On April 6, 2022, by a 5-4 vote in the case of Louisiana, et. al. v. American Rivers, et. al., the Supreme Court temporarily resurrected a Trump-era rule that sought to stop the practice of many states and tribes from withholding or unduly conditioning their certifications that are required under the Clean Water Act before certain federally-permitted activities can proceed (the 2020 Rule). Delays and demands imposed on gas pipeline and other energy infrastructure projects through these tactics have drawn particular criticism.
The 2020 Rule was challenged by environmental groups and several states and vacated by the District Court for the Northern District of California in October 2021 – notably without an accompanying review of the merits and a finding that the rule was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Supporters of the 2020 Rule sought an emergency stay with the Supreme Court pending their appeal to the Ninth Circuit. In agreeing to stay the District Court’s ruling and effectively reinstate the rule, the Supreme Court used its so-called “shadow docket,” a procedure typically reserved for emergency situations involving an immediate threat of harm if the Supreme Court does not act.
The case centers around the EPA’s July 2020 Section 401 Certification Rule, which limits the ability of states and tribes to withhold approval, or “certification,” of applications for a federal license or permit under the Clean Water Act. The 2020 Rule prevents states from blocking projects for any reason other than threat of direct pollution into the state’s waterways and strictly imposes the one-year statutory deadline for a state to act on a request for certification.
The 2020 Rule was among the Trump-era regulations that the Biden administration directed federal agencies to review in the early days of the new administration. In June 2021, the EPA announced a new rulemaking to propose revisions to the 2020 Rule. A final revised rule is expected in 2023. The Supreme Court’s decision does not prevent the EPA from continuing with its rulemaking but does ensure that until that process produces a final replacement regulation or further judicial review invalidates the 2020 Rule, it will remain in effect.
Notably, the Supreme Court’s majority opinion imposing the stay is contained in a single short paragraph. In a lengthier discussion, Justices Kagan, Breyer, Sotomayor, and Chief Justice Roberts dissented, citing the lack of evidence that the applicants would suffer irreparable harm if the Supreme Court failed to act. Specifically, Justice Kagan pointed out that the states and energy interests appealing the decision did not cite any projects that would be threatened by the ruling in question or that had been blocked in the months since it was issued last October.
Supreme Court watchers will need to consider whether the decision signals how the Court would rule on the merits of a challenge to the 2020 Rule, or whether a majority of the Court simply could not countenance a district court vacating a duly promulgated rule absent a full merits determination.