OPINION: This article may contain commentary which reflects the author's opinion.
The Supreme Court has reinstated a rule from the administration of former President Donald Trump that limited the power of states and Native American tribes to block pipelines and other energy projects.
The decision was made on Wednesday when the Supreme Court Justices decided, in a 5 – 4 verdict, to halt a ruling from a lower court got rid of the rule, and sent it back to the Environmental Protection Agency, The Associated Press reported.
The Biden administration has said it intends to rewrite the rule. Work on a revision has begun, but the administration has said a final rule is not expected until the spring of 2023. The Trump-era rule will remain in effect in the meantime.
The Biden administration had told the justices in a court filing that it agreed that the U.S. District Court Judge William Alsup lacked the authority to throw out the rule without first determining that it was invalid. But the administration had urged the court not to reinstate the rule, saying that in the months since the Alsup’s ruling, officials have adapted to the change, reverting to regulations in place for decades. Another change would “cause substantial disruption and disserve the public interest,” the administration said.
Alsup was nominated to the bench by President Bill Clinton.
The section of federal law at issue in the case is Section 401 of the Clean Water Act. For decades, it had been the rule 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 was complied with the Clean Water Act and state law, or waived certification.
Chief Justice John Roberts joined liberal Justices in dissenting.
“That renders the Court’s emergency docket not for emergencies at all,” Justice Elena Kagan said in the dissent for the Justices.
“This Court may stay a decision under review in a court of appeals only in extraordinary circumstances and upon the weightiest considerations,” she said. The Justice said the challengers’ request for a stay rested on “simple assertions – on conjectures, unsupported by an present-day evidence.”
“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 said. “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.”
As Justice Stephen Breyer retires it appears a new Justice is going to take his place as her confirmation is all but certain.
Three top Republican senators have announced that they will vote to confirm Ketanji Brown Jackson to the U.S. Supreme Court.
GOP Sens. Mitt Romney of Utah, Lisa Murkowski of Alaska, and Susan Collins of Maine — all notable “Never-Trumpers” — have announced they will support Jackson’s confirmation to the court.
“After reviewing Judge Jackson’s record and testimony, I have concluded that she is a well-qualified jurist and a person of honor,” Romney said in a statement. “While I do not expect to agree with every decision she may make on the Court, I believe that she more than meets the standard of excellence and integrity. I congratulate Judge Jackson on her expected confirmation and look forward to her continued service to our nation.”
I intend to vote in support of Judge Ketanji Brown Jackson’s confirmation to be an associate justice of the U.S. Supreme Court. My statement: pic.twitter.com/uGaxx8sJn5
— Senator Mitt Romney (@SenatorRomney) April 4, 2022
Murkowski announced that she would vote to confirm Jackson, saying that her support “rests on Judge Jackson’s qualifications, which no one questions; her demonstrated judicial independence; her demeanor and temperament; and the important perspective she would bring to the court as a replacement for Justice Breyer.”
“She clerked for Justice Breyer before working in the private sector and as a federal public defender, and then serving as Vice-Chair of the U.S. Sentencing Commission, a district court judge, and now an appeals court judge. She will bring to the Supreme Court a range of experience from the courtroom that few can match given her background in litigation,” Murkowski continued.
“It also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year. While I have not and will not agree with all of Judge Jackson’s decisions and opinions, her approach to cases is carefully considered and is generally well-reasoned. She answered satisfactorily to my questions about matters like the Chevron doctrine, the Second Amendment, landmark Alaska laws, and Alaska Native issues. The support she has received from law enforcement agencies around the country is significant and demonstrates the judge is one who brings balance to her decisions,” Murkowski added.
Collins announced last week that she would vote to confirm Jackson.
“After reviewing Judge Ketanji Brown Jackson’s extensive record, watching much of her hearing testimony, and meeting with her twice in person, I have concluded that she possesses the experience, qualifications, and integrity to serve as an Associate Justice on the Supreme Court,” Collins said. “I will, therefore, vote to confirm her to this position.”