NELMCC Program 2021

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

DAWN – STORM KING

by John Hulsey

Elisabeth Haub School of Law at Pace University White Plains, New York February 17-19, 2021 Major Sponsors ABA Section of Environment, Energy, and Resources Baker Botts, LLP AlterEcho

THE JEFFREY G. MILLER PACE NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION The first Competition, held in 1989, was conceived by Pace Law students and championed by Professor Jeffrey Miller, and generations of students and alumni have carried on the tradition ever since. The Competition has grown to become the most prestigious environmental moot and the largest interschool moot court competition of any kind under one roof, and it is a flagship program of Pace Law School. Professor Miller has served as Competition advisor, and throughout the years, he has crafted some of the most complicated appellate cases ever argued. We pay tribute to his achievements with this honor.

The Story of NELMCC’s Award Winning Artist & His Painting Nicholas A. Robinson In “Dawn-Storm King” (1989) John Hulsey celebrates the mountain which inspired the birth of modern environmental law, in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965). His original watercolor is exhibited each year by the law school that won the National Environmental Law Moot Court Competition, and prints of the painting are given to the school and winning students for inclusion in their permanent collection of art works and the law. In 1988, when Professors Jeff Miller and Nick Robinson contemplated what sort of award to select for the new Moot Court, both sought a painting of Storm King Mountain.

The early 19th century nature conservation movement had its roots in the Hudson School of painters, and so the birth of environmental law owes a debt to artists. Art, like law, is a living tradition, so rather than select an historic painting, of which the Hudson Highlands boasts many, Jeff and Nick commissioned John Hulsey to paint Storm King anew. Hulsey was then in residence in Garrison, New York, painting how light transfuses the hydrologic cycle and infuses the waters and skies of the Hudson River Valley.

John Hulsey’s painting is a meditation for us all. We never know in advance, which of the advocates in the National Environmental Law Moot Court Competition will prevail. More fundamentally, the jury is still out as to whether the remedial ends of environmental law will succeed in shaping a sustainable society. Students entering environmental law face the same fork in the road to the river that John Hulsey’s painting represents. The first rays of the morning sun, gracing the peak of Storm King, offer hope, but the river is wide and the choices uncertain.

John Hulsey’s work keeps alive images that John Muir once captured in words: “This grand show is eternal. It is always sunrise somewhere; the dew is never dried all at once; a shower is forever falling; vapor is ever rising. Eternal sunrise, eternal dawn and gloaming, on sea and continents and islands, each in its turn, as the round earth rolls.

A GUIDE TO THE COMPETITION TABLE OF CONTENTS I.

INTRODUCTION

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Schedule of Events for Competitors............................................................................................................................. 2 Schedule of Events for Judges ........................................................................................................................................ 3 Welcome from Dean .......................................................................................................................................................... 4 Welcome from Chair........................................................................................................................................................... 5 Final Round Judges Bios ................................................................................................................................................... 7 Supporters ............................................................................................................................................................................11 NELMCC Board & Administrative Support ..............................................................................................................12 Environmental Law at Elisabeth Haub School of Law..........................................................................................13

II. ABOUT THE COMPETITION 1.

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Competition Format .........................................................................................................................................................15 Participating Schools ........................................................................................................................................................16

III. JUDGING THE COMPETITION 1. Role of Haub Law Reviews..............................................................................................................................................17 2. 2021 Haub Law Reviews..................................................................................................................................................18 3. 2021 NELMCC Brief Graders ..........................................................................................................................................19 4. 2021 NELMCC Judges.......................................................................................................................................................20 IV. SPONSORS ..........................................................................................................................................................................23 V. APPENDIX............................................................................................................................................................................29 NELMCC Problem 2021 Official Rules

The Moot Court Board is grateful to all attorneys who judge the competition and whose registrations were received after this publication was printed.

© 2021 Elisabeth Haub School of Law at Pace University

ONLINE SCHEDULE OF EVENTS FOR COMPETITORS February 17-19, 2021 (All times are EST)

COMPETITORS’ HEADQUARTERS: https://pace.zoom.us/s/91207428840 Password: 150158 WEDNESDAY, 2/17 2:15pm – 2:50pm

Check in at Competitors’ HQ to Receive Room Assignments

3:00pm – 5:00pm

Preliminary Round I

6:15pm – 6:30pm

Check in at Competitors’ HQ to Receive Room Assignments

7:00pm – 9:00pm

Preliminary Round II

THURSDAY, 2/18 11:15am – 11:30am

Check in at Competitors’ HQ to Receive Room Assignments

12:00pm – 2:00pm

Preliminary Round III

2:00pm – 4:00pm

Tea and Coffee for Students

4:00pm – 4:30pm

Announcements at Competitors’ HQ – Best Briefs; 27 Teams Advancing to Quarterfinal Round

4:30pm – 5:15pm

Games and Chat

5:15pm – 5:30pm

Check in at Competitors’ HQ to Receive Room Assignments

6:00pm – 8:00pm

Quarterfinal Round

10:00pm – 10:15pm

Announcements at Competitors’ HQ – 9 Teams Advancing to Semifinal Round

FRIDAY, 2/19 11:00am – 11:30am

11:00am – 11:50am

Tea and Coffee for Students Law Professors’ Workshop for Team Coaches “Possible Pathways to the Biden Administration Climate Goals” Panelists: Prof. Karl Coplan, Prof. Craig Hart, and Prof. Katrina Kuh Moderator: Adjunct Prof. Joseph Siegel

https://pace.zoom.us/j/92787208359 Password: 722333 11:15am – 11:30am

Check in at Competitors’ HQ to Receive Room Assignments

12:00pm – 2:00pm

Semifinal Round

2:30pm – 3:00pm

Final Announcements – Best Oralists; 3 Finalist Teams 3/5/21

Final Round:

Virtually via Zoom Saturday, March 6, 2021 1:30 – 3:30 PM EST

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ONLINE SCHEDULE OF EVENTS FOR JUDGES February 17-19, 2021 (All times are EST)

JUDGES’ HEADQUARTERS: https://pace.zoom.us/j/91258435768 Password: 422374 WEDNESDAY, 2/17 2:15pm – 2:30pm

Check in at Judges’ HQ to Receive Room Assignments

3:00pm – 5:00pm

Preliminary Round I

6:15pm – 6:30pm

Check in at Judges’ HQ to Receive Room Assignments

7:00pm – 9:00pm

Preliminary Round II

THURSDAY, 2/18 10:00am – 11:00am

AlterEcho Presentation for Attorneys

11:15am – 11:30am

Check in at Judges’ HQ to Receive Room Assignments; Remarks by Prof. Katrina Kuh

12:00pm – 2:00pm

Preliminary Round III

5:15pm – 5:30pm

Check in at Judges’ HQ to Receive Room Assignments

6:00pm – 8:00pm

Quarterfinal Round

FRIDAY, 2/19 NYS Ethics CLE Program for Attorneys 9:00am – 11:00am

https://pace.zoom.us/j/97532943252 Password: 321751

11:15am – 11:30am

Check in at Judges’ HQ to Receive Room Assignments; Remarks by Prof. Jason Czarnezki

12:00pm – 2:00pm

Semifinal Round 3/5/21

Final Round:

Virtually via Zoom Saturday, March 6, 2021 1:30 – 3:30 PM EST

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DEAN'S WELCOME Welcome to the Elisabeth Haub School of Law at Pace University’s first virtual Jeffrey G. Miller National Environmental Law Moot Court Competition (“NELMCC”).

NELMCC remains an outstanding example of the growing national commitment to environmental law among law students. This growth shows increasing interest not only in the evolving fields of environment, energy, and natural resources law, but in the depth and breadth of commitment to environmental law in American legal education.

Haub Law has a proud tradition and reputation in national and international fields of environmental law and policy, driven by the hard work of our students, faculty, staff, and alumni.

It was our students who initiated the concept of this Competition many years ago, and who still today annually provide the leadership vital to its continued success. The Competition is also made possible by the hard work and dedication of the NELMCC Board and in particular this year by the work of our Chair, Ms. Audra Gale; Prof. Karl Coplan, the NELMCC advisor and problem author; Sarena Malsin, the Bench Memo author; and by the detailed attention of Ms. Lorraine Rubich, Program Manager. The Competition could not take place without the gracious contributions of Karen Mignone, the Immediate Past Chair of the American Bar Association Section of Environment, Energy and Natural Resources, and, of course, all our sponsors who continue to support this event each year.

We wish all of you the best of luck during this year’s virtual Competition. Our goal remains to do everything we can to ensure that this virtual Competition represents the best in oral advocacy skill development and collaboration in the environmental legal field. I am confident we will continue to work together to design the legal and institutional frameworks needed for an environmentally sound world. We welcome you to the Competition; and please let us know if there is anything that we can do to make your experience even more enjoyable.

Horace Anderson Dean Elisabeth Haub School of Law at Pace University

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WELCOME FROM THE MOOT COURT BOARD CHAIR It is with great pleasure that I welcome you to The Thirty-Third Jeffrey G. Miller National Environmental Law Moot Court Competition, which is convening for the first time virtually! On behalf of the NELMCC Board and all of the faculty that made this year's competition possible, we are so happy to have you weather the storm and join us in this new virtual medium. For those who have competed before, we are delighted to have you back. For those who are joining us for the first time, thank you for choosing to spend your time preparing for this competition; you won't be disappointed. Each of you continues to impress us year after year with your dedication, mastery of the Problem, and polished public speaking.

This competition would not be possible without the efforts of Pace faculty, staff, and students.

This year, we would like to applaud you for all of the creative thinking, problem-solving, and research you put into bringing NELMCC to the virtual stage. Lorraine Rubich, the Program Manager, Inga Caldwell, the Associate Director of Pace's Environmental Law Programs, and Anne Olson, the Program Coordinator, were at the helm of these efforts. Dedicated, tedious, supportive individuals like you three are why the competition is successful year after year. We would also like to thank Professor Karl Coplan, the author of this year's Problem, and our faculty advisory, along with Sarena Malsin, who assisted Professor Coplan in these efforts. We are so thankful for all of the time and expertise you contribute to the competition.

Additional thanks go out to Antonio Soares, who has helped us overcome every hiccup in the competition's virtual reincarnation.

I want to give a big thank you to the NELMCC Board for their unwavering support and hard work: Jennifer Kelly-Kennedy and Regina Rubino, Co-Vice-Chairs of Judges; Sydney Byers and Maxwell Kellermueller, Co-Vice-Chairs of Grading and Scoring; Rachel Cregier and Maria Profeta, Co-Vice-Chairs of Hospitality; Austin Nalaboff, Jessica Roberts, and Melanie Schlosser, Co-Vice Chairs of Rules; Alejandra Mihic and Madison Roberts, Co-Vice-Chairs of Bailiffs; and Jillian Aicher, Vice-Chair of Fundraising. It has been incredible to see each of you bring your talents and strengths to each of your positions. You made the transition from an in-person to virtual competition seamless and continue to impress me with your balance of leadership in this competition and your academic endeavors. This competition would not be impossible without you. I would also like to acknowledge the incredible outpouring of first and second-year students who served as committee members. It is excellent to see the immense amount of interest you have all shown in becoming involved in our esteemed environmental law program.

You have all went above and beyond, and we cannot wait to see each of you in a leadership role next year!

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A thank you is also well deserved to the editors and members of Pace Environmental Law Review, Pace Law Review, and Pace International Law Review. Thank you to the editors for facilitating such successful and efficient grading and to the associates who spent time over their winter break to cite check the briefs.

