Supreme Court Begins Unravelling Clean Water Act

April 7, 2022

And you thought is was about abortion.

Supreme Court gets busy on the real agenda. The one the big players were actually paying for.


On Wednesday, the Supreme Court issued a 5–4 shadow docket order reviving a Trump-era ruling that radically limited the ability of states and tribes to restrict projects, like pipelines, that will damage the environment. With their decision, the majority upended decades of settled law recognizing states’ authority to protect their own waters without bothering to issue a single sentence of reasoning.

Just two days earlier, Justice Amy Coney Barrett once again declared that the Supreme Court is not political during a speech at the Ronald Reagan Presidential Library Foundation. Americans concerned that a particular ruling was “purely results-driven,” she said, should “read the opinion.” A close reading, Barrett asserted, would help the public decide if the ruling is “designed to impose the policy preferences of the majority” or an honest effort to “determine what the Constitution and precedent requires.”

But those upset by Wednesday’s decision, which strayed so far from all known law that even Chief Justice John Roberts was driven to dissent, cannot “read the opinion”—because there is none. If that logic-free attack on the Clean Water Act is not a “purely results-driven” attempt to “impose the policy preferences of the majority,” it’s hard to see what is.

The court’s order on Wednesday in Louisiana v. American Rivers is an affront to the Clean Waters Act, federalism, judicial restraint, and common sense. It arises out of a dispute between Donald Trump’s Environmental Protection Agency and a coalition of states and tribes. The Clean Water Act, first passed in 1972, is a quintessential example of “cooperative federalism”: It compels the federal government to work with states and tribes before approving a project that could diminish water quality. In a major 1994 ruling—one was accompanied by many pages of reasoning—the Supreme Court affirmed states’ and tribes’ authority to grant, modify, or deny certification of a potentially destructive energy project, like an oil pipeline or coal export facility.

For nearly 50 years, states and tribes have done just that, imposing additional requirements on these projects or vetoing them altogether. They may place limitations on discharge into the water, and “on the activity as a whole,” to protect their environments from pollution. This power has allowed states and tribes to uphold their own water quality standards—even when the federal government is eager to approve an energy company’s latest dangerous venture. The states often deny certification because the company refused to provide key information about the negative environmental impact on rivers, streams, and wetlands. Dissatisfied companies can contest a state or tribe’s decision in state or federal court, as well as administrative tribunals.

New York Times:

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.”

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.”

4 Responses to “Supreme Court Begins Unravelling Clean Water Act”

  1. J4Zonian Says:

    Once again the Republicans are exactly as greedy & insane as we knew they were & the Democrats are as corrupt, criminal, & 2-faced as we knew they were.


    • rhymeswithgoalie Says:

      Why did you use “criminal” for the Democrats?
      Why did you not use “criminal” for the Republicans?

      BTW, you seem to be conflating Biden with Congress.

      Biden can do nothing about state gerrymandering other than calling it out.

      Biden can’t do anything about the Constitutional structure of the Senate that gives the ~40 million Americans in California 2 Senators and the ~22 million Americans in WY, AK, ND, SD, MT, WV, ID, NE, KS, AR, IA 22 Senators.

      And we’ve lost SCOTUS to grossly partisan hacks.

      Murc’s Law (on the media):
      Only Democrats have agency or any causal impact on American politics.

  2. rhymeswithgoalie Says:

    “And you thought is was about abortion.”

    Why not both?

    Make the profitable polluters and the religious nuts happy.

    • Bryson Brown Says:

      Very different motives, but they go well together… a base driven by propaganda, conspiracy theories and (anti-science) religion determined to save those “babies”– meaning, of course, embryos or, in terrible cases, much-wanted but inviable fetuses — a “moral” panic well and profitably supported by right-wing media and religious groups. Second, and more important, much fewer wealthy interests who have much more money and are quite happy to burn the world, so long as they get tax breaks and massive subsidies, as they dump their wastes into the atmosphere, where it causes crop failures, flooding and more around the world, where the poor struggle to survive). After all, they get to be richer and more powerful now. It’s increasingly difficult to resist despair.

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