Twenty states and the District of Columbia, along with environmental groups, have challenged the ordinance, saying it violates federal law. After President Biden took office, the Environmental Protection Agency announced it would revise the rule and asked three judges leading the challenges to return it to the agency.
Notably, however, the EPA did not ask the judges to overturn the regulation while it was working on a new one. Two judges in South Carolina and Pennsylvania did what the agency asked.
But Judge William H. Alsup of the Federal District Court in San Francisco overturned the ordinance. The move was justified by “the lack of reasoned decision-making and apparent errors in the rule’s certification area, the evidence that the rule violates the structure and purpose of the Clean Water Act,” he said, and the fact that the “EPA itself has signaled that he cannot or will not adopt that rule.”
After the U.S. Circuit Court of Appeals for the Ninth Circuit in San Francisco refused to block Judge Alsup’s decision while an appeal was brought forward, Louisiana and other Republican-run states, along with industry groups, filed an urgent motion demanding the colonel Court to reinstate the regulation. They said Judge Alsup acted without considering administrative procedures or finding that the ordinance was unlawful.
Attorney General Elizabeth B. Prelogar, on behalf of the EPA, asked the Supreme Court to deny the summary motion. Judge Alsup’s decision, she wrote, merely reintroduced the old rule that had been in effect for half a century. The 2020 regulation, she added, will most likely be replaced by next year.
Ms. Prelogar’s assignment included an important concession. “Federal respondents,” she wrote, “agree with the claimants that the district court did not have the authority to overturn the 2020 Rule without first determining that the rule was invalid.” But she said that wasn’t reason enough to change its decision to block.
In her dissent, Judge Kagan wrote that the court’s ruling was a solution in search of a problem.
“The request for a stay rests on simple allegations — on conjectures unsupported by current evidence, about what states can do now,” she wrote. “And the motion fails to show that the proper implementation of the reinstated regulatory regime – which existed for 50 years before the repealed rule took effect – is unable to counter any government overreach that may (but does not) occur.