On Wednesday April 6, 2021, in a 5-4 vote, the U.S. Supreme Court justices stayed a California district court’s October 21, 2021 decision to vacate the Section 401 Water Quality Certification Rule (401 WQC Rule).  The U.S. Environmental Protection Agency (EPA) had requested that the district court remand the rule, saying it was planning to revise the rule, which would take potentially years to finalize.  As explained in a previous post, the district court’s opinion to vacate the 401 WQC Rule initially caused the U.S. Army Corps of Engineers (Corps) to hold finalizing all permits, including nationwide permits like NWP 12, that rely on a 401 WQC waiver.  The impact caused States and industry groups considerable concern about permitting delays for a wide variety of energy and utility projects.  Consequently, the U.S. Supreme Court majority felt it appropriate to delay the decision to vacate the rule pending appellate, including U.S. Supreme Court, review.

Justice Kagan dissented and was joined by Chief Justice Roberts and Justice Sotomayor.  The dissent stated that it has been five months since the district court vacated the 401 WQC Rule, and now several States and industry groups have asked the Supreme Court to stay the district court’s opinion, alleging that they will suffer irreparable harm.  The dissent concludes the applicants have not shown that “extraordinary circumstances” exist and, therefore, the Court should not grant the emergency relief applicants sought.  Further, the dissent took aim at the Court’ so-called “shadow docket,” opining that the Court had rendered the “emergency docket not for emergencies at all.”

Meanwhile, a challenge to the NWP-12, which authorizes oil and natural gas pipeline activities, remains pending in a Montana federal court.  On April 1, 2022, an electric utility group filed a brief, opposing the challenge.  It asserted that permits like NWP 12 help streamline projects and challenging such permits could have far-reaching implications.  For example, clean energy projects often require infrastructure development, which could require a nationwide permit.  Therefore, according to the utility group, eliminating such permits could impede the feasibility of clean energy projects and slow the “essential” transition to clean energy.

Similarly, on April 5, 2022, the U.S. Chamber of Commerce (USCC) filed a brief arguing that delaying permits like NWP 12 creates an obstacle to infrastructure projects and compromises U.S. energy security.  The USCC also argue that plaintiffs’ requested relief would impact the American economy by increasing the cost of energy, such as oil and gas products.

In December, the Corps resumed issuing permits after it determined that districts could still coordinate with certifying authorities in issuing water quality certifications.