A special thank you to the attorneys who have set aside time to be here with us and take on such a large role in our competition as judges and grading briefs. It is a privilege to have such bright legal minds involved in the competition to give competitors legal and moot court advice to apply to their academic and professional careers. I want to extend our utmost gratitude to those joining us as final round judges - you make the final round so professional and memorable for all competitors and spectators.

In the Fall of 2019, I became involved in NELMCC and could not have foreseen how formative this competition would be in my time at law school. NELMCC is an incredible opportunity to engage with bright legal minds in the environmental field, a fantastic opportunity to network, and a competition that serves as a constant reminder of the environmental law field's breadth and intrigue. I am so thankful that all parties involved in this competition were able to make it happen virtually. Let this time be a reminder of the incredible legal work to be done, even still from our homes. I am pleased to welcome you to NELMCC 2021. Best of luck to those competing, and please remember to enjoy! Your hard work will shine through!

Best,

Audra Gale

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FINAL ROUND JUDGES The Elisabeth Haub School of Law at Pace University is proud to welcome the following distinguished members of the bench as Final Round Judges in this year’s Competition.

The Honorable Aaron P. Avila Environmental Appeals Judge U.S. Environmental Protection Agency Judge Avila has substantial litigation and management experience in matters arising under federal pollution control and natural resource statutes. Prior to joining the Environmental Appeals Board, Judge Avila served first as a staff attorney and then as an Assistant Section Chief in the Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice. During his tenure in the Appellate Section, Judge Avila litigated and supervised civil and criminal appellate matters involving major federal environmental and pollution control statutes before the courts of appeals and the Supreme Court on behalf of the United States and its agencies (primarily EPA, the Department of Energy, and the Department of Defense). Judge Avila presented oral argument in more than 30 appeals. Prior to joining the Justice Department, Judge Avila was an associate at Morrison & Foerster LLP in San Francisco, California and before that he served as a judicial law clerk for the Honorable Robert D. Sack of the U.S. Court of Appeals for the Second Circuit.

Judge Avila’s work has garnered him numerous awards and recognitions, including the Assistant Attorney General’s Award for Excellence and EPA's Silver Medal for Superior Service Award.

Judge Avila earned his Juris Doctor degree, magna cum laude, Order of the Coif, from New York University School of Law, and his Bachelor of Arts and Science degree (Political Science and Civil Engineering) from Stanford University.

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Alexandra Dapolito Dunn, Esq. Baker Botts, LLP On February 8, 2021, Alexandra Dapolito Dunn joined the global law firm of Baker Botts LLP as a partner in the environment, safety, and incident response practice group in the Litigation Department in the Washington DC office. Through January 20, 2021, she was unanimously confirmed by the Senate Assistant Administrator for the Office of Chemical Safety and Pollution Prevention at the U.S. Environmental Protection Agency (19-21). Previously she was Regional Administrator for the Agency’s New England Region (18-20).

She served as Executive Director and General Counsel of the Environmental Council of the States (ECOS), the national non-profit, non-partisan association of U.S. state and territorial environmental commissioners from 2014-2018.

She has over 26 years of experience in environmental law and policy, with work in air, energy, water, waste, agriculture, and chemicals. She is a published author, and speaks regularly, on environmental policy, sustainability, and environmental justice. In 2015 elected to the American College of Environmental Lawyers. Admitted in DC, MD, NY, the U.S. Supreme Court, and federal courts. Counsel to parties, intervenors, and amicus in 25+ reported cases.

She is a Past Chair of the American Bar Association’s (ABA) Section of Environment, Energy, and Resources; and led SEER's World Justice Task Force; served on ABA’s Task Force on Sustainable Development (11-14). She Served on the Executive Committee of the Board of the Environmental Law Institute, Circle of Champions of the U.S. Water Alliance, Fellow of the American Bar Foundation.

Lecturer in Law, Columbus School of Law, Catholic University of America (CUA) (Advanced Environmental Law); Adjunct Associate Professor of Law, American University Washington College of Law (Environmental Justice), faculty advisor to CUA Environmental Law Society.

Prior, Dunn was Executive Director & General Counsel of the Association of Clean Water Administrators; Dean of Environmental Law Programs and Adjunct Professor of Law (Environmental Justice, Human Rights & Environment) at Pace Law School; General Counsel of National Association of Clean Water Agencies; Counsel to the American Chemistry Council; and in private practice.

J.D., magna cum laude, Columbus School of Law, Catholic University of America (DC). Editor-inChief of the Law Review. B.A., cum laude, in Political Science & French, James Madison University, VA.

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The Honorable Chad Readler United States Court of Appeals for the Sixth Circuit Judge Readler was confirmed to serve as a Circuit Judge on the United States Court of Appeals for the Sixth Circuit in March 2019. He earned his BA from the University of Michigan and his JD, cum laude, from the University of Michigan Law School. After graduating, he served as a law clerk for The Honorable Judge Alan Norris of the Sixth Circuit. Judge Readler then began work in the Columbus, Ohio office of Jones Day, going on to spend ten years as a partner in the Issues and Appeals Group. While at Jones Day, Judge Readler appeared in state and federal trial and appellate courts around the country, most frequently the Supreme Court of Ohio and the Sixth Circuit. Judge Readler also successfully argued before the United States Supreme Court in McQuiggin v. Perkins on behalf of a pro bono client claiming actual innocence. His other pro bono representations include representing capital defendants before the United States Court of Appeals for the Tenth Circuit and the Supreme Court of Ohio, and representing defendants sentenced to life in prison before the Sixth Circuit. From 2017-2019, Judge Readler served as Acting Assistant Attorney General for the Civil Division of the United States Department of Justice. In that role, Judge Readler lead and supervised the Department’s largest litigating division and briefed and argued several cases on behalf of the United States in federal courts across the country, including high-profile cases significant to the Administration and the Department. He has previously served as a volunteer with Lawyers Without Borders, helping to train Kenyan lawyers in Nairobi, and he is a prior recipient of the American Marshall Memorial Fellowship awarded by the German Marshall Fund of the United States.

The Honorable Lisa M. Smith Federal Magistrate Judge, Ret. The Honorable Lisa Margaret Smith is a United States Magistrate Judge for the Southern District of New York. She sits in the Charles L. Brieant Federal Building and United States Courthouse in White Plains. She was originally appointed in 1995 and she is currently serving her third term as a Magistrate Judge. From 2006 to 2008 she served as Chief Magistrate Judge for the Southern District. The Honorable Lisa Margaret Smith is a United States Magistrate Judge for the Southern District of New York. She sits in the Charles L. Brieant Federal Building and United States Courthouse in White Plains. She was originally appointed in 1995 and she is currently serving her third term as a Magistrate Judge. From 2006 to 2008 she served as Chief Magistrate Judge for the Southern District. From 2013 to 2015 she served on the Committee on the Budget, a committee of the Judicial Conference of the Prior to being appointed to the bench, Judge Smith was an Assistant United States Attorney in the Criminal Division of the United States Attorney's Office for the Southern District of New York (1987-1995). Before becoming an AUSA she served as a Kings County (NY) Assistant District Attorney from 1980 until 1985, rising to Supervising Senior ADA in the Appeals Bureau,

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following service in several other bureaus. From 1985 until 1986 Judge Smith was an Assistant Attorney General in the Appeals and Opinions Division of the New York State Department of Law, located in Albany. She represented the State of New York on appeals in state and federal courts throughout New York, and she co-authored an amicus curiae brief on behalf of the National Association of State Attorneys General filed in the Supreme Court of the United States. In 1986 Judge Smith re-joined the Kings County District Attorney’s Office as a Supervising Senior ADA. She remained there until 1987, when she became an AUSA for the Southern District of New York.

Judge Smith earned her BA degree, with honors in political science, from Earlham College in Richmond, Indiana in 1977, and her JD degree from Duke University School of Law in Durham, North Carolina in 1980, where she was a member of the Moot Court Board. She is a member of the Boards of Editors of the Federal Courts Law Review, an on-line and print journal of the Federal Magistrate Judges Association, and of the Federal Bar Council Quarterly. Judge Smith has served in various positions on the Board of the Westchester Women's Bar Association, and currently serves as a Vice President and member of the Executive Committee. She is active in the Federal Magistrate Judges Association, the Federal Bar Council, the Federal Bar Association, for which she has served as a Circuit Vice President, and JALBCA. In 2014 Judge Smith was honored to receive the Judith S. Kaye Access to Justice Award from the Women's Bar Association of the State of New York.

Judge Smith has been an Adjunct Professor at the Elisabeth Haub School of Law at Pace University (formerly Pace Law School) since 2006, where she has taught Evidence and Federal Courts, and co-taught Civil Procedure with Professor Michael B. Mushlin. Judge Smith frequently lectures at CLE and Bar Association programs, with a particular focus on e-discovery and evidence. She is a regular participant in events which educate children about the courts, including Take Your Children To Work Day, an annual program of the Westchester Women's Bar Association, as well as visits to the Courthouse by school and scout groups.

Judge Smith published an article, co-authored with Professor Mushlin, entitled "The Professor and the Judge: Introducing First-Year Students to the Law in Context." The article appears in the Journal of Legal Education, Volume 63, number 3 (February 2014). Judge Smith also wrote an article entitled "Top Ten Things You Probably Never Knew About Magistrate Judges," published in The Federal Lawyer in May, 2014. She has also contributed numerous articles to the Federal Bar Council Quarterly.

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A WORD OF APPRECIATION TO OUR SUPPORTERS The Moot Court Board is grateful to all whose generous financial support has made the competition possible. We also thank the supporters whose contributions were received after the publication deadline.

DIAMOND___________ $5,000+

ABA, Section of Environment, Energy, and Resources Baker Botts, LLP PLATINUM_____________$2,500-$4,999

AlterEcho SILVER_____________$500-$999

Mr. Norman Dupont Environmental Law Institute National Association of Clean Water Agencies Riker, Danzig, Scherer, Hyland & Perretti, LLP Ms. Amelia Wagner BRONZE_____________$25-$499

Ms. Cathy M. Alexander DYS '96 Mr. Seth Davis Ms. Lisa Decker Stephen P. Dewey, Esq., LAW '02 Ms. Amy Edwards Mr. Richard Ericsson Ms. Pamela Esterman Michele J. Glass, Esq., LAW '05 Ms. Debbie Heidish Professor Tracy Hester Mr. John Hollis Mr. Howard Kenison Mr. Kyle Landis-Marinello Ms. Christine LeBel Mr. Steven Thomas Miano Mr. John Milner Ms. Molly Nixon Mr. Jonathan Nwagbaraocha Professor Irma Russell Mr. Miguel E. Sanchez Robles, DYS '18 Ms. Shoshana Schiller Mr. Thomas Utzinger

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Environmental Law at Elisabeth Haub School of Law The Elisabeth Haub School of Law at Pace University is pleased to offer an internationally acclaimed education in environmental law. We are proud that, for decades, our environmental law program has been ranked among the top in the country. With over 40 courses in environmental law, our exciting curriculum trains the lawyers of tomorrow in proven techniques to solve complex environmental, land use, energy, and natural resources challenges.

