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Environmental Blog

  • 14
  • October
  • 2015

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Federal Judicial Panel Rules against Consolidating Challenges to the WOTUS Rule

After the U.S. Environmental Protection Agency and the Army Corps of Engineers issued their final rule defining the “waters of the United States” (“WOTUS rule”) under the Clean Water Act, nine separate suits were filed in seven district courts nationwide. These suits allege that the WOTUS rule is inconsistent with the U.S. Constitution, the Clean Water Act, the Administrative Procedural Act, and other federal laws. In response, the federal government moved to have the suits consolidated and transferred to the U.S. District Court for the District of Columbia. The states and private parties challenging the rule argued against consolidation, though several states and the District of Columbia filed an interested party response supporting the motion to consolidate.

On October 13, seven members of the United States Judicial Panel on Multidistrict Litigation (“MDL panel”) denied the government’s motion, paving the way for each of the suits to proceed on parallel tracks in the district courts they were filed. In a short, three-page order, the MDL panel concluded that consolidating pretrial proceedings would “not service the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.”

The MDL panel offered two reasons for denying the government’s motion for consolidation. First, resolving the multiple challenges to the WOTUS rule will involve only very limited pretrial proceedings and minimal discovery: the challenges will be decided based on the administrative record and motions regarding that record. Thus, the suits will turn on questions of law—whether the agencies exceeded their statutory and constitutional authority when they issued the WOTUS rule—rather than questions of fact.

Second, the MDL panel declined to consolidate cases where federal judges have already issued conflicting orders. Two district courts have held that only the United States Courts of Appeals have jurisdiction over the WOTUS challenges, while a third determined that jurisdiction properly resides in the United States District Courts. This complicated procedural posture “would require the transferee judge to navigate potentially unchartered waters with respect to the law of the case.”

Whether the cases should be brought in the district courts or the courts of appeals remains an open question that will likely be resolved in the coming weeks. You can read our prior coverage of the jurisdictional issue here.

Posted at 10/15/2015 1:27 PM

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