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Supreme Court Reinstates Donald Trump-Era Rule

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OPINION: This article may contain commentary which reflects the author's opinion.


Chief Justice John Roberts continued to disappoint conservatives after he joined with all of the Supreme Court’s left-wing justices in a losing effort to strike down a Trump-era water rule.

In a 5-4 decision, the court, for now, preserved the rule, according to the Associated Press, which “curtails the power of states and Native American tribes to block pipelines and other energy projects that can pollute rivers, streams and other waterways.”

The majority agreed to block a lower federal court’s order tossing the rule, though the SCOTUS decision does not seek to interfere with the Biden administration’s intent to change the rule. Already, the AP noted, work on revising it has already begun but the White House has noted that a final version isn’t expected until spring 2023 at the earliest.

In the meantime, then, the rule imposed during former President Donald Trump’s term will remain in effect, the AP reported.

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The outlet continued:

The court’s three liberal justices and Chief Justice John Roberts dissented. The court’s other conservative justices, including three nominated by President Donald Trump, voted to reinstate the rule.

Writing for the dissenters, Justice Elena Kagan said the group of states and industry associations that had asked for the lower court’s ruling to be put on hold had not shown the extraordinary circumstances necessary to grant that request.

Kagan said the group had failed to demonstrate their harm if the judge’s decision were left in place. She said the group had not identified a “single project that a State has obstructed” in the months since the judge’s decision and had twice delayed making a request, indicating it was not urgent.

But it was Roberts’ siding with the high court’s liberals that, once again, caught much of the attention.

“We’ve seen Chief Justice Roberts join the Democratic appointees in dissenting from some of the Court’s prior shadow docket rulings,” CNN Supreme Court analyst Steve Vladeck noted. “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.”

The portion of federal statutes at issue in the case is the Clean Water Act’s Section 401 which had been, for decades, a rule stating that federal agencies were forbidden from issuing licenses or allowing any activity that could result in a toxic discharge into navigable waters unless the affected state or Native American tribe could attest that the discharge was in compliance with the federal act and state law, or waived certification altogether, the AP reported.

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“The Trump administration in 2020 curtailed that review power after complaints from Republicans in Congress and the fossil fuel industry that state officials had used the permitting process to stop new energy projects,” the outlet said. “The Trump administration said its actions would advance then-President Donald Trump’s goal to fast-track energy projects such as oil and natural gas pipelines.”

“States, Native American Tribes and environmental groups sued. Several mostly Republican-led states, a national trade association representing the oil and gas industry and others have intervened in the case to defend the Trump-era rule,” said the AP. “The states involved in the case are: Arkansas, Louisiana, Mississippi, Missouri, Montana, West Virginia, Wyoming and Texas.”

In August 2020, Roberts — who was nominated by then-President George W. Bush — was ripped by then-Vice President Mike Pence over a series of decisions in which he sided with the court’s liberals, including being the pivotal vote that preserved Obamacare in 2012.

“Look, we have great respect for the institution of the Supreme Court of the United States,” Pence told the Christian Broadcasting Network’s David Brody. “But Chief Justice John Roberts has been a disappointment to conservatives — whether it be the Obamacare decision, or whether it be a spate of recent decisions.”

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