July 01, 2012

Appellate practice in the Environment and Natural Resources Division: “Calls for Views of the Solicitor General”

Ethan G. Shenkman

The Environment and Natural Resources Division (ENRD) of the U.S. Department of Justice has responsibility for cases involving more than 150 statutes and represents virtually every federal agency in courts throughout the United States. About half of ENRD’s lawyers concentrate on enforcement cases premised on civil and criminal violations of the nation’s pollution control laws. Others defend environmental challenges to government programs and activities, and represent the United States in matters concerning the stewardship of the nation’s natural resources and public lands. ENRD is also responsible for cases arising under federal wildlife protection laws, for acquisition of real property by eminent domain, for cases concerning protection of tribal rights and resources, and defense of tribal claims against the United States.

ERND’s Supreme Court practice

ENRD’s Appellate Section handles the initial appeals of all cases litigated by division lawyers in the trial courts. It also works closely with the Department of Justice’s Office of the Solicitor General on ENRD cases that reach the U.S. Supreme Court. In cases in which the Court grants certiorari, ENRD assists the Solicitor General in preparing merits briefs where the government is a party. ENRD also works with the Solicitor General on amicus briefs where the government is not a party but the Solicitor General decides it is in the interest of the United States to participate.

Reflecting the breadth of its appellate practice, ENRD has had a wide variety of constitutional law and other cases decided by the Court. Recent cases in past Terms, for example, have presented challenges to the adequacy of the government’s review of the potential environmental effects of genetically modified agricultural products, claims that property law decisions rendered by a state supreme court constituted a judicial takings under the Fifth Amendment, First Amendment challenges to religious displays on public lands, displacement under the Clean Air Act of federal common law nuisance claims based on greenhouse gas emissions, and the scope of fiduciary duty in tribal breach of trust claims against the United States. In its 2011 Term, the Court considered a myriad of issues involving ENRD, including the standard for determining the navigability of rivers for purposes of the “equal footing” doctrine, issues regarding pre-enforcement review of wetlands enforcement under the Clean Water Act, and a case implicating the Fifth and Sixth Amendments addressing the proper division of responsibility between the judge and jury in assessing criminal fines under the Resource Conservation and Recovery Act.

In addition to merits cases, ENRD assists the Solicitor General in preparing briefs in opposition to petitions for certiorari in cases that ENRD won in the courts of appeals and, on occasion, in preparing petitions for certiorari in cases that ENRD lost below.

The Court’s increasing use of CVSG orders

Rarely will the Solicitor General file an amicus brief relating to a pending petition for certiorari filed by a non-federal party. However, each Term the Court issues “Calls for the Views of the Solicitor General”—or “CVSG” orders—in which the Court invites the Solicitor General to file an amicus brief expressing the views of the United States on a pending certiorari petition. Although not discussed in the Court’s rules, it is generally believed that the vote of four Justices (the same number of votes required to grant certiorari) is sufficient for the Court to issue a CVSG order.

CVSG orders are issued after the parties have completed briefing on the petition for certiorari, all other amicus briefs supporting or opposing the petition have been filed, and the Justices have held an initial private conference to discuss the petition. The Court issues CVSG orders not only to obtain the views of the United States on legal questions, but also on whether the petition should be granted. The Solicitor General has a range of potential responses to such an invitation from the Court, including supporting the grant of certiorari—in whole or in part, or opposing certiorari. In some cases, the government contends that the court of appeals decision was incorrect but the case, nonetheless, does not warrant further review by the Court. Where appropriate, the Solicitor General may suggest that the Court grant, vacate, and remand a case to the court of appeals to address an intervening Court decision or legislative or regulatory development, or that the Court “hold” the petition pending the Court’s decision in a related case.

When a CVSG order is issued, the Court, as a matter of practice, does not impose a specific deadline for the Solicitor General to prepare and file a brief, and no further consideration is given to the petition until the Solicitor General weighs in. Where practicable, the Solicitor General will generally submit its response in time for the Court to be able to consider the petition by the final conference of the term.

