Eleventh Circuit Declines to Wade into Clean Water Rule

The Eleventh Circuit has declined to decide a case it held to be entirely duplicative of a challenge to the EPA’s and Army Corps of Engineers’ Clean Water Rule making its way through the Sixth Circuit. The plaintiffs in Georgia ex rel. Olens v. McCarthy, 2016 WL 4363130 (11th Cir. Aug. 16, 2016), filed a complaint in the Southern District of Georgia challenging the validity of the rule jointly promulgated by the two agencies and asking for a preliminary injunction.  The district court denied plaintiffs’ motion to preliminarily enjoin enforcement of the rule, holding that the Eleventh Circuit had exclusive jurisdiction over challenges to the rule. Georgia ex rel. Olens v. McCarthy is a review of the district court’s denial of the plaintiffs’ motion to preliminarily enjoin enforcement of the rule.

Plaintiffs also filed with the Eleventh Circuit a petition for review of their challenge to the validity of the rule. The Judicial Panel on Multidistrict Litigation transferred that petition to the Sixth Circuit and consolidated the petition with similar petitions likewise transferred from other circuits.  The Sixth Circuit issued a nationwide stay of the Clean Water Rule and has “devoted considerable time and effort” to hearing the consolidated challenges to the rule.

The Eleventh Circuit found the plaintiffs’ case to be “exemplar” of duplicative litigation, involving “the same parties on each side, the same jurisdictional and merits issues, and the same requested relief,” making it “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 Sixth Circuit, having traveled “significantly farther along the decisional path” than the Eleventh Circuit, was held to be the “obvious court to proceed to decision.”

Posted by Margaret Flatt.

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