Supreme Court Revives Trump-Era Environmental Regulation

[Leroy N. Soetoro]

https://www.nytimes.com/2022/04/06/us/politics/supreme-court-clean-water-
act.html

Adam Liptak
By Adam Liptak
April 6, 2022
WASHINGTON — The Supreme Court on Wednesday reinstated an environmental
regulation from the Trump administration that restricted the role states
play in enforcing the Clean Water Act.

The court’s brief, unsigned order gave no reasons, which is typical when
the justices act on an emergency application.

Four justices dissented, saying the majority had used a case on what
critics call the court’s shadow docket to issue a significant ruling
without adequate consideration.

Writing for the dissenters, Justice Elena Kagan said the court should have
allowed the appeal to proceed in the ordinary course.

“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,” she wrote. “By nonetheless granting relief, the court goes astray.”

She added: “That renders the court’s emergency docket not for emergencies
at all. The docket becomes only another place for merits determinations —
except made without full briefing and argument.”

Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Sonia
Sotomayor joined Justice Kagan’s dissent.

The Clean Water Act envisions a role for states in issuing permits for
discharges into the nation’s waters. Industry groups have long been
frustrated by what the application called incongruities and ambiguities in
an earlier regulation, in place for 50 years, which they said had allowed
states to drag out and effectively veto projects on grounds other than the
consideration of water quality.

The groups welcomed the new regulation, adopted in 2020, which narrowed
the criteria for state certification, tightened deadlines and stopped
states from imposing what they called “project-killing conditions.”

Twenty states and the District of Columbia, along with environmental
groups, had challenged the regulation, saying it was at odds with federal
law. After President Biden took office, the Environmental Protection
Agency said it would revise the rule and asked three judges presiding over
challenges to return them to the agency.

Notably, though, the E.P.A. did not ask the judges to vacate the
regulation while it worked on a new one. Two judges, in South Carolina and
Pennsylvania, did what the agency asked.

But 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 “E.P.A.
itself has signaled it could not or will not adopt the same rule.”

After the U.S. Court of Appeals for the Ninth 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.

Writing on behalf of the E.P.A., Elizabeth B. Prelogar, the U.S. solicitor
general, urged the Supreme Court to deny the emergency application. Judge
Alsup’s ruling, she wrote, merely reinstated the old regulation, which had
been in place for a half-century. The 2020 regulation, she added, would
most likely be replaced by next year.

Ms. Prelogar’s brief included a significant concession. “The federal
respondents,” she wrote, “agree with applicants that the district court
lacked authority to vacate the 2020 rule without first determining that
the rule was invalid.” But she said that was not reason enough to block
his ruling.

In her dissent, Justice Kagan wrote that the court’s ruling was a solution
in search of a problem.

“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,” she 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.”

“The applicants have not identified a single project that a state has
obstructed in the five months since the district court’s decision,”
Justice Kagan continued. “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.”


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