Since the EPA and the Army Corps published the final rule defining “Waters of the United States” on June 29, 2015, 72 plaintiffs have already filed ten separate complaints in eight federal district courts challenging the final rule. Additional district court actions raising facial challenges to the Clean Water Act rule are expected to be filed in the near future. Plaintiffs in some of these cases have already filed motions for preliminary injunctions seeking to bar application of the final rule.

In addition, multiple parties have filed petitions for review of the final rule in eight circuit courts of appeal.  These suits are filed under 33 U.S.C. § 1369(b)(1), which provides for exclusive judicial review in the courts of appeals for certain actions of the EPA Administrator. 33 U.S.C. § 1369(b)(1).

In response to the flood of litigation, the EPA and the Army Corps are seeking to take advantage of judicial procedures that allow lawsuits presenting common issues to be consolidated in a single court. The Judicial Panel on Multi-District litigation hears petitions seeking consolidation of federal cases. The MDL Panel is located in Washington, D.C. and consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The multidistrict litigation statute provides that no two Panel members may be from the same federal circuit. Judge Sarah Vance, from the Eastern District of Louisiana, is the current Chief Judge.

On July 27, 2015, the EPA and Army Corps invoked the provisions of 28 U.S.C. § 2112(a), which provides for consolidating multiple petitions for review of the agency action in a single court of appeal and asked the Panel to consolidate the pending courts of appeals actions. Under section 2112(a), the Panel will randomly select one circuit court of appeal to hear the challenge to the rule from the courts in which petitions were filed.

Also on July 27, 2105, the EPA and Army Corps filed a motion with the Panel to consolidate the pending (and future) district court actions in the District Court for the District of Columbia. Their petition argues that the cases “satisfy the standard for transfer and consolidation because: (a) they involve one or more common questions of fact; (b) transfer and consolidation of the cases would further the convenience of parties; and (c) transfer and consolidation would promote the just and efficient conduct of the actions. See 28 U.S.C. § 1407(a). And, as explained below, the United States District Court for the District of Columbia is well-suited to handle these overlapping and complex cases and it is the court most convenient for the parties.”

The key hurdle for the United States to overcome in obtaining consolidation is to show that the matters involve common questions of fact. The motion asserts the standard is met in three areas: the sufficiency of the factual and scientific evidence relied upon by EPA and the Army in adopting the rule; the assertions that the EPA and Army Corps failed to respond to comments; and the sufficiency of the public notice and issues raised in the rulemaking. Each of those issues, the United States argues, qualify the matters for consolidation.

Assuming the Panel finds the matters qualify for consolidation, a key issue is the court in which the matter will be consolidated. The EPA and Army Corps seek consolidation in Washington, D.C.  even though none of the challenges has been filed there. They argue that the defendants reside there; many of the plaintiffs and their lawyers have offices there; and the court is experienced in administrative litigation.

Plaintiffs have undoubtedly selected courts they believe present favorable forums. As a result, many parties will file oppositions to the motions to consolidate. However, it will be difficult to resolve the validity of the final rule in a timely manner unless the cases are consolidated. This is a national rulemaking that is best resolved in a single court. The issues over the extent of “waters of the United States” have been festering for far too long. The consolidation of the challenges to the final rule will greatly speed the ultimate resolution of its validity. For this reason, there is a strong public interest in consolidation.