emergency record

Divided Supreme Court Wednesday restored A Trump-era environmental policy that makes it harder for states to block projects that could lead to water pollution. The unsigned and unexplained decision prompted Chief Justice John Roberts to join the court’s three liberal justices in criticizing the majority’s use of the emergency docket.

The court’s decision “makes the court’s emergency cases simply inapplicable to emergencies,” Justice Elena Kagan wrote in her dissent. “The docket is just another place to establish the merits of a case – unless it is done without a full briefing and argument.”

Roberts joined Kagan’s dissent, as did Justices Stephen Breyer and Sonia Sotomayor.

case, Louisiana v. American Rivers, concerning the role of states in enforcing the Clean Water Act. Under longstanding federal regulations, states can issue or deny permits for projects that could pollute a river or stream, such as building new pipelines. But industry groups have complained that some states have abused their permit rights to hinder projects for reasons unrelated to water quality.

Responding to those concerns, the Trump administration’s Environmental Protection Agency issued a regulation in 2020 limiting the role of states in the licensing process. Environmental groups have challenged the rule. With the challenge hanging in the balance, President Joe Biden took office and his administration announced its intention to replace Trump-era regulation with its own policies.

In October, a federal district judge in California struck down Trump’s rule, while the Biden EPA is working on alternatives. Fossil fuel groups and some red states rushed to the Supreme Court, asking the judge to set aside the California judge’s ruling while the lawsuit continued. They argue that the judge does not have the power to revoke the rule in this case.

On Wednesday, a majority of the five Supreme Court justices supported red states and industry groups, but the court did not explain why. In a brief order that provided no reason, the court set aside the California ruling, effectively reinstating Trump’s policies for the time being.

A Biden administration could still remove the policy with a new provision. The EPA expects to finalize its new regulations by spring 2023, the administration said in court filings.

In her dissent, Kagan blamed the majority (including Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Bar Reiter) disregarded the court’s own criteria for granting emergency relief. The Supreme Court has traditionally been reluctant to freeze a lower court ruling in an emergency unless litigants can demonstrate a significant risk that the ruling will create imminent and irreversible damage. Red states and industry groups have not shown any such risk, Kagan wrote.

Kagan and other liberal justices have previously criticized the court’s growing willingness to resolve substantive disputes in urgent cases — often called by scholars and critics shadow file — but Wednesday’s decision was the first time Roberts has publicly joined the criticism.