SUPREME COURT:

Top Bush lawyers will face off in Mont. riverbed case

When the Supreme Court hears arguments in an upcoming case on riverbed ownership in Montana, the two advocates opposing each other will both be former solicitors general who served in the George W. Bush administration.

Paul Clement, who served as solicitor general from 2005 to 2008, is representing power company PPL Montana, while Gregory Garre, who succeeded Clement as solicitor general in 2008, will line up on behalf of the state of Montana.

The two men know each other well, reflecting the close-knit nature of the small group of lawyers who argue most of the cases before the high court.

From 2005 to 2008 they worked alongside each other at the solicitor general's office, with Garre serving as Clement's deputy. In fact, Clement hand-picked Garre to be his No. 2. Garre left his post in January 2009 upon the election of President Obama.

The Montana case, to be argued Dec. 7, will be the first time the two highly respected Supreme Court advocates have faced off against each other.

The current solicitor general, Donald Verrilli, also has an involvement in the case. He has filed a brief in support of Clement (Greenwire, Sept. 8).

At issue is whether PPL Montana has to pay rent for the use of riverbeds where its hydroelectric dams are located (Greenwire, June 20).

The case rests largely on the question of whether the rivers are deemed to have been navigable at the time Montana was admitted to the Union in 1889.

Clement, now at Bancroft, and Garre, who is at Latham & Watkins, both bring considerable firepower to the case.

Between them they have argued 83 cases in the Supreme Court, with Clement in the lead with 53 to Garre's 30.

"I would prefer it if we were on the same side, as Greg is a good friend and a superb lawyer," Clement said. "But it is still terrific to work with someone who will articulate the best argument on the other side."

Garre was similarly effusive about his opposing counsel.

"I think the world of Paul," he said. "Going up against him will be a great challenge and great thrill."

The 2011 Supreme Court term kicks off Oct. 3. PPL Montana is one of two environmental cases on the docket so far. The other is Sackett v. EPA on the question of EPA enforcement powers under the Clean Water Act (Greenwire, Sept. 19).