Judicial Panel Rejects Consolidation for Clean Water Rule Litigation

Yesterday I posted about the decision of the Sixth Circuit Court of Appeals to issue a stay of the new Clean Water Rule in response to litigation filed by 18 states and other groups. Not to let a day go by without action, this morning the United States Judicial Panel on Multidistrict Litigation denied consolidation of nine lawsuits across seven district courts. The federal government had moved for consolidation in the District of District of Columbia, and the state challengers had opposed that motion, arguing against consolidation or at least that consolidation take place in the District of North Dakota, Southern District of Georgia or Southern District of Texas.

In its Order Denying Transfer, the panel decided that consolidation would not further the just and efficient conduct of the litigation nor serve the convenience of the parties and witnesses. That conclusion was based on the nature of the litigation, with minimal discovery and limited pretrial proceedings, and most issues to be resolved as questions of law rather than fact. Additionally, the panel noted the different stages reached by the various lawsuits, which “would require the transferee judge to navigate potentially uncharted waters with respect to law of the case.” The decision means that resolution of challenges to the Clean Water Rule will remain complex and time-consuming, and continues the long tradition of using water metaphors in such cases. Water lawyers everywhere applaud both.

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