In the 6-3 decision that was narrowly tailored to the
Environmental Protection Agency, the court ruled Thursday that the EPA does not
have broad authority to reduce power plant emissions that contribute to global
warming. The precedent is widely expected to invite challenges of other rules
set by government agencies.
“Every agency is going to face new hurdles in the wake of
this confusing decision," said Alexandra Givens, the president and CEO of
the Center for Democracy and Technology, a Washington-based digital rights
nonprofit. “But hopefully the agencies will continue doing their jobs and push
forward."
The Federal Trade Commission, in particular, has been
pursuing an aggressive agenda in consumer protection, data privacy and tech
industry competition under a leader appointed last year by President Joe Biden.
Biden's picks for the five-member Federal Communications
Commission have also been pursuing stronger “net neutrality” protections
banning internet providers from slowing down or blocking access to websites and
applications that don’t pay for premium service.
A former chief technologist at the FTC during President
Donald Trump's administration said the ruling is likely to instill some fear in
lawyers at the FTC and other federal agencies about how far they can go in
making new rules affecting businesses.
The court “basically said when it comes to major policy
changes that can transform entire sectors of the economy, Congress has to make
those choices, not agencies,” said Neil Chilson, who is now a fellow at
libertarian-leaning Stand Together, founded by the billionaire industrialist
Charles Koch.
Givens disagreed, arguing that many agencies, especially 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 the tech advocates calling for Congress to
act with urgency to make laws protecting digital privacy and other tech
matters. But she said laws typically stay on the books for decades, and it's
unrealistic to expect Congress to weigh in on every new technical development
that questions an agency's mandate.
“We need a democratic system where Congress can give expert
agencies the power to address issues when they arise, even when those issues
are unforeseen,” she said. “The government literally can’t work with Congress
legislating every twist and turn.”
Empowered by Congress in the 1970s to tackle “unfair or
deceptive" business practices, the FTC has been in the vanguard of Biden’s
government-wide mandate to promote competition in some industries, including
Big Tech, health care and agriculture. A panoply of targets include hearing aid
prices, airline baggage fees and “product of USA” labels on food.
Under Chair Lina Khan, the FTC also has widened the door to
more actively writing new regulations in what critics say is a broader
interpretation of the agency’s legal authority. That initiative could run into
stiff legal challenges in the wake of the high court decision. The ruling could
call into question the agency’s regulatory agenda — leading it to either tread
more cautiously or face tougher and more expensive legal challenges.
Khan "hasn’t really been someone who pursues soft
measures, so it may be a damn-the-torpedoes approach,” Chilson said.
University of Massachusetts internet policy expert Ethan
Zuckerman said it would be hard to gauge any potential impact of the court’s
ruling on existing tech regulation. That's partly because “there’s just not
that much tech regulation to undo," he said.
He said one target could be the Consumer Financial
Protection Bureau, “a bête noire for many conservatives.” Big companies such as
Facebook parent Meta could also potentially appeal tough enforcement actions on
the idea that federal agencies weren't explicitly authorized to regulate social
media.
“We’re in uncharted territory, with a court that’s taking a
wrecking ball to precedent and seems hell-bent on implementing as many right-wing
priorities as possible in the shortest possible time,” Zuckerman said.
The ruling could dampen the appetite for agencies like the
FTC to act to limit harm from artificial intelligence and other new
technologies. It could have less effect on new rules that are more clearly in
the realm of the agency imposing them.
Michael Brooks, chief counsel for the nonprofit Center for
Auto Safety, said the ruling isn’t likely to change the government’s ability to
regulate auto safety or self-driving vehicles, although it does open the door
to court challenges.
For instance, the National Highway Traffic Safety
Administration has clear authority to regulate auto safety from a 1966 motor
vehicle safety law, Brooks said.
“As long as the rules they are issuing pertain to the safety
of the vehicle and not anything that’s outside of their authority, as long as
it’s related to safety, I don’t see how a court could do an end run around the
safety act,” he said.
Unlike the EPA, an agency with authority granted by
multiple, complex laws, NHTSA’s "authority is just so crystal clear,"
Brooks said.
NHTSA could have problems if it strayed too far from
regulating safety. For example, if it enacted regulations aimed to shift buyers
away from SUVs to more fuel-efficient cars, that might be struck down, he said.
But the agency has historically stuck to its mission of regulating auto safety
with some authority on fuel economy, he said.
However, it’s possible that a company such as Tesla, which
has tested the limits of NHTSA’s powers, could sue and win due to an
unpredictable Supreme Court, Brooks said.