Chief Justice Roberts joins with liberals to criticize ‘shadow docket’ as court reinstates Trump-era EPA rule

By Ariane de Vogue, CNN Supreme Court Reporter

A 5-4 Supreme Court reinstated a Trump-era rule Wednesday that restricts the authority of states to reject federal permits under the Clean Water Act in another ruling putting the court’s emergency docket in the spotlight.

Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the court’s majority had “gone astray” by granting an unwarranted request on its emergency docket.

“That renders the Court’s emergency docket not for emergencies at all,” Justice Elena Kagan wrote for the four dissenters. She said that the Republican-led states and others that had petitioned the court for emergency relief had not shown they would suffer the necessary irreparable harm to make their case.

“This Court may stay a decision under review in a court of appeals only in extraordinary circumstances and upon the weightiest considerations,” Kagan wrote. She said the challengers’ request for a stay rested on “simple assertions — on conjectures, unsupported by any present-day evidence.”

The majority’s move, Kagan insisted, signals the court’s view of the merits even though the applicants have failed to make the irreparable harm showing “we have traditionally required.”

The emergency docket, she said, “becomes only another place for merits determination — except without full briefing and argument.”

The five conservative justices did not explain their reasoning for reinstating the Trump-era rule.

The emergency docket — referred to by some justices and outside observers as the “shadow docket” — has increasingly come under criticism by those who say that important issues are being resolved without the benefit of full briefing schedule and oral arguments.

While the court’s liberals, especially Kagan, have often criticized the use of emergency petitions, this is the first time Roberts has explicitly joined in.

“We’ve seen Chief Justice Roberts join the Democratic appointees in dissenting from some of the Court’s prior shadow docket rulings,” said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, who is penning a book on the shadow docket. “But today’s ruling is the first time he’s joined in publicly criticizing the majority for how it is using and abusing the shadow docket. That’s a pretty significant development, and a strong signal for the Court’s de facto leader to be sending.”

In the dissent, Kagan wrote that the challengers had failed to offer “concrete proof” that they would be harmed if the Environmental Protection Agency rule were not reinstated. She noted specifically that they had waited five months after the lower court vacated the rule to make their request. In addition, she said, a federal appeals court is set to hear the dispute next month and that the rule that is currently in place had previously been on the books for some 50 years.

Last September, conservative Justice Samuel Alito launched a 10-point rebuttal in an unusual speech, defending the court’s practice when it comes to the emergency docket. He said the complications surrounding the emergency requests and said that the justices do “the best we can” under the time constraints imposed by the situation. Alito called criticism “very misleading,” stressing that there is “absolutely nothing new about emergency applications.”

The court’s order on Wednesday reinstates a rule that restricts the authority of states under the Clean Water Act to reject federal permits for projects that affect waters within their borders. The Trump-era rule will go back into effect while the Biden administration issues a new rule which is expected to be finalized by spring 2023.

It is a loss for more than 20 Democratic-led states, the District of Columbia, environmental groups and tribes that challenged the rule put in place by the Trump administration in 2020. They said it limited the abilities of states and local communities to weigh in on projects that could harm their communities. Challengers said the Trump rule could lead to projects — such as a strip mall on a wetland, a hydroelectric project or oil and gas pipelines — that could alter waterways without input from the state.

Earthjustice, representing environmental groups and tribes opposed to the Trump rule, criticized the court’s order.

“The court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, senior attorney for the group.

A lower court had vacated the rule, prompting a group of Republican-led states and various industries to seek emergency relief from the Supreme Court.

This story has been updated with additional details.

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