The Rule of Law

https://www.reuters.com/legal/government/supreme-court-uses-shadow-docket-revive-trump-epa-clean-water-rule-2022-04-06/

This is for you people who say you are FOR states rights, FOR the rule of law, and AGAINST “activist judges.” The Trump SCOTUS just acted against everything you SAY you stand for.

In 2020 Trump ordered a change in the interpretation of the Clean Water Act that for FIFTY YEARS had allowed states and other affected entities to be involved in the process of permitting pipelines, coal terminals and other facilities affecting waterways and wetlands. In response to a lawsuit by twenty-four states, various environmental groups, and tribes a Federal Court vacated the Trump order. Industry groups and eight GOP states immediately appealed. Without that appeal being resolved and without ANY argument or reason the Court voted 5-4 to vacate the initial court ruling and restore Trump’s usurpation of states rights to protect their own wetlands.

This decision was such a clear abuse of the process that Chief Justice Roberts voted with the dissent. The “shadow docket” is for emergencies. This was NOT an emergency. Five activist Justices just want the outcome of faster approvals without those annoying locals having a say.

37 thoughts on “The Rule of Law

  1. Seriously? You think that 50 years ago Congress decided that states would have the power to block intrastate pipelines because of the effect the end users of the products would have on climate change?

    50 years ago, we were concerned over real pollution. Congress could not have sought to empower states to act on an issue no one then had ever heard of.

    The Biden administration is seeking to redefine the rules but won’t have a proposal until 2023. By then, those depending on pipelines will be bankrupt.

    This isn’t judicial overreach, it is relief from prior judicial overreach.

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    1. Laughable.

      The law says NOTHING about the reasons a state or tribe might have for opposing a development affecting their water supply or wetlands. For fifty years they have been part of the process until Trump unilaterally and without Congressional approval significantly reduced their power in the process.

      The first court looked at the law and decided Trump had exceeded his authority. As you have often commented, having a good reason does not convey a new authority. Apparently, that is what the Judge thought too.

      The point of this post is not to discuss the merits. It is to point out the “activist” decision by the Trump SCOTUS to violate their own procedures WITH ZERO argument or explanation to achieve a desired outcome. The reputation of the Court is already in tatters because of Republican monkey business. This just adds to it as John Roberts seems to see since he signed on to the dissent. I suppose his voice doesn’t count. Not Trumpy enough.

      And by the way, this is going to be moot soon. EPA is redoing the relevant regulations and will conform to the law.

      Liked by 1 person

      1. The EPA will issue its recommendations in 2023, with public comment and litigation to follow. Do you really expect to halt all long distance pipelines for years if ANY state along the path objects?(This is what the interstate commerce clause is actually about) Pipelines effectively benefit the states at each end, and only indirectly benefit those along the way.

        Please do tell me where in the Clean Water Act(not the Clean Air Act) are states empowered to block a pipeline, or anything else, over concerns over climate change. The 9th Circuit just made that up.

        SCOTUS correctly enjoined the implementation until the case makes its way through the courts. If pipelines are halted that long, everyone in the business will be bankrupt and we will be without electricity.

        The 9th Circuit abused its power and SCOTUS has reversed that, No explanation is required when a court oversteps.

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        1. I expect the law to be followed. The law is a combination of statute, regulatory interpretation and precedent. The law on permitting has functioned for fifty years without the catastrophes you now imagine.

          If sometimes following the law is inconvenient for special interests, too bad. In this case, the merits are not the issue. The decision by the intitial court is under appeal. The Court of Appeals has not ruled one way or another. It was wrong of SCOTUS to interject itself on BOGUS grounds. Your blather about no electricity is nonsense as is pretending that every single project is facing all powerful opposition for spurious (to you) reasons.

          Your portrayal of what the court stay order did is also nonsense. Our country has done just fine with the permit approval process as it has been for 50 years before Trump changed it to favor special interests. Maintaining the existing process while the radical change made its way through the courts was entirely appropriate.

          Liked by 1 person

          1. It was not until the Obama EPA started ‘sue and settle’ that it became a problem. That’s why Trump clarified the issue. And he did so legally.

            The clean water act allowed states to object when their own water quality standards were violated by a multi state or coastal project. Not because the presumed end users of petroleum would released CO2 into the atmosphere.

            The abuse was in the Obama years, when the EPA would invite a friendly lawsuit and then settle it to bypass the normal rule making process.

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          2. I do not take your fables of the evil done by the Obama administration as evidence of anything. And whatever they did, it is beside the point.