Our campus lies at the intersection of two worlds: the beautiful, historic Hudson River Valley, where the environmental movement was founded, and the exciting cultural hub of New York City, which is home to the United Nations. Our location allows the environmental law program to offer unparalleled opportunities for students. With several on-campus research centers addressing energy, climate change, land use, food and agriculture, and global environmental law, and a wide variety of local and international hands-on externships and clinics, Pace Law is a dynamic place to learn environmental law and gain valuable practical skills.

JD and Environmental Law Certificate Program Pace Law’s environmental law program attracts many highly qualified students from a wide variety of backgrounds and cultures, making this one of the most diverse and exciting environmental law programs in the world. Thanks to our dedicated faculty of environmental experts and innovators, Pace Law is a leader in training students for legal practice. Students may opt to earn an Environmental Law Certificate while obtaining their JD degree. The certificate’s rigorous requirements and standards equip students to excel in the practice of environmental law. Our exciting curriculum is updated regularly to ensure our students are well informed about current trends in the field.

Post-Graduate Programs in Environmental Law For individuals who have already earned a JD or equivalent degree, Pace Law offers a Master of Laws (LLM) in Environmental Law with a variety of specializations, including Energy and Climate Change Law, Land Use and Sustainable Development Law, and Global Environmental Law. Pace also offers the nation’s only Doctor of Juridical Science (SJD) dedicated to environmental law.

Joint Degree Programs Pace Law’s joint degree programs help environmental law students save time in earning a related advanced degree along with their JD degree. Programs include: JD/Master of Environmental Management or JD/Master of Forestry with Yale School of Forestry and Environmental Studies; JD/Master of Science in Environmental Policy with Bard College Center for Environmental Policy; JD/Master of Environmental Policy with Pace University’s Dyson School of Arts and Sciences; JD/Master of Business Administration with Pace University’s Lubin School of Business; JD/Master of Public Administration with Pace University’s Dyson College of Arts and Sciences; JD/MA in Women’s History with Sarah Lawrence College.

Practical Experience Outside the Classroom Pace Law offers environmentally focused externships, clinics, moot courts, and other experiential opportunities where students learn how to become practice-ready attorneys, including: 

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Pace Environmental Litigation Clinic – Pace Law’s award-winning Clinic, directed by Professors Karl Coplan and Todd Ommen, is one of the oldest and most respected environmental clinics in the country, putting students in the driver’s seat of challenging cases with guidance from expert attorneys. Clinic students develop outstanding lawyering skills, which include case planning, the integration of facts and law, client counseling, negotiation, drafting legal documents, and pretrial and trial advocacy.

Food and Beverage Law Clinic – Pace Law’s Food and Beverage Law Clinic provides transactional legal services to small- and medium-sized farmers implementing innovative and sustainable farming practices, mission-oriented food entrepreneurs, and food justice non-profit organizations. Students complete projects in areas of critical need including access to land, access to capital, farm ownership succession and estate planning, eligibility for federal and state programs and benefits, and compliance with federal, state, and local regulatory laws, including food safety law labeling requirements, labor law, and zoning.

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UN Environmental Diplomacy Practicum – Unique among legal externships, this practicum invites students to work with Permanent Missions to the United Nations. This experience is an invaluable opportunity to learn the diplomacy process, attend UN negotiations, and write a research paper to help a delegation or member state understand and act upon environmental issues. Students work closely with ambassadors and foreign ministers developing environmental policy for their nations.

Environmental Externship in Washington, DC – This summer externship allows rising 2L and 3L students to gain practical experience in the environmental legal arena under attorney supervision, with emphasis on the type of work conducted in DC. Past placements include the White House Council on Environmental Quality; US Environmental Protection Agency; US Department of Justice; US Department of Interior; US Department of Energy; Natural Resources Defense Council; Environmental Defense Fund; Humane Society of the United States; and many other government, and nonprofit organizations.

Environmental & Public Interest Externships – During the academic year and summer, many students work for academic credit at environmental law agencies throughout the New York metropolitan area, including the NYS Department of Environmental Conservation, the US Environmental Protection Agency, the NYC Department of Environmental Protection, and various nonprofit organizations.

Pace-NRDC Food Law Initiative – This collaboration between Pace and the Natural Resources Defense Council’s New York Office aims to address the legal service needs of food justice organizations, farmers, community groups and others as well as increasing capacity of the legal community to meet those needs through education of law students and training of lawyers. Students have the opportunity to work with NRDC’s food law team in internships offered each semester in Manhattan.

Brazil-American Institute for Law & Environment – The Brazil Comparative Environmental Law course draws upon Pace Law’s relationships with top Brazilian universities to give students a unique opportunity to be involved in important international and comparative research. After choosing a research focus and attending classes on campus, students travel to Brazil to experience first-hand the environmental issues of a rapidly developing country. They meet with high-level prosecutors and judges in Rio de Janeiro, take urban eco-tours, and explore one of Brazil’s unique bioregions.

On-Campus Research & Learning Opportunities 

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Global Center for Environmental Legal Studies (GCELS) – GCELS provides high-level legal research to many international organizations. Students working with the Center assist with researching and editing important publications, such as the 50 States Climate Change Survey. The Center is a voting member of the International Union for the Conservation of Nature (IUCN), the world’s oldest and largest global environmental network, as well as Secretariat to the IUCN Academy of Environmental Law with the University of Maryland Francis King Carey School of Law. Land Use Law Center for Sustainable Development – Students are involved in all aspects of this Center which produces leading conferences, courses, trainings, publications, and resources on contemporary land use, real estate, and environmental issues. The student-driven Research and Innovation Program identifies solutions to complex land use problems of urban and suburban communities. The Land Use Leadership Alliance (LULA) program leads the nation in educating local land use leaders in land use law and community decision-making.

Pace Energy & Climate Center – This Center involves Pace Law student interns in every aspect of its work in a multitude of cutting-edge climate and renewable energy issues. The Center advises local, state, and national governments and hosts numerous professional workshops featuring innovative energy experts throughout the academic year.

Pace Environmental Law Review (PELR) – PELR was one of the first scholarly journals established in the field of environmental law. Devoted to commentary and analysis of environmental law issues, the studentrun journal publishes scholarly articles from professors around the world, the annual Lloyd K. Garrison Lecture in Environmental Law, the winning briefs of the National Environmental Law Moot Court Competition, and the proceedings of colloquia on environmental law issues.

Many on-campus environmental organizations and activities also enrich the educational experience at Pace Law. Additionally, distinguished lecture series bring outstanding environmental thinkers and scholars to campus.

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COMPETITION FORMAT The Jeffrey G. Miller National Environmental Law Moot Court Competition tests the oral and written advocacy skills of law students in appellate court litigation. The legal problem drafted each year involves timely issues of national importance to the practice of environmental law.

ORAL ROUNDS Scoring in the preliminary rounds is based on a combination of the brief score and scores from the oral rounds. Scoring in the quarterfinal, semifinal and final rounds is based solely on oral performance. Oral arguments begin with two preliminary rounds on Wednesday, February 17, 2021 are followed by the third preliminary & quarterfinal rounds on Thursday 18, and conclude with the semifinal rounds on Friday, February 19. The Final Round will take place Saturday, March 6, 2021 virtually. Each argument will feature three adverse teams. Judges evaluating the oral arguments include attorneys with environmental law expertise, members of the Pace environmental law faculty and judges from the Nation’s courts. Final round judges will be members of the federal bench and the U.S. Environmental Protection Agency's Environmental Appeals Board.

AWARDS Awards are conferred on the winners in each of the following categories: Winning Team Finalist Teams (two) Best Oralist Best Oralist-Honorable Mention David Sive Award for Best Brief Best Briefs (representing the two remaining parties) Semifinalist Teams The Competition’s perpetual trophy is awarded to the winning team. The trophy is an original watercolor, DAWN-STORM KING, by John Hulsey, a Hudson Valley artist. The painting is featured on the cover of this program. The trophy is currently resides at Florida State University College of Law, winner of the 2020 Competition, and will be passed on to the 2021 Competition winner. The Best Brief awards are printed by the Pace Environmental Law Review.

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PARTICIPATING SCHOOLS Alexander Blewett III School of Law American University Washington College of Law Appalachian School of Law

UC Hastings College of Law University of Alabama School of Law University of Arizona James E. Rogers College of Law University of Colorado Law School University of Connecticut School of Law University of Denver Sturm College of Law University of Florida, Levin College of Law University of Houston Law Center

Baylor Law School Boston College Law School Campell University School of Law Columbia Law School Drake University Law School Fordham Law School

University of Kansas School of Law

Georgetown University Law Center Georgia State University College of Law IIT Chicago-Kent College of Law Indiana University Maurer School of Law

University of Maine School of Law University of Miami School of Law University of New Mexico School of Law University of North Carolina School of Law at Chapel Hill University of Oregon School of Law

Indiana University Robert H. McKinney School of Law Lewis & Clark Law School Loyola Law School-Los Angeles Loyola University College of Law Marquette University Law School Mississippi College School of Law

University of Pennsylvania Carey Law School University of Tennessee College of Law University of Utah S.J. Quinney College of Law University of Washington School of Law University of Wisconsin Law School

Mitchell Hamline School of Law SMU Dedman School of Law Stetson University College of Law

Vermont Law School Washington and Lee University School of Law West Virginia University College of Law

Tulane University School of Law UC Berkeley Law UC Davis School of Law

Widener University Commonwealth Law School William S. Richardson School of Law

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THE ROLE OF THE PACE LAW REVIEWS Pace Environmental Law Review publishes the Bench Brief used in the Competition and the briefs accorded the Best Brief Awards by the attorney brief graders. In addition, all the Pace law reviews contribute to the National Environmental Law Moot Court Competition by grading the briefs submitted by the competing teams, checking for accuracy in spelling, punctuation, and Bluebook citation. The Board of the National Environmental Law Moot Court Competition is grateful to Pace Law Review, Pace Environmental Law Review and Pace International Law Review for the extensive time and commitment to quality they contribute to the Competition.

