October 13, 2015

Court panel denies government motion to consolidate Clean Water Act suits

By M. Reed Hopper Senior Attorney

When the Corps of Engineers and the EPA issued their radical interpretation of “waters of the United States” under the Clean Water Act in June, ten suits were immediately filed in separate federal district courts throughout the country.  These suits, including our own,  challenged the legality of the rule as inconsistent with federal law. In response, the government moved to consolidate all these cases in the D.C. District Court where the government felt it would have an advantage in the litigation.  We challenged the motion to consolidate arguing it was unnecessary, unprecedented and self-serving.  Today, a multi-district panel denied the motion.  This paves the way for each of the ten suits to be litigated where they were filed.  This has the advantage of giving the appellate courts, including the Supreme Court, the benefit of many different views on the challenged rule which may be helpful in determining the final fate of the rule.  So far, the two courts that have ruled on the validity of the rule have both held the rule is likely invalid.  The question of whether the cases should be heard in the district courts or the Circuit Courts of Appeals is still an open question that should be resolved in the next few weeks.

What to read next