“A Very Well-Funded Campaign”

Back in 2014, when a power plant challenged the Environmental Protection Agency (EPA)’s air pollution regulations, a more liberal Supreme Court sided with environmental regulators. The Clean Air Act, the court reasoned, might not spell out exactly how the EPA should enforce Congress’ antipollution law, but environmental regulators had the authority to interpret ambiguous provisions according to their expertise.

The doctrine backing this decision was called Chevron deference, a precedent established by the high court in a 1984 ruling over the oil giant’s challenge to antipollution laws.

For decades, the Chevron doctrine directed federal judges to defer to regulators’ judgment on questions of law, so long as their judgment was reasonable. The state of affairs greatly expanded the scope and power of regulatory agencies.

Once embraced by the conservative establishment, the Chevron doctrine was a prime target of corporate interests by the 2010s. Corporate America had come to believe the precedent handed too much authority to regulators trying to rein in corporate power — like when the EPA successfully won over polluters.

Particularly emblematic of the corporate turn against Chevron is the evolving position of Supreme Court justice Clarence Thomas. Thomas once supported the doctrine, upholding it in an opinion he authored in 2005. But he flip-flopped on the issue after years of undisclosed gifts and luxury travel from corporate billionaire Harlan Crow, as well as endless lobbying by right-wing legal organizations such as the Pacific Legal Foundation, which are increasingly backed by dark money.

Thomas’s about-face was just one step in the conservative legal movement’s long game to overturn Chevron and usher in a new deregulatory age. Another was the Loper Bright case, a challenge to federal marine authorities brought on behalf of commercial fisheries in New England. The case was backed by a laundry list of corporate interests, and the Supreme Court ultimately ruled 6–2 in their favor last year, with Justice Ketanji Brown Jackson recusing herself, and Thomas joining with the majority to vote to sunset Chevron.

Chief Justice John Roberts, in his majority opinion in Loper Bright, held that courts must now “exercise their independent judgment” when deciding whether federal authorities have exceeded their authority — dealing a serious blow to regulators’ power. The ruling has had wide-ranging consequences: courts cited the death of Chevron to strike down firearm background-check requirements, airline fee restrictions, and environmental protections, as ProPublica reported last fall.

Now state courts, which have their own standards for evaluating state rules and regulations, are being forced to ask the same questions. For decades, there has been a piecemeal system in the states of “judicial deference” — how much judges defer to regulators’ judgment. In the years after Chevron, many states adopted similar legal regimes, but not all: the notoriously corporate-friendly Delaware, for instance, has long had a far less deferential standard.

State standards on this issue are a “moving target,” said Daniel Walters, a Texas A&M University School of Law professor. “At the state level, things are changing all the time.”

But recently, Walters has seen an accelerated trend of legislation on a state level.

A “very well-funded campaign,” he said, has begun “advocating for changes at the state level, to try to eliminate deference there.”

This campaign is being driven in part by ALEC.

“A Thumb on the Scale”

In a recent April webinar, ALEC staffers and conservative lawmakers around the country gathered on Zoom to discuss their deregulation battle across the states.

“So many states are moving in the right direction to adopt ALEC model policy,” Jonathan Williams, ALEC’s president and chief economist, said on the call.

He pointed in particular to Missouri, where lawmakers are advancing an ALEC-authored judicial deference bill to weaken the power of regulators in the state. The legislation passed in the Missouri Senate in February by a wide margin (25–7) after ALEC sent a representative to the state house to testify in its favor and is now being deliberated on in the House.

For years, ALEC has been a secretive hotbed for conservative policy, working closely with lawmakers across the country to pass model legislation drafted by the group. Its backers include the shadowy political network funded by conservative petrochemical tycoon Charles Koch of Koch Industries, among hundreds of other corporate interests, many of which were also involved in the fight against Chevron deference.

Many states with conservative leadership, hopping in on the DOGE zeitgeist, have been attempting to copy the Trump administration’s extreme agency-gutting playbook. State-level Department of Government Efficiency–inspired entities have cropped up in twenty-six states, according to an April report from the Economic Policy Institute.

They are being egged on by ALEC’s “government efficiency coalition,” a working group that coordinates these efforts nationwide. The Lever attended multiple coalition webinars this year, in which ALEC representatives and state lawmakers discussed their strategy — as well as the group’s attempts to pass judicial deference legislation.

“Every good idea that comes out of the states should be funneled up to the federal government, and vice versa,” ALEC’s CEO, Lisa Nelson, said on a January call.

ALEC isn’t the only corporate interest group lobbying for the Missouri deregulation bill. Legislative records indicate that the Associated Industries of Missouri, an industry group whose members include Boeing, Ford, and Mastercard, has been pushing for the legislation. So has the Pacific Legal Foundation and Americans for Prosperity, a dark money group backed by the Koch network.

The Missouri bill, like nine other bills introduced in different states this year, draws almost word for word from model legislation on judicial deference drafted by ALEC, which the organization claims will “restore judicial autonomy” by seizing power from state regulators and returning it to the courts.

What’s particularly noteworthy about this language, noted Walters at Texas A&M, is that it appears to expand upon the Supreme Court’s stance on judicial deference in its Loper Bright decision. Not only does the ALEC legislation direct that courts not give any deference to agency judgment at all, but it also directs judges to “exercise remaining doubt in favor of a reasonable interpretation that limits the scope of agency power and maximizes individual liberty.”

This, Walters said, goes “well beyond” what the Supreme Court decided in Loper Bright, amounting to a “thumb on the scale against agency action.”

Yet despite how apparently extreme the language is, state lawmakers are taking it up. Last year, Idaho codified the language into law. This legislative session, the Nebraska and Oklahoma legislatures have, like Missouri, both pushed bills containing the ALEC language through at least one chamber.

According to Walters, the impact of such a drastic policy — which directs judges to oppose agency action whenever possible — could be “chilling” in states, where regulators are in charge of critical environmental protections, antitrust enforcement, worker safeguards, and many other policies.

“It just seems like stacking the deck in many ways against agency action, and I think it would have profound implications for the ability of regulators to do their job,” he said.