United States v. State of California

1 RICHARD M. FRANK (SBN 63482) Professor of Environmental Practice SCHOOL OF LAW UNIVERSITY OF CALIFORNIA 400 Mrak Hall Drive Davis, CA 95616 Telephone: (916) 217-1292 Facsimile: (530) 752-4704 Email: [email protected] Attorney for Amici Curiae Professors of Foreign Relations Law UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION UNITED STATES OF AMERICA, Case No. 2:19-cv-02142-WBS-EFB 13 Plaintiff, PROFESSORS OF FOREIGN RELATIONS v. 14 L MA OW TI’ OS NN O RT EI QC UE E O SF T IM NO GT LI EO AN V A EN TD O FILE THE STATE OF CALIFORNIA; GAVIN AMICI CURIAE BRIEF; MEMORANDUM OF C. NEWSOM, in his official capacity as POINTS AND AUTHORITIES IN SUPPORT Governor of the State of California; THE THEREOF; AND ORDER GRANTING CALIFORNIA AIR RESOURCES BOARD; MOTION FOR LEAVE TO FILE AMICI MARY D. NICHOLS, in her official CURIAE BRIEF OF PROFESSORS OF FOREIGN RELATIONS LAW c Ra ep sa oc ui rti ce es s a Bs oC ah rda i ar n o df ath s e V C ica eli Cfo hr an ii ra aA ni dr a board member of the Western Climate Judge: Hon. William B. Shubb Initiative, Inc.; WESTERN CLIMATE INITIATIVE, INC.; JARED Date: June 29, 2020 BLUMENFELD, in his official capacities as Time: 1:30 p.m.

21 Secretary for Environmental Protection and as a Courtroom: 5 (14th Floor) board member of the Western Climate Initiative, Inc., Action Filed: October 23, 2019 23 Defendants.

1 NOTICE OF MOTION AND MOTION 2 The Professors of Foreign Relations Law identified in the appendix to the accompanying, proposed Amici Curiae brief respectfully move the Court for leave to file that Amici Curiae brief in support of the second cross-motion for summary judgment of Defendants State of California, et al. The motion is based on this Notice, the Memorandum of Points and Authorities, and the Amici Curiae brief.

6 Amici join the Stipulation and Proposed Order to Shorten Time for Hearing of Motions of Proposed Amici for Leave to File Briefs as Amici Curiae that is being filed by the State of Oregon.

8 MEMORANDUM OF POINTS AND AUTHORITIES 9 This Court may permit a non-party to participate as amicus curiae if it has “unique information or perspective” on an issue raised by the parties, or if such an issue “has potential ramifications beyond the parties….” NGV Gaming Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061 (N.D. 12 Cal. 2005).

13 The extent, if any, to which an amicus curiae should be permitted to participate in a pending action is solely within the broad discretion of the district court. Pennsylvania Environmental Defense Foundation v. Bellefonte Borough, 718 F. Supp. 431, 434 (M.D. Pa. 1989); United States v. Gotti, 775 F. Supp. 1157, 1158 (E.D.N.Y. 1991); Leigh v. Engle, 535 F.

17 Supp. 418, 420 (N.D. Ill. 1982). A court may grant leave to appear as an amicus if the information offered is “timely and useful.” Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985), aff’d mem., 782 F.2d 1033 (3rd Cir.), cert. denied, 476 U.S. 1141 (1986). Absent a statute to the contrary, no distinction is made between the request of a private person for leave to appear as amicus curiae, and one by an agent of the government. Leigh, 535 F. Supp. at 420.

22 An amicus, of course, is not a party to the litigation and participates only to assist the Court. Nevertheless, “by the nature of things an amicus is not normally impartial.” Gotti, 755 F.

24 Supp. at 1158 (quoting Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970)). While the partiality of an amicus is a factor to consider in deciding whether to allow participation, “there is no rule … that amici must be totally disinterested.” Concerned Area Residents for the Environment v. Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993) (quoting Hoptowit v Ray, 682 F.2d 28 1237, 1260 (9th Cir. 1982)).

1 District courts frequently welcome amicus briefs from non-parties concerning legal issues that have potential ramifications beyond the parties directly involved or if the amicus has “unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)).

6 The amici Professors of Foreign Relations Law identified individually in the appendix to the accompanying, proposed Amici Curiae brief teach and pursue scholarship at numerous law schools throughout the United States. Individually and collectively, they possess deep and longstanding expertise in the field of foreign relations law, including the various doctrines of foreign affairs preemption that govern the cross-motions for summary judgment in this case.

11 Proposed amici respectfully suggest that the information and analysis contained in the attached Amici Curiae brief may assist the Court in its deliberations in this case.

13 WHEREFORE, the identified Professors of Foreign Relations Law move for an order granting leave to file their Amici Curiae brief.

Respectfully submitted, Dated: May 26, 2020 /s/ Richard M. Frank Richard M. Frank Attorney for Amici Curiae Professors of Foreign Relations Law WAS UV VY RODE BP tet POU riey OF VUE ST 1 ORDER 2 On May 26, 2020, Professors of Foreign Relations Law filed a “Motion for Leave to File Amici 3|| Curiae Brief” in this case. After considering the Motion and responses by the parties, the Court grants the Motion, orders the Amici Curiae brief to be filed, and will consider that brief in its deliberation in 5]| this case.

6 IT IS SO ORDERED. g|| Dated: May 27, 2020 - - 9 at en Vin (i 10 UNITED STATES DISTRICT JUDGE