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Supreme Court reinstates Trump-era water rule for now

WASHINGTON (AP) — The Supreme Court on Wednesday reinstated for now a Trump-era rule that limits the power of states and Native American tribes to block pipelines and other energy projects that could pollute rivers, streams and other Waterways.

In a decision that split the court 5-4, the justices agreed to stay a lower court judge’s order overturning the rule. The High Court action does not interfere with the Biden administration’s plan to rewrite the rule. Work on a revision has begun, but the administration has said a final rule is not expected until spring 2023. The Trump-era rule will remain in effect in the meantime.

The court’s three liberal justices and Chief Justice John Roberts dissented. The court’s other conservative justices, including three appointed by President Donald Trump, voted to restore the rule.

Writing for the dissenters, Judge Elena Kagan said the group of states and industry associations that had asked for the lower court’s decision to be stayed had failed to show the extraordinary circumstances necessary to grant that request.

Kagan said the group failed to demonstrate harm if the judge’s ruling remained in place. She said the group had not identified a “unique project that a state would have obstructed” in the months following the judge’s ruling and had twice delayed filing an application, saying it did not. was not urgent.

Kagan said the majority of the court “misguided” in granting the emergency motion and abused the process to deal with such requests. This process is sometimes called the court’s “shadow case” because the court makes a decision quickly without having to load up on information and arguments. Liberal justices have recently criticized its use.

As usual, the majority judges did not explain their reasoning.

Kagan wrote that his colleagues’ ruling “makes the court’s emergency role not at all for emergencies.”

The Biden administration had told judges in a court filing that it had agreed that U.S. District Court Judge William Alsup did not have the authority to throw out the rule without first determining that it was invalid. But the administration had urged the court not to reinstate the rule, saying that in the months since Alsup’s ruling, officials have adapted to the change, reverting to regulations that have been in place for decades. Any other change would “cause substantial disruption and serve the public interest,” the administration said.

Alsup was appointed to the bench by President Bill Clinton.

EPA spokesman Tim Carroll said in an email that the agency is reviewing the Supreme Court order and “continuing to develop rules to restore the authority of the state and tribes in order to protect water resources that are essential to public health, ecosystems and economic opportunity”.

LeRoy Coleman, a spokesman for the National Hydropower Association, one of the groups that had sought to overturn the lower court judge’s order, said in a statement that the court’s decision “will ensure that the Biden administration correctly considers this important rule when considering changes”. promulgated by the Environmental Protection Agency less than two years ago.

The section of federal law at issue in this case is Section 401 of the Clean Water Act. For decades, the rule was that a federal agency could not issue a license or permit to conduct an activity that could result in a discharge into navigable waters unless the affected state or tribe certified that the discharge was in compliance with the Clean Water Act and state law, or waived certification.

The Trump administration in 2020 reduced that power of review after complaints from Republicans in Congress and the fossil fuel industry that state officials had used the permitting process to shut down new energy projects. The Trump administration said its actions would advance then-President Donald Trump’s goal of accelerating energy projects such as oil and gas pipelines.

States, Native American tribes and environmental groups sued. Several mostly Republican-run states, a national trade association representing the oil and gas industry and others have intervened in the case to defend the Trump-era rule. The states involved in the case are: Arkansas, Louisiana, Mississippi, Missouri, Montana, West Virginia, Wyoming and Texas.

Associated Press reporter Matthew Daly in Washington contributed to this report.

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