The Supreme Court’s latest rejection of the Environmental Protection Agency (EPA) and its efforts to stretch the limits of the Clean Air Act to reach its own policy goals presents a formidable challenge to the Federal Communications Commission’s (FCC) open internet order. So argues a post by Gus Hurwitz, a visiting fellow at Center for Internet, Communications, and Technology Policy for the American Enterprise Institute.
In Michigan v. EPA the court found that the EPA’s implementation of regulations without consideration of the costs of those regulations violated the Clean Air Act. …“One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.” The same analysis – and critique – likely applies to cost of the FCC’s Open Internet Order.
To support the expanded regulations, the EPA factored in ancillary benefits that were outside the scope of the agency’s statutory authority. In overturning the EPA, the Supreme Court majority noted that the benefits cited by the EPA stem from factors that fall outside of the agency’s authority – and argues that the dissenting justices “vastly overstated” its analysis of the EPA regulation’s cost-effectiveness.
Hurwitz goes on to argue that “agencies may only act within the bounds of their statutory authority. If an agency’s regulation is only viable because of how it affects things over which it has no legal authority, it is hard to understand the agency as acting within its statutory authority. In any such case – be it with the EPA, FCC, or any other agency – it could be true that the regulation is ultimately justifiable – but, if it is, it is up to Congress to implement the regulation, not to a rogue agency to adopt its preferred policy without legal authority.”
The FCC has no statutory authority to regulate the Internet. If the Open Internet Order is only justifiable based on how it affects the Internet, then it really can only be understood as regulation of the Internet with an ancillary effect on services within the FCC’s statutory authority. The tail must not be allowed to wag the dingo – and yesterday’s opinion suggests the court will find just this fault with the Open Internet Order.