Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644 (7th Cir. 2020)

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The Network filed suit under the Clean Water Act against Dynegy, the owner of an Illinois power station, claiming that Dynegy’s station was releasing contaminants into groundwater. The district court dismissed the suit concluding that the Act does not regulate groundwater. An appeal focused on whether and how the Act applies to the alleged groundwater contamination after the Supreme Court’s 2020 “County of Maui” decision. Three organizations sought permission to file amicus briefs in support of Dynegy’s position. The Network argued that each brief only parrots Dynegy’s arguments, wasting the court’s time. The Federal Rules of Appellate Procedure state that a prospective amicus must explain why its brief is desirable and why the matters asserted are relevant. The Seventh Circuit Practitioner’s Handbook adds that the court looks at whether the submission will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not found in the parties' briefs.

The Seventh Circuit granted the motion, stating that amicus briefs should not serve only to count which interest groups are promoting which outcome. In this case: the Illinois Environmental Regulatory Group briefly presents the history of Illinois groundwater regulation from before the Clean Water Act, lending context to the cited cases; the U.S. Chamber of Commerce provides insight into how an alternative federal scheme would apply, absent Clean Water Act regulation; and the Washington Legal Foundation’s brief offers its own theory for how to best fit "Maui" into the existing federal scheme regulating the pollutants at issue.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-3644 PRAIRIE RIVERS NETWORK, Plainti -Appellant, v. DYNEGY MIDWEST GENERATION, LLC, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 2:18-cv-02148 — Colin S. Bruce, Judge. ____________________ DECIDED SEPTEMBER 24, 2020 – PUBLISHED OCTOBER 2, 2020 ____________________ SCUDDER, Circuit Judge, in chambers. 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, 2 No. 18-3644 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). Three organizations have sought permission to file friendof-the-court briefs in support of Dynegy’s position on appeal. The Network opposes these motions, asserting that each brief does nothing more than parrot Dynegy’s arguments and waste the court’s time. The guidance for prospective amici is sparing. The Federal Rules of Appellate Procedure say only that a prospective friend of the court must explain “why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” FED. R. APP. P. 29(a)(3)(B). Our Practitioner’s Handbook for Appeals adds that, in deciding whether to accept an amicus brief, the court looks at whether the submission “will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not found in the briefs of the parties.” See Practitioner s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, XXII.B “Amicus Briefs” (2020 ed.) (citing Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 544–45 (7th Cir. 2003) (Posner, J., in chambers)). At times individual judges have rightly observed that too many amicus briefs do not even pretend to o er value and instead merely repeat (literally or through conspicuous No. 18-3644 3 paraphrasing) a party’s position. See, e.g., Voices for Choices, 339 F.3d at 545 (“[I]t is very rare for an amicus curiae brief to do more than repeat in somewhat di erent language the arguments in the brief of the party whom the amicus is supporting.”); Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, C.J., in chambers) (“[T]he vast majority of [amicus curiae briefs] have not assisted the judges . . . .”). Nobody benefits from a copycat amicus brief and indeed our practice is to reject them. See Nat l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000). Nor should amicus briefs serve only as a show of hands on what interest groups are rooting for what outcome. See Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 518 (7th Cir. 2004) (“Courts value submissions not to see how the interest groups line up, but to learn about facts and legal perspectives that the litigants have not adequately developed.”). Rather, a true friend of the court will seek to add value to our evaluation of the issues presented on appeal. To be sure, the fiction that an amicus acts as a neutral information broker, and not an advocate, is long gone. See Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE L.J. 694, 703–04 (1963). But even a friend of the court interested in a particular outcome can contribute in clear and distinct ways, by, for example: O ering a di erent 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; 4 No. 18-3644 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. The point, of course, is that an amicus curiae brief should be additive—it should strive to o er something di erent, 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 o er that perspective knowing that it is more difficult to write a short, e ective 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 a rm. 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 o ers its own theory for how to best fit No. 18-3644 5 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.

Primary Holding

In case under the Clean Water Act, alleging groundwater contamination, the Seventh Circuit grants permission for amicus briefs.

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