Critics say Biden rewrite of Trump-era rule will raise energy prices, bog down development

By Casey Harper | The Center Square

The U.S. Supreme Court temporarily reinstated an environmental regulation that expedites pipeline development that had been tossed out by a lower court. President Joe Biden is now expected to rewrite the rule, but critics say that will nix a chance to address rising energy costs.

The court ruled 5-4 in Louisiana v. American Rivers to temporarily allow the rule, which limits the degree to which states can block energy development projects like pipelines via the Clean Water Act.

President Donald Trump enacted the rule, but U.S. District Court Judge William Alsup overturned it in October. The Supreme Court ruling overturns that judge’s ruling, but the Biden administration is expected to change the rule through the regulatory process rather than through the courts.

The Biden administration is developing a replacement rule, but it is not expected to be finalized this year. Critics say that is bad news for energy prices, which have soared in recent months.

“The Supreme Court’s decision brings back the Trump administration’s Section 401 rule that helps to prevent states from blocking projects for whatever reason they desire,” said Daren Bakst, an energy expert at the Heritage Foundation. “Under the Clean Water Act, states can ensure that state water quality won’t be harmed by federally permitted activities. But some states have abused the law to block critical projects for reasons that have absolutely nothing to do with water quality, from traffic noise to climate change.”

Bakst argued that expediting domestic oil production will bring relief to Americans struggling with high gas prices.

“The Section 401 rule, if left untouched, would help get projects going again, including energy projects,” Bakst said. “As gas prices skyrocket, this rule would help to rein in the pain being felt by Americans at the pump, with the short-term benefit primarily coming from the important message the rule sends about unleashing domestic energy. Unfortunately, the Biden administration is planning to rewrite this rule and undo the benefits that the rule would provide.”

Justice Elena Kagan argued in her dissent that the legal challenges to the recent court ruling overturning the Trump-era law have failed to prove there is real damage being done, likely signaling the debate to come among the justices if they agree to take up the case. If they do not, the stay will expire.

“By nonetheless granting relief, the Court goes astray,” Kagan wrote. “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.”