In a 5-4 split, the U.S. Supreme Court on 6 April temporarily revived a Trump-era rule intended to fast-track big energy projects by limiting the states' power to curtail them under the Clean Water Act.
The majority voted to block the effect of an October ruling that vacated the 2020 rule while industry groups, Louisiana, and seven other Republican-led states appeal that ruling and if either side seeks review by the Supreme Court.
The majority gave no reasons for granting the application filed on its emergency docket—often called the shadow docket because the cases are decided with minimal briefing, no arguments, and no explanation.
Justice Elena Kagan, joined in her dissent by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor, said the case did not belong on the emergency docket because the petitioners had not identified any threat of immediate harm. By granting relief anyway, the majority “signals its view of the merits” and “renders the Court’s emergency docket not for emergencies at all,” Kagan wrote.
The legal dispute stems from changes the Environmental Protection Agency made in July 2020 to its interpretation of Section 401 of the Clean Water Act, which gives states and eligible Tribes some power over interstate pipelines, coal terminals, and other federally licensed projects affecting waterways and wetlands in their jurisdictions.
The 2020 revision made it impossible for states to block projects for any reason other than direct pollution into state waters. Some states had previously weighed other factors, such as climate change.