By Pam Martens and Russ Martens: July 1, 2022 ~

Imagine a country that allows a private fossil fuels conglomerate (or its billionaire boss, Charles Koch, the 17^th richest person in the world according to Forbes) to get away with the following:

• Meet secretly with big political donors twice a year to plot a coordinated strategy to put their chosen people in public office;
• Meet at his private club with a sitting Supreme Court justice who will then rule on key legislation that benefits his interests;
• Fund an organization that then sluices money to the wife of the Supreme Court Justice;
• Run a highly sophisticated voter registration database, data mining and get-out-the-vote operation called i360, in order to pack Congress with people who will pursue an antiregulatory agenda;
• Install dozens of its lawyers and operatives into the highest offices of the federal government;
• Run a sprawling, opaque trading operation that could potentially be raising the prices of the fossil fuel products it sells via the futures market;
• Continue to operate major factories in Russia, ignoring sanctions and a murderous regime waging an unprovoked war on Ukraine, until a pressure campaign forced it to say it will look for an exit strategy;
• Fund a sprawling network of taxpayer-subsidized front groups to deny climate change and foment hate;
• Provide funding to groups involved in sending a mob to attack the seat of government of its own home country on January 6;
• Fund groups that use dark money and propaganda to put lifetime justices on the highest court to pass legislation friendly to the fossil fuels conglomerate.

If this sounds like some kind of dystopian novel, welcome to the United States of Koch, circa 2022. Even the comedians at Saturday Night Live get it. SNL Weekend Update co-anchor, Colin Jost, offered this take in May:

“Is it me or does every story sound like the opening voiceover in a Mad Max movie? The year is 2022. A virus rages across the planet. Digital money has collapsed. Infants have nothing to eat. Women are forced to breed. Men are ready to die for gasoline….”

Now add this to the list, the taxpayer-funded federal agency, the Environmental Protection Agency (EPA), can no longer protect the environment and the planet from greenhouse gases, thanks to Koch front groups that maneuvered a case to the U.S. Supreme Court, even though it wasn’t ripe for review, and got precisely the decision they wanted yesterday in a 6-3 decision handed down by justices installed by groups backed with Koch money.

The case, West Virginia vs EPA, et al, was brought by two red states and coal companies.

Legal scholars believe the decision may have the broader impact of limiting the authority of other federal agencies to take regulatory action without specific congressional approval. The decision will certainly open the floodgates to more of these kinds of challenges, which is certainly a secondary win for Koch and his minions.

Justice Elena Kagan wrote the dissenting opinion on behalf of herself, Justice Sonia Sotomayor and Justice Stephen Breyer, who retired yesterday. Kagan wrote:

“Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’ noting that “The Earth is now warmer than at any time ‘in the history of modern civilization,’ with the six warmest years on record all occurring in the last decade.”

Kagan directly challenged the majority’s view that the EPA did not have the authority to regulate greenhouse gases, writing: “Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’ 42 U. S. C. §7411(b)(1)(A). Carbon dioxide and other greenhouse gases fit that description…”

Kagan also explained how the Supreme Court has been doing the bidding of the fossil fuels industry going back to the Obama administration, writing: “This Court has obstructed EPA’s effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts….”

According to a report from Greenpeace, “Koch Family Foundations have spent $145,555,197 directly financing 90 groups that have attacked climate change science and policy solutions, from 1997-2018.”

A number of the front groups with long ties to Charles Koch filed amicus briefs in the case, pushing for the very outcome that six members of the court dutifully handed them.

The Cato Institute, a nonprofit that was actually secretly owned by Charles Koch, his late brother, David, and a handful of others for decades, told the Supreme Court this in the amicus brief that it filed together with the Mountain States Legal Foundation:

“This case is illustrative of an alarming trend whereby presidents turn to implied authority, typically in long-extant statutes, to achieve what Congress fails to do.”

That sentence is particularly nauseating because Koch packed the Trump administration with his own operatives. A Koch front group, Freedom Partners, quickly provided the Trump administration with a list of regulations it wanted gutted – like U.S. participation in the Paris Climate accord (which Trump revoked on June 1, 2017 after barely four months in office) and numerous EPA rules. Freedom Partners threatened those lawmakers who didn’t get on board, writing that “Freedom Partners will hold lawmakers who oppose regulatory relief accountable for their positions.”

