Supreme Court reinstates, for now, Trump-era rule limiting states' authority over projects that could pollute water

"Conservatives on the Supreme Court on Wednesday reinstated for now a Trump-era environmental rule that limited the ability of states to block projects that could pollute rivers and streams, a decision more notable because Chief Justice John G. Roberts Jr. joined liberals in calling it an abuse of the court’s emergency powers," Robert Barnes reports for The Washington Post. "The fight is over a rule put forward by the Environmental Protection Agency during the Trump administration. It limited objecting states’ ability to stop pipeline and other projects that could pollute navigable waters regulated by the Clean Water Act, reacting to complaints that some states and Native American tribes were abusing their discretion."

In the decision, Justice Elena Kagan criticized the use of the court's emergency docket for what she argued was not an emergency case, a maneuver many call the court's "shadow docket." "The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm," Kagan wrote. "By nonetheless granting relief, the court goes astray." Instead, she argued, the case should have had the chance for full briefings and arguments so the court could make a more informed decision.

"Democratic members of Congress have been increasingly critical of the court’s use of the emergency docket, which has expanded since Justice Amy Coney Barrett joined the court to provide a more consistent conservative majority," Barnes reports. "Stephen Vladeck, a University of Texas law professor who has documented the court’s use of the shadow docket, said Wednesday’s order was significant for what it says about the chief justice’s role on the court."

"This is the ninth time that Chief Justice Roberts has publicly been on the short side of a 5-4 ruling since Justice Barrett’s confirmation," Vladeck told Barnes. "Seven of the nine have been from shadow docket rulings. This is the first time, though, that he’s endorsed criticism of the shadow docket itself."

"The high court’s action does not interfere with the Biden administration’s plan to rewrite the rule," Jessica Gresko reports for The Associated Press. "Work on a revision has begun, but the administration has said a final rule is not expected until the spring of 2023. The Trump-era rule will remain in effect in the meantime."