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APPENDIX
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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,
-and-
COAL, 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.
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.)
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,
-and-
COAL, OIL, AND GAS ASSOCIATION, Intervenor-Defendant,
No. 66-CV-2019, Judge Romulus N. Remus.
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.
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
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
1 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.
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
(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
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
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
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.
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.
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
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
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
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.
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. 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.
1 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.
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
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. 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.
2. 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.
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).
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
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.
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.
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.
