State of Washington, et al v. Donald J. Trump, et al

Filing 66

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Law Professors. Date of service: 02/06/2017. [10304086] [17-35105] (Davis, Claire) [Entered: 02/06/2017 02:38 PM]

No. 17-35105
___________________________________________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.,
Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
______________________________________________
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE
LAW PROFESSORS
IN SUPPORT OF NEITHER PARTY

Claire Loebs Davis
Jessica N. Walder
LANE POWELL PC
1420 Fifth Avenue, Suite 4200
Seattle, WA 98111
Telephone: [phone]
Facsimile: 206.223.7107
Attorneys for Proposed Amici Curiae Law Professors

Non-party law professors, Todd Aagaard, David E. Adelman, Robin Kundis
Craig, Lincoln L. Davies, Noah Hall, F., Dave Owen, Zygmunt J. B. Plater,
Alexander T. Skibine, Lisa Grow Sun, Joseph P. Tomain, and Amy J. Wildermuth,
(“the Law Professors”) hereby move for leave to file an amicus curiae brief, and for
the Court to consider the Law Professors’ attached brief on the issue of state standing
in adjudicating Defendants-Appellants’ Emergency Motion for Stay (“Emergency
Motion”). The Law Professors respectfully request that the Court consider this brief
because the Law Professors are scholars on the issue of state standing and hope the
Court may benefit from their analysis of this issue. The Law Professors maintain a
neutral position on the underlying merits of the case, and are not filing this brief in
support of either party. The Law Professors rather seek to offer guidance to the
Court to help resolve the issue of state standing consistent with current law.
I.

INTEREST OF THE LAW PROFESSORS

The Law Professors are scholars who have spent considerable time studying
the question of state standing. As such, the Law Professors have a strong interest in
ensuring that the Court’s decision on standing is consistent with this body of law.
The Law Professors are professors at law schools across the country who
research, teach, and write on constitutional law, federal courts and administrative
law. The Law Professors are all particularly interested in questions of state standing,
and continue to research and study this area of the law.
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• Todd Aagaard is the Vice Dean of the Villanova University Charles
Widger School of Law. His teaching and research focuses on
administrative law, property law, energy law, and environmental law.
• David E. Adelman is the Harry Reasoner Regents Chair in Law at the
University of Texas School of Law. He teaches and writes in the areas
of environmental law, intellectual property law, administrative law, and
climate change policy.
• Robin Kundis Craig is the William H. Leary Professor of Law at the
S.J. Quinney College of Law at the University of Utah. She researches
the law and policy of “all things water,” including water rights, water
pollution, and ocean and coastal issues, as well as climate change
adaptation and the intersection of constitutional and environmental law.
• Lincoln L. Davies is the Associate Dean for Academic Affairs, the
Hugh B. Brown Professor of Law, and a Presidential Scholar at the
University of Utah. His research focuses on administrative law,
including standing issues, and on energy and environmental regulation.
• Noah Hall is a law professor at Wayne State University and Scholarship
Director of the Great Lakes Environmental Law Center. His research
focuses on federalism, state sovereignty, and interstate environmental
disputes.
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• Dave Owen is a Professor of Law at University of California Hastings
College of Law.

He teaches courses in environmental, natural

resources, water, and administrative law.
• Zygmunt J. B. Plater is a Professor of Law at Boston College Law
School, teaching and researching in the areas of environmental,
property, land use, and administrative agency law.
• Alexander T. Skibine is a Professor of Law at the S.J. Quinney College
of Law at the University of Utah. Professor Skibine has published many
articles in the area of federal Indian law and he is frequently invited to
speak on federal Indian law issues at venues around the country. He
teaches administrative law, constitutional law, torts, and federal Indian
law.
• Lisa Grow Sun is an Associate Professor at the J. Reuben Clark Law
School at Brigham Young University. She teaches constitutional law,
torts, and disaster law, and her research focuses on disaster law.
• Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler
Professor of Law at University of Cincinnati College of Law. A highly
respected professor and scholar, his teaching and research interests
focus in the areas of energy law, land use, regulatory policy, and
contracts.
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•

Amy J. Wildermuth is the Associate Vice President for Faculty, Chief
Sustainability Officer, and a Professor of Law at the University of Utah.
She teaches and writes on civil procedure, administrative law, and U.S.
Supreme Court practice.
II.

