Does SCOTUS EPA Case Impact Net Neutrality? Here’s Why I Say No.

For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case what we will spend a bunch of time arguing about how to apply to agencies generally. And for the tiniest of all possible subsets, meaning me and a handful of other telecommunications lawyers, it was about . . . net neutrality. Because just about everything in telecom still revolves around net neutrality. The other basic truism about these events is that they are rather like [ink blots], where what you see depends a lot on what you already think. So those who hate Title II are convinced that this spells doom for any Federal Communications Commission reclassification efforts, whereas those on the pro-Title II side think this doesn’t really change anything. I’m as much a human being subject to this bias as anyone else. So I can only explain why I think W.VA. v. EPA hasn’t changed anything and let y’all decide if I’m right. It all depends on what the Supreme Court means by a “major question” that requires “clear proof” that Congress intended to vest the agency with the power to do the thing.