Supreme Court Practice

Our firm regularly engages in advocacy before the United States Supreme Court representing public interest clients on the merits and in amicus briefs.  The following is a list of representative cases in which our firm has participated before the Court, including links to briefs filed on behalf of our clients. 

THE Ark initiative V. tidwell, NO. 16-165 (2016)

On behalf of the Ark Initiative, Rocky Mountain Wild, and several environmentalists, we filed a petition for certiorari requesting that the Supreme Court review our challenge to the U.S. Forest Service's dramatic shift in how it classifies roadless areas.  In the Colorado Roadless Rule, the Forest Service departed from four decades of uniform agency policy and practice by applying political and economic factors to roadless inventory classification decisions, thereby transforming the process from an objective and empirical one into an arbitrary, politically driven one based on which industry applies the most pressure to the Forest Service.  The agency never even acknowledged that it was deviating from its past policy and practice, nor did the agency solicit public comment on this radical shift.  

Petition for a Writ of Certiorari for The Ark Initiative, Rocky Mountain Wild, Scott Schlesinger, and Donald Duerr

Decker v. Northwest Environmental Defense Center, Nos. 11-338, 11-347 (2012)

On behalf of the Pacific Coast Federation of Fisherman’s Associations and other conservation groups, we filed an amicus brief in this case addressing whether logging roads that discharge polluted stormwater into rivers, streams, and other water bodies must obtain National Pollutant Discharge Elimination Permits under the Clean Water Act.  Our amicus brief explains that the runoff from logging roads impairs the habitat of salmon and other species and harms downstream businesses the depend on healthy ecosystems. 

Brief for Amici Curiae Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Humboldt Fishermen’s Marketing Association, and Santa Cruz Commercial Fishermen’s Association

American Electric Power v. State of Connecticut, No. 10-174 (2011)

This case concerned whether States and land trusts can invoke the federal common law of public nuisance to sue large emitters of greenhouse gas emissions for substanially contributing to the States’ and land trusts’ proprietary and other injuries via climate change.  We submitted an amicus brief on behalf of several conservation organizations focusing on the threshold issue of standing in environmental cases, and arguing that the plaintiffs adequately alleged all elements necessary for standing at the motion to dismiss juncture of the proceedings, especially in view of the limited nature of the Court’s inquiry in this case in light of the unique facts presented in this common law cause of action. 

Brief for Amici Curiae Defenders of Wildlife, Center for Biological Diversity, and National Wildlife Federation

Tobacco-Free Kids Action Fund, et al. v. Philip Morris USA Inc., et al., No. 09-994 (2010)

On behalf of a coalition of public health organizations, we obtained intervention to advocate for better remedies in the long-running suit by the federal government against major tobacco companies under the federal Racketeering statute (RICO).  The district court found the tobacco companies liable for a decades-long pattern of fraudulent behavior concerning the health risks of tobacco and imposed certain remedies, and the court of appeals affirmed.  We filed a Petition for Certiorari on the ground that both the district court and court of appeals had not gone far enough in imposing remedies for the unlawful conduct, including disgorgement of profits and funding of smoker cessation programs, and the tobacco industry also filed a Petition for Certiorari on the liability issue.  The Supreme Court denied review of all of the Petitions.

Petition for a Writ of Certiorari

Reply Brief in Support of our Petition for a Writ of Certiorari

Opposition to Tobacco Industry's Petition for a Writ of Certiorari

Monsanto v. Geertson Seed Farms, No. 09-475 (2010)

This case concerned the questions of what relief is most appropriate under NEPA and the APA to remedy an agency’s failure to prepare an Environmental Impact Statement, and whether an evidentiary hearing must precede such relief.  We submitted an amicus brief on behalf of several conservation organizations highlighting presumptive remedial principles under the APA and arguing that a district court has various remedies available under NEPA, including vacatur and injunctive relief, which do not first require an evidentiary hearing.

