Today five Justices of the United States Supreme Court reversed a California Federal District Court Judge's decision vacating a Clean Water Act rule enacted by the Trump Administration EPA.  The 2020 rule had reduced the role of States and Tribes in the issuance of certain Federal Clean Water Act permits.   Several States and others immediately challenged that rule in the Federal District Court. After the 2020 election the Biden Administration asked the Court to remand the rule, having already determined that it would revise it, but not to vacate it.  The Federal Judge decided to vacate the rule anyway.

Some will say this 5-4 decision is evidence that the now conservative majority of the Supreme Court will use the Rapanos case pending before the Supreme Court, and others, to narrow the reach of the Federal Clean Water Act.  I think that's mixing apples and oranges.

Although the majority doesn't explain itself, I think it is pretty clear that five Justices didn't think much of a District Court Judge vacating a duly promulgated nationwide regulation, especially without determining the merits of the lawsuit challenging the rule, and especially when the Agency that did the promulgating didn't ask for such an extreme remedy.  

Given what goes into federal rule making, it seems uncontroversial that a better course is for rules not to be erased until the merits of doing so have been determined and then reviewed by an Appeals Court.

So, while Justice Kagan and the other three Justices also have a point that there should be a high bar for the Court to use its emergency jurisdiction to step into matters that have not yet reached the Supreme Court on the merits, the District Court's action, and the Ninth Circuit's refusal to step in, may have been an emergency of a different kind.

In the meantime, as Inside EPA reports, the new EPA rule making is likely to be completed before the merits of this case are finally determined.   

And it remains to be seen whether the Supreme Court will take other opportunities to continue to determine the reach of the Clean Water Act as the longest running controversy in environmental law continues.   

“An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury -- harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar,” Kagan wrote. “The applicants here have failed to meet that burden,” she added.