By MATT O’BRIEN Associated Press
The latest Supreme Court ruling on climate change could curb efforts by federal agencies to rein in the tech industry, which went largely unregulated for decades as the government tried to catch up with changes brought about by the Internet.
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 emissions from power plants that contribute to global warming. The precedent is widely expected to invite challenges to other rules set by government agencies.
“All agencies will face new obstacles 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 on.”
The Federal Trade Commission, in particular, has been pursuing an aggressive agenda on consumer protection, data privacy and competition in the tech industry under a leader appointed last year by President Joe Biden.
Biden’s picks for the five-member Federal Communications Commission have also sought stronger “net neutrality” protections that prohibit internet providers from slowing down or blocking access to websites and apps that don’t pay for premium service. .
A former FTC chief technology officer under President Donald Trump 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 crafting new rules affecting businesses. .
The court “basically said that when it comes to major policy changes that can transform entire sectors of the economy, Congress has to make those decisions, not agencies,” said Neil Chilson, now a fellow of Stand Together, of libertarian trend, founded by billionaire industrialist Charles Koch.
Givens disagreed, arguing that many agencies, especially the FTC, have clear authority and should be able to resist lawsuits inspired by the EPA decision. He noted that Chief Justice John Roberts, who wrote the opinion, repeatedly described it as an “extraordinary” situation.
Givens is among tech advocates calling on Congress to act urgently to create laws to protect digital privacy and other tech issues. But she said laws typically stay on the books for decades, and it’s unrealistic to expect Congress to evaluate every new technical development that challenges an agency’s mandate.
“We need a democratic system where Congress can give expert agencies the power to address problems when they arise, even when those problems are not anticipated,” he said. “The government literally cannot work with Congress legislating every twist and turn.”
Authorized by Congress in the 1970s to address “unfair or deceptive” business practices, the FTC has been at the forefront of the Biden administration’s mandate to promote competition in some industries, including big tech, health care and farming. A panoply of targets includes hearing aid prices, airline baggage fees and “product of USA” labels. in food.
Under President Lina Khan, the FTC has also opened the door to more active drafting of new regulations in what critics say is a broader interpretation of the agency’s legal authority. That initiative could face tough legal challenges in the wake of the high court’s decision. The ruling could call into question the agency’s regulatory agenda, prompting it to act more cautiously or face tougher and more costly legal challenges.
Khan “hasn’t really been someone looking for soft measures, so it can be a fucking torpedo approach,” Chilson said.
University of Massachusetts internet policy expert Ethan Zuckerman said it would be difficult to gauge any potential impact of the court’s ruling on existing tech regulation. That’s partly because “there just isn’t that much tech regulation to undo,” he said.
He said one target could be the Consumer Financial Protection Bureau, “a black beast for many conservatives.” Large companies, such as Facebook parent Meta, could also appeal strict enforcement measures on the grounds that federal agencies were not explicitly authorized to regulate social networks.
“We are in uncharted territory, with a court that is taking a wrecking ball to precedent and seems hell-bent on implementing as many right-wing priorities as possible in as little time as possible,” Zuckerman said.
The ruling could curb the appetite of agencies like the FTC to act to limit the damage from artificial intelligence and other new technologies. It might have less of an effect on new rules that are more clearly within the purview of the agency that imposes them.
Michael Brooks, senior adviser to the nonprofit Center for Auto Safety, said the ruling is unlikely to change the government’s ability to regulate the safety of cars or self-driving vehicles, though it does open the door to legal challenges. .
For example, the National Highway Traffic Safety Administration has clear authority to regulate automobile safety beginning with a 1966 motor vehicle safety law, Brooks said.
“As long as the rules they’re issuing are about vehicle safety and not anything outside of their authority, as long as it’s related to safety, I don’t see how a court could end the safety law. ,” he said.
Unlike the EPA, an agency with authority granted by multiple and complex laws, NHTSA’s “authority is crystal clear,” Brooks said.
NHTSA could get into trouble if it strayed too far from safety regulation. For example, if it enacted regulations intended to steer buyers away from SUVs to more fuel-efficient cars, that could be undone, he said. But historically the agency has stuck to its mission of regulating automobile safety with some authority on fuel economy, he said.
However, it’s 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 writers Marcy Gordon in Washington, Frank Bajak in Boston and Tom Krisher in Detroit contributed to this report.
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