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Utility of Amicus Curiae Briefs

By: Derek Hawkins//November 24, 2020//

Utility of Amicus Curiae Briefs

By: Derek Hawkins//November 24, 2020//

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7th Circuit Court of Appeals

Case Name: Prairie Rivers Network v. Dynegy Midwest Generation, LLC,

Case No.: 18-3644

Officials: SCUDDER, Circuit Judge, in chambers.

Focus: Utility of Amicus Curiae Briefs

Many Q&As with appellate judges draw a question whether amicus curiae briefs add value to deciding cases. And most of the time judges give the answer that first-year law students quickly learn is ubiquitous in the law—“sometimes; it depends.” This opinion offers a few thoughts on the question as part of explaining why I granted motions to accept three amicus briefs in this appeal.

Prairie Rivers Network appeals the dismissal of the suit it brought under the Clean Water Act against Dynegy Midwest Generation, the owner of a power station in Vermillion, Illinois. The Network alleged that Dynegy’s station was releasing contaminants into groundwater, but the district court dismissed the suit concluding that the Clean Water Act does not regulate groundwater. Much of the appeal focuses on whether the district court’s analysis of the Clean Water Act, and its application (or lack thereof) to the alleged groundwater contamination, remains valid after the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).

The point, of course, is that an amicus curiae brief should be additive—it should strive to offer something different, new, and important. See Scheidler, 223 F.3d at 617. 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 tendered in this appeal meet these standards. And that is so despite each brief containing some unnecessary and unwelcomed (though perhaps inevitable) repetition of Dynegy’s primary arguments. The Illinois Environmental Regulatory Group briefly presents the history of Illinois groundwater regulation from before Congress’s enactment of the Clean Water Act through the present day, thereby lending context to the cases cited by the parties and highlighting the practical results if we decide to affirm. The United States Chamber of Commerce likewise provides insight into how an alternative federal scheme would apply in the absence of Clean Water Act regulation. Finally, the Washington Legal Foundation’s brief offers its own theory for how to best fit County of Maui into the existing federal scheme regulating the pollutants at issue here. Members of the court might find any or all of these additions helpful to deciding this appeal.

Motion granted

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.


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