Why did Koch have it out for the EPA? Koch Industries has been serially charged, including a criminal conviction, with dangerously polluting the environment. On January 13, 2000, the Justice Department and the EPA announced the largest civil fine ever imposed against Koch Industries to resolve claims related to its “more than 300 oil spills from its pipelines and oil facilities in six states.” The company agreed to pay a $30 million civil penalty and spend $5 million on environmental projects. Daniel Schulman documented Koch Industries’ history of environmental abuses in his 2014 book, Sons of Wichita: How the Koch Brothers Became America’s Most Powerful and Private Dynasty.

So in the dystopian world of Koch, it’s just fine for Presidents to do the bidding of the fossil fuels industry but it’s not okay for a President or Congress to attempt to enforce the laws that regulate a dangerous, polluting industry.

Another front group widely associated with Koch is Americans for Prosperity (AFP). Koch previously attempted to distance itself from the group until a video emerged of David Koch addressing an AFP gathering and telling the audience that his brother, Charles, and he provided the funds to start AFP.

AFP also filed an amicus in the EPA case, producing this particularly vomitous passage:

“In this country, all government power must flow from its proper source: We the People. Our system of government relies on the consent of the governed, memorialized in the Constitution.”

Another Koch-linked group, the New Civil Liberties Alliance (NCLA), also filed an amicus brief in the case. The NCLA is where Jeffrey Clark went to work after leaving the Trump administration. (Clark is the environmental lawyer who worked at the Justice Department under Trump and was involved in plotting the coup attempt on January 6.) NCLA hired Clark despite the likelihood that Clark would be facing a long criminal investigation and potential conviction. NCLA named Clark the Chief of Litigation and Director of Strategy. (According to the New Yorker’s Jane Mayer, Clark now has a new job.)

The NCLA has received millions of dollars from Charles Koch related entities. The Charles G. Koch Foundation gave NCLA $1 million in each of the years 2017, 2018 and 2019. The Charles Koch Institute gave NCLA $1 million in 2020. Donors Trust, a dark money nonprofit with a multitude of ties to Charles Koch, gave NCLA more than $2 million in total from 2018 through 2020. The information comes from publicly-available 990 tax filings.

The NCLA had the audacity to write the following in its amicus brief:

“When enacting the Constitution, the people gave to Congress, and to Congress alone, the power to legislate, most centrally the power to make binding rules—those limiting their liberty. The location of this power in Congress was essential because of the fundamental principles of consent and the separation of powers. But it is not only these underlying principles that should guide this Court in barring any relocation of legislative power. Both the drafting debates and the Constitution’s very text make clear that legislative power cannot be shared or otherwise transferred.”

Let that settle in for a moment. NCLA hires a man who was engaged in an effort to overthrow the government as its Chief of Litigation and it’s lecturing the Supreme Court justices on what the framers of the Constitution had in mind.

Brian Rosner, Senior Litigation Counsel for the NCLA released this Orwellian statement yesterday on news of the Supreme Court decision going its way:

“At heart, this decision is a victory for democracy: the major decisions affecting people’s lives are to be made by the people’s representatives in Congress, not by unelected bureaucrats. Just in time for the anniversary of our nation’s freedom, the Court has gifted the American people a renewal of their democracy.”

A “renewal of their democracy,” got that, from the same Koch network that has been subverting democracy for more than four decades.

Senator Sherrod Brown (D-OH), the Chair of the Senate Banking Committee, released the following statement yesterday on the Supreme Court’s decision:

“Let’s be clear about what is at the heart of the matter – the Supreme Court has sided with corporate power and polluters over the people and the planet. Stripping the Environmental Protection Agency of its ability to regulate under the Clean Air Act hobbles the agency’s ability to protect Americans’ health. This decision will not just impact the EPA. The reasoning in this case will set us back decades in the fight against climate change and will reverberate throughout our government, making it harder to protect families and communities. This court continues to legislate from the bench in increasingly dangerous ways, and it’s up to Congress and the President to act as checks on them as the founders intended. I’ll be working with my colleagues on both sides of the aisle to ensure that today’s decision does not impede our nation’s response to the climate crisis.”