The Supreme Court on Wednesday utilized its emergency docket to reinstate a rule imposed during President Donald Trump’s administration that restricts the authority of states to block federal permits under the Clean Water Act.
The Trump rule was initially removed by a federal court in October, which limited state and tribal authority to block projects by giving them a one-year time limit to do so. If the time limit was not met, the government maintained the ability to determine it had relinquished veto power.
The 5-4 decision came from the court’s conservative majority. Chief Justice John Roberts joined the court’s liberal justices in dissent, saying the court’s majority had gone “astray” by granting an unwarranted request on its emergency docket.
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“The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief,” Justice Elena Kagan wrote.
Steve Valdeck, a professor at the University of Texas School of Law, noted the decision marked the ninth time Roberts has publicly “been on the short side of a 5-4 ruling since Justice [Amy Coney] Barrett’s confirmation.”
“7 of the 9 have been from shadow docket rulings. This is the first time, though, that he’s endorsed criticism of the shadow docket *itself.*,” Valdeck tweeted on Wednesday.
President Joe Biden’s administration had asked the U.S. District Court for the Northern District of California to remand the dispute over the U.S. Environmental Protection Agency because it planned to replace the Trump-era regulation with a new rule by the second quarter of 2023.
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“We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” EPA Administrator Michael Regan said in a May 2021 press readout.
The Trump rule, known as the “certification rule,” arose after several rejections to fossil fuel projects in left-leaning states. For example, Washington state denied a coal shipping port in 2018, and New York denied a natural gas pipeline in 2020
