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DOJ Scrambles, Asks Court to Stay Water Rule After Panel Denies Centralization

The Obama administration appears to have started a complex process of asking district courts across the nation -- beginning in North Dakota on Tuesday -- to halt proceedings over the controversial Clean Water Rule (CWR), thereby giving the U.S. Circuit Court of Appeals for the Sixth District in Cincinnati time to decide whether it has jurisdiction over a multitude of legal challenges.

Complicating matters further, the U.S. Judicial Panel on Multidistrict Litigation (MDL) on Tuesday ruled against the federal government's request to centralize nine legal challenges to the CWR, filed in seven district courts, with the U.S. District Court for the District of Columbia (DC).

According to a seven-page motion filed Tuesday in U.S. District Court for the District of North Dakota, the Department of Justice (DOJ) argued that a stay in the proceedings there was appropriate, in part because it would conserve that court's resources and the plaintiffs in the case -- 13 states -- would not be harmed, since a judge has already issued a preliminary injunction against the rule (see Shale Daily, Aug. 28Aug. 11).

"Although this court has already addressed its jurisdiction in the context of plaintiffs' motion for a preliminary injunction, the Sixth Circuit has not yet done so," the DOJ said. "If the Sixth Circuit finds...that exclusive jurisdiction lies in the courts of appeals, then the agencies would suggest that this case must be dismissed."

The agencies in question are the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, which collaborated on the CWR issued in May (see Shale DailyMay 27). The rule is controversial because it clarifies the definition of Waters of the United States (WOTUS) and therefore what deserves protection under the Clean Water Act (CWA).

But in a separate filing on Tuesday, the 13 states that are plaintiffs in the North Dakota case pushed back against the DOJ's motion and said a delay is not justified.

"Since the case will not be centralized [in DC district court], the agencies cannot justify continued delay in the case," the plaintiffs said in a 20-page filing, later adding "this court has already established the basis for its jurisdiction and need not wait for the Sixth Circuit to concur with its ruling to allow this case to proceed."

The Sixth Circuit court blocked implementation of the CWR nationwide last Friday, citing pending litigation across the country (see Shale DailyOct. 9). In its filing, the DOJ said nearly 90 parties had filed 16 petitions for review of the CWR in unspecified appellate courts.

Last month, 18 states not part of the 13 involved in the North Dakota case filed a motion with the Sixth Circuit, asking it to dismiss their petitions and resolve whether the court has exclusive jurisdiction. The court subsequently established a streamlined schedule for its case, setting a Nov. 4 deadline for interested parties to file briefs.

Led by North Dakota, the attorneys general for eight of the 13 states named as plaintiffs in the North Dakota case filed a motion seeking a preliminary injunction against the CWR from taking effect on Aug. 28  [No. 3:15-cv-00059]. The oil and gas industry, business and farming groups, and lawmakers -- especially Republicans  -- claim the CWR amounts to government overreach.

In its ruling, the MDL said all of the responding parties, including plaintiffs in all nine actions and two interested parties, were opposed to centralization at the DC district court.

"On the basis of the papers filed and hearing session held, we conclude that...centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the MDL said in its three-page ruling.

The panel added that while two courts have already ruled that U.S. appellate courts should have sole jurisdiction over legal challenges to the CWR, a third court ruled the opposite and said district courts have primacy.

According to the MDL, legal challenges to the CWR have been filed in seven district courts -- the Northern District of Georgia, the Southern District of Georgia, the District of Minnesota, the District of North Dakota, the Southern District of Ohio, the Northern District of Oklahoma, and the Southern District of Texas.

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