Chief Justice John Roberts joins with liberals to criticize ‘shadow docket’ as court reinstates Trump-era EPA rule

CNN — A 5-4 Supreme Court reinstated a Trump-era rule Wednesday that restricts the authority of states to reject federal permits under the Clean Water Act in another ruling putting the court’s emergency docket in the spotlight. Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the court’s majority had “gone astray” by granting an unwarranted request on its emergency docket. She said the challengers’ request for a stay rested on “simple assertions – on conjectures, unsupported by any present-day evidence.” The majority’s move, Kagan insisted, signals the court’s view of the merits even though the applicants have failed to make the irreparable harm showing “we have traditionally required.” The emergency docket, she said, “becomes only another place for merits determination – except without full briefing and argument.” The five conservative justices did not explain their reasoning for reinstating the Trump-era rule. Alito called criticism “very misleading,” stressing that there is “absolutely nothing new about emergency applications.” The court’s order on Wednesday reinstates a rule that restricts the authority of states under the Clean Water Act to reject federal permits for projects that affect waters within their borders. “The court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, senior attorney for the group.