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ELISABETH HAUB SCHOOL OF LAW – 2021 LAW REVIEW MEMBERS PACE LAW REVIEW Editor-in-Chief Lauren Schnoebelen Managing Editor Ross M. Keiser Executive Productions Editors Hayley B. Cohen Noah C. Hale Christopher Walker Executive Acquisitions Editor Grace MacPhail Mneimneh Articles Group Editors Daniel J. Alvarez Matthew Cunha Laura Schwartz Phil Tullo Case Note & Comment Editors Andie Altichiler Caitlyn DeGennaro Executive Promotions Editor Sandhya Prashad Senior Members Emily Bentley Cheryl Clemens Megan McDonough Guillermo Pujals Matthew Watson Associate Members Jillian Anzalone Arjana Balaj Diana Balaj Katherine M. Boyd Natalie Burke Lia Crutchfield Kelly Dornan Cheyanna Fuchs Amanda Fugel Erin G. Gisolfi Alina Gluzman Justin Gottuso Kimberly Green Amanda E. Healy Samantha Kelly Christopher Martorello Nechelle Nicholas Mike O’Malley Liam Thau Adam Thomas Kseniya Zilberman Faculty Advisors Professor Noa Ben-Asher Professor Leslie Garfield Tenzer

PACE ENVIRONMENTAL LAW REVIEW Editor-in-Chief Haley Brescia Managing Editor Alicia Stoklosa Productions Editors Emma Campbell Maggie St. Jean Katelyn Rauh Articles Editors Gabrielle Dylag Connor Hilbie Sarena Malsin Research & Writing Editors Kylie Ayal Allison Wood Acquisitions Editors Dan Conant Alisha Faherty Promotions Editor Jackie Jonczyk Junior Associates Andie D’Angelo Audra Gale Christopher Makowski Dana McClure Emily Lively Jaclyn McBain Jennifer Kelly Jessica Roberts Jillian Aicher Kristin Jones Makayla Loeb Shayna Vercillo Steven Yannacone Sydney Byers Taryn Ramey Faculty Advisor Professor Katrina Fischer Kuh

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PACE INTERNATIONAL LAW REVIEW Editor-in-Chief Catherine R. Zicca Managing Editor Megan M. Coppa Productions Editors Jeremy A. Kemp Taylor G. Keselica Submissions Editors Brandy Herfort Danielle Johnson Articles Group Editors Patrick Carey Morgan Galea Nick Santomassimo Case Note Editors Nicole Diodati Kendall R. Pipitone Promotions Editor Seamus McDonough Senior Associates Tarek Abiassaf Matthew Bayley Nicolette Brusco Matthew Califano Zachary Dukoff Chelsea A. Miles Junior Associates Emily Borovskis Áine M. Dillon Olivia Incerto Katherine Krahulik Thalia Martinez-Palma Emily J. McGowan Michael Monteleone Juliana Palmieri Maria Profeta Maria Robbins Liberta Rrahimi Tyler Rutherford Christina N, Stewart Christian Tateossian Venesha White Faculty Advisors Professor Alexander Greenawalt Professor Darren Rosenblum Professor Smita Narula

BRIEF GRADERS The following attorneys took on the arduous task of grading the briefs for content and legal analysis. The brief grades are an essential component of the scoring process. Brief graders score between three and ten briefs, anonymously, devoting a large amount of time to the task. The Board is very appreciative for the brief graders’ contribution to the ongoing success of the Competition.

In addition, every year many attorneys at the United States Environmental Protection Agency grade a large quantity of briefs. The Board is grateful for their contribution and continuing dedication.

Jennifer Arlin, White Plains, NY Kelly Brantner, Washington, DC Kurt Brauer, Southfield, MI Andrea Cerbin, Albany, NY Alexa Cole, Silver Spring, MD Mary Desmond, Rye Brook, NY Lauren Fischer, Merrick, NY Jennifer Giannini, White Plains, NY Thomas Gowan, Briarcliff Manor, NY Jennifer Gray, White Plains, NY Ariadne Green, New York, NY Annette Hasapidis, Scarsdale, NY Deborah Heller, White Plains, NY Randy Hill, Washington, DC Stuart E. Kahan, Ossining, NY Erin Flannery Keith, Boston, MA Jenna Khoury-Hanna, White Plains, NY

Yuriy Korol, White Plains, NY Katrina Kuh, White Plains, NY Robin J. Leigh, Atlanta, GA Jean Lucasey, Dobbs Ferry, NY Paul Marrow, Chappaqua, NY Catherine Mendolia, New York, NY Edward J. Messina, Washington, DC Mark Palermo, Washington, DC John A. Pappalardo, White Plains, NY Ann Powers, Annapolis, MD Amy Puerto, Katonah, NY Sarah Rae, Denver, CO Karissa Roskind, Washington, DC Natalie Sobchak , White Plains, NY Jennifer M. Ukeritis, New York, NY Amelia Wagner, New York, NY Michael Walker, Alexandria, VA

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2021 NELMCC ATTORNEY JUDGES Nadia Ahmad, Orlando, FL

Sid Ansbacher, St. Augustine, FL

Hope Babcock, Washington, DC

Louis Baer, Bethesda, MD

Rachel M Bauer, Rockville, MD

Elizabeth Bennett, Brooklyn, NY

Karen Bernstein, White Plains, NY

Paola Bettelli, Ridgefield Park, NJ

Douglas Blazey, Blue Bell, PA

Michael Bogin, New York, NY

Eileen Brown, Davis, CA

Jonathan Brown, Nyack, NY

Jon Brown, White Plains, NY

Inga Caldwell, White Plains, NY

Michael Caruso, Brewster, NY

David Cassuto, White Plains, NY

Andrea Cerbin, Albany, NY

Sarah Cinquemani, Lee, MA

Ian Coghill, Boston, MA

Jon Cooper, Washington, DC

Karl Coplan, White Plains, NY

Jim Creech, Arlington, VA

Jason Czarnezki, White Plains, NY

Jeffery Dennis, Washington, DC

Ricky Dessen, New York, NY

David Diab, Montgomery, AL

Sean Dixon, Cambridge, MA

Norman Dupont, Malibu, CA

Greg Dutton, Louisville, KY

Alex Erwin, White Plains, NY

Kevin Federation, Rochester, NY

Theodore Firetog, Farmingdale, NY

Lawson Fite, Portland, OR

Erin Flannery-Keith, Boston, MA

Brian Freeman, Hartford, CT

Vaishali Gaur, Albany, NY

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2021 NELMCC ATTORNEY JUDGES Richard Horsch, New York, NY

Sherri Hughes, Mount Kisco, NY

Leeann Irvin, Valley Cottage, NY

Catherine Janasie, University, MS

Charles Janoff, Garden City South, NY

Ruth Karfiol Glazer, Weston, CT

Peter Keays, Philadelphia, PA

Howard Kenison, Denver, CO

Katrina Kuh, White Plains, NY

Anna Kuperstein, Houston, TX

Eric Laschever, Mercer Island, WA

Chris Len, Montclair, NJ

Sarah Lobe, Rochester, NY

James Logan, Tillson, NY

Kim Logue, Little Rock, AK

Julia Loney, Calgary, CA

Molly Masterton, Slingerlands, NY

Charles Mason, Larchmont, NY

Lisa Mazure, Briarcliff Manor, NY

Brendan Mayer, Belgium, EU

Daniel Metzger, New York, NY

Michael McMahan, Oklahoma City, OK

Anxhela Mile, White Plains, NY

Steven Miano, East Chatham, NY

Smita Narula, New Paltz, NY

Sarah Morath, Winston Salem, NC

Todd Ommen, White Plains, NY

Amy O’Brien, Albany, NY

William Piermattei, Baltimore, MD

Richard Ottinger, White Plains, NY

Margot Pollans, White Plains, NY

Jeffrey Pollock, Furlong, PA

Ann Powers, Annapolis, MD

Amy Puerto, Katonah, NY

Thomas Roach, White Plains, NY

Telisport Putsavage, Albany, NY

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2021 NELMCC ATTORNEY JUDGES Michael Robinson-Dorn, Irvine, CA

Nicholas Robinson, White Plains, NY

David Rubinton, Long Beach, NY

Scott Romans, Springfield, VA

Robyn Scopteuolo, Washingtonville, NY

Irma Russell, Mission Hills, KS

Leanne Shofi, White Plains, NY

Lisa Secular, New York, NY

Robert Sommerfield, Scarsdale, NY

Sean Skaggs, San Diego, CA

Stephanie Tunic, Goshen, NY

Michael Stolzar, White Plains, NY

Amelia Wagner, Yorktown Hts, NY

Jennifer Ukeritis, West, Syracuse, NY

Dan Weisberg, New City, NY

Renner Walker, Brooklyn, NY

Dennis Whitaker, Harrisburg, PA

Adam Weiss, White Plains, NY

Ellen Woods, New City, NY

Charter Williams, Brooklyn, NY

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COMPETITION SPONSORS

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N AC WA . O R G

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Riker Danzig is proud to count graduates of Pace Law School among our attorneys.

It is our pleasure to continue to serve as judges for the Jeffrey G. Miller National Environmental Law Moot Court Competition.

Alexa Richman-La Londe, Riker Danzig Partner and Moot Court Judge

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APPENDIX

29

THIRTY-THIRD ANNUAL JEFFREY G. MILLER PACE NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

2021 Competition Problem* C.A. No. 20-000123

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

CLIMATE HEALTH AND WELFARE NOW, Plaintiff-Appellee-Cross Appellant, v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant, -andCOAL, OIL, AND GAS ASSOCIATION, Intervenor-Defendant-Appellant-Cross Appellee.

Appeal from the United States District Court for the District of New Union in No. 66-CV-2019, Judge Romulus N. Remus.

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ORDER Following the issuance of an Order of the United States District Court for the District of New Union dated August 15, 2020 in 66-CV-2019, Climate Health and Welfare Now (CHAWN), Coal, Oil and Gas Association (COGA) and the United States Environmental Protection Agency (EPA) each filed a timely Notice of Appeal.

CHAWN takes issue with the District Court’s determination that EPA’s 2009 Endangerment Finding that Greenhouse Gases (GHGs) endanger public health is contrary to law.

COGA takes issue with the District Court’s determination that EPA’s 2009 Endangerment Finding that GHGs endanger public welfare is valid and that the EPA had a nondiscretionary duty to designate GHGs as a criteria pollutant under § 108(a) of the Clean Air Act. COGA also takes issue with the District Court’s holding that EPA’s ten-year delay in taking action listing GHGs as criteria pollutants constitutes an unreasonable delay.

EPA agrees with COGA that it did not have a non-discretionary duty to list GHGs as criteria pollutants, and that it did not unreasonably delay in doing so. EPA also agrees with COGA that the 2009 Endangerment Finding was not valid with respect to endangerment of public health, but agrees with CHAWN that the Endangerment Finding was valid with respect to endangerment of public welfare.

Finally, the Court of Appeals raises sua sponte the issue of whether the District Court had jurisdiction to hear CHAWN’s unreasonable delay claim brought under CAA § 304(a), even when the rule sought would be a rule of nationwide applicability subject to review exclusively in the DC Circuit under CAA § 307(b). CHAWN and COGA assert that the District Court did have jurisdiction, while EPA asserts that it did not.

Therefore, it is hereby ordered that the parties brief all of the following issues: 1. Did the District Court have jurisdiction over CHAWN’s unreasonable delay claim under CAA § 304(a) where the rule sought would be a rule of nationwide applicability subject to review exclusively in the DC Circuit under CAA § 307(b)? (Raised sua sponte by Court; CHAWN argues it did have jurisdiction; EPA argues it did not; COGA argues it did.)

2. Is the 2009 Endangerment Finding valid with respect to an endangerment of public welfare? (CHAWN argues it is; EPA argues it is; COGA argues it is not.)

3. Is the 2009 Endangerment Finding valid with respect to an endangerment of public health? (CHAWN argues it is; EPA argues it is not; COGA argues it is not.)

4. Does EPA’s ten-year delay in taking any action on listing GHGs as criteria pollutants under CAA § 108(a) constitute an unreasonable delay? (CHAWN argues that it does; EPA argues that it does not; COGA argues that it does not.)

5. Does the EPA have a non-discretionary duty to designate GHGs as a criteria pollutant under CAA § 108 based on the 2009 Endangerment Finding? (CHAWN argues it does; EPA argues it does not; COGA argues it does not.)

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SO ORDERED Entered 1st day of September 2020 [NOTE: No decisions decided or documents dated after September 1, 2020 may be cited in the briefs or in oral argument.]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION

CLIMATE HEALTH AND WELFARE NOW, Plaintiff, v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant, -andCOAL, OIL, AND GAS ASSOCIATION, Intervenor-Defendant,

No. 66-CV-2019, Judge Romulus N. Remus.

