beyond the legal opinion
In the wake of conflicting federal district court decisions addressing implementation of the “Waters of the United States” rule, the Sixth Circuit finally entered the fray late last week to hear arguments regarding multiple appellate petitions challenging the rule as well. As we have previously commented on this blog, the conflicting federal district court decisions have been long on multi-media fodder if at times short on substance. As you may recall from such posts, on the same day the federal District Court for the District of North Dakota issued a preliminary injunction preventing implementation, the federal District Court for the Southern District of Georgia issued an order denying a motion to enjoin the rule, finding it did not have jurisdiction to hear the case. A similar ruling to that entered in the Southern District of Georgia was also entered by the District Court for the Northern District of West Virginia. Like the district court decision in Georgia, the district court in West Virginia refused to block the regulation, further concluding that it lacked jurisdiction to hear the matter. As we mentioned before, the district court ruling in West Virginia was apparently determined in large part by its recognition of the earlier decision of the federal courts’ Judicial Panel on Multidistrict Litigation that all challenges to implementation should be consolidated for consideration by the Court of Appeals for the Sixth Circuit.
While EPA and the Corps appear to agree that proceedings currently before district courts remain there, they do argue that all of the district court cases should be consolidated. Specifically, EPA and the Corps are seeking consolidation of the district court cases for subsequent transfer to the federal district court in Washington, D.C. While such a determination has not yet been made, last Thursday (October 1), a federal judicial panel on multidistrict litigation heard arguments concerning whether consolidation is warranted. However, regardless of the legal considerations the judicial panel may entertain in making such a decision, the attachment to venue on both sides of the dispute reveals the political battle lines being drawn as well. As to those states which either have not challenged the rule or have shown affirmative support for implementation (such as California, Oregon and Washington), consolidation as the EPA urges may seem harmless enough. However, to the 13 interior West and Midwest–and predominantly Republican–plaintiff states in the case before federal district court in North Dakota, venue matters.
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December 21, 2021
On December 7, 2021, the Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (Army Corps), published a Proposed Rule to define the scope of waters covered by the Clean Water Act.
