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Energy Companies Win Pause in Decision Tossing Trump Water Rule

April 6, 2022, 2:31 PM

The U.S. Supreme Court on Wednesday granted energy groups’ request to stay a lower court’s ruling tossing out a Trump-era water rule denying states the right to reject projects that would pollute streams and wetlands.

The stay—granted with a dissent written by Justice Elena Kagan and signed by justices Sonya Sotomayor and Stephen Breyer, and Chief Justice John Roberts—will expire if the high court decides not to take the case. The majority granted the stay without discussing its reasoning.

  • At issue is the Environmental Protection Agency’s 2020 Clean Water Act Section 401 Certification Rule. Section 401 gives states authority to ensure that federal agencies don’t issue permits for projects that violate state or tribal water quality standards. The Trump-era rule prevented states from vetoing polluting projects.
  • In the dissent, Kagan said the court may stay a decision under review in a court of appeals only under “extraordinary” circumstances. But the energy groups asking for the stay failed to show how they are suffering irreparable harm, she said. “The Court therefore has no warrant to grant emergency relief,” Kagan wrote.
  • Judge William Alsup of the U.S. District Court for the Northern District of California vacated the rule in 2021. Eight states, led by Louisiana, and several energy industry groups intervened to defend the rule and requested the U.S. Court of Appeals for the Ninth Circuit stay the ruling. The appeals court denied the request, and on March 21 the states took their request to the Supreme Court.
  • The stay rests on “conjectures” unsupported by evidence, Kagan wrote. “The applicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision,” Kagan wrote. “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.”

The case is Louisiana v. American Rivers, U.S., 21A539, 4/6/22

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bgov.com