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DECISION AND ORDER Plaintiff Climate Health and Welfare Now (CHAWN) brings this action, styled as a citizen suit under Clean Air Act section 304, 42 U.S.C. § 7604, to compel the administrator of the United States Environmental Protection Agency (EPA) to list greenhouse gases (GHGs) under CAA § 108(a), 42 U.S.C. § 7408, as criteria pollutants subject to the National Ambient Air Quality Standards (NAAQS) program. EPA answered and asserted various defenses, discussed below. This Court previously granted the Coal, Oil, and Gas Association’s (COGA’s) motion to intervene as a defendant on the side of EPA. The parties agree on the basic underlying administrative record, and have cross moved for summary judgment. For the reasons stated below, this Court grants plaintiff’s motion for summary judgment in part, and grants intervenor’s motion in part.

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INTRODUCTION A coalition of environmental organizations, including the plaintiff in this action,i filed a petition with the EPA shortly after EPA’s issuance of a 2009 finding that the emissions of greenhouse gases (GHGs) endanger public health and welfare (the “Endangerment Finding”).

This petition demanded that EPA list GHGs as criteria pollutants under Clean Air Act (CAA) § 108, 42 U.S.C. § 7408. The petition asserted that, having made the relevant finding, EPA had a non-discretionary duty to list GHGs as criteria pollutants. Despite the passage of ten years since the issuance of the Endangerment Finding and filing of the listing petition, EPA has taken no action on the petition, either to grant it or to deny it. On April 1, 2019, CHAWN properly served notice of its intention to sue EPA for failure to carry it out its asserted mandatory duty to regulate GHGs as criteria pollutants and for “unreasonable delay in carrying out its non-discretionary duty to designate GHGs as a criteria pollutant as demanded in the December 15, 2009 petition for rulemaking.” EPA took no action in response to CHAWN’s notice. On October 15, 2019, CHAWN commenced this lawsuit, invoking the citizen suit provisions of CAA § 304(a)(2), 42 U.S.C. § 7604(a)(2). CHAWN seeks an order directing EPA to publish a new list of criteria pollutants that includes GHGs as a criteria pollutant.

Coal Oil and Gas Association (COGA) is a trade association representing the economic interests of fossil fuel companies engaged in the extraction, processing, and marketing of coal, oil, and natural gas. COGA moved to intervene as of right pursuant to FED. R. CIV. P. 24(a), asserting that the grant of CHAWN’s requested relief would result in regulatory limits that would severely limit, or completely destroy, the market for its products. This court granted COGA’s motion on November 30, 2019. COGA and EPA both answered the complaint, and COGA also asserted a cross-claim against EPA seeking a declaration that the 2009 Endangerment Finding is unsupported by the record and contrary to law.

The Court now addresses cross motions for summary judgment. CHAWN asserts that once EPA made the Endangerment Finding, it became subject to a non-discretionary duty to list GHGs as criteria pollutants, and that EPA’s ten-year delay is per se unreasonable. EPA, for its part, denies that it is subject to such a non-discretionary duty, and asserts that the regulatory complexities that would result from such a listing more than justify its delayed response. COGA, as intervenor, asserts as an additional ground for denying relief that the 2009 Endangerment Finding is itself unsupported by law and the administrative record, and does not, in any event support a finding of endangerment to public health sufficient to support a primary NAAQS. EPA, in turn, defends the 2009 Endangerment Finding with respect to public welfare, but has declined to defend that portion of the 2009 Endangerment Finding that determined GHG emissions may reasonably be expected to endanger public health. Therefore, EPA sides with COGA in arguing that that portion of the Endangerment Finding is not legally valid.

This court has jurisdiction under the Citizen Suit provision of the Clean Air Act, 42 U.S.C. § 7604(a), as well as federal question jurisdiction under 28 U.S.C. § 1331. Although there is a question whether venue is proper in this district under 42 U.S.C. § 7604(a), no defendant has raised an objection to venue.

Plaintiff CHAWN has submitted affidavits identifying specific members who have been harmed by the effects of sea level rise and global warming, including owners of real property who have been required to vacate land in coastal areas subject to storm surge flooding, and young adults whose future lives are endangered by the prospect of climate change. This Court is satisfied that CHAWN has sufficiently established injury in fact, causation, and redressability for 5

Article III standing to commence this suit. See Massachusetts v. EPA, 549 U.S. 497 (2007); Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). CHAWN has also satisfied the notice requirements of 42 U.S.C. 7604(b).

Title I of the Clean Air Act provides for a comprehensive scheme of regulation of those pollutants deemed to endanger the public health or welfare. Pollutants subject to regulation are known as “criteria pollutants,” and the United States Environmental Protection Agency (EPA) is directed to establish public health and welfare-based concentration limits for the pollutants.

These limits are known, respectively, as the primary and secondary National Ambient Air Quality Standards (NAAQS). CAA § 109, 42 U.S.C. § 7409. States are charged with regulating emissions emanating from sources within their borders in order to meet these standards, subject to approval by EPA and federal intervention in the case of insufficient State Implementation Plans (SIPs).

I.

FACTUAL BACKGROUND

A brief overview of EPA’s regulatory actions affecting GHGs under the Clean Air Act provides necessary context for the instant controversy.

In 1999, several environmental groups petitioned EPA to make a finding that GHG emissions from automobiles posed a danger to human health and the environment under section 202 of the CAA, 42 U.S.C. §7521 (the 202 Petition). Such a finding under section 202 would trigger EPA regulation of GHG emissions from mobile sources, primarily automobiles.

Although the finding of endangerment under section 202 is the same as for listing criteria pollutants under section 108, the 202 Petition did not seek regulation under the NAAQS program of Title I. EPA denied the petition on September 8, 2003, explaining that, in its view, as a matter of statutory interpretation, the ubiquitous emissions of GHGs did not fit the concept of “air pollutants” subject to CAA regulation. It explained that in any event, as a policy matter, regulation addressing global climate change should be conducted pursuant to more specific authorizing legislation and international agreements yet to be adopted, rather than the catch-all air pollution provisions of the 1970 CAA. 68 Fed. Reg. 52,922 (Sept. 8, 2003). Litigation ensued, culminating in the United States Supreme Court’s decision in Massachusetts v. E.P.A., 549 U.S. 497 (2007), which held that GHGs fit squarely in the definition of “air pollutants” subject to potential regulation under the Clean Air Act. EPA was thus directed to respond to the 202 Petition by making a finding whether GHGs may present an endangerment to public health or welfare, as contemplated to trigger regulation under the statute.

Action by EPA followed the change of Presidential administrations, in the form of a formal finding of endangerment under CAA § 202, issued on December 15, 2009 (the “Endangerment Finding”). Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,496–546 (Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. I). The Endangerment Finding defined a group of GHGs, including carbon dioxide, nitrous oxide, and methane as a single air pollutant.1 EPA further found that GHGs were emitted by numerous mobile sources, and the emissions of GHGs may The Endangerment Finding included six greenhouse gases as a single “air pollutant”; they are carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexafluoride.

Endangerment Finding at 66,536-37.

1

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present an endangerment to both public health and public welfare, by increasing global temperatures and changing storm frequency and precipitation patterns. These climate change impacts were determined to endanger public health by causing an increase in ozone pollution due to hotter temperatures, an increase in heat related deaths, and the prevalence of insect borne diseases, as well as other impacts. Climate change was determined to endanger public welfare by reducing agricultural productivity, reducing water supplies, and increasing property and economic damage due to storms and rising sea levels, as well as other impacts.

In the years following the Endangerment Finding, EPA embarked on a series of regulatory actions limiting GHG emissions. First, EPA established GHG emissions limits for new passenger vehicles and light trucks. These limits, and the underlying Endangerment Finding, were upheld in Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), rev’d in part on other grounds sub nom in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). EPA also adopted New Source Performance Standards and Best Available Control Technology guidance under Title I of CAA, which would apply to major new sources of GHG pollutants, primarily consisting of power plants. EPA also adopted the so-called Tailoring Rule, which limited the scope of permitting and review requirements that would apply to GHG sources. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,550 (June 3, 2010); Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015). In 2015, EPA issued the so-called Clean Power Plan regulations, Carbon Pollution Emission Guidelines for Existing Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015), which directed states to modify their CAA implementation plans in order to achieve GHG emissions reductions consistent with EPA guidance on the Best System of Emissions Reductions under CAA § 111(d), 42 U.S.C. § 7411(d).

None of these regulatory initiatives were to survive completely intact. The Tailoring Rule and the scope of application of new source GHG limits were partially struck down by the United States Supreme Court in Utility Air Regulatory Group v. E.P.A., 573 U.S. 302 (2014). The new EPA administration installed in 2017 embarked on a series of regulatory rollback actions, including a relaxing of the GHG emissions standards for new motor vehicles, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, 85 Fed. Reg. 24,174 (Apr. 30, 2020), as well as the emissions standards for new and existing power plants. Repeal of the Clean Power Plan; Emissions Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emissions Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019). However, the 2009 Endangerment Finding has, so far, been left intact.

EPA has not to date invoked its authority to designate GHGs as criteria pollutants under CAA § 108. Section 108 directs that: For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall, within 30 days of December 31, 1970, and shall from time to time thereafter revise, a list which includes each air pollutant – (A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and

7

(C) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section.

42 U.S.C. § 7408(a)(1).

Section 108 uses identical language to describe the endangerment trigger for regulation under that section as used in section 202 of the Clean Air Act, which EPA has invoked. Listing a pollutant as a criteria pollutant under CAA § 108 has several important regulatory consequences.

First, EPA is then required, within twelve months of listing, to propose both primary and secondary NAAQS for the pollutant. CAA §§ 108(b), 109(a)(2), 42 U.S.C. §§ 7408(b), 7409(a)(2). Final NAAQS must follow within 90 days. Id. NAAQS are designated concentrations of a pollutant in the ambient air. Primary NAAQS are established at a level requisite to protect public health, while secondary NAAQS are set at the level necessary to protect public welfare. 42 U.S.C. § 7409. EPA promulgation of primary NAAQS for a given pollutant triggers an obligation on the part of each state to submit a State Implementation Plan showing how the state will achieve compliance with the primary NAAQS concentrations within no more than ten years. CAA § 172(a)(2)(A), 42 U.S.C. § 7502(a)(2)(A). States that fail to submit a satisfactory plan, or that fail to meet compliance deadlines are subject to direct EPA regulation of emissions within the state, see CAA § 110(c)(1), 42 U.S.C. § 7410(c)(1), as well as loss of federal highway funding. CAA § 179(a), (b)(1), 42 U.S.C. §7509(a), (b)(1).

II.

RESOLUTION OF CLAIMS ASSERTED

Any duty of the EPA administrator to act under CAA § 108(a) turns on the existence of a prior valid determination of endangerment. See Zook v. McCarthy, 52 F.Supp.3d 69 (D.D.C. 2014). Accordingly, this Court will first address the challenges to the validity and scope of the 2009 Endangerment Finding, and then turn to the question of what duty, if any, the Endangerment Finding imposes with respect to listing of criteria pollutants under CAA § 108.

A. Challenge to the 2009 Endangerment Finding The Endangerment Finding was the subject of a lengthy administrative record compiled during 2009. EPA determined that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” Endangerment Finding, 74 Fed. Reg. at 66,497 (Dec. 15, 2009). As noted, a challenge to the Endangerment Finding was rejected by the D.C. Circuit in 2010, in the Coalition for Responsible Regulation case. Despite the change of administrations and the EPA rollbacks of regulatory programs based on it, EPA has not sought by rulemaking to rescind the Endangerment Finding.

Intervenor COGA faces a heavy burden to unravel this seemingly settled issue of climate policy.

