The Supreme Court’s latest ruling on climate change could hamper federal agencies’ efforts to rein in the technology industry, which has remained largely unregulated for decades as the government tries to catch up with the changes brought about by the Internet.
In a 6-3 decision that closely aligned with the Environmental Protection Agency, the court ruled Thursday that the EPA does not have broad authority to reduce emissions from power plants that contribute to global warming. The precedent is expected to challenge other rules set by government agencies.
“Every agency will face new hurdles as a result of this confusing decision,” said Alexandra Givens, president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit. “But we hope the agencies will continue to do their jobs and move forward.”
The Federal Trade Commission, in particular, is pursuing an aggressive agenda in consumer protection, data privacy and competition in the technology industry under a leader appointed last year by President Joe Biden.
Biden’s pick for the five-member Federal Communications Commission is also pursuing stronger “net neutrality” protections, barring internet providers from slowing or blocking access to websites and apps that don’t pay for premium services.
A former chief technologist at the Federal Trade Commission during President Donald Trump’s administration said the decision is likely to instill some fear in lawyers at the Federal Trade Commission and other federal agencies about how far they can go in creating new rules that affect businesses.
The court “basically said that when it comes to major policy changes that can transform entire sectors of the economy, Congress should make those choices, not the agencies,” said Neil Chilson, who is now a fellow at the libertarian organization Stand Together. founded by billionaire industrialist Charles Koch.
Givens disagreed, arguing that many agencies, particularly the FTC, have clear authority and should be able to withstand lawsuits inspired by the EPA decision. She noted that Chief Justice John Roberts, who wrote the opinion, repeatedly described it as an “extraordinary” situation.
Givens is among technology advocates urging Congress to act urgently to pass laws protecting digital privacy and other technology issues. But she said laws typically remain on the books for decades, and it’s unrealistic to expect Congress to act on every new technical development that calls into question an agency’s mandate.
“We need a democratic system where Congress can give expert agencies the power to deal with problems as they arise, even when those problems are unforeseen,” she said. “The government literally cannot work with Congress legislating every twist and turn.”
Authorized by Congress in the 1970s to crack down on “unfair or deceptive” business practices, the FTC has been at the forefront of Biden’s government-wide mandate to promote competition in certain industries, including big tech, health care and agriculture. A range of targets include hearing aid prices, airline baggage fees and “product of the USA” labels on food.
Under Chairman Lina Hahn, the FTC has also expanded its ability to more actively write new regulations in what critics say is a broader interpretation of the agency’s statutory authority. This initiative may face serious legal challenges following the high court ruling. The decision could call into question the agency’s regulatory agenda — prompting it to either proceed more cautiously or face tougher and more expensive legal challenges.
Khan “hasn’t really been one to pursue soft measures, so it might be a damn torpedo approach,” Chilson said.
University of Massachusetts internet policy expert Ethan Zuckerman said it would be difficult to assess the court’s potential impact on existing technology regulation. That’s partly because “there just aren’t that many technological regulations to override,” he said.
He said one target could be the Consumer Financial Protection Bureau, “a bête noire for many conservatives.” Big companies like Facebook parent Meta could also potentially challenge tough enforcement measures on the idea that federal agencies aren’t specifically empowered to regulate social media.
“We’re in uncharted territory, with a court that is driving the wrecking ball toward precedent and seems hell-bent on implementing as many right-wing priorities as possible in the shortest amount of time,” Zuckerman said.
The decision could reduce the appetite of agencies like the FTC to act to limit harm from artificial intelligence and other new technologies. It may have less effect on new rules that are more clearly within the purview of the agency that imposes them.
Michael Brooks, general counsel for the nonprofit Center for Auto Safety, said the ruling is unlikely to change the government’s ability to regulate auto safety or self-driving vehicles, although it does open the door to legal challenges.
For example, the National Highway Traffic Safety Administration has clear authority to regulate automobile safety from the Motor Vehicle Safety Act of 1966, Brooks said.
“As long as the rules they issue are about the safety of the vehicle and not something that’s outside of their authority, as long as it’s related to safety, I don’t see how a court could end up circumventing the safety act.” ” he said.
Unlike the EPA, an agency with authority granted by a host of complex laws, “NHTSA’s authority is so crystal clear,” Brooks said.
NHTSA could be in trouble if it strays too far from safety regulation. For example, if it introduced regulations aimed at shifting buyers away from SUVs to more fuel-efficient cars, that could be reversed, he said. But the agency has historically stuck to its mission of regulating car safety with some power over fuel economy, he said.
However, it’s possible that a company like Tesla, which has tested the limits of NHTSA’s authority, could sue and win because of an unpredictable Supreme Court, Brooks said.
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Associated Press writers Marcy Gordon in Washington, Frank Bajak in Boston and Tom Krisher in Detroit contributed to this report.
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