'Shadow Docket' Sees Controversial Federal Water Regulation Revived
In a narrow decision, the U.S. Supreme has revived a controversial U.S. EPA regulation governing water quality.
“In a 5-4 split, the U.S. Supreme Court … temporarily revived a Trump-era rule intended to fast-track big energy projects by limiting the states’ power to curtail them under the Clean Water Act,” according to Reuters. “The majority gave no reasons for granting the application filed on its emergency docket — often called the shadow docket because the cases are decided with minimal briefing, no arguments and no explanation.”
With the decision, the court blocked a ruling from late last year that vacated the 2020 version of the Clean Water Act as it is being appealed by a handful of states. That Trump-era version of the rule stopped states from blocking industrial projects for anything short of direct pollution into state waters, even though some jurisdictions would like to halt projects that less directly impact source water.
“Industry groups have long been frustrated by what the application called incongruities and ambiguities in an earlier regulation, in place for 50 years, which they said had allowed states to drag out and effectively veto projects on grounds other than the consideration of water quality,” The New York Times reported. “The groups welcomed the new regulation, adopted in 2020, which narrowed the criteria for state certification, tightened deadlines and stopped states from imposing what they called ‘project-killing conditions.’”
The “shadow docket” is a fairly standard process for emergency applications, though there was debate among the justices about whether reversing the change to the Clean Water Act really should qualify for using it. While the prevailing members of the court didn’t offer their reasons for granting the application on the emergency docket, the dissenting side noted that it felt the decision was not truly motivated by a desire to protect the environment.
“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,” wrote dissenting Justice Elena Kagan, per the Times. “By nonetheless granting relief, the court goes astray.”
Even though the Clean Water Act is fundamental for governing source water quality across the country, it appears that water systems are in store for even more changes going forward.
To read more about the rules that govern source water quality, visit Water Online’s Regulations And Legislation Solutions Center.