What you need to know, currently.
The embattled Clean Water Act turns 50 this year, leaving a fairly mixed record of success in its wake. Ever a bummer, the conservative-led Supreme Court commemorated the act’s passage by issuing a strange 5-4 shadow docket order on Wednesday. This decision revives a Trump-era ruling, which had been thrown out by a federal judge in October 2021. The rule severely limits the ability of states and Indigenous tribes to control large scale projects, like pipelines, that would affect their water supply.
A shadow docket is meant to be an emergency ruling used “only in extraordinary circumstances” and “upon the weightiest considerations,” Justice Kagan wrote in her dissent, noting that, “the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for emergencies at all.” Even conservative Justice Roberts joined in the dissent.
The ruling is a victory for industry, at a moment when clean water—and water in general—is becoming increasingly scarce across large parts of the United States. About 57 percent of the country is currently experiencing at least moderate drought, according to the US Drought Monitor and a report released by the Environmental Integrity Project last month found that roughly half of the country’s rivers, streams, and lakes, are too polluted to meet standards for swimming, aquatic life, or fish consumption. Perhaps most importantly, they are too polluted to be classified as safe for drinking—both for humans and animals.
The report notes that the EPA has failed to update two-thirds of their standards for industry pollution control systems as technology has advanced, although the Clean Water Act mandates that these standards be reviewed every five years. As a result, industry is allowed to cut corners with few consequences.
The Supreme Court’s reversion to this industry-friendly version of the Clean Water Act will inevitably make things worse. “What the Trump Administration’s rule does is essentially handcuff and blindfold the states and tribes,” Andrew Hawley, a senior attorney at the Western Environmental Law Center, told Currently, “prevent[ing them] from ensuring that these projects don't harm water bodies and, by extension, the communities that rely on them.”
The reversion to Trump-era ruling may not be permanent though. The Biden EPA is expected to draft a new rule in the Spring, although the Supreme Court’s decision on this may spell trouble for them. —Rebecca McCarthy