Supreme Court’s Louisiana v. American Rivers verdict disregards the environment


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Aissata Sow

The Supreme Courts’ decision to freeze the verdict of Louisiana v. American Rivers in a shadow docket sets a horrible precedent for future Supreme Court decisions and could not have happened at a worse time in American history.

On April 6, the Supreme Court made a 5-4 ruling on the appeal of Louisiana v. American Rivers in a shadow docket reinstating former President Donald Trump’s Executive Order 13868.

Shadow docket is a term that refers to decisions made by the Supreme Court outside of regular proceedings. These decisions are usually granted in cases such as emergency proceedings and are made without oral arguments.

A regular Supreme Court case follows a layout of oral arguments from both parties and amicus briefs. After discussion, the Supreme Court releases a verdict and an explanation behind its decision. This allows for a transparent view of the judicial process.

During his time in office, Trump enacted Executive Order 13868 to encourage investment in energy infrastructure, economic growth and streamlining the procedure for federal licensing of federal projects.

The Executive Order specifically targeted Section 401 of the Clean Water Act, which granted states and tribes the right to grant, deny or waive the certification of federal licenses for projects that could cause water pollution within the states’ or tribes’ boundaries.

According to the United States Environmental Protection Agency (EPA) this authorization came from a promulgated 1971 section of the Clean Water Act.

The EPA intended to have this section of the law revised in 2020. This was to prevent any confusion around the certification process and concerns regarding state and tribal authority on protecting public health and ensuring EPA standards of water quality.

Executive Order 13868 gave states and tribes a strict time limit of one year to decide regarding the certification of a federal license or else the government would assume the states or tribes had waived their right to certify.

The executive order also limited the scope of section 401 to only account for water pollution and quality, excluding other environmental impacts.

The original verdict of Louisiana v. American Rivers implemented section 401 of the CWA. However, by freezing the original verdict, the executive order made in 2020 immediately went into effect.

The implications of the Supreme Court decision erode state and tribe rights and extend the power of federal interest over the state and tribe wellbeing. It also sets a precedent for energy projects with the potential of disastrous environmental consequences to get greenlit without the approval of the states or tribal they are being built in.

On Feb. 28, the Intergovernmental Panel on Climate Change released an up-to-date report on the effects of climate change as well as future predictions. The 2022 report by the IPCC indicated the fight against climate change had reached its final stretch.

“This report is a dire warning about the consequences of inaction,” Chair of the IPCC Hoesung Lee said. “It shows that climate change is a grave and mounting threat to our wellbeing and a healthy planet. “Our actions today will shape how people adapt and nature responds to increasing climate risks.”

The IPCC 2022 report shows that global emissions have increased since 2010 and globally the Earth is on its way to exceeding the 1.5-degree Celsius benchmark agreed upon in the Paris Agreement.

“Increasing fossil fuel production will only make matters worse. Choices made by countries now will make or break the commitment to 1.5 degrees. A shift to renewables will mend our broken global energy mix and offer hope to millions of people suffering climate impacts today,” Secretary General of the United Nations António Guterres said.

The only chance of keeping the planet habitable for future generations lies in the choices made in the present.

By using the shadow docket, the Supreme Court denies citizens the right to see the proceeding of government decisions that have profound impacts on their lives and futures.

The use of the shadow docket does have benefits. In cases where a decision is needed immediately, such as a death row case, it is beneficial.

However, the benefits do not outweigh the risks. In a time where many controversial topics are being argued in front of the Supreme Court, it is a serious misjudgment to have major decisions be made without allowing input from outside parties.

The United States is one of the biggest contributors to climate change. The Supreme Court decision allows energy companies to build with abandoned disregard for the environment.

While this may be a financial benefit in the short term, it will undoubtedly have long-term effects.