Image Credit: Standing Rock Solidarity Rally 2016, Shutterstock / Diego G. Diaz
Is water sacred? In the Roman Catholic tradition, it is through a rite of minor-exorcism: prayers that both breaks the influence of evil and sin in a person’s life and sanctifies water as “holy.” In this ancient rite, a priest blesses the living “creature of water” to cast out devils, put sickness to flight, and let the hidden enemy depart.
But for some, this divine creature, holy water, exists in the presence or the absence of religious traditions. Mní Wičóni (water is life) as the Lakota people of Standing Rock reminded us all in protests that lasted almost a year, between April 2016 and February 2017.
But for the energy industry, there is no history of honoring water or respecting those who do. When the United States Supreme Court granted an “emergency” order on April 6, 2022 limiting the reach of the Clean Water Act (CWA), the oil and gas industry gained the right to continue developing new fossil fuel infrastructure. In a 5-4 vote, SCOTUS stayed a California court decision overruling a 2020 Trump administration revision of the CWA’s 401 Rule.
The California court’s decision to override the revision meant a temporary return to the 1971 CWA Rule until the Environmental Protection Agency (EPA) could finalize a new rule empowering states and Native American nations to protect and manage water quality. But the Supreme Court’s April 6 order means that developers of oil and gas infrastructure, mines, and dams can now continue polluting local water as they did under the Trump administration.
In other words, water now belongs to developers who have no regard for public health, ecosystem resilience, or overall community well-being.
This is a powerful coalition of interests. In their successful application for a stay, Louisiana, Arkansas, Mississippi, Missouri, Montana, West Virginia, Wyoming, Texas, the American Petroleum Institute, the Interstate Natural Gas Association of America, and the National Hydropower Association claim that for the 50 years prior to the 2020 rule they were harmed, and have now been harmed again since the California court ruling.
How have they been harmed? These parties believe that developers seeking to construct pipeline infrastructure, hydropower facilities, mines, and other development projects should not have to respond to water protection issues raised by local communities, landowners, state environmental agencies, and Tribal governments. Nor do they wish to negotiate “ancillary, non-water-quality-related concerns” such as treaty rights and obligations, public health, ecosystem resilience, climate change impacts, and recreational and aesthetic enjoyment of public waterways.
But as Justice Elena Kagan wrote in her dissent, “This is not irreparable harm.” In fact, these parties provided no evidence of a project being stopped or disallowed because of the California court’s ruling.
The Court’s emergency order illuminates an ecological cliff where, with government complicity, corporations’ insatiable greed potentially erodes human and non-human life, as well as the livability of our planet, by undermining one of its most precious elements: water. As Derrick Jensen and other environmentalists have asked: would it be a terrible thing for the planet if systems reliant on fossil fuels, extractive mining, coerced labor, concentration of wealth, exponential growth, waste, and political corruption were to fail?
Prioritizing the health of business over humanity’s collective right to clean water is alarming on its own, but so is the undemocratic means by which this stay was implemented: use of the emergency, or “shadow,” docket which is usually used to intervene in urgent problems. Granted at lightning speed and with little transparency, the shadow docket requires no written justification. As Justice Kagan writes in her dissent, in this decision “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.”
What Kagan did not say is this: that the rights of corporations are steadily expanding at the expense of the people. But there is more at stake than profits and property. In our polarized political landscape, hopefully we can all agree that water is essential to life, and should be treated as a precious, if not sacred, resource. We need to further remind ourselves that water, the environment, and human beings are sacred, and to reaffirm our commitments to protecting nature and non-human beings from any action that seeks to destroy them.
Simona Perry is an applied environmental and social scientist, community advocate, and founder of c.a.s.e. Consulting Services. She lives in Savannah, Georgia.