Boatload of ‘waters of the U.S.’ lawsuits won’t be heard at single federal court

The U.S. Judicial Panel on Multidistrict Litigation on Sept. 13 shot down an attempt by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to get lawsuits against their “waters of the U.S.” rule combined at one single court.

That rule extends Corps authority to small water bodies and streams, with industries from coal mining to electric utilities saying it will stifle Clean Water Act permitting. 

EPA and the Corps had moved to centralize pretrial proceedings in this litigation in the U.S. District for the District of Columbia. This litigation currently consists of several actions pending in various court districts. Several states and the District of Columbia filed an interested party response in support of the motion to centralize these actions in the District of Columbia court. All other responding parties—including plaintiffs—opposed centralization.

Should the panel centralize this litigation, the opposing parties variously suggest in the alternative that the panel select the District of North Dakota, the Southern District of Georgia, and the Southern District of Texas as the transferee district for this litigation.

Said the Oct. 13 panel ruling: “On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation. These actions all involve challenges to a rule recently promulgated by the EPA and the Corps (the Clean Water Rule) that purports to interpret the jurisdictional phrase “waters of the United States” in the Clean Water Act. The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate.

“Additionally, centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges,whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance.”

The panel noted that it has been informed that, on Oct. 9, the U.S. Sixth Circuit Court of Appeals stayed application of the Clean Water Rule on a nationwide basis pending further order of that court.

North Dakota Attorney General Wayne Stenehjem on Oct. 13 announced this panel decision, which is related to North Dakota’s challenge to the EPA rule. North Dakota opposed the request to consolidate these cases, arguing that its case was in a unique procedural position due to it being the only case with a preliminary injunction and that the federal agencies had not met their burden to justify transfer.

“We have a long way still to go but this is the state’s third consecutive victory on the route. We will continue to press the matter until the WOTUS rule is invalidated,” said Stenehjem.

In its order, the panel agreed with North Dakota, holding that “centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.” As a result, each of the fourteen cases filed in various federal district courts across the country will proceed independently. North Dakota and its co-plaintiff states have already asked the North Dakota judge to issue a scheduling order so that the case may be heard promptly on the merits. In August, U.S. District Court Judge Ralph Erickson issued a preliminary injunction blocking the WOTUS rule being enforced in North Dakota and the twelve other states that had joined the lawsuit. In his order, the judge determined that the states were likely to succeed on the merits.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.