Legal Alert

U.S. Supreme Court Reinstates Trump-Era Water Rule Pending Appeal

by Lea A. Phillips and Harry Weiss
April 6, 2022

The U.S. Supreme Court stayed a ruling today that blocked implementation of a Trump-era water quality rule narrowing the authority of state and tribal authorities to reject projects that would violate state or tribal water quality standards.

Under the Clean Water Act, states have the authority to ensure that federal agencies do not issue permits for projects that violate state or tribal water quality standards. At issue is the Environmental Protection Agency’s 2020 Section 401 Certification Rule which restricts the ability of states and tribes to block projects such as pipelines by withholding approval under the Clean Water Act. The 2020 rule, among other things, limited the scope of state and tribal 401 Certifications to evaluation of compliance with certain defined “water quality requirements.” It also provided a one-year deadline for a state or tribe to act on a request for certification.

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 implementation of Judge Alsup’s ruling pending appeal. The Ninth Circuit denied that request.

In a 5-4 decision, the U.S. Supreme Court today agreed to halt a lower court judge’s order throwing out the rule. The Court’s ruling allows a Ninth Circuit appeal and potential Supreme Court petition for writ of certiorari to play out.

In January 2021, President Biden directed federal agencies to review regulations issued during the previous Administration related to the protection of public health and the environment. In June 2021, the EPA announced that it had decided to propose revisions to the 2020 rule through a new rulemaking effort. The EPA has stated that it expects to publish a proposed revised rule in the spring of 2022 with a final revised rule to be promulgated in early 2023.

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