Agreeing to Dismiss Water Suits Preserves Refiling Rights

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By Amena H. Saiyid

May 9 — Industry and environmental groups are preserving their right to challenge the Clean Water Rule by either voluntarily seeking to withdraw their complaints filed in federal district courts or not opposing others' motions to dismiss, several attorneys told Bloomberg BNA.

These actions, though procedural in nature, aren't surprising, the attorneys say, especially since the U.S. Court of Appeals for the Sixth Circuit reaffirmed April 21 its earlier decision to review 22 petitions filed against the water rule (Ohio v. U.S. Army Corps of Eng'rs (In re EPA and Dep't of Def. Final Rule) 6th Cir. 2016); 78 DEN A-4, 4/22/16)82 ERC W-3, (4/29/16)).

About 15 lawsuits by coalitions of states, industry and manufacturing groups and environmental groups have been filed in about 11 federal district courts challenging the rule (RIN:2040-AF30) since it took effect in August 2015 following its publication by the Environmental Protection Agency and the U.S. Army Corps of Engineers (88 DEN A-11, 5/6/16).

“With all of the action gravitating to the 6th Circuit, groups may be deciding it’s increasingly prudent to let that strand play out (whether or not they are directly involved in it) and not sink further resources, for now, into the other pieces of litigation around the country,” Bruce Myers, public interest attorney with the newly formed Washington D.C.-based Animals | Environment PLLC, told Bloomberg BNA in a May 9 e-mail.

Not Worth the Resources

Justin Pidot, professor with the University of Denver Sturm College of Law, agreed with Myers' assessment in a May 9 e-mail to Bloomberg BNA.

“I suspect the parties decided it wasn't worth the resources to litigate the district court cases since the courts of appeals cases are proceeding,” he said.

Since the Sixth Circuit's decision, at least two federal district courts—the U.S. District Court for the District of Arizona and the U.S. District Court for the District of Columbia—have agreed to motions to voluntarily dismiss without prejudice.

The U.S. District Court for the Southern District of Texas is expected to approve a motion filed by the EPA and the corps to dismiss without prejudice a challenge to the rule filed by railroad and transportation groups. The Association of American Railroads, American Farm Bureau Federation, Texas Alliance for Responsible Growth, Environment and Transportation support the agencies' motion.

If a court dismisses a case with prejudice, litigants will lose their ability to refile, according to Pidot. That is why these groups are either seeking voluntary dismissals without prejudice or not opposing motions to dismiss the lawsuit without prejudice, he explained.

Myers said, “It’s like they are seeking to step back, or press pause, to see how this current part of the saga plays out in the 6th.”

Jon Devine, senior attorney with the Natural Resources Defense Council, said the coalition of environmental groups, led by NRDC, sought voluntary dismissal of its lawsuit in the U.S. District Court for the District of Columbia because “the 6th Circuit decided that it had jurisdiction and the full 6th Circuit did not opt to hear the case.”

More importantly, Devine said, the NRDC petition is one of 22 before the Sixth Circuit already.

Pidot said he expects most of these cases will be refiled in the district courts if the courts of appeals decide they lack jurisdiction. The Eleventh Circuit is yet to decide whether it will defer to the Sixth Circuit on the question of court's jurisdiction to hear the water rule challenges, or to proceed on its own. The Tenth Circuit has been petitioned on the question of jurisdiction, but it still hasn't decided how it will proceed.

Likewise, four of the federal district courts—the Northern District of California, the Northern District of Georgia, the District of Minnesota and the Western District of Washington—are expected to determine any day whether they too will defer to the Sixth Circuit or proceed on their own.

Pidot said it is a good time to get out of district courts right now irrespective of how the 11th Circuit decides to proceed.

“But if down the line a court of appeals, or the Supreme Court, reverses course on jurisdiction I think we'll see district court cases return,” Pidot wrote in an e-mail.

Moving Ahead With Briefing

Meanwhile, the Sixth Circuit is taking no chances with further delays in reviewing the rule. Sixth Circuit judges told about 150 parties that are behind the 22 petitions to file a briefing plan within 21 days of the May 9 order, while noting that they are aware that some groups may challenge the circuit's April 21 ruling on the question of jurisdiction in the U.S. Supreme Court.

“The court is not oblivious to the possibility that one or more petitions for certiorari may be filed challenging the jurisdictional ruling. Nonetheless, it is important to establish a schedule for moving forward toward adjudication on the merits, and we do not anticipate staying proceedings unless and until certiorari were granted,” the Sixth Circuit order said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com