The ruling could undermine the government’s efforts to rein in Big Tech

The Supreme Court’s latest ruling on climate change could undermine efforts by federal agencies to rein in a technology industry that has remained largely unregulated for decades as the government tried to catch up with changes wrought by the Internet.

In a 6-3 decision that was closely aligned with the Environmental Protection Agency, the court ruled Thursday that the EPA does not have broad authority to limit emissions from power plants that contribute to global warming. The precedent is widely expected to challenge other rules set by government agencies.

“Every agency will face new obstacles in the wake of this confusing decision,” said Alexandra Gives, president and CEO of the Center for Democracy and Technology, a Washington-based nonprofit digital rights group. “But let’s hope that agencies will continue to do their job and push forward.”

In particular, the Federal Trade Commission is pursuing an aggressive agenda on consumer protection, data privacy and competition in the technology industry under the leadership appointed by President Joe Biden last year.

Biden, elected to the five-member Federal Communications Commission, also favors stronger “net neutrality” protections that prohibit internet providers from slowing down or blocking access to websites and apps that don’t pay for premium services.

The former chief technologist at the FTC under President Donald Trump said the ruling is likely to cause some concern among lawyers at the FTC and other federal agencies about how far they can go in crafting new regulations affecting businesses.

The Court “basically said that when it comes to major policy changes that could transform entire sectors of the economy, the choices must be made by Congress, not the agencies,” said Neil Chilson, who is now a fellow at the libertarian Stand Together Foundation, founded by billionaire industrialist Charles Koch.

Gives disagreed, arguing that many agencies, especially the FTC, have clear authority and should be able to oppose lawsuits inspired by the EPA decision. She noted that Chief Justice John Roberts, who wrote the opinion, repeatedly described the situation as “extraordinary.”

Gives is among technology advocates calling on Congress to act urgently to enact legislation to protect digital privacy and other technology issues. But she said regulations typically last for decades and it is unrealistic to expect Congress to consider every new technical development that challenges the agency’s mandate.

“We need a democratic system in which Congress can give expert agencies the authority to solve problems when they arise, even when they are unforeseen,” she said. “The government literally cannot work with Congress to legislate at every turn.”

Empowered by Congress in the 1970s to combat “unfair or deceptive” business practices, the FTC has been at the vanguard of Biden’s government-wide mandate to promote competition in certain industries, including Big Tech, health care and agriculture. The wide range of goals includes: hearing aid prices, airline baggage fees, and “Product of the USA” labels on food.

Under Lina Khan’s leadership, the FTC has also expanded its ability to more actively write new rules that critics say are a broader interpretation of the agency’s legal powers. This initiative could face serious legal challenges following the Supreme Court’s decision. The ruling could call into question the agency’s regulatory agenda, causing it to either tread more carefully or face more difficult and expensive legal challenges.

Khan “wasn’t really a soft-measure person, so it might be a ‘hell torpedo’ approach,” Chilson said.

University of Massachusetts internet policy expert Ethan Zuckerman said it would be difficult to assess the potential impact of the court’s ruling on existing technology regulations. That’s partly because “there’s not a lot of technical regulation that can be rolled back,” he said.

He said one target could be the Consumer Financial Protection Bureau, “a bête noire for many conservatives.” Large companies such as Meta, Facebook’s parent, could also potentially appeal against stringent enforcement actions by arguing that federal agencies do not have express authority to regulate social media.

“We are in uncharted territory with a court that is tearing it all down to precedent and seems determined to implement 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 act to limit the harms caused by artificial intelligence and other new technologies. This could have less impact on new regulations, which fall more within the competence of the authority imposing them.

Michael Brooks, general counsel of the nonprofit Center for Auto Safety, said the ruling would likely not change the government’s ability to regulate auto safety and autonomous vehicles, although it opens the door to court challenges.

For example, the National Highway Traffic Safety Administration has explicit authority to regulate vehicle safety under the Motor Vehicle Safety Act of 1966, Brooks said.

“As long as the rules they issue relate to vehicle safety and not to anything that is outside their purview, as long as it is safety related, I don’t see how a court could put an end to the safety act,” he said.

Unlike the EPA, an agency with powers granted by many complex regulations, NHTSA’s “authorities are crystal clear,” Brooks said.

NHTSA could get in trouble if it strays too far from safety regulations. For example, the introduction of regulations aimed at shifting buyers away from SUVs and towards more fuel-efficient cars could be repealed, he added. But the agency has traditionally 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 authority, could sue and win under an unpredictable Supreme Court, Brooks said.

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Associated Press writers Marcy Gordon in Washington, Frank Bajak in Boston and Tom Krisher in Detroit contributed to this report.