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The Clean Water Act was signed into law to control the discharge of hazardous waste into our country’s waters. As previously noted in Obermayer’s "Legal Developers" blog, in 2020, the Environmental Protection Agency (“EPA”) reinterpreted language in the Clean Water Act to limit the power of state and tribal authorities to certify permits for any development at or around protected waters (“2020 Rule”). Towards the end of last year, a federal judge in California annulled the 2020 Rule returning power back to states and tribal authorities.
This past Wednesday, on April 6, 2022, the United States Supreme Court, in a 5-4 vote, reinstated the 2020 Rule during the pendency of the appeal of the California judge’s decision. In doing so, the U.S. Supreme Court justices overruled the federal Ninth Circuit.
The U.S. Supreme Court’s order gave no explanation for its decision, although such lack of analysis is the norm for its rulings on emergency applications. However, the four justices who voted against the order joined in a dissent written by Justice Elena Kagan asserting that the majority should have allowed the appeal to proceed in the ordinary course and that, instead, the decision “renders the Court’s emergency docket not for emergencies at all.”
Accordingly, at the time of this Alert, the 2020 Rule is back in effect, minimizing the role of state and tribal authorities in the permitting process. The underlying appeal will eventually be decided by the Ninth Circuit, after which it may ultimately proceed to the U.S. Supreme Court for a decision on the merits.
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