            The question to be decided – is your claim about Trump accurate. That claim is that “he did so legally.” That is in the courts. At the first level, the courts answered “No” and stayed the order. That court read the law and found no language limiting the grounds on which a state or other entity could base an objection. That ruling is on appeal and a decision has not been rendered.

            I will not argue the merits because they are not relevant to the point that I made with this post. What is relevant is the behavior of the Trump SCOTUS which even Chief Justice John Roberts found objectionable. You are fine with these “activist judges” forcing their outcome preferences on the litigants without any argument or any explanation because a) they gave you the outcome you want and b) you are a hypocrite.

            Liked by 1 person

          1. So Slate doesn’t like the decision, so what?

            There is nothing in the Clean Water Act that allows a state to block a project over their concerns for ‘the activity as a whole,’ that was tacked on in a settlement by the EPA.

            The Clean Water Act allows states to object if their water quality standards will be violated. Nothing else. Go ahead, show me in the text where there is an allowance for concerns over cliamte change.

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          1. It is still wrong? How?

            The issue is not about the merits of the case. That is still in the appeals process.

            The issue is the abuse of the “emergency docket” to decide cases without reference to arguments or evidence. Do you claim to understand these matters better than Chief Justice Roberts? I would not put it past you, but do you?

            Liked by 1 person

  2. RE: “The Trump SCOTUS just acted against everything you SAY you stand for.”

    I don’t see how. SCOTUS ruled, in effect, that Trump’s order was lawfully enacted and legal in itself. The order narrowed the basis on which the states could challenge federally approved projects, but in a constitutionally permissible way.

    One can quibble over using the “shadow docket” to dispose of the case, but I’d rather SCOTUS dispose quickly of cases where the merits don’t merit full judicial review.

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  3. SCOTUS acted legally within their authority to overturn and correct a bad lower court decision. Happens all of the time. Just because you don’t like it doesn’t make it against the rule of law. In fact, it is the rule of law. Lefties make me laugh all of the time…

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    1. I understand Bobr. The issues raised by this matter are too subtle for a mind such as yours.

      I will leave it at that, only noting that Chief Justice John Roberts found this phony use of the “shadow docket” to achieve a political end objectionable.

      Liked by 1 person

      1. So as usual, all you have are petty insults. Surely a “sophisticated” mind such as yours understands basic law and that SCOTUS acted legally and appropriately. Go eat few more dozen doughnuts and think abt it.

        Liked by 1 person

        1. Who said they acted illegally? I, for one, did not.
          See what I mean about a mind such as yours?

          They almost cannot act illegally. They are at the pinnacle of the law. And that is why it is essential that they follow procedures carefully.

          The so-called “shadow docket” is for emergencies only. This was not an emergency. Chief Justice Roberts dissented not because of the case but because he understands that this kind of abuse of the process undermines the public’s confidence in the Court.

          Liked by 1 person

          1. You claimed in your initial post that “activist” judges did not follow The Rule of Law which means against the law, you know illegal, Duh. Are you attempting to change that now with insults? Just because left wing activists, left wing activist judges and the Biden admin keep creating emergencies that need action through a SCO TUS process that has been used since before 1800 doesn’t suit you, tough.

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        2. RE: “The so-called ‘shadow docket’ is for emergencies only.”

          No. The shadow docket is mainly used for caseload management.

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          1. No. The shadow docket is for emergencies only.

            From your favorite source . . . Wikipedia

            “It is used when the Court believes an applicant will suffer “irreparable harm” if its request is not immediately granted. ”

            THAT is an emergency. There was not risk of irreparable harm to the litigants in this case. That is why Chief Justice Roberts joined the dissenters.

            Liked by 1 person

          2. Why don’t you read your own sources? Here is the first sentence you should have noticed: “The shadow docket is the use of emergency orders and summary decisions by the Supreme Court of the United States without oral argument.” There is no requirement that summary decisions be made only under emergency conditions.

            Then there’s the part of the same Wikipedia article which I consulted before correcting your ignorance: “A major reason why the Court has used the shadow docket has been to manage its caseload.” This is the very sentence I paraphrased.

            But your cocksure BS is good for a laugh. I reprised Wikipedia to write my comment. You used the same Wikipedia reference to incorrectly criticize what I wrote. ROTFLMAO.

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          3. I am “cocksure” because I know what I am talking about before I make factual assertions. You should try it. And, when referring to Wikipedia, read more carefully. Don’t stop as soon as you see something you want to find. You ignored this . . . “It is used when the Court believes an applicant will suffer “irreparable harm” if its request is not immediately granted. ”

            In this case I am “cocksure” because I read the dissent joined by three Justices and Chief Justice Roberts. In the dissent you will find the reason that this was an abuse of the “shadow docket.”

