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Coal plant in Ohio

A coal processing plant is located in Ashtabula, Ohio. (Photo: John Greim/Loop Images/Universal Images Group via Getty Images)

Right-Wing Supreme Court Justices 'Just Further Poisoned Your Water'

The move, said one attorney, "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."

Jessica Corbett

Environmental advocates and other critics of the right-wing U.S. Supreme Court were outraged Wednesday by a 5-4 decision reviving a Trump administration policy that undermines the power of states and tribes to protect water quality from energy infrastructure projects.

"The Supreme Court's aggressive move to revive a Trump-era rule shredding the Clean Water Act is so extreme that even Chief Justice John Roberts dissented."

The Supreme Court "just further poisoned your water," journalist Jordan Chariton tweeted in response to the unsigned decision, opposed by Chief Justice John Roberts and the three liberals.

The contested rule about the Clean Water Act Section 401 certification process was proposed in August 2019 and finalized in June 2020, under former coal lobbyist and then-Environmental Protection Agency (EPA) Administrator Andrew Wheeler.

The policy—which imposes a one-year deadline for permitting decisions and limits the scope of what state and tribal officials can consider for projects like fossil fuel pipelines—was part of a wave of anti-environmental actions pursued under former President Donald Trump.

Earthjustice senior attorney Moneen Nasmith—whose group challenged the rule in federal court—blasted the high court's move in a statement.

"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," she said.

Nasmith added that "the EPA must ensure that its revised rule recognizes the authority of states and tribes to protect their vital water resources in its ongoing rulemaking under Section 401."

Earthjustice noted that the EPA—now under the control of Michael Regan, an appointee of President Joe Biden—is "expected to issue a new draft rule in spring 2022 and a final rule in spring 2023."

When announcing the revision plans last year, Regan said that "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."

Despite Regan's declaration that "we need all state, tribal, local, and federal partners working in collaboration to protect clean water, which underpins sustainable economic development and vibrant communities," the EPA did not ask three federal judges presiding over challenges to the Trump-era rule to vacate it, The New York Times reported Wednesday.

Two of the judges followed the EPA's request to send the rule back to the agency for further action without blocking the Trump policy. However, as the Times noted:

Judge William H. Alsup, of the Federal District Court in San Francisco, vacated the regulation. The move was justified by "the lack of reasoned decision-making and apparent errors in the rule's scope of certification, the indications that the rule contravenes the structure and purpose of the Clean Water Act," he said, and the fact that the "EPA itself has signaled it could not or will not adopt the same rule."

After the U.S. Court of Appeals for the 9th Circuit, in San Francisco, refused to block Judge Alsup's ruling while an appeal moved forward, Louisiana and other states led by Republicans, along with industry groups, filed an emergency application asking the Supreme Court to revive the regulation. They said that Judge Alsup had acted without considering administrative procedures or finding that the regulation was unlawful.

Justice Elena Kagan, in a dissent joined by the other two liberals and Roberts, wrote that "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," she continued. "It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required."

"That renders the court's emergency docket not for emergencies at all," she added, referring to a process also known as the shadow docket. "The docket becomes only another place for merits determinations—except made without full briefing and argument."

CNN Supreme Court analyst and University of Texas law professor Steve Vladeck pointed out that "although Chief Justice Roberts has joined the Democratic appointees in prior shadow docket dissents… this is the first time he's joined an opinion criticizing the majority for abusing what Kagan here calls 'the emergency docket.'"

The recent rise in shadow docket decisions from the high court has earned criticism from legal experts, members of Congress, and others.

"SCOTUS strikes again with a shadow docket," Earthjustice president Abbie Dillen tweeted Wednesday. "A blatant gift to the oil and gas industry. No evidence that emergency relief was needed… It's bad folks."

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