There appears to be an upward trend in the number of CVSG orders issued by the Supreme Court over the last 10–15 years. For example, from July 1998 through June 1999, the Solicitor General filed a total of seven amicus briefs in response to invitations from the Court; from July 2000 through June 2001, the Solicitor General filed fourteen such briefs; and most recently, from July 2010 through June 2011, the Solicitor General filed twenty-five invitation briefs. Consistent with that trend, ENRD has had to address an increasing number of important environmental, natural resources, and Indian law issues in CVSG briefs.

A number of commentators have noted the effect that an invitation brief filed by the United States may have on the likelihood that a particular petition will be granted (or denied). See D..Thompson & M. Wachtel, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for the Response and The Call for the Views of the Solicitor General, 16 Geo. Mason L. Rev. 237 (2009). But the significance of CVSG orders extends beyond whether the Court agrees to hear a particular case. For example, the issuance of a CVSG order may require the government to develop a position on an important legal issue for the first time, or to resolve internal conflicts or tensions in positions that various agencies have taken in the lower courts. Furthermore, regardless of whether the Court grants certiorari, the positions the Solicitor General takes in a brief filed before the Court may be of great general significance to future litigation involving both governmental and private parties.

Recent CVSG briefs involving ERND

Recent noteworthy CVSG briefs in which ENRD was centrally involved include Hogan v. Kaltag Tribal Council, No. 09-960, which concerned the inherent sovereignty of Alaska Native villages to decide Indian child welfare cases. In its invitation brief, the Solicitor General opposed the granting of certiorari, and certiorari was ultimately denied by the Court. Another example of a CVSG brief is found in a case decided this Term, PPL Montana v. Montana, No. 10-218, which involved the test for determining whether rivers or river segments are navigable-in-fact for purposes of determining whether title to the river beds passed to the state at the time of statehood. In its invitation brief, the United States opined that certain aspects of the Montana Supreme Court’s decision were incorrect, but supported respondent, the State of Montana, in opposing certiorari. Although the government opposed certiorari, the Court nonetheless decided to hear the case. The United States then filed an amicus brief on the merits supporting the petitioner, a hydropower company. The Court ultimately issued an opinion on the merits consistent with the United States’ position regarding the correct standard for determining navigability.

The Supreme Court also recently invited the views of the United States in a series of important Indian law cases within ENRD’s purview, in which the Court had to decide whether to take up cases involving state-tribal gaming compacts, Indian reservation boundaries, and enforcement of tribal court judgments. In all three cases the Supreme Court denied certiorari, consistent with the views expressed by the United States’ CVSG briefs.

As of the time of writing of this article, there are at least five CVSG orders outstanding in cases of relevance to ENRD, involving a wide range of issues: whether a California rule requiring vessels to use low sulfur fuel is preempted by federal law, regulation of municipal sewage discharges under the Clean Water Act, whether runoff from forest roads requires a NPDES permit or is otherwise regulated under the Clean Water Act, whether certain tax payers had standing under state law to challenge tax treatment of Native Hawaiian lease interests, and claims that an interstate water compact (the Red River Compact) that apportions water among the signatory states preempts Oklahoma statutes that impose different standards on out-of-state appropriators than in-state appropriators. View a complete listing of CVSG or “invitation” briefs filed by the Solicitor General for the 2011 Term.

Assuming that the current trend continues for the Supreme Court inviting the views of the United States at the petition for certiorari stage—on important issues relating to environmental, natural resources, and Indian law—CVSGs will continue to be an area of interest to Section of Environment, Energy, and Resources members.


Editor’s Note: During the last week of its 2011 Term, the Supreme Court ruled on four of the five certiorari petitions in environmental/Indian law cases for which it had invited briefs from the Solicitor General, granting two and denying two. On June 25, 2012, the Court granted certiorari in Decker v. Northwest Environmental Defense Center (consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center), Nos. 11-374 and 11-338, and Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., No. 11-460. 

Ethan G. Shenkman

Ethan G. Shenkman has practiced environmental law and Indian law in both the government and private sector. He is currently serving as Deputy Assistant Attorney General in ENRD, where he supervises ENRD’s Appellate Section and Indian Resources Section and was previously partner at the law firm WilmerHale. He started his legal career as a Bristow Fellow in the Office of the Solicitor General. The views expressed in this article do not necessarily represent the views of the Department of Justice or the United States.