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The Supreme Court sided with fossil fuel industry groups and Republican-led states in a 5-4 decision yesterday to put back in place an Environmental Protection Agency (EPA) rule finalized under the Trump administration that limits states and tribes from considering issues not directly related to water quality when denying permits tied to Section 401 of the Clean Water Act. The Trump-era rule tied the hands of how states and tribes are able to review and possibly deny permits for everything from pipelines and mines to hydropower dams.
Without explanation and over the objection of four justices, the court reinstated the Trump rule after a federal district court judge struck down the regulation last year. The justices in the minority criticized their colleagues for taking action based on “simple assertions” and “conjectures” by Republican-led state and industry challengers. Justice Elena Kagan wrote in the dissent, “The applicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision."
A spokesperson for EPA said the agency is reviewing the court’s order and moving forward with a rulemaking to “restore state and Tribal authority to protect water resources that are essential to public health, ecosystems, and economic opportunity.” The rulemaking effort is backed by comments made by EPA Administrator Michael Regan last May: “We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters.”
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Water allocation systems in the West are built upon unsustainable principles and flawed science. Fundamental agreements in both basins are based on unusually wet conditions that existed at the start of the 20th Century. As a result, the system fails to acknowledge, protect, or account for the requirements of river ecosystems; the needs, cultures, and sovereignty of Indigenous people; or the value of recreation and other social or economic benefits that flow from rivers."
