SCOTUS EPA Decision Could Impact Efforts to Reinstate Net Neutrality

The court found the EPA isn’t granted authority by Congress to order emissions caps under the Clean Air Act, an approach adopted by the agency in executing its Clean Power Plan.  Broadcasting+Cable reports that internet service providers can now argue that the Federal Communications Commission (FCC) was outside of its regulatory purview when the commission reclassified internet access as a Title II common carrier service that is subject to open access and accessibility mandates.

Conservative Chief Justice John Roberts, who penned the 6-3 majority opinion, wrote that the EPA erred on the wrong side of the law because the Clean Air Act didn’t grant the country’s premier environmental protection organization had devised emissions caps that are based on the electricity generation in the country by shifting the nation’s Clean Power Plan to certain standards.

In the opinion, Roberts took up the limitations of “Chevron deference,” the principle under which the courts defer to the expertise of the relevant regulatory agency when the text of federal statute is less than clear to regulators and stakeholders impacted by the statute. Internet service providers have argued that the Federal Communications Commission (FCC) lacks the authority from Congress to reclassify national internet access to Title II and an open access model.

“We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies,” Chief Justice Roberts wrote, citing a decision penned by Justice Brett Kavanaugh when he was a judge on the US Court of Appeals for the circuit of the District of Columbia. In that case, in which Kavanaugh authored a dissent, the lower court chose not to further consider an appeal from internet service providers on net neutrality rules that were defined by the FCC during the Obama Administration in 2015.

“Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there,” Roberts added in the decision. “To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”

The adult entertainment industry widely supports net neutrality rules because of the concerns that internet service providers are given the power to throttle or limit service on web properties that ISPs, their customers and stakeholders may differ with politically or culturally.

Net neutrality is advocated by major online companies including Netflix, Google, and other organizations. Comcast and Verizon, among other ISPs, oppose net neutrality rules because they argue that the FCC has overstepped its purview and that the industry can do better via self-regulation.

Supreme Court Justices portrait by Fred Schilling, from the Collection of the Supreme Court of the United States