COGA argues that its challenge is timely, since the existence of a mandatory duty to list GHGs as a criteria pollutant under CAA § 108, as asserted by plaintiff in this case, constitutes “grounds arising after such sixtieth day [from promulgation].” CAA § 307(b), 42 U.S.C. § 7607(b). COGA first challenges the EPA’s understanding and application of the term “reasonably anticipated to endanger” as embodied in CAA §§ 108 and 202. Second, COGA challenges the interpretation of the statutory term “endangerment to public health” to include health impacts that flow not 8

directly from the adverse impacts of breathing air contaminated by the pollutant in question (or its chemical byproducts), but from the second order climate change impacts of modified atmospheric conditions.

1. Challenge to the Administrative Record Supporting the Endangerment Finding As noted, the D.C. Circuit has previously considered and rejected industry challenges to the Endangerment Finding. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012). COGA re-asserts two of the challenges that were rejected in that case. First, COGA asserts that the Endangerment Finding failed to consider the absurd regulatory policy impacts that would follow from the endangerment finding. Second, COGA asserts that the science relied on by EPA concerning the role of anthropogenic GHG emissions in currently observed global temperature increases and the magnitude of future temperature increases is too uncertain to support a current finding of endangerment.

The Coalition for Responsible Regulation decision is not binding on this Court as a matter of stare decisis, as it is not a decision of the Twelfth Circuit. However, this Court is very mindful of the role Congress assigned to the D.C. Circuit in resolving challenges to regulations of national import, see 42 U.S.C. § 7607(b), and will not lightly disturb a precedent upholding the Endangerment Finding as a matter of nationally established regulatory policy. COGA argues that the relief sought by plaintiff constitutes an additional level of regulatory absurdity not considered by the D.C. Circuit: if plaintiff is correct (which COGA does not concede), then EPA would be required to establish a safe level of GHG concentrations in the atmosphere, and States would be required to meet this level in each state within ten years, or face the mandatory loss of federal highway funding. See CAA § 179(a), (b)(1), 42 U.S.C. §7509(a), (b)(1). This sets States up with an impossibility, since (as CHAWN and EPA concede) GHG concentrations are relatively constant around the globe — it is beyond the power of any one State, or even the United States as a nation, acting alone, to bring global GHG concentrations down to a level that does not threaten climate change. The D.C. Circuit in Coalition for Responsible Regulation rejected this sort of “absurd results” argument, relying on the Supreme Court’s holding in Massachusetts v. EPA that “policy judgments . . . have nothing to do with whether greenhouse gas emissions contribute to climate change.” 684 F.3d at 119 (quoting Massachusetts v. EPA, 549 U.S. at 501). This Court agrees that these policy and absurdity arguments are not relevant factors that EPA must consider in making the purely scientific determination whether air pollutant “in [its] judgment cause, or contribute to, air pollution that may reasonably be anticipated to endanger public health or welfare.” CAA § 202(a), 42 U.S.C. § 7521(a).

COGA’s challenge to the scientific evidence supporting EPA’s Endangerment Finding fares no better. Review of EPA’s resolution of scientific issues is highly deferential: the question is not whether this Court would make the same finding as EPA made, but whether EPA has made a rational determination based on the record before it. Coalition for Responsible Regulation, 684 F.3d at 120; Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512 (D.C. Cir. 2009). Certainly, EPA has a rational basis to make a finding of endangerment that is consistent with the published findings of several international and national scientific review bodies and the vast majority of peer reviewed scientific literature. Nor do possible uncertainties about the magnitude of the public health and welfare harms prevent EPA from regulating GHGs — the CAA embodies the precautionary principle, allowing EPA to regulate to prevent potentially grave harms even in the 9

face of uncertainty about the scope and causation of those harms. See Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1978).

2. Challenge to the Scope of the Endangerment Finding as Including an Endangerment to “Public Health” as that term is used in the Clean Air Act COGA’s challenge the Endangerment Finding as applied to public health stands on a different footing, however, as it presents a pure question of legal interpretation. COGA argues, in essence, that an endangerment to public health as contemplated by Congress consisted solely of the direct health hazards of air contaminants due to respiration or other personal exposure to the contaminants in the air. EPA’s public health endangerment finding relies entirely on the consequential health harms resulting from changing climate, and does not rely on any health impact resulting from breathing air with ambient concentrations of carbon dioxide or other GHGs. According to COGA, although this chain of causation might support a finding of endangerment to public welfare, it cannot support a finding of endangerment to public health. In a reversal of position from its endangerment finding, EPA now agrees with COGA, and argues that “public health” as that term is used cannot be read to include indirect health impacts flowing solely from climate change.

This argument was not considered by the D.C. Circuit in Coalition for Responsible Regulation, and the distinction between public health and public welfare has no consequence to regulation under CAA § 202 – either sort of endangerment suffices to trigger regulation. The distinction between public health and public welfare is of great consequence to this case, however, as it spells the difference between primary NAAQS, with their strict compliance deadlines and draconian sanctions, and secondary NAAQS, without statutory compliance deadlines. See 42 U.S.C. § 7502(a)(2)(A), (B) (ten-year deadline for achieving attainment applies to primary NAAQS but not secondary NAAQS).

EPA’s newfound position is not entitled to deference, as it was espoused for the first time in this litigation and never subjected to notice and comment rulemaking. See U.S. v. Mead Corp., 533 U.S. 218 (2001); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Plaintiff urges that EPA’s prior interpretation, reflected in the Endangerment Finding, should be given controlling deference under Chevron, despite EPA’s change of position. However, where Congress has expressed a specific intention regarding the resolution of a question of statutory interpretation, the Court must always give effect to that specific intention of Congress. In the case of climate, Congress specifically included impacts on “climate” in the definition of “welfare.” CAA § 302(h), 42 U.S.C. § 7602(h). The Court is satisfied that Congress saw climate impacts of air pollution solely as a matter of public welfare.

Accordingly, this Court rejects the application of EPA’s finding of endangerment to public health, at least for the purposes of this litigation.

B. EPA’s Duty to List GHGs as Criteria Pollutants Following its Endangerment Finding Having upheld EPA’s Endangerment Finding, at least as it relates to an endangerment to public welfare, this Court can now turn to Plaintiff’s claim that the existence of the Endangerment Finding triggers a non-discretionary duty on the part of EPA to list GHGs as a 10

criteria pollutant subject to the NAAQS program. Resolution of this issue requires this Court to disentangle the questions of whether EPA must list a pollutant as a criteria pollutant once it has made the requisite finding from the question of when that listing is required; i.e., whether the passage of ten years since EPA’s issuance of the Endangerment Finding (and plaintiff’s petition) constitutes an “unreasonable delay.”

1. Lack of a Deadline for Action Plaintiff relies heavily on the 1976 decision of the Second Circuit in Natural Resources Defense Council v. Train, 545 F.2d 320 (2d Cir. 1976), to argue that EPA must list a pollutant as a criteria pollutant under CAA § 108 once it has made the endangerment finding to support regulation of that pollutant under the mobile source provisions of Clean Air Act Title II. In Train, the Second Circuit affirmed a District Court decision ordering EPA to list lead as a criteria pollutant based on EPA’s prior determination to regulate lead pollution from automobile fuels under CAA § 211 because airborne lead pollution constituted an endangerment to public health.

Natural Resources Defense Council v. Train, 411 F. Supp. 864 (S.D.N.Y. 1976).

Plaintiff relies on the striking parallels between that case and this one both substantively and procedurally. Like the plaintiff in Train, plaintiff bases its cause of action on the provision of CAA § 304(a)(2) that authorizes a citizen suit to compel the Administrator of EPA to perform a duty that is “not discretionary with the Administrator.” In Train, the District Court found jurisdiction under this section and granted relief, and that relief was affirmed by the Second Circuit Court of Appeals.

EPA asserts that the procedural aspect of Train is no longer good law. According to EPA, in order for a statutory duty to be “not discretionary,” there must be a statutory deadline for the performance of the duty. In the absence of such a statutory deadline, the EPA Administrator has discretion about the timing of an action that is otherwise mandatory, and a non-discretionary duty claim does not lie. This so-called “date certain doctrine’ has generally been applied by federal courts in determining the scope of jurisdiction over mandatory duty cases brought under CAA § 304(a)(2). See, e.g., Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987); WildEarth Guardians v. Jackson, 885 F.Supp. 2d 1112, 1116 (D.N.M. 2012); Natural Resources Defense Council v. Thomas, 689 F.Supp. 246, 252 (S.D.N.Y. 1988).

This Court is convinced that a date-certain deadline is indeed an essential element of a pure non-discretionary duty action under CAA § 304(a)(2), the District Court grant of relief in NRDC v. Train notwithstanding.2 We note that the Train case was decided a decade before Sierra Club v. Thomas, and that the Second Circuit in Train did not discuss the jurisdictional question in its opinion.

2. Unreasonable Delay in Performing GHG Listing Duty

2

The Court notes that this determination that EPA’s discretion concerning when to list GHGs as criteria pollutants in the absence of a date-certain deadline is a different inquiry from the inquiry into whether EPA had a nondiscretionary duty to list GHGs as criteria pollutants. In short, the Court determines that EPA enjoyed discretion about when to list GHGs, obviating a citizen suit purely under section 304(a)(2), but the Court does not determine that EPA enjoyed discretion whether to list GHGs as criteria pollutants. The Court addresses this latter issue in section 3 below.

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The lack of a “date-certain” for EPA action designating new criteria pollutants under CAA § 108(a) does not end this Court’s jurisdictional inquiry, for Congress amended § 304 in 1990 to authorize the District Courts to “compel agency action which is unreasonably delayed.”

42 U.S.C. § 7604(a), added by Clean Air Act Amendments of 1990 § 707(f), Pub.L. No. 101549, 104 Stat. 2574, 26883. Although the plaintiff styled its action as one to enforce a nondiscretionary duty, this Court finds the allegations of the complaint sufficiently broad to encompass relief for an unreasonable delay. Both the notice letter, and the complaint, include claims that EPA’s failure to designate GHGs as criteria pollutants constituted an unreasonable delay, and the parties have fully briefed the issue of unreasonable delay in their motions for summary judgment.

Section 304’s provision for relief from “unreasonable delay” raises another potential jurisdictional issue. Section 304 also provides that “an action to compel agency action referred to in section 7607(d) of this title which is unreasonably delayed may only be filed in a United States District Court within the Circuit in which such action would be reviewable under section 7607(b) of this title.” Section 7607(b), in turn, provides that regulations of nationwide application (a category which would certainly include the designation of a criteria pollutant) must be reviewed in the Court of Appeals for the District of Columbia Circuit. CAA § 307(b), 42 U.S.C. § 7607(b). However, courts have held that this is a venue requirement, and is not jurisdictional, and is thus waived if not asserted by the defendant. Tex. Mun. Power Agency v.

EPA, 89 F.3d 858 (D.C. Cir. 1996); State of N.Y. v. EPA, 133 F.3d 987, 990 (7th Cir. 1998). As no party has objected to venue in this Court, any objection to venue in this Court has been waived.

This Court must accordingly determine whether EPA has unreasonably delayed action on plaintiff’s decade-old demand that it take action to designate GHGs as a criteria pollutant.

