Supreme Court reinstates Trump-era EPA rule streamlining process for energy infrastructure projects

A key aspect of former President Donald Trump’s tenure in office was the efforts to cut bureaucratic red tape and ease regulations that hampered or obstructed domestic energy production and related infrastructure projects.

The Supreme Court just reinstated a Trump-era rule from the Environmental Protection Agency that had been thrown out by a federal district judge in California, the Conservative Brief reported.

That EPA rule had imposed limits on the ability of states and Native American tribes to block certain energy projects like pipelines in relation to the Clean Water Act — an ability that existed under the prior rules for decades and was allegedly being abused by activists to thwart domestic energy production-related projects.

Old rules, new rules, and future rules

The Associated Press reported that the Supreme Court, by a vote of 5-4, issued a stay on the lower court’s ruling against the EPA rule that, in effect, reinstated that rule while litigation continues through the appeals process.

An appeal of the district court’s ruling is already pending in the Ninth Circuit, and President Joe Biden’s administration is already at work drafting a new rule to replace the Trump-era rule, but that new rule won’t be finalized or implemented until some point in 2023.

Interestingly enough, the AP noted that attorneys for the administration admitted that the district court judge likely lacked the authority to declare the EPA rule invalid and summarily toss it, but asked the court to leave that ruling in place because government officials had already adapted and reverted to the old rule before the Trump-era changes.

The rule in question is Section 401 of the Clean Water Act and, before the Trump EPA changes, it allowed states or tribes to object and withhold necessary permits for projects that might cause pollution to navigable waterways — a provision that oil and gas companies complained was abused to halt projects for political purposes and which the Trump EPA rewrote to help streamline the process.

Another “shadow docket” ruling without explanation

According to SCOTUSblog, the fact that this ruling was issued on the so-called “shadow docket” — meaning without any filed briefs or oral arguments — prompted a fiery dissent from Justice Elana Kagen that was joined by her fellow liberal jurists, Stephen Breyer and Sonia Sotomayor, as well as Chief Justice John Roberts.

In her 3-page dissent, Kagen argued that when it comes to issuing a stay pending appeal on a lower court’s ruling, the high court typically only granted such requests under “extraordinary circumstances” and with the “weightiest considerations” — both of which were lacking here, in her view.

She further asserted that claims of “irreparable harm” by the industry and supportive Republican states had not been sufficiently proven and suggested that, given delays in filing such claims by the industry and states, there was no real “emergency” to warrant the swift decision in favor of staying the lower court’s ruling until the appeals process plays out.

Kagen dissents

“By nonetheless granting relief, the Court goes astray,” Kagen concluded. “It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required.”

“That renders the Court’s emergency docket not for emergencies at all,” she added. “The docket becomes only another place for merits determinations — except made without full briefing and argument. I respectfully dissent.”

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