Supreme Court Grants Stay of Lower Court Ruling That Vacated Trump Water Rule

On April 6, the Supreme Court used the “Shadow Docket” to reinstate a Trump administration regulation governing state water high quality certifications underneath part 401 of the Clear Water Act. Louisiana v. American Rivers, No. 21A539 (U.S. Apr. 6, 2022). Curiously, Chief Justice Roberts joined Justice Kagan’s dissent together with Justices Breyer and Sotomayor. The dissent focuses not on the deserves of the matter however as an alternative on the use of a movement for a keep in impact to sign an end result on the deserves.

Section 401(a) of the Clean Water Act requires an applicant for a federal allow for a development undertaking or different exercise which may end in a discharge to “waters of the United States” to acquire a certification from the state to the US that the exercise is not going to trigger a violation of state water high quality requirements. 33 U.S.C. § 1341(a). The Trump administration issued a rule tightening the timeline for states to take action; failure to fulfill the timeline leads to a waiver by the state of its proper to certify. The regulation additionally restricted the circumstances {that a} state would possibly place on that certification. See 85 Fed. Reg. 42,210 (July 13, 2020)codified at 40 C.F.R. pt. 121.

The district court docket vacated the 2020 regulation, reinstating prior regulation and observe. It denied a keep. The court docket of appeals denied a keep. Nonetheless, the Supreme Court granted a keep, in impact reinstating the extra restrictive rule, with out opinion and with out deserves briefing. The court docket of appeals will evidently have a completely briefed case in Might. The 4 dissenting justices level out that the petitioners supplied no concrete occasion of any federal allow obstructed by a state for the reason that district court docket’s judgment, nor any occasion of one anticipated earlier than the court docket of appeals can rule. Thus, moderately than a displaying of “irreparable harm,” the Court appears to have determined the keep movement solely on the query of chance of success on the deserves.

So, the “Shadow Docket” has hit residence for environmental practitioners. Be aware that EPA has expressed its intention to revise the regulation in 2023. The precise procedural necessities that states will face when a future utility for FERC approvals of interstate pipelines or different kinds of federal functions for different kinds of tasks come up is subsequently unknown at current.

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