The U.S. Supreme Court on April 6 temporarily reinstated the Trump-era Navigable Waters Protection Rule (NWPR) in an emergency docket ruling. The ruling resulted in a 5-4 split on the bench, with Chief Justice John Roberts joining the three liberal justices in dissent, Bloomberg reported.
The ruling overturns an earlier decision by U.S. District Court Judge William Alsup to throw out the NWPR while the U.S. Environmental Protection Agency (EPA) under President Joe Biden works on a replacement Clean Water Act (CWA) rule, which is not expected until spring 2023. EPA and the U.S. Army Corps of Engineers in January announced that they had halted implementation nationwide of the NWPR (GM Jan. 28, p. 1).
The court gave no explanation for its decision. This is often the case with emergency docket orders, which some critics have referred to as the “shadow docket.” But the dissenting justices, in an opinion penned by Justice Elena Kagan, said the states and industry groups backing the NWPR had failed to show that its reinstatement would have any practical impact, or that the absence of the rule had resulted in “irreparable harm” to warrant an emergency ruling.
The majority’s decision “renders the court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations – except made without full briefing and argument.”
The Biden administration had reportedly urged the court not to reinstate the rule, saying that in the months since Judge Alsup’s ruling, officials had adapted to the change and reverted to regulations that were in place for decades, before both the NWPR and the 2015 Obama-era Waters of the United States (WOTUS) rule. Another change, the administration warned, would “cause substantial disruption and disserve the public interest.”
At issue in the case is Section 401 of the CWA, which restricts the authority of states to reject federal permits for projects that affect waters within their borders. The Trump administration’s NWPR significantly curtailed this process in an effort to fast-track energy projects and scale back the types of waters falling under CWA jurisdiction.
Under the Biden administration, EPA and the Corps announced last June (GM June 11, 2021) that they intended to draft yet another WOTUS definition that builds upon the pre-2015 rule, the Obama-era rule, and the Trump-era NWPR.
On Nov. 18, 2021, the agencies announced the signing of a proposed rule to do just that, putting back in place the pre-2015 WOTUS definition, but updated to reflect consideration of Supreme Court decisions, along with input from states, tribes, local governments, and a broad array of stakeholders.
As a result of the new Supreme Court decision, the Trump-era rule will now go back into effect while the Biden administration works on a replacement. Both The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) have voiced support for the NWPR in the past.
TFI told Green Markets that it will be filing an amicus brief with the court on behalf of the agriculture sector, along with several other ag trade associations, including the American Farm Bureau Federation, National Pork Producers Council, and others.