Environmental Attorneys’ Amici Briefs Get It Right

HeplerBroom boasts several of Illinois’ premier environmental-law lawyers, and recently those colleagues were asked to prepare an amicus brief on behalf of the Illinois Environmental Regulatory Group in an appeal pending in the Seventh Circuit Court of Appeals, Prairie Rivers Network v. Dynegy Midwest Generation LLC, No. 18-3644. The matter involves the non-profit Network’s assertion that Dynegy’s Vermillion, Illinois, power station was releasing contaminants into groundwater.

Specifically at issue is the Clean Water Act’s forbidding of “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency. The Act defines “discharge of a pollutant” as "'any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source.’" A recent 6-3 U.S. Supreme Court decision resolved that a limited reading of this code section provided “easy evasion of the [relevant] statutory provision’s basic purposes,” determining groundwater contamination could be “the functional equivalent of a direct discharge” to navigable waters if certain factors were present. County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).

I barely know enough about the acronym-infested world of environmental law to get my face slapped; I call my partners and ask them for advice. I’m here looking instead to focus on why the Court accepted their brief and a couple others.

As a background, the Seventh Circuit has a reputation for declining amicus briefs, often finding them duplicative of the supported-party’s brief. See, e.g., Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003) (“[I]t is very rare for an amicus curiae brief to do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting.”) The Circuit’s Practitioner’s Handbook for Appeals recites that the Court is looking for briefs to “assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not found in the briefs of the parties.”

Or as Justice Antonin Scalia and Bryan Garner wrote, “Don’t replow the ground you expect the party you’re supporting to cover. … [Y]ou should try to develop a ‘take’ on the case that is different from what the party produces; or to discuss in great depth an aspect of the case (for example, historical material) that the party will not have much time for; … .”

So what did the three amici in Prairie Rivers Network offer that the Court so appreciated? In a five-page in-chambers opinion, Judge Michael Scudder explained how the amici offered unique analysis that might be helpful to deciding the appeal, and set out a checklist of how friends of the court can contribute in clear and distinct ways:

  • Offering a different analytical approach to the legal issues before the court;
  • Highlighting factual, historical, or legal nuance glossed over by the parties;
  • Explaining the broader regulatory or commercial context in which a question comes to the court;
  • Providing practical perspectives on the consequences of potential outcomes;
  • Relaying views on legal questions by employing the tools of social science;
  • Supplying empirical data informing one or another question implicated by an appeal;
  • Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;
  • Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.

With those factors in mind, the Court resolved that the Illinois Environmental Regulatory Group lent “context to the cases cited by the parties” and highlighted practical results of certain outcomes through a history of Illinois groundwater regulation before and after the Act’s enactment. The United States Chamber of Commerce provided “insight” into how an alternative federal scheme would apply in the absence of regulation under the Clean Water Act. And the Washington Legal Foundation offered a theory of how to “best fit” the County of Maui test to the regulatory scheme regarding the Dynegy pollutants at issue.

Comparing Judge Scudder’s bullet points to the three briefs, it is apparent that the amici offered more than “me-too” arguments. They offered, in Judge Scudder’s words, “something different, new and important.” Good job amici and your counsel, and good job Judge Scudder for reminding us of amicus-briefing’s purpose.

  • Robert E. Elworth

    Robert E. Elworth focuses his practice on the defense of liability claims, including:

    • Insurance producer and insurance coverage litigation
    • Commercial litigation
    • Appellate practice

    He has represented clients in litigation ...

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Kerri Forsythe

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