Brief for Amici Curiae Defenders of Wildlife, Humane Society of the United States, and the Center for Biological Diversity in Support of Respondents

Winter v. Natural Resources Defense Council, No. 07-1239 (2008)

This case concerned the narrow question of whether an injunction against ongoing military exercises is proper during the pendency of an Environmental Impact Statement under NEPA where such an injunction poses risks to national security.  We submitted an amicus brief on behalf of several conservation organizations explaining the unique purpose and statutory scheme of NEPA and arguing that NEPA’s structure allows for injunctive relief to remedy NEPA violations absent unusual circumstances.

Brief for Amici Curiae Defenders of Widlife, Humane Society of the United States, Center for Biological Diversity, Oceana, Inc., Sierra Club, The Wilderness Society, Animal Legal Defense Fund, and Greenpeace, Inc. in Support of Respondents

National Association of Home Builders v. Defenders of Wildlife, No. 06-340 (2007)

This case involved the question of whether the Environmental Protection Agency was required to comply with section 7 of the Endangered Species Act when it delegated Clean Water Actpermitting authority to the State of Arizona.  We represented Defenders of Wildlife and other conservation organizations in arguing that the EPA was obligated to consult with the Fish and Wildlife Service concerning the impacts of the transfer of authority on various listed species.  In a 5-4 ruling, the Court held that the consultation obligated was limited to discretionary agency actions, and that the EPA’s transfer decision was not discretionary.

Respondant's Brief

Opposition to Cert.

Norton v. Southern Utah Wilderness Alliance, No. 03-101 (2004)

On behalf of Defenders of Wildlife and Public Citizen, the firm submitted an amicus brief in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), in an effort to keep intact the law governing judicial review of agency decisions that are “unreasonably delayed,” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(1).  Amici argued that, particularly when citizens petition a federal agency to undertake an action, pursuant to the APA, 5 U.S.C. § 555(b), which requires agencies to conclude proceedings “within a reasonable time,” such petitioners may invoke the “unreasonable delay” standard for judicial review in challenging an agency’s delay to respond to such petitions.  In the Court’s subsequent decision, it held that only mandatory duties could be the subject of APA review for agency actions “unlawfully withheld” under 5 U.S.C. § 706(1), and included a footnote noting that with respect to the “unreasonable delay” standard of § 706(1), “delay cannot be unreasonable with respect to action that is not required,” 542 U.S. at 63, note 1.  However, because § 555(b) requires agencies to conclude matters “within a reasonable time,” the decision did not disturb existing law that allows citizens to bring APA challenges to an agency’s delay in responding to such rule-making petition.

Amici Curiae Brief of Defenders of Wildlife and Public Citizen in Support of Respondents

Richard B. Cheney v. United States District Court for the District of Columbia, No. 03-475 (2003)

This case was brought by the Sierra Club challenging, under the Federal Advisory Committee Act, Vice President Cheney’s energy task force, which was dominated by industry representatives and excluded environmental groups.   We filed an amicus brief on behalf of the Natural Resources Defense Council, on whose behalf we had also pursued FOIA litigation into the workings of the Cheney task force.

Brief of Amicus Curiae Natural Resources Defense Council in Support of Respondents

Charles Gilbert Gibbs v. Bruce Babbitt, No. 00-844 (2001)

On behalf of Defenders of Wildlife, the firm successfully opposed a petition for certiorari in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 2001 WL 137648 (2001).  The case involved a Commerce Clause challenge to the Fish and Wildlife Service’s recovery program for the endangered red wolf in North Carolina.  The Fourth Circuit held that the reintroduction of the wolves was well within the federal government’s authority under the Commerce Clause and was consistent with recent Commerce Clause decisions of the Supreme Court.  Livestock owners and others who opposed the reintroduction program argued that the regulations did not sufficiently implicate interstate commerce to permit the federal government to exercise Commerce Clause authority.  By denying certiorari, the Supreme Court left the Fourth Circuit decision undisturbed.

Petition for Writ of Certiorari

National Academy of Sciences v. Animal Legal Defense Fund, No. 97-208 (1997)

On behalf of the Animal Legal Defense Fund, we won a landmark ruling in the D.C. Circuit that committees of the National Academy of Sciences are required to comply with the Federal Advisory Committee Act’s openness and accountability requirements.  When the Academy sought Supreme Court review, we successfully opposed that request.

Brief in Opposition to Certiorari