In the 6-3 decision that closely followed 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 prompt challenges to other rules set by government agencies. “Every company 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, D.C.-based nonprofit digital rights organization. “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 on consumer protection, data privacy and competition in the technology industry under a leader appointed last year by President Joe Biden. Biden’s picks for the five-member Federal Communications Commission also seek stronger “net neutrality” protections that prohibit Internet providers from slowing or blocking access to websites and apps 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 enacting 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 agencies,” said Neil Chilson, who is now a member of the libertarian Stand Together, which founded by 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. 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 enact laws protecting digital privacy and other technology issues. But he said laws typically remain on the books for decades, and it’s unrealistic to expect Congress to weigh in on every new technical development that challenges an agency’s mandate. “We need a democratic system where Congress can give specialized agencies the authority to deal with issues as they arise, even when those issues are unforeseen,” he said. “The government literally cannot work with Congress to legislate every twist.” 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 plethora of targets include hearing aid prices, airline baggage fees and “Made in the USA” labels on food. Under Chairman Lina Khan, the FTC has also opened the door to more active rulemaking in what critics say is a broader interpretation of the agency’s legal authority. This initiative could face stiff legal challenges in the wake of the high court’s ruling. The decision could call into question the agency’s regulatory agenda – leading it to either tread more carefully or face tougher and more expensive legal challenges. Khan “hasn’t really been one to go for soft measures, so it might be a torpedo approach,” Chilson said. University of Massachusetts Internet policy expert Ethan Zuckerman said it would be difficult to gauge the potential impact of the court’s ruling on existing technology regulation. That’s partly because “there just isn’t that much technological regulation to undo,” he said. He said one target could be the Consumer Financial Protection Bureau, “a bad thing for many conservatives.” Big companies like Facebook parent Meta could also resort to tough enforcement action on the idea that federal agencies were not expressly authorized to regulate social media. “We’re in uncharted territory, with a field that takes a wrecking ball to precedent and seems inclined to implement as many right-wing priorities as possible in the shortest amount of time,” Zuckerman said. The ruling could reduce 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 clearer in the sphere of the organization that imposes them. Michael Brooks, chief counsel for the nonprofit Center for Auto Safety, said the ruling is unlikely to change the government’s ability to regulate car safety or autonomous 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 a 1966 Motor Vehicle Safety Act, Brooks said. “As long as the rules they issue are about vehicle safety and not anything that’s outside of their jurisdiction as it relates to safety, I don’t see how a court could complete the safety act,” he said. Unlike the EPA, an agency with a mandate granted by multiple, complex laws, NHTSA’s “authority is so clear,” Brooks said. NHTSA could be in trouble if it strayed too far from regulating safety. For example, if it institutes regulations aimed at shifting buyers away from SUVs to more fuel-efficient cars, that could be repealed, he said. But the agency has historically stuck to its mission of regulating auto safety with some authority over fuel economy, he said. But 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.
