The United States Supreme Court announced a series of decisions in June, with rulings on abortion, guns, and civil rights all attracting widespread attention.
Some users on social media have pointed to other decisions made by the court that have not attracted the same level of attention, but which may nonetheless have significant implications.
One viral post on TikTok claimed one such decision was a ruling to overturn the Clean Water Act, a law passed in 1972 that gave the government the authority to protect rivers and other water sources from pollution.
“I'm literally losing sleep over the fact that the Supreme Court overturned our Clean Water Act, and there's no one really talking about it,” the woman said in the video, which has been viewed more than a hundred thousand times. “And they did it in a closed docket.”
THE QUESTION
Did the Supreme Court overturn the Clean Water Act?
THE SOURCES
THE ANSWER
No, the Supreme Court did not overturn the Clean Water Act.
WHAT WE FOUND
While the Supreme Court did issue a ruling on a case involving the Clean Water Act this year, the law itself was not being challenged in that case. Instead, how that law is enforced was at question; the court temporarily limited states’ power to use the act to reject certain projects. That means overturning the Clean Water Act was never on the table.
The debate centered around federal rulemaking, the process that decides how laws actually get enforced by regulatory agencies. The Supreme Court weighed in via their emergency docket, a process by which justices can make temporary rulings without oral argument or publishing written opinions. To understand exactly what their ruling actually does, we need to first understand both how rulemaking and the emergency docket work.
FEDERAL RULEMAKING
After bills become law, those laws need to be enforced. Usually that’s done by federal agencies (in the case of the Clean Water Act, the EPA), which draft, take public comment on, and then release a set of rules and regulations.
Because these rules are made by agencies of the executive branch, presidents can order agencies to change how they enforce laws. That makes enforcement susceptible to the political whims of new administrations, to a point. Rules need to stay within the confines of the law they were created to enforce, and changes can only be made with good reason. If agencies stray from these principles, rule changes can be blocked by Congress or courts.
EMERGENCY DOCKET
Ordinary Supreme Court cases – the ones that receive the most public attention – go through a specific process. Lower courts issue rulings on cases, those rulings are appealed, and eventually the Supreme Court may agree to hear the case. The justices receive written briefs, hear oral arguments, and then months later issue decisions and their written opinions.
But sometimes lower courts issue rulings with significant and immediate impacts, and a majority of justices agree to delay those rulings from taking effect until after they’ve had time to review the case. To do that, rather than let the lower court ruling remain in effect during the often-lengthy appeals process, the Supreme Court may decide to issue a stay. This temporarily prevents the ruling from taking effect.
Then, the appeals court can hear the case. After the appeals court rules, the Supreme Court can decide to take up the case in full, hear oral arguments, and issue a final ruling on the matter. Or, the justices could decide not to take it up, in which case the appeals court ruling is final and takes immediate effect.
When justices intervene temporarily like this, the cases are considered part of the “emergency docket.” Since these interventions don’t come with public hearings or even explanations from the justices for their decisions, this is also sometimes referred to as the “shadow docket.”
An April 6 ruling on a case on the emergency docket – Louisiana v. American Rivers – dealt with enforcement of the Clean Water Act.
CLEAN WATER ACT
An important piece of the Clean Water Act is known as Section 401. That section requires that companies get approval from states or tribal governments before building any project that could affect water sources in the region.
When the law was passed in the 1970s, the EPA issued its set of rules for how to enforce that section. Those rules remained largely unchanged until the Trump administration.
For decades, the EPA interpreted Section 401 to give states broad authority to reject projects. Some companies felt that authority was too broad. Energy companies in particular felt some states were rejecting their projects not based on their potential to directly pollute rivers, but based on those projects’ more general impacts on climate change.
President Trump, viewing this interpretation as obstructive, signed an executive order directing the EPA to draft a new set of regulations that was friendlier to projects.
The new rule took effect in 2020, and it said states could only reject projects using Section 401 for reasons specifically to do with the potential of the project to discharge pollution into waters.
Environmental groups, alongside several states that had been using the Clean Water Act to block projects related to fossil fuels, sued to stop the rule change. They argued there was not a good reason for the administration to change decades of precedent.
A district court judge agreed. He issued an order vacating the rule change, giving states back their broader authority to reject projects.
Energy groups, alongside several other states, appealed. And that’s where the Supreme Court stepped in.
SCOTUS decided to take up the district court judge’s ruling on its emergency docket. And in a 5-4 decision, a majority of the justices sided with the energy groups and issued a stay on the lower court ruling. That means for now, the Trump administration rule – the one that’s more lax when it comes to approving projects and doesn’t allow states as much authority to reject them using the Clean Water Act – is back in effect.
As is typical with emergency docket rulings, the five conservative justices in the majority did not issue a written opinion. The three liberal justices and Chief Justice John Roberts did issue a dissent, written by Justice Elena Kagan.
The dissent did not speak at length about the merits of the rule change, and instead focused on the merits of the decision by the court to take up the issue on the emergency docket to begin with.
Kagan argued the energy groups did not provide enough evidence that reinstating the more restrictive regulations constituted an emergency.
“That renders the court’s emergency docket not for emergencies at all,” she wrote. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”
The Supreme Court may wind up having a full briefing and argument on the issue, depending on the outcome of the case in the appeals court. Until that’s decided, the more lax interpretation of the Clean Water Act will remain in effect. But regardless, the Clean Water Act itself was not in danger of being overturned, and the claims made in the TikTok are false.
FUTURE CHANGES
Even if the more lax Trump-era rule ultimately survives the court battle, it may wind up eventually being overruled anyway. The Biden EPA has long indicated it intends to issue a new rule, similar to the pre-Trump regulations, that gives states and tribes more authority to reject projects.
That proposed rule was published in June, and is currently in a public comment period that will last until August. The EPA says it intends to publish a final rule in spring of 2023.
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