The Supreme Court’s Big Chevron Case Could Hamstring Federal Government. Here’s How It Got Started.

The Supreme Court’s Big Chevron Case Could Hamstring Federal Government. Here’s How It Got Started.

William Bright, Wayne Reichle, and Stefan Axelsson have a lot in common. They live in Southern New Jersey and run commercial fishing operations whose catch includes Atlantic herring, silvery little bottom-dwellers that feed on krill and fish larvae. They are plaintiffs in a Supreme Court case that could soon kneecap federal agencies’ ability to write and enforce regulations. And for the past few years, they’ve had a common adversary: offshore wind developers.

Plaintiffs in one of the most closely watched cases this term participated in efforts to block two major renewables projects off the coast of New Jersey, Ocean Wind 1 and 2. The campaign against Ocean Wind 1 and 2 was aided by a network of conservative groups and corporate backers, who rejoiced when Danish energy firm Ørsted canceled both projects in November. Now, when the Supreme Court rules on Chevron this spring, these groups may have a much bigger win to celebrate.

Bright, Reichle, and Axelsson’s case, Loper Bright Enterprises v. Raimondo, as well as a companion case before the court called Relentless, Inc. v. Department of Commerce, ostensibly challenges a requirement that fishing boat owners pay for the federal observers who ensure companies aren’t overfishing. The government abandoned that requirement last year and reimbursed fisherman who had paid observer fees. The Supreme Court took these two cases anyway, so as to rule on a much broader question: whether to overturn a long-standing legal precedent known as the Chevron deference, wherein courts defer to the expertise of federal agencies to interpret congressional statutes. If they succeed in killing Chevron, this will be a massive victory for corporations looking to evade regulation.

So who are the plaintiffs in the Loper Bright case? Loper Bright Enterprises is run by William Bright, who also owns a well-reviewed seasonal Jersey Shore restaurant called Hooked Up Seafood. Loper Bright Enterprises is listed as permanently closed on Google Maps, though a representative for the plaintiffs disputed the status and said it was actively engaged in herring fishing operations. H&L Axelsson is a commercial fishing operation run by the Axelsson family, which owns the F/V (fishing vessel) Dyrsten. Wayne Reichle is the president and owner of Lund’s Fisheries, a vertically integrated seafood company with both boats and processing facilities that operates on the East and West Coast. Lund’s co-owner and chairman of the board, Jeff Reichle—Wayne’s father—also runs Scombrus One LLC, another plaintiff. Multiple attempts to reach all of the above were unsuccessful.

The group is being represented pro bono by lawyers at the Cause of Action Institute, as well as by Paul Clement, a former U.S. solicitor general and conservative legal activist. Ryan Mulvey—part of the plaintiffs’ legal team—serves as both counsel for Cause of Action Institute and policy counsel for the Americans for Prosperity Foundation, the education and research arm of the Koch brothers–backed lobby group Americans for Prosperity. Two other attorneys representing the plaintiffs, Eric Bolinder and James Valvo, who serve as counsel and executive director, respectively, at the Cause of Action Institute, also work for the Americans for Prosperity Foundation. According to the foundation’s most recently published Form 990 tax filing, it granted $200,000 to the Cause of Action Institute in 2022.

Over email, Mulvey said that Cause of Action Institute attorneys first came into contact with the Loper Bright plaintiffs at regional Fishery Management Council meetings and “through mutual contacts in the commercial fishing community” before offering their services in 2019. “We approached the plaintiffs to help them challenge the onerous and unfair requirement that herring fishermen cover the cost of monitors aboard their boats,” Mulvey wrote. Asked how this particular group of plaintiffs came together, he described them as “fishermen based in Cape May, NJ whose families have been fishing together for decades.”

The Loper Bright plaintiffs have been involved in a number of issues related to fishing regulations. Since at least 2018, that advocacy has included a focus on offshore wind development. Stefan Axelsson and Wayne and Jeff Reichle are two of many signatories on a 2018 letter addressed to Walter Cruickshank, at the time acting director of the Bureau of Ocean Energy Management, or BOEM. The letter raised concerns about the “immense” risks posed by “poorly-planned offshore wind energy development,” which could damage “our fisheries, the ocean habitat more generally, and our way of life.”

In 2021, Jeff and Wayne Reichle were interviewed by a local newspaper while attending a protest against wind farm developments off the coast of southern New Jersey. “​​Our issue is they haven’t reached out to the fishing industry,” Jeff Reichle told OCNJ Daily, seemingly referring to the state and the companies developing the project. Wayne Reichle argued that there “is no proof that the wind farm will have a positive impact on fishing, only negative.” Wayne Reichle also appeared to attend a critical hearing on offshore wind hosted last year by New Jersey Congressman Jeff Van Drew, according to a post on Reichle’s LinkedIn page. He also spoke at a 100-person beachfront demonstration against offshore wind development last October, focused on wind development’s dubiously documented impact on whale populations.

