SCOTUS EPA Ruling May Be Bad News for Tech Regulators

The Supreme Court’s ruling Thursday limiting the Environmental Protection Agency’s (EPA’s) ability to regulate carbon emissions could ultimately lead to decisions that impact the federal government’s ability to regulate everything from climate change to tech.

In a 6-to-3 decision, the court ruled that the EPA overstepped its authority by passing rules to cut power plant pollution. This all comes at a time when the administration is pressing federal agencies to adopt stronger regulations and the conservative majority on the court seems to be moving to narrow the powers of those agencies.

The Ruling and Immediate Implications

Thursday’s decision risks putting the U.S. further behind with regard to President Biden’s goal of a 100% clean energy power grid by 2035 and the entire economy carbon Neutral by 2050. Upcoming environmental Supreme Court decisions include an October challenge to the Clean Water Act in which the court will decide whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7).

The ruling Thursday reflects attempts by Republican attorneys general in lower courts to prevent the Biden administration from using climate change as a pretext for major decisions. Writing for the majority, Chief Justice John G. Roberts Jr. stated that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ but it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

Implications for Other Regulatory Areas

It might seem that the regulation of greenhouse emissions bears little relationship to regulation of the tech sector, but both are tied by the extent to which the government is allowed to regulate either. This puts Thursday’s ruling on the EPA’s ability to regulate carbon emissions on par with the government’s ability to mandate vaccines, prevent evictions, and regulate the tech industry to include privacy issues as well as net neutrality.

All of these areas, like Thursday’s ruling, may fall under what’s known as the major questions doctrine, a legal tenant, increasingly adopted by conservative members of the judiciary, that says  if an agency, such as the EPA, seeks to decide an issue of major national significance, its action must be clearly authorized by Congress.

Regulating the Tech Sector

Using ‘major questions’ as justification, the court may be less inclined to allow an agency such as the Federal Communications Commission (FCC) decide on its own what its authority is when it comes to regulation of internet access.

Areas that could be impacted if the Supreme Court punts regulation of the tech sector back to Congress could include net neutrality or the concept that all information on the internet should be treated equally, privacy issues, artificial intelligence, and social media.

If tech and internet regulation is shifted away from the agencies that normally provide that guidance, some experts are concerned that technology companies under the “be careful what you wish for” caption may face a variety of rules by various courts rather than from a single regulatory agency.