Clearwater’s Response to Supreme Court Ruling Restricting CWA Enforcement
Clearwater’s Response to April 6th 2022 Supreme Court Ruling Restricting CWA Enforcement
Hudson River Sloop Clearwater is strongly dismayed by the Supreme Court’s April 6th decision to reinstate a Trump administration regulation that restricted the ability of states and Native American tribes to enforce the Clean Water Act.
For decades, Section 401 of the Clean Water Act has ensured that a federal agency could not issue a license or permit to conduct any activity that could result in any discharge into navigable waters unless the affected state or tribe certified that the discharge complied with the Clean Water Act and state law, or waived certification.
In 2020, the Trump administration 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. States, Native American Tribes and environmental groups sued. Then several mostly Republican-led states, a national trade association representing the oil and gas industry and others intervened in the case to defend the Trump-era rule.
A Federal District Court vacated the regulation, and a Federal Appeals court refused to overturn that decision while the appeals process played out. At that point, the oil and gas interests filed an emergency application for Supreme Court review of the lower court ruling.
In a 5:4 decision, the Supreme Court overturned the lower court and reinstated the Trump administration regulation, curtailing the States’ and First Nations’ role in protecting their waterways. The Court’s brief, unsigned order gave no reason for its decision, which is typical when the justices act on an emergency application – but this was not an emergency. Dissenting justices asserted that the majority issued a significant ruling without adequate consideration.
The Biden administration has said it intends to rewrite the rule, but a final rule is not expected until the spring of 2023. The rule restricting the rights of States and Native American tribes will now remain in effect in the meantime. We encourage the Environmental Protection Agency to prioritize its revision and promulgation of a regulation strengthening their role.
When the Sloop was launched in 1969, one of the first actions Clearwater undertook was to gather thousands of signatures calling for the clean up and protection of our nation’s waterways, including the foully polluted Hudson River. As one of the primary organizations responsible for the passage of the Clean Water Act in 1972, we have been working diligently to restore and protect the Hudson and its tributaries throughout its watershed. We have come a long way, and consider this a step backwards – one that is especially ill-considered in the face of worsening climate change. As we celebrate the 50th Anniversary of the passage of the Clean Water Act, we need to be strengthening its protections, not weakening them.