Unreasonable delay claims are assessed by applying the six factors announced by the District of Columbia Circuit in Telecomm. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984). As described by the D.C. Circuit, the TRAC factors are: Although the standard is hardly ironclad, and sometimes suffers from vagueness, it nevertheless provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a “rule of reason,” . . . ; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, . . . ; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; . . . ; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, . . . ; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, . . . ; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” 750 F.2d at 80, (quoting PCHRG v. FDA, 740 F.2d 21, 34 (D.C. Cir. 1984) (citations omitted).

EPA argues that the ten-year delay in acting on the criteria pollutant determination satisfies the “rule of reason,” in that regulation of GHGs as criteria pollutants would require resolution of thorny policy and scientific issues — such as the correct NAAQS for GHGs and the appropriate response to States unable to meet NAAQS in their implementation plans. EPA also urges that a requirement to act now on the GHG criteria pollutant question would interfere with agency activities of a higher priority than regulation of GHGs under the fourth TRAC factor.

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EPA cites an Executive Order establishing its highest priority as the reduction of regulatory burdens on business and economic activity. Reducing Regulation and Controlling Regulatory Costs, Exec. Order 13771, 82 Fed. Reg. 9,339 (Feb. 3, 2017). This Court is not persuaded.

Delays of over eight to ten years have uniformly been held to be unreasonable by courts applying the TRAC factors, See, e.g., In Re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) (sevenyear delay unreasonable); In re Pesticide Action Network N. Am., Inc., 798 F.3d 809 (9th Cir. 2015); In re A Cmty. Voice v. U.S. E.P.A., 878 F.3d 779 (9th Cir. 2017) (eight year delay unreasonable). This Court also finds that the third factor (regarding human health and welfare being at stake) applies here, given that EPA itself has found that unregulated GHG emissions pose an endangerment to public welfare.

Accordingly, EPA has unreasonably delayed action on listing GHGs as criteria pollutants under CAA § 108(a).

3. Existence of Non-Discretionary Duty to List Having determined that the Endangerment Finding is valid with respect to the endangerment to public welfare, and that EPA has unreasonably delayed action on listing GHGs as criteria pollutants, it remains to be determined whether EPA has a non-discretionary duty to list GHGs as a criteria pollutant based on the Endangerment Finding. Legislative history of the 1990 amendments to the Clean Air Act make clear that this Court must determine not just whether EPA has unreasonably delayed action, but also whether EPA is subject to the underlying non-discretionary duty. See S. REP. NO. 101-228, at *3758 (1990) (“. . . the court in those cases where plaintiff prevails should also go on to define the scope of EPA’s duty and specify the particular actions EPA must take to fulfill that duty within the court-imposed deadline.”)

Plaintiff relies heavily on the use of the word “shall” in section 108(a) to argue that EPA must list a pollutant once it has made findings that the pollutant constitutes an endangerment and is emitted from numerous or diverse stationary or mobile sources. EPA relies heavily on the third condition for criterial pollutant designation, which limits designation to pollutants for which EPA “plans to issue air quality criteria under this section.” 42 U.S.C. § 7408(a)(1)(C). These are the exact same arguments considered by the Second Circuit in NRDC v. Train, which rejected EPA’s claim of total discretion to decline to designate criteria pollutants as inconsistent with the overall structure and remedial goals of the Clean Air Act. Although the Court might hesitate to rely on precedent from nearly one-half century ago, Train continues to be cited and is assumed to be good law in recent decisions. See Ctr. for Biological Diversity v. EPA, 749 F.3d 1079, 1083 (D.C. Cir. 2014); Zook, supra, 52 F.Supp.3d at 74. Accordingly, this Court will follow Train’s holding that EPA has a non-discretionary duty to list GHGs as a criteria pollutant under CAA § 108(a)(1).

III.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff’s motion for summary judgment is granted in part. This Court shall issue judgment declaring that: 1) the Endangerment Finding is valid with respect to an endangerment to public welfare, 2) EPA has unreasonably delayed action on responding to Plaintiff’s petition for designation of GHGs as a criteria pollutant, and has unreasonably delayed designating GHGs as a criteria pollutant, and 3) EPA has a duty that is not discretionary to designate GHGs as a criteria pollutant. EPA is ordered to publish notice of a proposed rule 13

designating GHGs as a criteria pollutant within 90 days of entry of this order, and to publish a final rule designating GHGs as a criteria pollutant within 180 days following publication of the notice of proposed rulemaking.

Intervenor COGA’s cross motion for summary judgment is also granted in part. This Court shall issue judgment declaring that that portion of the Endangerment Finding determining GHGs to endanger public health is contrary to law. The Endangerment Finding is vacated to the extent that it declares GHGs to endanger public health (and only to that extent).

IT IS SO ORDERED. Dated this 15th Day of August, 2020.

Romulus N. Remus United States District Judge

14

i

For the purpose of this competition, competitors are to assume that the petition for EPA Rulemaking filed on December 2, 2009 by Center for Biological Diversity and 350.org included Climate Health and Welfare Now as a co-petitioner. The petition is published at https://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/P etition_GHG_pollution_cap_12-2-2009.pdf

15

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 2021 OFFICIAL RULES FOR VIRTUAL COMPETITION as of September 29, 2020 The following represent the official rules of The Jeffrey G. Miller National Environmental Law Moot Court Competition (“Rules”).

RULE I. ORGANIZATION OF THE NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION The Jeffrey G. Miller National Environmental Law Moot Court Competition (“Competition”) is an annual inter-law school appellate moot court Competition sponsored by the Elisabeth Haub School of Law at Pace University (“Pace”). The purpose of the Competition is to develop expertise in environmental law appellate advocacy. The Competition is coordinated by the National Environmental Law Moot Court Board (“Board”), which is composed of Pace Law students, their faculty and staff advisors at the Elisabeth Haub School of Law at Pace University.

RULE II. THE PROBLEM The Problem is prepared by the Board and provided to each Team for its use in preparing for participation in the Competition.

A. Use of Problem for other than the Competition. Schools may not use the current Problem for intramural runoff competitions or other academic purposes for the current year’s Competition; they may, however, use past Problems. Schools may use the current Problem, after completion of the National Environmental Law Moot Court Competition, for intramural competitions or other academic purposes, with appropriate attribution to Pace Law School.

B. Questions about the Problem. The Board will accept questions relevant to the Problem

until the deadline specified in the Fact Sheet (October 24, 2020).

RULE III. THE TEAMS A. Number and composition of Teams. Each school may enter only one team (“Team”).

The Team shall be composed of two or three law students, all of whom must be registered current law students seeking a Juris Doctor degree and in good standing at their respective schools at the time of brief writing and oral argument. There are to be no alternate Team members. Each Team member must argue in at least one preliminary round.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION B. Substitution or addition of Team members. There shall be no substitution or addition of Team members after the release date of the Problem, except for extreme hardship upon written permission of the Board. The Board recognizes that some schools may not have constituted a team by the release date of the Problem (on or about October 5, 2020). In this instance, Rule III (B) applies as soon as the team is constituted by October 24, 2020.

C. Team numbers. Upon registration, each Team will be assigned a Team number. This number should be referenced in any correspondence with the Board. To preserve anonymity, the Team number will be used during the Competition and Teams may not reveal their schools to the judges.

RULE IV. THE BRIEFS A. General. Each Team may write only one brief. The Team may choose which side to write

for the brief, but will argue all sides of the Problem during the Competition’s preliminary rounds. Only the members of the Team who will actually be arguing may participate in writing the brief. The use of the work product of any person other than a Team member to prepare the brief is strictly prohibited. Work product does not include materials of the type generally used by attorneys to prepare briefs and available for public use. Available for public use means accessible without privilege or reliance on a personal connection unique to the Team or Team member.

B. Length and form of briefs. Each team is required to submit both a Measuring Brief as well as other copies of the Team brief as specified in Rule IV (C).

1.

1

Format. All briefs shall comply with Federal Rules of Appellate Procedure 28 and 32, except as modified by these Rules.1 All text and footnotes shall be in 12 point Times New Roman type. Briefs should be double-sided. Total length of the brief, excluding the Table of Contents, Table of Authorities and Appendices, may not exceed thirty-five (35) pages. The brief shall be bound into a volume or fastened with three staples down the left margin. All citations shall be complete and in the form prescribed in the latest edition of the Harvard Law Association’s Uniform System of Citation (“Bluebook”).

Appendices may be used to recite the text of statutes, constitutional provisions, regulations and materials that are not generally available.

Briefs of Appellants and Appellees shall comply with Federal Rules of Appellate Procedure 28(a)(2)-(9), 28(d) and 28(e). Excluded are 28(a)(1), 28(a)(4)(C), 28(a)(10), 28(b)-(c) and 28(f)-(j). References to the record under FRAP 28 should be to the record of the court. The applicable parts of Rule 32 are Rule 32(a)(1)-(4), with the exception of 32(a)(1)(A), 32(a)(2)(F) and reference to cover color. For the purpose of this Competition, Teams should use the cover colors on briefs specified as follows: EPA, Blue; COGA Green; CHAWN, Red. The name of the court shall be the United States Court of Appeals for the Twelfth Circuit. Recycled paper should be used.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 2.

The Measuring Brief. As set forth in Rule IV (C)(1)(a)(i), each Team shall submit to the Board the printed original of its brief (marked “Measuring Brief” on front cover), which shall be used solely for the purpose of judging the criteria of this section. The Measuring Brief must comply with Rule IV (B)(1). The cover shall include the Team number at the upper right hand corner, with the school name and the names of individual Team members appearing at the lower right hand corner. The name of the party for which the Team is writing the brief must also appear on the front cover. Each Team must also submit a flash drive labeled with the school name and team number, containing the Measuring Brief in Word 2010 or later.

3.

Other copies. Other copies of the brief shall be identical reproductions of the original Measuring Brief except that no identification of the Team or its members other than the Team number shall be included on the outside cover. Briefs shall not be signed, nor shall any identifying material appear in the briefs. Each Team must also submit by email a copy of its brief in PDF file format as specified in Rule IV (C)(2).

4. Certification. Each Team submitting a brief in the Competition shall certify that such brief has been prepared in accordance with these Rules and that the work product is solely that of the Team’s members.2 The certification shall be bound or fastened in the Measuring Brief as the last page. No certification shall be included in any other brief except the Measuring Brief.

5. Accommodations for Campus Closures. In the event of a campus closure, and with the prior approval of the Board, a Team may submit an electronic copy of the Measuring Brief and an electronic copy of Team Brief without the certification page.

C. Service of briefs and certification.

1. Service upon the Board. a. Each Team shall serve upon the Board the following items: 2

The certification shall state:

We hereby certify that the brief for _____________ Law School is the product solely of the undersigned and that the undersigned have not received any faculty or other assistance in connection with the preparation of the brief. We further certify that the undersigned have read the Competition Rules and that this brief complies with these Rules.

Date__________________

_____________________ Team Member _____________________ Team Member _____________________ Team Member

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION i. The Measuring Brief, clearly marked “Measuring Brief”; ii. One (1) labeled flash drive, containing the Measuring Brief (pursuant to Rule IV (B)(2)); iii. Six (6) copies of the Team brief (pursuant to Rule IV (B)(3)); and iv. The Team’s original certification (pursuant to Rule IV (B)(4)). b. Briefs shall be sent in one single package bearing the Team name and Team number and postmarked no later than November 21, 2020. c. The package must be sent via two-day expedited delivery from a shipping or postal service. d. Briefs served upon the Board shall be directed to: NELMCC Office Elisabeth Haub School of Law at Pace University 78 North Broadway, Preston 212 White Plains, New York 10603

e. Package containing briefs must bear a postmark or some other indicia proving date of mailing. The team must retain proof of mailing, such as a receipt with the transaction date from the shipper or postal service, and a tracking number assigned by the shipper for delivery verification. f. Briefs postmarked with a date later than November 21, 2020 will be subject to a one-point deduction per day late pursuant to Rule VII. A Team that submits its briefs to a postal or shipping facility on time, but whose briefs are not postmarked until the next day, may be asked to furnish a copy of the receipt with the transaction date to the NELMCC Board in order to avoid the deduction. g.

