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Chief Justice John Roberts joins liberals in criticizing ‘shadow case’ as court reinstates Trump-era EPA rule


Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the majority of the court had “misguided” in granting an unwarranted claim on its emergency roll.

“This makes the Court’s emergency role not at all for emergencies,” Judge Elena Kagan wrote for the four dissenters. She said the Republican-led states and others who have asked the court for emergency relief have failed to show that they will suffer the irreparable harm necessary to make their case.

“This Court may stay a decision under review by an appellate court only in extraordinary circumstances and on the basis of the most important considerations,” Kagan wrote. She said the challengers’ request for suspension was based on “mere assertions – on conjecture, not supported by current evidence”.

The majority decision, Kagan insisted, signals the court’s view on the merits, even if the petitioners did not cause the irreparable harm showing “that we have traditionally demanded”.

The emergency file, she said, “becomes just another place for the determination of merits – except without a full briefing or argument.”

The five conservative justices did not explain their reasoning for reinstating the Trump-era rule.

The Emergency Brief – which some judges and outside observers call the “phantom brief” – is increasingly criticized by those who say important issues are being resolved without the benefit of a full briefing program and oral arguments .

While court liberals, particularly Kagan, have often criticized the use of emergency petitions, this is the first time Roberts has explicitly joined in.

“We’ve seen Chief Justice Roberts join with Democratic appointees to oppose some of the court’s past rulings,” said CNN Supreme Court analyst and law school professor Steve Vladeck. from the University of Texas, who is writing a book. on the shadow folder. “But today’s decision is the first time he has joined in public criticism of the majority for the way it uses and abuses the ghost role. It’s quite an important development and a strong signal for the Court. de facto leader to send.”

In the dissent, Kagan wrote that the challengers had not provided “concrete evidence” that they would be harmed if the Environmental Protection Agency rule was not reinstated. She specifically noted that they waited five months after the lower court overturned the rule to make their request. Additionally, she said, a federal appeals court is expected to hear the dispute next month and that the current rule has been in place for about 50 years.

Last September, Conservative Justice Samuel Alito launched a 10-point rebuttal in an unusual speech, defending the court’s practice of emergency docketing. He referred to the complications surrounding the emergency applications and said the judges were doing “the best they could” within the time constraints imposed by the situation. Alito called the reviews “very misleading”, pointing out that there is “absolutely nothing new in emergency apps”.
Chief Justice John Roberts joins liberals in criticizing ‘shadow case’ as court reinstates Trump-era EPA rule

Wednesday’s court order reinstates a rule that restricts states’ power under the Clean Water Act to reject federal permits for projects that affect waters within their borders. The Trump-era rule will come back into effect as the Biden administration releases a new rule that is expected to be finalized by spring 2023.

It’s a loss for more than 20 Democratic-led states, the District of Columbia, environmental groups and tribes who challenged the rule put in place by the Trump administration in 2020. They said it limited the ability of states and local communities to weigh in. about projects that could harm their communities. Challengers said the Trump rule could lead to projects — such as a strip mall on a wetland, a hydroelectric project, or oil and gas pipelines — that could alter waterways without state intervention.

Earthjustice, representing environmental groups and tribes opposed to the Trump rule, criticized the court order.

“The court’s decision to reinstate the Trump administration’s rule shows a disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, the group’s lead attorney.

A lower court had struck down the rule, prompting a group of Republican-led states and various industries to seek emergency relief from the Supreme Court.

This story has been updated with additional details.

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