As researchers at Brown University’s Climate and Development Lab illustrated in a recent study on East Coast anti–offshore wind advocacy, right-wing groups—often funded by fossil fuel interests—frequently offer material support to these typically grassroots opposition movements. Polluter-backed think tanks such as the Caesar Rodney Institute have offered legal support, personnel, talking points, and financial resources to local groups fighting renewable energy projects. The right-wing legal movement has also been eager to take on cases brought by such groups; the board of commissioners for Cape May County, where several Loper Bright plaintiffs live, hired longtime anti-regulatory crusaders Nancie Marzulla and Roger Marzulla Jr. to challenge wind developments there. Isaac Slevin—a co-author of the report—cautioned against seeing offshore wind activism as a purely astroturfed project. Rather, he said, participants have been eager to seek out and accept support from groups willing to offer it.

Right-wing groups have also aided other plaintiffs in cases challenging Chevron in their opposition to offshore wind. For instance: Meghan Lapp, fisheries liaison for the Rhode Island–based company Seafreeze Ltd., a plaintiff in the Relentless companion case to Loper Bright, told Reuters in 2021 that she sought legal assistance from the Texas Public Policy Project. The Texas Public Policy Project is known for helping spearhead a nationwide campaign against environmental, social, and governance, or ESG, investment principles, and has provided no-cost legal representation to offshore wind critics in New England as well as a high-production-value video outlining its case against wind energy. The Relentless case plaintiffs are being represented by the New Civil Liberties Alliance, a nonprofit law firm. The NCLA is also a partner organization of the State Policy Network, whose members and affiliates include several groups that support anti-wind advocacy. Neither Lapp nor the NCLA responded to multiple requests for comment as to how NCLA came to take up the case.

Several boats owned by Reichle and Bright—as detailed in a website dedicated to the case—are on the Responsible Offshore Development Alliance’s member list. Other RODA members, which can be companies, business associations, and individual vessels enlisted by their owners, include F/V Relentless and plaintiffs in the case the Texas Public Policy Project brought against Vineyard Wind. Lapp serves on RODA’s board of directors alongside Lund’s Fisheries’ Greg Didomenico, the company’s fisheries management specialist. A 2020 letter publicized on the Lund’s Fisheries website calls for a five-year moratorium on offshore wind development pending the satisfaction of a long list of industry demands; Axelsson, Bright, and Jeff and Wayne Reichle are among its extensive list of signatories. A post on the Lund’s Fisheries website about the petition includes a now-defunct link to a sign-on form on RODA’s website.

The Cause of Action Institute—whose lawyers are representing the Loper Bright plaintiffs pro bono and also work for the Americans for Prosperity Foundation—hasn’t been involved in anti–offshore wind efforts, Mulvey said. The group first worked on commercial fishing issues when it represented plaintiffs in the case Goethel v. Department of Commerce, which also dealt with commercial fishermen covering the cost of NOAA observers. Americans for Prosperity, however, has long battled wind energy development. Like the NCLA, Americans for Prosperity is also a State Policy Network partner. Several network affiliate groups are members of the American Coalition for Ocean Protection. Also involved in that formation is Protect Our Coast NJ, which has helped to coordinate protests and legal action against Jersey Shore wind developments. Americans for Prosperity is a donor, as well, to the Republican State Leadership Committee. Last July, the RSLC—having received donations from a number of fossil fuel interests—announced its launch of “two five-figure ad buys on the effect of offshore wind projects that are putting the lives of whales in danger; the very same whales that have been washing up on New Jersey beaches.”

The point of tracing all these links isn’t to suggest that the plaintiffs in Loper Bright and Relentless are sleeper agents hell-bent on destroying the administrative state. There are many perfectly legitimate reasons why individuals in the fishing industry might be active in more than one seemingly reactionary cause, donate to Republican candidates, or oppose policies that affect their business. Rather, the web of connections between anti–offshore wind groups and those challenging Chevron highlights the right’s expansive ecosystem of lawyers, think tanks, and funders and how this ecosystem generates opportunities for key legal battles like the one now playing out in the Supreme Court. The right has used its essentially unlimited fountain of corporate funds to cast a very, very wide net over the last several decades. And given the ubiquity of fossil fuel funding in these networks, backing efforts to fight renewable energy development is almost a no-brainer. If the Supreme Court overturns the Chevron doctrine as expected, that net will have brought in one of its most lucrative catches yet.

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