Koch Industries is involved in the case, he said. Koch Industries did not respond to requests for comment.
Overturning the state’s power to regulate business has been a longtime goal of conservative legal activists and their funders, who have engaged in a long-running effort to use the court system to rewrite environmental law. In 2022, they scored a victory in a Supreme Court ruling that could drastically limit the federal government’s power to reduce carbon dioxide from power plants. Emissions from the burning of fossil fuels are the main cause 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 Chevron deference, after a 1984 Supreme Court decision involving the oil and gas giant, empowers federal agencies to interpret ambiguities in laws passed by Congress.
Congress isn’t equipped to handle the day-to-day administration of the legislation it passes, the reasoning goes, so it should rely on federal agencies to implement laws and policies. Weakening or eliminating Chevron’s deference doctrine 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 accountable.
Proponents of the rule say the case is a vehicle for other interests beyond the fishermen’s complaint.
“These fisheries 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.
With the Supreme Court’s shift to the right in recent years, free market advocates seem to see an opportunity to clip the wings of federal power, in part by bringing carefully selected cases before sympathetic judges.
That change was aided by groups, including those connected to Mr. Koch, who worked to support the nomination and confirmation of the five most recent Republican appointees to the bench.
At a forum hosted in November by the Federalist Society, a conservative legal group, a lawyer laid out the strategy.
“To successfully run a campaign like this, you need three things,” Damien M. Schiff, senior attorney at the Pacific Legal Foundation, told the forum. Money, legal staff and a judiciary receptive to strategically chosen and timed legal arguments.
Conservative groups and their supporters now have all those things, Mr. Schiff said, according to a video. In particular, “money is never going to be a problem,” he said. “One can easily approach the Supreme Court cheaply.”
“Congratulations,” replied David Doniger, an attorney attending the event who, 40 years ago, argued the original Chevron case on behalf of the Natural Resources Defense Council. “But to me, that’s dressing naked private interests in lofty constitutional arguments.”
In an interview, Mr. Schiff said cases like these have quickly become the preferred way for groups to fight federal regulations. “When you compare how much of an impact one can have on society through litigation, and especially winning at the Supreme Court, to lobbying with administrative agencies or through political campaigns,” he said, “it’s much more effective.”
His group, the Pacific Legal Foundation, is part of a network of conservative research organizations that has 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 judges with a compelling story of small businesses struggling to survive. Fishermen stand out on a page that offers information on the case, it is promoted through Google ads.
“No one in a family business wants to be the last to do it, everyone wants to go through it together and I’m afraid I might not make it,” says Stefan Axelsson, who introduces himself as a third-generation commercial fisherman. video was shown, titled ‘Fishermen fight back against illegal job-killing government order’. Mr. Axelsson could not be reached for comment.
The page does not list Koch’s affiliations, although a contact form generates an email to Cause of Action, as well as Stand Together, a nonprofit group founded by Mr. Koch, who remains one of its donors.
The Cause of Action Institute has disclosed little of its funding: A year before its creation, the Supreme Court’s Citizens United decision had allowed billions of dollars to be spent by groups that do not disclose their donors.
Cause of Action founder Daniel Z. Epstein was previously a fellow 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 the University of St. Thomas, said Cause of Action’s work with fishermen was not born out of a motive to overturn the Chevron doctrine. “It had to do with a watcher program that spies on fishermen,” he said.
He declined to discuss the funding.
Cause of Action had two cash receipts, both from Mr. Koch’s Stand Together, according to tax filings from Stand Together, including more than $4 million in 2019 and $1.1 million in 2020. In its most recent tax filing of, covering the time the fishermen’s case was being processed, the group said it had no employees. The case is being tried by lawyers working for Americans for Prosperity, including Mr. Mulvey.
The board that runs Cause of Action includes William Burck, who is a managing partner at the law firm Quinn Emanuel, which has represented Koch Industries in litigation over environmental regulations. Mr. Burck is the lead attorney in the defense of Koch Industries in a separate case before the Supreme Court, the lawsuit filed by Minnesota that accuses Koch and other oil and gas companies of undermining the public’s understanding of the risks of burning fossil fuels.
Other board members include Emily Seidel, CEO of Americans for Prosperity, formerly director of special projects for the Koch Companies Public Sector, the Koch Industries lobby. and Kurt Level, the current deputy general counsel in Public Sector at the Koch Companies.