2.

As provided in Rule B.5., in the event of a campus closure, and with the prior approval of the Board, a Team may serve the Briefs upon the Board electronically by email to the NELMCC email address at nelmcc@law.pace.edu following the procedure outlined in Rule C.2. below.

Service of briefs on opposing Teams. Each Team must email a copy of its brief (not the Measuring Brief) as an attachment in PDF file format by 11:59 p.m. EST, November 21, 2020 to the NELMCC email address at nelmcc@law.pace.edu.

Failure to do so will result in 1-point deduction.

The email should bear the subject line, “Brief for Team # [ ], _________ [school name]. All Team Brief’s will be available for all competitors on the NELMCC website. A Team may not revise its brief after its submission to the Board.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION RULE V. SCORING A. Briefs. The Pace Environmental Law Review, the Pace International Law Review, the Pace Law Review and a committee of experienced litigators shall score all briefs submitted and select the best brief for each party opponent in the Competition. The brief score shall be used with the preliminary round scores to determine advancement to the quarterfinal round.3 B. Preliminary rounds.

1. Time and place. All preliminary, quarterfinal, and semifinal rounds will be held online. Conditions permitting, the final round will be held in person at the Elisabeth Haub School of Law on Saturday, March 6, 2021.

2. Number of arguments. Each Team will argue in three preliminary rounds; each Team will argue a different party position each round. At the conclusion of the three preliminary rounds, the twenty-seven Teams with the highest total preliminary scores4 shall advance to the quarterfinal rounds.

3. Ties. Ties shall be broken in favor of the Team that has the highest aggregate point differences over its opponents in the three preliminary rounds.5 In the event that tying Teams have the same aggregate point difference over their opponents, the tie shall be broken in favor of the Team having the higher brief score.

4. Byes, assignment of Teams for arguments. Byes,6 if any, Team grouping, and party

3

Briefs will be scored on the following basis: Correct Bluebook citation, spelling, punctuation, and capitalization shall represent seventeen percent (17%) of the total brief score. Thoroughness of research, depth of analysis, and persuasiveness of argument shall represent eighty-one percent (81%) of the total brief score. Two percent (2%) of the total score will be for Measuring Brief factors.

4 Total preliminary scores shall be computed as follows: The brief score shall constitute forty percent (40%) of the total preliminary score. The combined score of the preliminary rounds shall constitute sixty percent (60%) of the total preliminary score (twenty percent (20%) for each of the three (3) rounds). The score each Team member receives in each preliminary round shall constitute fifty percent (50%) of that preliminary round score, which is ten percent (10%) of the total preliminary score.

5 Aggregate point differences shall be computed in the manner illustrated by the following example: If Team A defeated its closest first round opponent by a score of 80-75 and lost its second argument to the winning Team by a score of 78-80 and lost the third round to the winning Team by a score of 82-83, its aggregate point difference for the three rounds is +2 points (i.e., the net of the +5 point difference in its first argument, the -2 point difference in its second argument, and a -1 point difference in its third argument).

6 Any Team that draws a bye shall have its total preliminary score computed as follows: The brief score shall constitute forty percent (40%) of the total preliminary score. The score for each preliminary round shall constitute thirty percent (30%) of the total preliminary score. Otherwise, scoring shall be the same as described in Rule V (B).

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION shall be randomly selected, except as qualified by Rule V (B)(2). No Team shall draw 5. more than one bye during the preliminary rounds. Assignment for successive arguments shall be announced as soon as reasonably practicable following the completion of the preceding round.

C. Final rounds.

1. Time and place. The quarterfinal and semifinal rounds of arguments will be held online. Conditions permitting, the final round will take place live in person at the Elisabeth Haub School of Law on Saturday, March 6, 2021. The Elisabeth Haub School of Law will provide for round trip travel for finalist Team members and hotel accommodations in White Plains, NY. In the event that it is unsafe to travel, the Final Round will be held remotely online.

2. Arguments. Twenty-seven (27) Teams shall progress to the quarterfinal round and the party they represent will be randomly selected. The best Team from each trio in the quarterfinal round will be selected by the judges based on the oral argument and will advance to the semifinal round of the Competition. The best Team from each trio in the semifinal round will be selected by the judges based on the oral argument and will advance to the final round of the Competition on March 6, 2021.

D. Order, timing and results of arguments.

1. Participants. Any two members of a Team may participate in any argument, but two members must participate in each argument. In the case of three-member Teams, each member must argue at least once during the preliminary rounds. Each Team must address all the issues in the arguments, dividing them among the two Team participants any way it chooses, and determine the order of issues argued. A Team member not participating in an argument may be of counsel. It is highly encouraged that Teams have three members.

2. Time allowed for arguments. Oral argument shall be limited to a total of thirty minutes per Team, fifteen (15) minutes for each Team member, except as discussed below. Judges, at their discretion, may interrupt arguments to ask questions but may not allow additional time. Each party, by advance notification to the judges and bailiff, may reserve up to five (5) minutes for rebuttal. Additionally, the first team member to argue must request rebuttal time from the judges. Rebuttal time may be subtracted from either or both of the two arguing Team members’ time allotment. (Example: Team Member #1 may argue for 14 minutes, Team Member #2 may argue for 13 minutes, thus reserving a total of 3 minutes for rebuttal by one Team Member). Only one Team

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

member may rebut. If the first Team member to argue fails to designate from whose argument the rebuttal time will be deducted, the time will be automatically subtracted from the first Team Member. The official time of the round is the time indicated by the bailiff. No one other than the bailiff may display timecards or signal to the oralist how much time is left. Teams may use silent digital or analog watches, but no smart watches.

3. Results. The Best Oralist for each courtroom in the preliminary rounds will be announced by the judges. The Best Oralist of the combined preliminary rounds will be announced by the Board after the conclusion of the rounds and must have argued in two of the three rounds to qualify. The scores for each team will not be announced, but shall be determined by the judges without knowledge of the brief score, and shall be arithmetically weighed and combined with the brief score by the Board under the formula described in Rule V (A) and (B) with scores computed to decimals or fractional points, as necessary, to determine the twenty-seven schools which will advance to the quarterfinal round. The winning Teams for the quarterfinal, semifinal and final rounds will be announced by the Board at the conclusion of each round. A single listing of all final brief scores and final overall scores after the preliminary rounds will be sent to participating Teams within three months after the Competition. No individual Team member’s scores will be distributed.

4. NO Videotaping, audiotaping, cell phones, and other visual aids. Videotaping, audiotaping, cell phones and other electronic devices, except for the computers used to access the virtual online rounds, are prohibited during oral arguments. Visual aids are prohibited during oral arguments. All rounds will be recorded for our purposes, the recordings will not be made available.

5. NO Computers, laptops, mobile phones, and other electronic devices in the courtroom during the final round. During the final in-person round of the competition, competitors may not use laptop computers, tablets, mobile/smart phones or any other electronic devices in the courtroom during the oral arguments. All electronic devices should be turned off until the conclusion of the round.

6. Visitors may only observe the NELMCC final round in person on March 6, 2020. We will also record the final round and make the recording available. Those wishing to observe must check in at the hospitality desk prior to the final round. Visitors must turn off all mobile/smart phones or any other electronic devices as they are prohibited. Visitors may not take photographs or videotape during the oral arguments.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

RULE VI. FACULTY OR OTHER ASSISTANCE No Team shall receive assistance prior to filing its brief, including research, writing or any aspect of preparing the brief. No Team shall receive assistance of any kind during an oral argument at the Competition or during any recess thereof. To maintain Team anonymity, coaches may not communicate with their Team during the oral arguments.

RULE VII. PENALTIES A. The Board may assess such penalties, including disqualification, as it deems reasonable and appropriate in its sole discretion for failure to comply with the Rules or deadlines set pursuant to these Rules and other rules made pursuant to Rule XI hereof.

B. All briefs in the Competition shall be subject to uniform penalties for each type of violation; penalties may be levied in whole or fractional points.

C. The Board shall maintain records of the penalties imposed pursuant to this Rule for at least six (6) months.

RULE VIII. ADDITIONAL RULES FOR 2020 HYBRID COMPETITION A. Registration Fee. The Board recognizes the hardships that many Teams may face due to the COVID-19 pandemic and has reduced the registration fee to $450 per team. The registration fee will cover the online technology and technology support, as well as the costs of travel to White Plains, NY for finalist Team members.

B. Virtual Backgrounds. Virtual backgrounds are recommended, but not required. If Team members use a virtual background, it must be the uniform background provided by the Board to the Teams.

C. Muting Video and Microphones. All Team members must mute their microphone and video when they are not speaking. Only the judges, bailiffs, and current Team oralist should have their microphone and video unmuted at any given time.

D. Use of Headphones. Use of headphones is not required.

E. Certification Prior to Each Round. Prior to each online round, the Bailiff will ask all Team members to certify that there is no one in the room with them providing faculty or other assistance prohibited by Rule VI.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION F. Oralists Have the Option of Sitting or Standing During Oral Arguments. To simulate the courtroom experience, each Team member is encouraged, but not required, to stand during his or her portion of the oral argument. We recommend that Teams test out different setups prior to the Competition.

G. Online Rounds Recorded. The Board will record all preliminary, quarterfinal, and semifinal rounds. These recordings are for the Board only and will not be made available to the Teams. By participating in the Competition, the Teams consent to these recordings.

H. Technological Support. The Board will provide all Teams with technological training opportunities prior to the Competition. The Board will also set up a technology support hotline during the Competition.

RULE IX.

SCHEDULE

The Competition will be held on the following days and times.

Day 1, Wednesday, February 17

Preliminary Round 1, Online, 3pm – 5pm Preliminary Round 2, Online, 7pm – 9pm

Day 2, Thursday, February 18

Preliminary Round 3, Online, 12pm – 2pm Quarterfinal Round, Online, 6pm – 8pm

Day 3, Friday, February 19

Semifinal Round, Online, 12pm – 2pm

FINAL ROUND, Saturday, March 6

Live at the Elisabeth Haub School of Law, conditions permitting

RULE X.

INTERPRETATION OF THE RULES

Requests for interpretation of these Rules should be addressed to the National Environmental Law Moot Court Competition, by mail using the address in Rule IV (C)(1)(b), or by email to nelmcc@law.pace.edu. Pursuant to Rule VI, teams may not receive faculty assistance prior to the filing of the brief; therefore, any questions related to brief writing are to be submitted by the competitors and not the coach or advisor. Requests should be made at the earliest date possible.

All interpretations of these Rules and any waivers, consents, assessments of penalties, decisions or other actions taken by the Board in its administration of the Competition shall be in its sole and absolute discretion. Such interpretations, waivers, consents, assessments of penalties, decisions or actions shall be final, and all participants shall be bound thereby.

RULE XI. OTHER RULES The Board may from time to time make any other rules and procedures deemed advisable for the conduct of the Competition, in its sole discretion.