Supreme Court revives Trump-era EPA permit rule

By Pamela King | 04/06/2022 10:20 AM EDT

In a dissenting opinion, Justice Elena Kagan criticized the court for using its emergency docket for non-emergencies.

The Supreme Court, as photographed Sept. 2, 2021.

The Supreme Court, as photographed Sept. 2, 2021. Francis Chung/E&E News

The Supreme Court today reinstated a Trump-era rule that curbed the role of states and tribes in permitting pipelines, dams and other federally approved projects.

Over the objections of four justices, the court overturned an earlier ruling from a lower bench that said the Trump regulation violated Supreme Court precedent (Greenwire, Feb. 25).

A coalition of red state and industry groups appealed the decision to the 9th U.S. Circuit Court of Appeals — which refused to revive the rule — before asking the Supreme Court to step in. The court said today that the order striking down the rule is “stayed pending disposition” of the 9th Circuit appeal but provided no explanation for its decision.


Justice Elena Kagan led a dissenting opinion that was joined by the two other members of the court’s liberal wing, as well as Chief Justice John Roberts.

Kagan criticized her five colleagues in the majority for going “astray” by agreeing to grant emergency relief.

“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. I respectfully dissent,” she wrote.

The rule at issue in the case is related to Clean Water Act Section 401, which allows states and tribes to certify that federally approved projects meet local water quality standards.

Under former President Donald Trump, EPA revised the long-standing policy to bar states and tribes from considering issues not directly related to water quality — like climate change — when making their determinations.

The Biden administration had told the justices that EPA had already reverted to the prior approach.