The Supreme Court’s latest ruling on climate change could weaken efforts by federal agencies to rein in the tech industry, which has been largely unregulated for decades as the government has tried to keep pace with the changes brought about by the internet.
In a narrowly detailed 6-3 decision of the EPA, the court ruled Thursday that the EPA does not have broad authority to reduce emissions of power plants that contribute to global warming. The precedent is widely expected to call for a challenge to other rules set by government agencies.
“Each agency will face new hurdles in the wake of this confusing decision,” said Alexandra Givens, president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit. “But hopefully the agencies will continue to do their jobs and move forward.”
The Federal Trade Commission, in particular, has been pursuing a robust agenda in consumer protection, data privacy and tech industry competition under a leader appointed by President Joe Biden last year.
Biden’s choices for the five-member Federal Communications Commission were also tracking stronger “network neutrality” protections that would ban Internet providers from slowing down or blocking access to websites and apps that don’t pay for premium service.
Referee instills fear
A former FTC chief technical officer 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 setting new rules that affect business.
said Neil Chilson, now a fellow of the libertarian-leaning organization Stand Together, founded by billionaire industrialist Charles Koch.
Givens disputed, arguing that many agencies, especially the FTC, have clear authority and should be able to withstand lawsuits inspired by the EPA’s decision. She noted that Chief Justice John Roberts, who wrote the opinion, has repeatedly called it an “exceptional” situation.
Givens is among technology advocates who are calling for Congress to act quickly to enact laws that protect digital privacy and other technical issues. But she said laws typically remain in the books for decades, and it’s unrealistic to expect Congress to burden each new technical development that questions an agency’s mandate.
“We need a democratic system where Congress can give specialized agencies the power to address issues as they arise, even when those issues are unexpected,” she said. “The government literally can’t work with Congress to legislate every twist and turn.”
Enabled by Congress in the 1970s to deal with “unfair or deceptive” business practices, the Federal Trade Commission has been at the forefront of Biden’s state at the government level to boost competition in some industries, including big tech, healthcare, and agriculture. Target set includes hearing aid prices, airline baggage charges, and “USA Product” labels on food.
The Supreme Court’s latest ruling on climate change could weaken efforts by federal agencies to rein in the tech industry, which has been largely unregulated for decades as the government has tried to keep pace with the changes brought about by the internet.
The Environmental Protection Agency loses extensive authority
In a narrowly tailored 6-3 decision for the EPA, the court ruled Thursday that the EPA does not have broad authority to reduce emissions of power plants that contribute to global warming. The precedent is widely expected to call for a challenge to other rules set by government agencies.
“Each agency will face new hurdles in the wake of this confusing decision,” said Alexandra Givens, president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit. “But hopefully the agencies will continue to do their jobs and move forward.”
The Federal Trade Commission, in particular, has been pursuing a robust agenda in consumer protection, data privacy and tech industry competition under a leader appointed by President Joe Biden last year.
Biden’s choices for the five-member Federal Communications Commission were also tracking stronger “network neutrality” protections that would ban Internet providers from slowing down or blocking access to websites and apps that don’t pay for premium service.
A former FTC chief technical officer 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 setting new rules that affect business.
said Neil Chilson, now a fellow of the libertarian-leaning organization Stand Together, founded by billionaire industrialist Charles Koch.
Givens disputed, arguing that many agencies, especially the FTC, have clear authority and should be able to withstand lawsuits inspired by the EPA’s decision. She noted that Chief Justice John Roberts, who wrote the opinion, has repeatedly called it an “exceptional” situation.
Givens is among technology advocates who are calling for Congress to act quickly to enact laws that protect digital privacy and other technical issues. But she said laws typically remain in the books for decades, and it’s unrealistic to expect Congress to burden each new technical development that questions an agency’s mandate.
“We need a democratic system where Congress can give specialized agencies the power to address issues as they arise, even when those issues are unexpected,” she said. “The government literally can’t work with Congress to legislate every twist and turn.”
Enabled by Congress in the 1970s to deal with “unfair or deceptive” business practices, the Federal Trade Commission has been at the forefront of Biden’s state at the government level to boost competition in some industries, including big tech, healthcare, and agriculture. Target set includes hearing aid prices, airline baggage charges, and “USA Product” labels on food.
Under Lina Khan’s presidency, the Federal Trade Commission has expanded the door to more actively writing new regulations in what critics say is a broader interpretation of the agency’s legal authority. This initiative may face severe legal challenges in the wake of the Supreme Court’s decision. The ruling could raise questions about the agency’s regulatory agenda — leading to more cautious steps or tougher and more costly legal challenges.
“Khan wasn’t really someone with soft procedures, so it might be a style of damn torpedoes,” Chilson said.
Ethan Zuckerman, an Internet policy expert at the University of Massachusetts, said it would be difficult to gauge any potential impact of the court ruling on current technology regulation. This is partly because “there isn’t a lot of technical regulation that needs to be rolled back,” he said.
Large companies can resume enforcement actions
One target could be the Consumer Financial Protection Bureau, he said, “which is difficult for a lot of conservatives.” Large companies such as Meta, the parent company of Facebook, could also appeal tough enforcement action over the idea that federal agencies were not expressly authorized to regulate social media.
“We are in uncharted territory, with a stadium that takes wrecking ball into precedent and appears intent on implementing as many right-wing priorities as possible in the shortest possible time,” Zuckerman said.
The ruling could dampen the appetite of agencies like the FTC to work on limiting the harm from AI and other new technologies. They can have less impact on new rules that are more explicit in the area of agency they enforce.
Michael Brooks, senior advisor to the nonprofit Center for Auto Safety, said the ruling is not likely to change the government’s ability to regulate the safety of cars or self-driving vehicles, although it does open the door to judicial challenges.
For example, the National Highway Traffic Safety Administration has explicit authority to regulate vehicle safety from the Automobile Safety Act of 1966, Brooks said.
“As long as the rules they make are about the safety of the car and not anything outside their power, as long as it’s a safety issue, I don’t see how the court can act to bring the safety measures to an end,” he said.
Unlike the Environmental Protection Agency, an agency with the authority granted under multiple, complex laws, Brooks said, “NHTSA’s authority is quite clear.”
NHTSA could run into problems if it strayed too far from safety regulation. For example, if regulations are enacted aimed at shifting buyers away from SUVs to more fuel-efficient vehicles, that could be repealed, he said. But he said the agency has historically stuck to its mission of regulating vehicle safety with some authority in fuel economy.
However, it is possible that a company like Tesla, which has tested the limits of NHTSA’s powers, could sue and win because of an unpredictable Supreme Court, Brooks said.
Associated Press authors Marcy Gordon in Washington, Frank Bajak in Boston, and Tom Krecher in Detroit contributed to this report.
