United States v. State of California ( 2020 )

1 RICHARD M. FRANK (SBN 63482) Professor of Environmental Practice 2 SCHOOL OF LAW UNIVERSITY OF CALIFORNIA 3 400 Mrak Hall Drive Davis, CA 95616 4 Telephone: (916) 217-1292 Facsimile: (530) 752-4704 5 Email: rmfrank@ucdavis.edu 6 Attorney for Amici Curiae Professors 7 of Foreign Relations Law 8 UNITED STATES DISTRICT COURT 9 10 EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION 11 12 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 15 THE STATE OF CALIFORNIA; GAVIN AMICI CURIAE BRIEF; MEMORANDUM OF C. NEWSOM, in his official capacity as POINTS AND AUTHORITIES IN SUPPORT 16 Governor of the State of California; THE THEREOF; AND [PROPOSED] ORDER CALIFORNIA AIR RESOURCES BOARD; GRANTING MOTION FOR LEAVE TO FILE 17 MARY D. NICHOLS, in her official AMICI CURIAE BRIEF OF PROFESSORS OF FOREIGN RELATIONS LAW 18 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 19 board member of the Western Climate Judge: Hon. William B. Shubb Initiative, Inc.; WESTERN 20 CLIMATE INITIATIVE, INC.; JARED Date: Not yet set BLUMENFELD, in his official capacities as Time: Not yet set 21 Secretary for Environmental Protection and as a Courtroom: 5 (14th Floor) 22 board member of the Western Climate Initiative, Inc.; KIP LIPPER, in his official Action Filed: October 23, 2019 23 capacity as a board member of the Western Climate Initiative, Inc., and RICHARD 24 BLOOM, in his official capacity as a board member of the Western Climate Initiative, 25 Inc., Defendants. 26 27 28 1 NOTICE OF MOTION AND MOTION 2 The Professors of Foreign Relations Law identified in the appendix to the accompanying, 3 proposed Amici Curiae brief respectfully move the Court for leave to file that Amici Curiae brief. The 4 motion is based on this Notice, the Memorandum of Points and Authorities, and the Amici Curiae brief. 5 MEMORANDUM OF POINTS AND AUTHORITIES 6 This Court may permit a non-party to participate as amicus curiae if it has “unique information 7 or perspective” on an issue raised by the parties, or if such an issue “has potential ramifications beyond 8 the parties….” NGV Gaming Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061 (N.D. 9 Cal. 2005). 10 The extent, if any, to which an amicus curiae should be permitted to participate in a 11 pending action is solely within the broad discretion of the district court. Pennsylvania 12 Environmental Defense Foundation v. Bellefonte Borough, 718 F. Supp. 431, 434 (M.D. Pa. 13 1989); United States v. Gotti, 775 F. Supp. 1157, 1158 (E.D.N.Y. 1991); Leigh v. Engle, 535 F. 14 Supp. 418, 420 (N.D. Ill. 1982). A court may grant leave to appear as an amicus if the information 15 offered is “timely and useful.” Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985), aff’d mem., 16 782 F.2d 1033 (3rd Cir.), cert. denied, 476 U.S. 1141 (1986). Absent a statute to the contrary, no 17 distinction is made between the request of a private person for leave to appear as amicus curiae, 18 and one by an agent of the government. Leigh, 535 F. Supp. at 420. 19 An amicus, of course, is not a party to the litigation and participates only to assist the 20 Court. Nevertheless, “by the nature of things an amicus is not normally impartial.” Gotti, 755 F. 21 Supp. at 1158 (quoting Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970)). While the partiality of 22 an amicus is a factor to consider in deciding whether to allow participation, “there is no rule … 23 that amici must be totally disinterested.” Concerned Area Residents for the Environment v. 24 Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993) (quoting Hoptowit v Ray, 682 F.2d 25 1237, 1260 (9th Cir. 1982)). 26 District courts frequently welcome amicus briefs from non-parties concerning legal issues 27 that have potential ramifications beyond the parties directly involved or if the amicus has “unique 28 information or perspective that can help the court beyond the help that the lawyers for the parties 1 are able to provide.” Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (quoting Ryan v. 2 Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)). 3 The amici Professors of Foreign Relations Law identified individually in the appendix to the 4 accompanying, proposed Amici Curiae brief teach and pursue scholarship at numerous law schools 5 throughout the United States. Individually and collectively, they possess deep and longstanding 6 expertise in the fields of foreign relations law and international law, and concerning agreements of 7 various kinds between subnational governments. Specifically, they are familiar with numerous past 8 agreements between U.S. states and other jurisdictions. 9 These amici can provide a unique perspective regarding the kinds of agreements that are 10 properly deemed treaties under the Treaty Clause in Article I, section 10 of the U.S. Constitution. They 11 can similarly analyze what kinds of agreements are properly deemed compacts requiring congressional 12 approval under the Compact Clause in Article I, section 10 of the Constitution. Amici are also uniquely 13 qualified to address how this Court’s interpretation of the Compact Clause may affect the distribution 14 of authority between Congress and the executive branch with respect to foreign relations. 15 Moreover, these amici seek to bring to the attention of this Court numerous past agreements 16 between subnational governments in the United States and abroad that—like the California-Quebec 17 agreement at issue in this case—do not rise to the status of a treaty or compact within the meaning of 18 the Treaty and Compact Clauses of the Constitution. 19 Proposed amici respectfully suggest that the information and analysis contained in the attached 20 Amici Curiae brief may assist the Court in its deliberations in this case. 21 WHEREFORE, the identified Professors of Foreign Relations Law move for an order granting 22 leave to file their Amici Curiae brief. Respectfully submitted, 23 24 Dated: February 14, 2020 /s/ Richard M. Frank Richard M. Frank 25 Attorney for Amici Curiae Professors of 26 Foreign Relations Law 27 28 1 ORDER 2 On February 14, 2020, Professors of Foreign Relations Law filed a “Motion for Leave to File 3|| Amici Curiae brief” in this case. After considering the Motion and responses by the parties, the Court 4 grants the Motion, orders the Amici Curiae brief to be filed, and will consider that brief in its deliberation in this case. 6 IT IS SO ORDERED. 7 Dated: February 19, 2020 dh ble ak fid..t€-—- 8 WILLIAM B. SHUBB 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28