Supreme Court Restores Trump-Era Water Rule

In a 5-4 decision, the Supreme Court of the United States (SCOTUS) vacated a district court’s decision to strike down the Trump-era Section 401 Certification rule for the Clean Water Act (CWA), thereby reinstating it.

The decision granted an emergency stay, responding to an application filed March 21 by a group of states and energy industry associations against an October 2021 decision from the Northern District of California.

In their application, the groups contended that they would “suffer irreparable harm” as a result of the rule remaining in place, saying that certain states had a history of abusing it.

Section 401 has been utilized to block natural gas pipelines and other projects.

“This court’s immediate review is necessary because EPA is likely to finish its new rulemaking before a full appeal can be briefed and decided,” they wrote.

The response to the application came from environmental groups, Native American tribes, and other states opposed to the Trump-era rule.

They argued that the rule harmed the environment, as well as that it “upended half a century’s worth of regulatory practice under Section 401 and sought to drastically limit the role states and tribes could play in Section 401 reviews.”

Notably, the October decision came as the Biden administration’s Environmental Protection Agency (EPA) had already started to assess the Trump-era rule in June 2021. While the Environmental Protection Agency (EPA) and two other district courts had merely sought to remand the rule, the Northern District’s decision vacated it entirely.

The Biden administration’s EPA can continue to rewrite the rule as planned. The agency has indicated that it intends to issue a proposed rule this spring and a final rule by the spring of 2023.

The foundation for the restored 2020 rule lies in a 2019 executive order (EO) from then-President Trump, EO 13868. In it, Trump ordered Section 401 to be revisited, saying it and associated regulations “are hindering the development of energy infrastructure.”

Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett made up the majority that granted the application.

Chief Justice John Roberts joined the court’s liberal justices in a dissent authored by Justice Elena Kagan.

Kagan argued that the applicants had not provided sufficient evidence of irreparable harm.

“An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury–harm occurring during the appeals process that cannot be later redressed,” she wrote.

Kagan later stated that the energy industry associations and states that applied for the say “have not identified a single project that a State has obstructed in the five months since the District Court’s decision” or “cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes.”

She concluded by stating that her colleagues’ decision to grant relief “renders the Court’s emergency docket not for emergencies at all.”

Nathan Worcester


Nathan Worcester is an environmental reporter at The Epoch Times.

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