            Click to access 21a539_6jgm.pdf

            There are a lot of big words, precedents and logical arguments in that dissent so I will simplify it for you.

            1. SCOTUS overturning a stay before a case has finished the appeals process is a bad thing.
            2. It should only be done when a litigant can show irreparable harm if the stay is left in place.
            3. The litigants have provided no evidence of any such harm.
            4. Therefore, the stay should remain in place.

            It is worth noting that a reasonable expectation of an eventual victory on appeal is NOT a valid reason for SCOTUS to act before the appeal is complete.

            The dissent summarized the wrongness of this action. . .

            “By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. ”

            Note the reference to the “Court’s emergency docket.” Are YOU smarter and more knowledgeable than Chief Justice Roberts? Is this dissent “cocksure BS?”

            Liked by 1 person

          4. I ignored nothing. You said the shadow docket is “for emergencies only.” You were wrong.

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          5. I will trust the way it was characterized by Chief Justice Roberts et al. when they referred to it as the “emergency docket.” I am cocksure that he knows a lot more about it than ANY of you people.

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          6. How convenient for you to agree with the Chief Justice, who dissented from the valid SCOTUS ruling on the basis of a minor point of legal philosophy. But Robers’ dissent is as illogical as your agreement with it. The shadow docket is equally valid for summary judgement rulings as it is for emergency judgement rulings. Roberts complains about the wrong thing.

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        3. The Justices did not act illegally, but neither did they follow the Rule of Law. They short-circuited the appeal process to get the result they wanted. They offered Zero legal reasoning for what they did. Not one word. As the dissent joined by Chief Justice Roberts points out they were dead wrong to issue this ruling outside of the established procedures.

          https://abovethelaw.com/2022/04/the-shadow-docket-has-gotten-so-bad-even-john-roberts-is-pissed-about-it/

          Liked by 1 person

          1. RE: “The Justices did not act illegally, but neither did they follow the Rule of Law.”

            Right. legal = not legal.

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          2. “legal = not legal”

            The Rule of Law requires that courts follow established procedures and precedents. When they don’t it becomes the Rule of Men instead of the Rule of Law. “Illegal” would be breaking some law. Those are different ideas.

            If that is too hard for you to wrap your mind around then I am not at all surprised.

            Liked by 1 person

          3. You have failed to show what procedures and precedents were violated. Justice Roberts sniffed at a couple of nit picks, but even he didn’t cite procedures and precedents, or at least none that you have cited.

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          4. “You have failed to show what procedures and precedents were violated. ”

            The opinion of Chief Justice Roberts et al goes into the procedures and precedents violated by this ruling in great detail. Follow the link provided to the SCOTUS document and read it again(?).

            Liked by 1 person

      2. “Justice delayed is justice denied.”

        If climate fanatics in one state along a pipeline providing a general good can delay it until its builders are bankrupt, justice is not done even if the issue is decided in their favor at some future date.

        That is what this lower court decision would accomplish, irreparable harm in a losing case.

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        1. “That is what this lower court decision would accomplish, irreparable harm in a losing case.”

          Bullshit. Pure and simple. The litigants did not even try to show the “irreparable harm” as was required to get this EMERGENCY relief. Why not? Because there is none. Hypotheticals – which you seem to think is evidence – do not count.

          Liked by 1 person

          1. Calling everything you disagree with bullshit is childish. Especially when you are wrong.

            Every day a pipeline is delayed is irreparable harm. Petroleum has to be delivered as it is recovered. There isn’t enough storage capacity to wait years for a pipeline case to be resoilved.

            Liked by 1 person

          2. I am sorry you don’t like your bullshit being called bullshit.

            In this case, there is no “irreparable harm” from continuing the same approval process that we have used for fifty years (and 3.5 years of the Trump administration) for a few more months while the legal process follows its due process. That is bullshit.

            In the context of this discussion “irreparable harm” is a term of art. It is a requirement for the overturning of a stay while the appeal is in process. Or, I should say, it has been.

            The dissent addressed the question very directly. In asking for the stay to be overturned, the litigants had the responsibility to offer evidence of “irreparable harm” and not just say it existed. They could not and neither can you.

            Chief Justice Roberts et al. directly addressed this question of “irreparable harm”:

            “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. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. Nken, 556 U. S., at 434–435 (internal quotation marks and citation omitted). The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).

            The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the applicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur.”

            Liked by 1 person

        2. RE: “That is what this lower court decision would accomplish, irreparable harm in a losing case.”

          Exactly right. SCOTUS did everybody a favor by issuing a summary judgement in the case. The argument to invalidate the Trump rule was entirely without merit as a matter of basic constitutional principles.

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