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Supreme Court Reinstates Trump Clean Water Rule (For Now)

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by Patrick J. Paul

On Wednesday, April 6, the U.S. Supreme Court in a 5-4 decision stayed a Northern District of California Court decision that both remanded and vacated EPA Trump-era rules regarding water quality certification of projects under Clean Water Act Section 401.  The California District Court in 2021 in In re Clean Water Act Rulemaking, 2021 WL 4924844 (2021), vacated the Trump-era Clean Water Act 401 Certification Rule.

The Trump-era rule limited states’ authority to block certain projects by giving them a strict one-year time limit to do so. If states did not meet this time limit, the government could determine that they had waived their veto power. The rule also limited its scope to only those projects that will impact water quality, excluding other considerations, such as air quality or “energy policy.” 

In June 2021 the Biden Administration announced its intent to “reconsider and revise” section 401 of the Clean Water  This Supreme Court decision may serve to hasten EPA to move more quickly to promulgate a new rule.

The Stay order itself was brief but included a two page dissent authored by Justice Kagan who took issue with the majority signaling its view of the merits of the case even where the applicants failed to demonstrate the irreparable harm showing traditionally required.