WOTUS Lawsuits Remain Separate

Panel Rejects EPA, Corps Request to Consolidate Lawsuits Against Waters of US Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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States and various agriculture and other industry interest groups have challenged the final waters of the U.S. rule as unwarranted and an illegal expansion of federal jurisdiction of waters across the country. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- Multiple lawsuits filed in U.S. district courts challenging the waters of the United States rule will not be consolidated, according to a ruling issued Tuesday by the U.S. Judicial Panel on Multidistrict Litigation.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers had requested all the cases filed so far be heard by a federal court in Washington, D.C.

States and various agriculture and other industry interest groups have challenged the final rule as unwarranted and an illegal expansion of federal jurisdiction of waters across the country.

The decision could be favorable to states and industry groups challenging the law because the U.S. Sixth Circuit Court of Appeals raised serious legal questions about the new law, in a decision rendered last week.

The court issued a national stay on the rule last week pending the court's determination whether it has ultimate jurisdiction to hear the legal arguments raised in multiple cases. The Sixth Circuit Court said in its ruling last week it may address the question of jurisdiction within the next few weeks -- meaning the stay is only temporary.

Farm groups and others have been cautiously optimistic about the court's action, saying legislative efforts to change the law should continue.

Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said all eyes are on the Sixth Circuit Court at this point.

"At this point, it simply means that all the district court cases will not be combined," he said. "Most district court cases are stayed waiting or pending a decision or ruling from the Sixth Circuit on jurisdiction -- a decision on where the case should be heard -- district or circuit court. Our lawyers believe if the Sixth Circuit claims jurisdiction, all the district court litigation goes away; but if the Sixth Circuit rules they do not have jurisdiction, all the district court cases will go to trial."

So far, U.S. District Court lawsuits have been filed in the Southern District of Texas, Northern District of Oklahoma, Southern District of Ohio, District of North Dakota, District of Minnesota, Southern District of Georgia, and the Northern District of Georgia.

In issuing its decision, the panel ruled there would be no benefit to consolidating all the district court cases.

"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," the ruling said.

The panel said discovery will be minimal and a court would ultimately render a decision based on the available administrative record.

"Additionally, centralization of these actions would be problematic due to their procedural posture," the panel said in its ruling.

"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."

Todd Neeley can be reached at todd.neeley@dtn.com

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(AG/BAS)

Todd Neeley