Tribal and state waterways once again threatened by Trump-era water regulation
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The Supreme Court’s “shadow docket” was in full effect on Wednesday when Justices chose to reinstate a Trump-era water rule that threatens waterways on state and tribal land. In a 5-4 ruling in which all three Trump-appointed Justices were part of the majority, the nation’s highest court chose to allow the 2020 Rule created by the Trump administration to take effect temporarily. The rule concerns Section 401 of the Clean Water Act and limits states’ and tribes’ abilities to review projects like pipelines, from shortening the review period to allowing federal oversight that could overturn a state and tribe’s findings. It is also on states and tribes to prove that projects will harm water quality. Polluters cheered the ruling, while environmental groups and even states themselves sued over what was effectively a gutting of the Clean Water Act.
This led to a federal judge in 2021 rejecting the EPA’s request to keep the rule on the books. An appeal failed, but oil and gas groups and fossil fuel-loving states stayed persistent, filing a request to the Supreme Court to get the rule reinstated, which leads us to Wednesday’s order in the case of Louisiana v. American Rivers. Unsurprisingly, the states interested in keeping antiquated oil and gas ventures in existence included the usual suspects, like Louisiana, Texas, and West Virginia. The groups joining them in the lawsuit include the American Petroleum Institute and Interstate Natural Gas Association of America. It was Justice Elena Kagan who issued the dissenting opinion. She was joined by Chief Justice John Roberts Jr. and Justices Stephen Breyer and Sonia Sotomayor. The final paragraphs are damning.
“The applicants… have failed to meet that burden.They claim that the vacated rule gave them ‘protections’ against States that previously ‘abuse[d]’ their statutory authority to review infrastructure projects for compliance with water-quality standards. But the applicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request dissenting for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. 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. Even the applicants’ own actions belie the need for a stay… The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm. By nonetheless granting relief, the Court goes astray.”
The Sierra Club issued a statement urging the EPA to act quickly to right this wrong. The Biden administration promised that a new draft rule would be issued this spring, with a final rule issued next spring. But even a smidgen of time in which oil and gas companies can threaten states and tribes and worsen climate change conditions is a moment too long. EarthJustice, which filed a lawsuit against the Trump-era rule, similarly demanded action from the EPA and called out the Supreme Court. “The Court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” Senior Attorney Moneen Nasmith said in a statement. “The EPA must ensure that its revised rule recognizes the authority of states and tribes to protect their vital water resources in its ongoing rule-making under Section 401.”