Supreme Court Reinstates Trump Rule for State Certifications Under the Clean Water Act

A federal judge had enjoined a Trump-era rule limiting states’ discretion to certify projects under the Clean Water Act. But in Lousiana v. American Rivers, the Supreme Court reinstated Trump’s rule.

In an emergency order in April 2022, the U.S. Supreme Court stayed a lower court’s decision to grant a nationwide injunction. At issue was state discretion to certify federal permits under the Clean Water Act, 33 USC 1251 et seq. (“Act”).

Section 401 of the Act empowers states and tribes to review certain projects before the applicable federal agency may issue a permit or license. Whenever a federal permit or license would authorize a discharge into “waters of the United States” (defined in our previous articles, available here and here), the applicable federal agency must consult with the state in which such discharge would originate. The state can then decide whether to certify and impose any limitations or monitoring requirements. Without a state certification, the federal agency may not issue the permit or license.

Examples of permits and licenses that often require state certifications under section 401 include:

• Section 402 and 404 permits issued under the Act by the U.S. Environmental Protection Agency (“EPA”) or U.S. Army Corps of Engineers;
• Federal Energy Regulatory Commission (“FERC”) licenses for hydropower facilities and natural-gas pipelines; and
• Rivers and Harbors Act sections 9 and 10 permits.

The Supreme Court has previously considered the scope of states’ authority under section 401 to impose conditions on a project. In PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700 (1994), under review was a state’s certification of a FERC license on the condition that the dam maintain minimum stream flows. State courts deemed the condition consistent with state law, and the Supreme Court upheld it. According to the court, the Act authorizes states to place “additional conditions and limitations on the activity as a whole,” rather than just the discharge itself. Stated differently, states may look beyond the discharge and instead evaluate the water-quality effects of the project as a whole.

Industry groups complained that this unnecessarily burdened and delayed their projects. In response, under President Donald Trump, the EPA promulgated a 2020 rule curtailing states’ discretion to certify. The 2020 rule allowed states to consider only whether “a discharge from a federally licensed or permitted activity will comply with water quality requirements.” 40 CFR § 121.3 (emphasis added). It also limited states’ ability to unduly condition projects and established a reasonable time period during which states must decide whether to certify.

Following a challenge from states, tribes, and environmentalists, a federal district-court judge vacated the 2020 rule in In re Clean Water Act Rulemaking, No. C 20-04636 WHA, 2021 WL 4924844 (N.D. Cal. Oct. 21, 2021). According to the order, the 2020 rule had contravened the structure and purpose of the Act. In addition, citing President Joe Biden’s indications that the EPA would soon replace the 2020 rule, the court questioned whether the prior administration had correctly promulgated the 2020 rule under the Administrative Procedures Act, 5 USC § 500 et seq. The court did not, however, explain which administrative procedure the 2020 rule had violated. The EPA petitioned to remand the 2020 rule without vacating it, but the district court remanded and vacated it.

A group of states and industry groups sought emergency relief, and the Supreme Court has now stayed the district court’s decision pending appeal. Louisiana v. American Rivers, 596 U.S. __ (2022). In an unsigned order, available here, the five-justice majority did not explain its reasoning for granting relief. This is not unusual in emergency-docket decisions. The standard for granting a stay in such cases has traditionally been (i) that the applicant has shown a likelihood to succeed on the merits, (ii) that the stay would avoid irreparable harm to the applicants and would not cause irreparable harm to other parties, and (iii) that the stay would be in the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

Justice Elena Kagan authored a dissent. Joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor, she argued that the applicants had made no showing of irreparable harm.

As a result of the Supreme Court’s order, the 2020 rule is again in effect. We will continue to monitor this case, as well as the Biden Administration’s ongoing efforts to replace the 2020 rule.

Attorneys at our firm specialize in all areas of environmental and administrative law and are licensed to practice law in many states. Please do not hesitate to contact us if you have questions about this case or any related matter.