Oct 142015
 

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those 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 judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. 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. 3 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."

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