New Conservative Tactic – Stalemate and Gridlock

Corporate Responsibility Corporations Environment Polling Supreme Court

            New Orleans       It probably brings a grimace to the faces of many environmental and other lawyers when they keep having to repeat Chevron’s name favorably in court proceedings and papers these days.  Chevron, of course, is the giant oil and energy company and the bête noire of environmentalists and many others everywhere because of climate and similar concerns.  Yet, there they all are in a crowd before the Supreme Court as conservative groups funded by Koch, also a villain in the climate and political world, and, fronted by some fisherman on the East Coast, try to overturn the forty-year legal precedents that came from the case referred to simply as Chevron.

Chevron vs. the National Resources & Defense Council, found the Supreme Court deciding that governmental agencies had been granted the discretion to interpret Congressional acts into policy and regulations.  Not surprisingly, this decision has been controversial among many big companies and conservatives since it was decided, because they want everything to be laid out plain and simple by Congress, supposedly.  This challenge from the fishermen was triggered by a requirement that they pay for a monitor of their activity when fishing at $700 per day.  The law said they couldn’t overfish, but the regulation required them to pay for the monitor to prove that they didn’t.  Eventually, the monitor requirement was abandoned, and the fishermen had their money refunded.  You and I might think that made the case moot, but that’s because we aren’t billionaires with friends in high places.

Reports on the arguments indicate the Court is split with the majority perhaps settling on a modification, but the radicals looking for a complete overturn.  With this Court, it’s always smartest to expect the worst, but what’s really going on here?

No one believes that Congress is ever going to be able to dot every “i” and cross every “t” on legislation.  Conservatives know, as we all know, that these days in Congress that means that they can hardly agree on anything, including keeping the government going and paying our bills, much less the ins and outs of complex legislation.  There’s no better example of the difficult straits they are in than to remember the farce when the tech giants testified before them several years ago, and they just about had to describe to them how email worked, much less tech, artificial intelligence, and more.  I wish this were just a problem of our elected leaders being “big picture” folks, rather than “nuts and bolts” people, but it’s more a case of no matter how some politicians deride bureaucrats and the so-called “deep state,” they all depend on all of them, as much as the rest of us.

This is a strategy to kill government in a stalemate, where any and all deferral to agencies would be litigated and thereby to manufacture a gridlock in the courts, so that companies could do anything they want for as long as they could get away with it, perhaps forever.  A report on India recently indicated they had a 50 million case backlog in their courts, so that some simple cases could take twenty years or more to resolve.  India has fewer judges than the United States, but the US doesn’t have enough judges to deal with the tsunami of cases that would be provoked by every law and accompanying regulation and whether or not it exceeded authority given by Congress.  All of us know that Congress desperately needs help to do everything, and hardly can get done what it has to do.  Conservatives and the corporates would be happy to see the governmental and judicial system ground to a halt, and that’s what they want from this challenge.

This would be a case of the Court throwing away not only the bathwater, but the baby and the tub.  We can only hope they allow commonsense to have a place in their decision and in the meantime, for a change, here’s three cheers for Chevron.