Apr 142022

Supreme Court Lifts Stay of Trump-Era Clean Water Act Section 401 Certification Rule

Aaron L. Flyer and Samuel B. Boxerman
, , ,

On Wednesday, April 6, the U.S. Supreme Court stayed an order from the U.S. District Court for the Northern District of California vacating and remanding a 2020 rule from the Environmental Protection Agency (EPA) narrowing the ability of states and tribes to block infrastructure projects that discharge into waters of the United States under Section 401 of the Clean Water Act. Section 401 authorizes states and tribes to grant, deny, or waive project certification subject to certain time restrictions. The district court’s vacatur applied nationwide, and the U.S. Court of Appeals for the Ninth Circuit rejected a request from industry groups and certain states to stay the order pending appeal in February.

With the Supreme Court’s stay, vacatur is lifted pending further appeal on the merits. However, in parallel, EPA is developing a revised rule implementing Section 401. In her dissent, Justice Elena Kagan stated that the petitioners had failed to show how they would be irreparably harmed by the district court’s vacatur as they had not identified a single project a state or tribe has blocked under Section 401.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Aaron L. Flyer

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

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