Staff Writer: Roxanne Hepburn
On Wednesday, April 6th, 2022, in a 5-4 split, the Supreme Court employed a shadow docket to temporarily reinstated a Trump-Era environmental regulation limiting states’ power to enforce the Clean Water Act on large energy projects looking to fast-track their timelines.
The basis of the Clean Water Act (CWA) was initially enacted in 1948 and was known as the Federal Water Pollution Control Act. The act was significantly restructured through amendments made in 1972 and became known as the CWA.
Under the CWA, the Environmental Protection Agency (EPA) was able to implement pollution control programs. These programs set industrial wastewater standards and developed national water quality criteria for pollutants in surface waters. Under the CWA, it was unlawful to release pollutants into navigable waters unless industry groups had obtained a permit. It was the states’ responsibility to issue these permits to industry groups, and states used to possess considerable veto power against these projects.
The Trump-Era CWA regulation passed in July of 2020 altered Section 401, which gives states and eligible Tribes some power over interstate pipelines, coal terminals, and other federally licensed projects affecting waterways and wetlands in their jurisdictions. The new regulation made it impossible for states to block projects unless direct pollution into state waters was present. Previously, states also considered the effects of climate change and other factors when using the veto power on potential permits. The EPA is scrambling to work on a revision that restores states’ and Tribes’ authority and believes it will be finalized by 2023.
One of the main criticisms the Supreme Court is receiving over this decision is its use of a shadow docket. A shadow docket uses emergency orders and summary decisions by the Supreme Court without oral argument. Shadow docket cases receive limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings.
Historically, shadow dockets have only been used in cases where the applicant would suffer irreparable harm if the request is not immediately granted. Shadow dockets had been rarely used for rulings of profound legal or political significance; however, since around 2017, the Department of Justice and other organizations have been pushing for increased utilization surrounding more significant rulings that would overturn the lower courts’ decisions.
Dissenting Justice Elena Kagan is firm on her position that The Supreme Court should have treated this case as ordinary rather than an emergency: “The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm by nonetheless granting relief, the court goes astray.”
Kagan elaborated that this misuse of shadow dockets “renders the court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations — except made without full briefing and argument.”
Chief Justices John G. Roberts Jr., Justices Stephen G. Breyer, and Sonia Sotomayor joined Justice Kagan’s dissent.