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Revival of Trump water rule brings fierce critique from Roberts and minority

Sudden stay in case led 4 Supreme Court justices to fiercely criticize how colleagues are using court's emergency docket

The Supreme Court sided with Republican-led states and fossil fuel industry groups on Wednesday to reinstate a Trump administration policy that shores up energy projects capable of polluting waterways. 

While the five justices in the majority entered an emergency stay in the case with no accompanying opinion, Chief Justice John Roberts joined the court’s liberal wing in a dissent criticizing the stay itself as well as the majority’s use of the emergency docket. 

The case centers on Section 401 of the Clean Water Act, under which regulatory permitting was explicitly secondary to a review process states and tribes could undertake for projects that might affect waters within their borders. Former President Donald Trump directed the Environmental Protection Agency to revise this regulation in 2020, resulting in a reduction of state and tribal authority under Section 401 that makes it more difficult to challenge environmentally harmful projects. 

Suits against the 2020 rule were filed by 20 states, the District of Columbia, three tribes and six conservative organizations. With the EPA later planning to revise the 2020 rule in light of the election of President Joe Biden, a district court agreed with the agency that the case should be remanded and the 2020 rule vacated

Louisiana and seven other Republican-led states joined with the American Petroleum Institute and other industry groups to reinstate Trump’s rule. 

After both a federal judge and the Ninth Circuit denied them a stay in December, the states sought relief from the Supreme Court. 

Louisiana complains that the district court vacated the rule without notice and comment, and claims it faces “irreparable harms” if not granted a stay. The state says the 2020 rule prevented states and tribes from abusing their authority under the rule. 

“This unlawful deprivation of the Rule’s protections imposes harms on the regulators and regulated industries — including Applicants — who have faced and will continue to face substantial disruptions in Section 401-related enterprises as a result of the whipsawing effect of the district court’s nationwide vacatur,” Misha Tseytlin with Hamilton Sanders wrote in the application to the high court by the GOP states and gas companies. 

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Against this push, however, the states, tribes and organizations opposed to the 2020 rule — led by American Rivers — argued that the claims of immediate harm are belied by the appeal’s timing. 

“Applicants waited a month to appeal and seek a stay from the district court, and then, after the court of appeals denied their next request for a stay, they waited an additional month before seeking a stay from this Court,” Noah Purcell, Washington’s solicitor general representing American Rivers, wrote in the opposition brief. “Applicants’ repeated delays confirm what is obvious from their brief: they are suffering no irreparable harm from the vacatur.” 

Wednesday’s dissent notes these delays, with the author, Justice Elena Kagan, going on to detail the circumstances under which the court grants stays and then arguing that the states here do not meet those requirements, thus leaving the court without authority to grant emergency relief. While the GOP states claim the 2020 rule gave them protections against states that abused their authority to block projects for compliance with water-quality standards, Kagan said the challengers nevertheless have failed in the five months since the district court’s order to offer one example. 

“The request for a stay rests on simple assertions — on conjectures, unsupported by any present-day evidence, about what States will now feel free to do,” the Obama appointee wrote. “And the application fails to show that proper implementation of the reinstated regulatory regime — which existed for 50 years before the vacated rule came into effect — is incapable of countering whatever state overreach may (but may not) occur.” (Parentheses in original.)

Claiming the majority went “astray” in granting relief, Kagan criticizes the court’s use of the emergency docket as a whole. She says the court is signaling its view of the merits of the case by granting the stay pending appeal. 

“That renders the Court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations — except made without full briefing and argument.”

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