On August 16, 2016, the United States Court of Appeals for the Eleventh Circuit, which is located in Atlanta, issued its stay of proceedings in the challenge before that circuit to the Clean Water Rule that was filed in the federal district court for the southern district of Georgia.  State of Georgia, et al., v. McCarthy, No. 15-14035-EE.  The same challenge is well underway in the Sixth Circuit, which is located in Cincinnati.  According to the Eleventh Circuit “[i]t would be a colossal waste of judicial resources for both this Court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties.” 

The Eleventh Circuit opinion provides a helpful chronology of the legal challenges to the Clean Water Rule:

June 29, 2015 – EPA and the Corps of Engineers jointly issued the Clean Water Rule, which defines the jurisdiction of the Clean Water Act. 

July 20, 2015 – Eleven states, including Wisconsin, filed with the Eleventh Circuit what they called a “protective” petition for direct review by that court of appeals (anticipating that a final determination might be made that original jurisdiction lies with the court of appeals and not with the district court). 

June 30, 2015 – Those same eleven states filed suit in the U.S. District Court for the Southern District of Georgia challenging the rule and seeking a preliminary injunction of its enforcement (State of Georgia v. McCarthy) (anticipating that original jurisdiction might be determined to lie in the district court, not in the court of appeals). 

July 28, 2015 – The Judicial Panel on Multidistrict Litigation transferred the protective petition from the Eleventh Circuit to the Sixth Circuit and ordered that it be consolidated with other similar challenges to the Clean Water Rule.  The Sixth Circuit then issued a nationwide stay of enforcement of the Clean Water Rule while the consolidated challenges are pending (In Re EPA I). 

August 27, 2015 – The district court in State of Georgia v. McCarthy held that original jurisdiction lies exclusively with the court of appeals and, therefore, denied the motion for preliminary injunction.  The denial of this motion is what was appealed to the Eleventh Circuit. 

February 22, 2016 – The Sixth Circuit held that the court of appeals, not the district court, has original jurisdiction to determine the challenge to the Clean Water Rule (In Re EPA II). 

February 22 - August 16, 2016 – The parties to the petition pending in the Sixth Circuit challenge, which includes all of the parties to the petition that was filed protectively in the Eleventh Circuit and in the district court in the Southern District of Georgia, have worked to develop the briefing schedule and to pare down the contents of the administrative record, “which is more than a million pages long.”

In light of the Sixth Circuit’s ruling that original jurisdiction lies in the court of appeals, the Eleventh Circuit asked the parties to brief additional issues, including whether the Sixth Circuit’s decision rendered the protective petition filed before the Eleventh Circuit moot.  Relying on case law from the U.S. Supreme Court, the Eleventh Circuit determined on August 16, 2016, that it holds discretionary authority to hear the protective petition or not and that its discretion is to be informed on principles of wise judicial administration, regard for judicial resources, and comprehensive disposition of judicial litigation. 

As noted in the first paragraph of this article, the Eleventh Circuit exercised its discretion firmly against duplicative litigation.  “If there were an exhibition hall for prudential restraint on the exercise of judicial authority, this case could be an exemplar in the duplicative litigation wing.”  The Eleventh Circuit pointed out that the Sixth Circuit is “the obvious court to proceed to decision because it is significantly farther along the decisional path than we are.”  Among other reasons, the Sixth Circuit “is in the process of winnowing down the massive administrative record to its most relevant parts.”  The Sixth Circuit decision might end the matter or at least “narrow and refine, if not render moot, at least some of the issues [the Eleventh Circuit] asked the parties to brief.” 

So we await the decision on the merits from the Sixth Circuit Court of Appeals.