Did the Supreme Court just drive a stick into the spokes of the FCC’s Virtuous Cycle?

[Commentary] One of the most potent pending challenges to the Federal Communications Commission’s Open Internet Order will be based on the Supreme Court’s opinion in 2014 in Utility Air Regulatory Group. That case, which the court has affirmatively cited several times this past term, rejected Environmental Protection Agency efforts to “tailor” provisions of the Clean Air Act, effectively rewriting the Act to facilitate its policy goals. There is a strong -- if not perfect -- analogy to be drawn between the EPA’s approach to the Clean Air Act in that case and the FCC’s need to use forbearance in the Open Internet Order to make the rules viable.

The court’s latest rejection of the EPA’s efforts to stretch the limits of the Clean Air Act to reach its own policy goals presents yet another potent challenge to the FCC’s Open Internet Order. On June 29, the Court once again rejected the EPA’s efforts to shape the Clean Air Act to implement its own -- as opposed to Congress’s -- policy goals. 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. The statute allows the EPA to impose regulations if it “finds such regulation is appropriate and necessary.” The Court explains that “the phrase ‘appropriate and necessary’ requires at least some attention to cost,” going on to say that “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.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]