July 31, 2015

Update on PLF challenge to Corps and EPA water rule

By M. Reed Hopper Senior Attorney

In our last update, we noted the Corps and EPA would file a motion to consolidate the 10 suits filed in the district courts challenging the government’s expansive redefinition of “waters of the United States.”  That motion can be read here.  In the motion, the Corps and EPA argue the cases should be consolidated in the D.C. District Court, although none of the 10 suits challenging the new rule were filed in that venue.  A more proper venue would be in one of the district courts that is now considering motions for preliminary injunction to stay the rule until the litigation is complete.  The first preliminary injunction hearing is set for August 12 in the Southern District of GA.  A briefing schedule on the consolidation motion was issued that calls for our response by August 19.

Also, it appears the handful of challenges to the rule filed directly in the Circuit Courts of Appeal have now been consolidated in the Sixth Circuit.  That court will have to decide if the Circuit Courts have sole jurisdiction in these cases or whether the cases were properly brought in the district courts.

Finally, the Northern District of OK issued a stay in the Oklahoma case over the State’s objection that a stay of its suit, pending a decision on consolidation, would cause the State and other parties irreparable harm.  The decision provides a preview of the types of arguments the Corps and EPA will be making in the preliminary injunction motions.

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