ARGUMENT IN SUPPORT OF LEAVE TO FILE

Pursuant to Fed. R. App. P. 29(a), this Court may grant leave for a non-party
to file an amicus curiae brief. The District Court granted the Law Professors leave
to file an amicus brief on standing during the February 3, 2017 hearing. State of
Washington v. Trump, W.D. Wash. No. 2:17-cv-00141, Dkt. 51.
The Law Professors seek leave to file the accompanying memorandum to
offer their unique perspective on the underlying standing issue. Issues of standing
are central to the disposition of this matter, 1 and the Law Professors believe that their
analysis on this issue will provide the Court with valuable insight on this question.
For example, Professor Wildermuth was counsel of record for several states
appearing as amici curiae in Massachusetts v. United States Environmental
1

The District Court ordered further briefing on standing in advance of the oral
argument on the Temporary Restraining Order, see State of Washington v. Trump,
2:17-cv-00141 Dkt. 10; both Appellees and Appellants spent considerable time
discussing standing in their oral argument, see Motion, Ex. E (“Transcript of Hearing
before Judge Robart”), pp. 17-21, 23-26, 34-36, 42, 47; the Temporary Restraining
Order held that Appellees had standing to bring its suit, see Motion, Ex. C
(“Temporary Restraining Order”) pp. 4-5; and the Appellants challenge standing in
their Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and
Motion for Stay Pending Appeal, see Motion pp. 9-12.
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Protection Agency 2 on the issue of state standing and has published law review
articles on this question. See Amy J. Wildermuth, Why State Standing in
Massachusetts v. EPA Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007),
available at http://epubs.utah.edu/index.php/jlrel/article/view/53/46; Kathryn A.
Watts & Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on
Issues Other Than Global Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U.
L. REV. COLLOQUY 1 (2007), available at http://www.law.northwestern.edu/
lawreview/Colloquy/2007/17/LRColl2007n17Watts.pdf; Brief of the States of
Arizona, Iowa, Maryland, Minnesota, and Wisconsin, as Amici Curiae in Support of
Petitioners, Massachusetts v. United States Environmental Protection Agency, 549
U.S. 497 (2007) (No. 05-1120), 2006 WL 2563380.
The Federal Rules of Appellate Procedure provide that “[a]n amicus curiae
that does not support either party must file its brief no later than 7 days after the
appellant’s or petitioner’s principal brief is filed.” Fed. R. App. P. 29(a)(6). Because
the Emergency Motion has been sent for consideration on an expedited basis, the
Law Professors submit their amicus curiae brief on February 6, 2017, in time for
consideration of the Emergency Motion and well before the standard seven-day
deadline set by the Federal Rules.

2

Massachusetts v. EPA is one of the seminal cases on the question of state
standing.
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III.

CONCLUSION

For the foregoing reasons, the Court should grant this motion and should
consider the Law Professors’ brief regarding state standing.

RESPECTFULLY SUBMITTED this 6th day of February, 2017.
LANE POWELL PC

By:

s/Claire Loebs Davis
Claire Loebs Davis, WSBA No. 39812
Jessica N. Walder, WSBA No. 47676
1420 Fifth Avenue, Suite 4200
Seattle, WA 98111
Telephone: [phone]
Attorneys for Proposed Amici Curiae Law
Professors

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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit using the appellate CM/ECF system. I certify that all participants in this
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

DATED: February 6, 2017

Respectfully submitted,
s/Claire Loebs Davis
Claire Loebs Davis

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