The Supreme Court reinstated a Trump-era environmental regulation that will hurt the ability of Indigenous tribes and states to block projects that could pollute waterways. The ruling was passed Wednesday with a vote of 5-4.
This ruling is about section 401, a provision of the Clean Water Act that gives communities and Indigenous tribal nations the ability to protect the water quality of federally regulated waterways that are within the borders of the state or tribe. The communities work in collaboration with federal agencies to either approve or turn down 401 certifications for projects, like the construction of a pipeline, that they feel could hurt waterways around them.
The Clean Water Act was created in 1972 as an amendment of the Federal Water Pollution Control Act of 1948. It implemented programs to control water pollution, like setting wastewater standards. It also made it illegal to dump any sort of pollutant into “navigable waters,” which means that the body of water is used for some form of transit or commerce, unless there is a permit to discard the pollutant in that body of water.
In 2020, the Trump administration restricted the review power of the Clean Water Act after complaints from the fossil fuel industry and from Republicans in Congress. But in 2021, a federal judge ruled to drop the Trump-era rule, saying that allowing the rule to stay could lead to environmental damage. But the Supreme Court has now voted to reinstate the old ruling, and environmental and Indigenous rights activists worry it will hurt public health and local economies that rely on outdoor industries.
“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 at Earthjustice, in a statement. “The EPA must ensure that its revised rule recognizes the authority of states and Tribes to protect their vital water resources in its ongoing rule making under Section 401.”
Andrew Hawley, a senior attorney at Western Environmental Law Center, told Earther that this ruling could further expose vulnerable communities to water pollution. Hawley pointed out that the Biden administration has sought to rewrite the Clean Water Act; he said he hopes that, in light of this week’s ruling, the rewrite will include provisions that could restore state and community rights to veto fossil fuel projects.
Without a federal standard, Hawley said, some communities and tribes will be at the mercy of elected officials who may or may not have shared interests with fossil fuel companies.
“There are certainly state level and local codes that can be used to enforce and used to stop [projects], but they’re not very effective at actually protecting communities,” Hawley said. “They’re difficult for citizens to utilize, because there aren’t the same procedural elements that allow [citizens] to engage and effectively use them to protect their rights… That’s one of the reasons we have these big federal regulatory systems.”
The Biden administration is expected to release a draft of the revised Clean Water Act this spring.