In our over four decades of filing amicus curiae briefs, we’ve had plenty of litigants on the other side of the “v.” object to our motion for leave to participate in a case. The standard objection is that our submission fails to add any value.
An environmental group recently lodged just such an objection to WLF’s amicus filing (as well as to two other briefs) in a case before the U.S. Court of Appeals for the Seventh Circuit. On October 2, Judge Michael Y. Scudder published an instructive opinion explaining why he was granting our and our fellow amici‘s motions.
In the case, Prairie Rivers Network v. Dynegy Midwest Generation, the plaintiff alleged that Dynegy’s failure to prevent its stored solid waste from leaching into groundwater violated the Clean Water Act (CWA). The district court dismissed the complaint, reasoning that the coal ash in question is regulated under the Resource Conservation and Recovery Act, not the CWA. Prairie Rivers Network appealed to the Seventh Circuit.
WLF chose to support Dynegy in the appeal because the Seventh Circuit will need to apply the U.S. Supreme Court’s very recent County of Maui v. Hawaii Wildlife Fund ruling, which involved groundwater and the CWA. We filed an amicus brief in County of Maui as well.
In his order, Judge Scudder agreed that amicus briefs must strive to do more than simply “repeat (literally or through conspicuous paraphrasing) a party’s position.” He accepted that today’s amici are not “neutral information broker[s],” but wrote that amici interested in a particular outcome can still constructively contribute:
[A]n amicus curiae brief should be additive—it should strive to offer something different, new, and important. . . . And a good amicus brief does not have to be long. Indeed, shorter is often better, and I offer that perspective knowing that it is more difficult to write a short, effective brief than a long, belabored brief.
Each of the amicus briefs supporting Dynegy “meet these standards,” Judge Scudder concluded. WLF’s brief, he wrote, “offers its own theory for how to best fit County of Maui into the existing federal scheme regulating the pollutants at issue here.”
We’d be remiss not to mention that a team of attorneys from Hunton Andrews Kurth LLP, led by F. William Brownell and Elbert Lin, offered their pro bono assistance in the preparation of WLF’s notable brief.