On April 6, the Supreme Court used the “Shadow Docket” to reinstate a Trump administration regulation governing state water quality certifications under section 401 of the Clean Water Act. Louisiana v. American Rivers, No. 21A539 (U.S. Apr. 6, 2022). Interestingly, Chief Justice Roberts joined Justice Kagan’s dissent along with Justices Breyer and Sotomayor. The dissent focuses not on the merits of the matter but instead on the use of a motion for a stay in effect to signal an outcome on the merits.
Section 401(a) of the Clean Water Act requires an applicant for a federal permit for a construction project or other activity that might result in a discharge to “waters of the United States” to obtain a certification from the state to the United States that the activity will not cause a violation of state water quality standards. 33 U.S.C. § 1341(a). The Trump administration issued a rule tightening the timeline for states to do so; failure to meet the timeline results in a waiver by the state of its right to certify. The regulation also limited the conditions that a state might place on that certification. See 85 Fed. Reg. 42,210 (July 13, 2020), codified at 40 C.F.R. pt. 121.
The district court vacated the 2020 regulation, reinstating prior regulation and practice. It denied a stay. The court of appeals denied a stay. However, the Supreme Court granted a stay, in effect reinstating the more restrictive rule, without opinion and without merits briefing. The court of appeals will evidently have a fully briefed case in May. The four dissenting justices point out that the petitioners offered no concrete instance of any federal permit obstructed by a state since the district court’s judgment, nor any instance of one expected before the court of appeals can rule. Thus, rather than a showing of “irreparable harm,” the Court seems to have decided the stay motion solely on the question of likelihood of success on the merits.
So, the “Shadow Docket” has hit home for environmental practitioners. Note that EPA has expressed its intention to revise the regulation in 2023. The exact procedural requirements that states will face when a future application for FERC approvals of interstate pipelines or other sorts of federal applications for other sorts of projects come up is therefore unknown at present.