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SCOTUS Shadow Docket Reinstates Trump-Era Clean Water Act Rule

In a 5-4 decision, the United States Supreme Court reinstated a Trump-era environmental regulation related to the States’ enforcement rights under the federal Clean Water Act (CWA). The regulation, adopted in 2020 to replace a nearly fifty-year-old rule, narrowed the criteria for state and tribal authority to veto industry projects that could impact their waters, limited the information which industry projects were required to turn over to states, and reduced the window within which a state could exercise its authority to block such projects to one year.

After the 2020 rule was adopted, twenty states and numerous environmental groups challenged the regulation as at odds with federal law. When President Biden was elected, the EPA asked the judges presiding over such challenges to return them to the agency, but did not ask the judges to vacate the regulation as it worked to draft a new one. Judge William H. Alsup of the Federal District Court in San Francisco, however, vacated the regulation on the grounds that the Trump administration had a “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,” and the “EPA itself has signaled it could not or will not adopt the same rule.” The United States Court of Appeals for the Ninth Circuit refused to block Judge Alsup’s ruling, leading a slew of Republican states and industry groups to file an emergency petition with the Supreme Court.

The Supreme Court’s decision was submitted through what some call the “shadow docket.” Justice Elena Kagan, writing for the dissenters, argued that the Court should have allowed the appeal to proceed in the ordinary course, because the applicants had not given sufficient evidence they would suffer irreparable harm. Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor joined the dissent.

The Supreme Court’s reinstatement of the Trump-era CWA regulation related to Section 401 water quality certification certainly raises questions regarding the validity of another recent nationwide vacatur. In September of last year, Judge Rosemary Marquez of the U.S. District Court for the District of Arizona ruled that Trump's controversial Navigable Waters Protection Rule ("NWPR"), which redefined the "waters of the United States" protected by the Clean Water Act, involved "fundamental, substantive flaws" that were in conflict with the purpose of the 1972 Clean Water Act ("CWA"). Judge Marquez issued a similar vacatur of the NWPR, which was quickly adopted by the EPA. At the time, critics questioned whether a district court had the authority to issue a nationwide repeal of an agency rule. Now, it appears the Supreme Court may have weighed in on that debate, and there will surely be more force behind challenges to Judge Marquez’ ruling – especially since the Supreme Court has agreed to hear a case in its next term that could have the effect of reinstating NWPR.