Yet again, the Supreme Court conservative majority overreaches
in a decision that probably harms their benefactors who think disqualifying regulatory
agency expertise will save them billions.
In Loper Bright Enterprises Et Al. V. Raimondo, https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
the Court majority reversed a 1984 precedent (Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984); https://supreme.justia.com/cases/federal/us/467/837/) that requires judicial
deference to reasonable expert regulatory agency interpretation of ambiguous
statutes.
Judges surely have the jurisprudential skills to know when
a law is ambiguous and when a regulatory agency acts arbitrarily, ignores
evidence, exceeds statutory authority, misreads laws, etc. But these same judges surely have no basis to
substitute their inexpert assessment of technology and science. From now on, courts can second guess just
about anything a regulatory agency does that lacks a specific statutory
mandate.
The corporate underwriters of litigation usually accrue
triple digit returns on their investments in lawyers and lobbyists who peck
away at costly regulatory compliance duties.
Not in this case. The winning litigants think they have persuaded the
Court to “rightsize” the deep, regulatory state. In reality, they have funded a new legal
foundation empowering non-expert judges to shut down even reasonable statutory interpretation
by regulatory agencies who regularly have to confront and resolve new cases,
controversies, conflicts, public interest challenges, etc.
Fast evolving technologies and market conditions usually result
in regulatory lag that might benefit some corporations from incurring higher
costs once the rules change. But a lag,
and now a prohibition, can just a easily cost corporations billions in terms of
uncertainty, higher risk, more conflicts and disputes, etc.
I cannot understand how corporate litigation managers think
that foreclosing regulatory agency assessment and response to changed
circumstances will save them money. And
yes, this litigation is all about money even as it is framed as belated and
proper realignment of the relative powers in the three branches of government.
Let’s consider what the Federal Communications Commission
will not be able to do unless and until Congress amends or enacts new
legislation to specify what must be done to regulate a new technology, resolve
an emerging case or controversy, right a wrong not previously defined, etc.
The Communications Act of 1934, https://transition.fcc.gov/Reports/1934new.pdf specifies the FCC’s clear statutory
authority. For example, Congress explicitly mandated FCC regulatory oversight
of “wire and radio”: “For the purpose of regulating interstate and foreign
commerce in communication by wire and radio so as to make available, so far as
possible, to all the people of the United States, without discrimination on the
basis of race, color, religion, national origin, or sex, a rapid, efficient,
Nation-wide, and world-wide wire and radio communication service with adequate
facilities at reasonable charges . . ..” 47 U.S.C. §151; https://www.law.cornell.edu/uscode/text/47/151.
It appears that the new Loper Bright Enterprises standard
would permit a judge to question whether and how the FCC can regulate anything
that does not fit within the meaning of wire and radio when Congress used these
terms in 1934. Bear in mind that
Congress often does not define all of the terms it uses in a law, nor does it
get around to updating a law to reflect changed circumstances.
Apparently, both the FCC and reviewing courts must
interpret and apply the meaning of wire as originally used in the organic law creating
the FCC, unless and until Congress provides a new definition.
Does a 2024 judicial interpretation of wire limit its
meaning to a copper medium for conducting signals used in communications? If
so, do subsequent media used for signal transmission, but not comprised of
metal, fit within the definition of wire?
What about fiber optic lines?
They transmit signals, of a sort, but no one considers them a type of
wire. They are made of glass, not metal!
Fiber optic lines might fit within the definition of cable,
but is a cable a reasonable functional equivalent of wire? If so, why didn’t Congress specify both wire
and cable? Better yet, why didn’t Congress update the Communications Act of
1934 to recognize FCC jurisdiction over fiber optic lines as a new functional
equivalent to metal wires?
In other words, how can an expert regulatory agency comply
with its statutory mandates, if it cannot expand or compress its oversight
based on newly occurring circumstance? Just
now, I am researching the growing risk of collisions of satellites and space
stations with space debris. The
possibility exists for the Loper Bright Enterprises standard to
invalidate any FCC effort to establish space debris mitigation requirements by
regulated satellite operators. There certainly is nothing in the Communications
Act that specifies satellite carrier affirmative duties to mitigate space debris.
The FCC probably no longer can fine a carrier for
noncompliance of mitigation requirements as it recently did when Dish Network
failed to remove from orbit a direct broadcast satellite reaching end of life. DISH
Operating L.L.C., Order, DA 23-888 (Oct. 2, 2023);
https://docs.fcc.gov/public/attachments/DA-23-888A1.docx.
Bottom line: Even a serious-minded Congress, emphasizing
law over theatrics, cannot “future proof” a law to respond to all changed
circumstances. The Supreme Court conservative
majority now expects Congress to correct all ambiguities and deficiencies in
existing laws.
Good luck with that America.
