NELMCC Program 2022

THE 34th ANNUAL 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 23-26, 2022 Major Sponsors ABA Section of Environment, Energy, and Resources Baker Botts, LLP Riker, Danzig, Scherer, Hyland & Perretti, LLP

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 19 th 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 ............................................................................................................................................................................10 NELMCC Board & Administrative Support ..............................................................................................................11 Environmental Law at Elisabeth Haub School of Law .........................................................................................12

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. 2022 Haub Law Reviews ..................................................................................................................................................18 3. 2022 NELMCC Brief Graders ..........................................................................................................................................19 4. 2022 NELMCC Judges ......................................................................................................................................................20 IV. SPONSORS ..........................................................................................................................................................................27 V. APPENDIX............................................................................................................................................................................31 NELMCC Problem 2022 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.

© 2022 Elisabeth Haub School of Law at Pace University

ONLINE SCHEDULE OF EVENTS FOR COMPETITORS February 23-26, 2022, EST COMPETITORS’ HEADQUARTERS: https://pace.zoom.us/j/92595330024 Meeting ID: 925 9533 0024 PASSWORD: NELMCC

WEDNESDAY, 2/23 2:00pm – 2:15pm

Opening Welcome Remarks from Prof. Karl Coplan

2:15pm -2:30pm

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, 2/24 11:15am – 11:30am

Check in at Competitors’ HQ to Receive Room Assignments

12:00pm – 2:00pm

Preliminary Round III

2:15pm – 3:00pm

Tea and Chat for Students - Competitors Headquarters ABA SEER Career Panel

3:00pm – 4:00pm

Join Zoom Meeting https://pace.zoom.us/j/93452401148 Password: 285848

4:00pm – 4:30pm

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

5:15pm – 5:30pm 6:00pm – 8:00pm 10:00pm –10:15pm

Meeting ID:Competitors’ 934 5240 1148 Check in at HQ to Receive Room Assignments Password: 285848 Quarterfinal Round

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

FRIDAY, 2/25 11:00am – 11:30am

Tea and Coffee for Students Competitors Headquarters

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 2/18/22

Final Round: Saturday, February 26, 2022 1:30 – 3:30 PM EST https://pace.zoom.us/j/93647105724 Passcode: 437948 2

ONLINE SCHEDULE OF EVENTS FOR JUDGES February 23-26, 2022, EST JUDGES’ HEADQUARTERS: https://pace.zoom.us/j/97126322963

Meeting ID: 971 2632 2963 Password: judges WEDNESDAY, 2/23 2:15pm – 2:30pm

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

3:00pm – 5:00pm

Preliminary Round I

6:15pm – 6:30pm

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

7:00pm – 9:00pm

Preliminary Round II

THURSDAY, 2/24 11:15am – 11:30am

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

12:00pm – 2:00pm

Preliminary Round III

5:15pm – 5:30pm

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

6:00pm – 8:00pm

Quarterfinal Round

FRIDAY, 2/25 NYS Ethics CLE Program for Attorneys 9:00am – 11:00am

Join Zoom Meeting https://pace.zoom.us/j/99902909560 Password ethicscle

11:15am – 11:30am

Check in at Judges’ HQ to Receive Room Assignments; Remarks by Prof. Achinthi Vithanage

12:00pm – 2:00pm

Semifinal Round 2/18/22

Meeting ID: 999 0290 9560 Password: ethicscle

Final Round: Saturday, February 26, 2022 Via Zoom 1:30Password: – 3:30 PM EST https://pace.zoom.us/j/93647105724 Passcode: 437948

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From the Office of Dean Horace Anderson Elisabeth Haub School of Law

Welcome to the Elisabeth Haub School of Law at Pace University’s 34th Annual Jeffrey G. Miller National Environmental Law Moot Court Competition.

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.

The Competition is made possible by the hard work and dedication of the NELMCC Board and in particular this year by the work of our 2022 Chair, Ms. Christen Maccone; Prof. Karl Coplan, the NELMCC advisor and problem author; Katherine Horner, 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 judges who continue to support this competition 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-Fourth Annual Jeffrey G. Miller National Environmental Law Moot Court Competition (NELMCC). On behalf of the NELMCC Board and all of the faculty that made the competition possible, we are grateful to have you join us. For those who have participated before, we are gladdened at your return. For those joining us for the first time, welcome and we hope to have you again. And to everyone, thank you for your time and effort spent on preparations.

You continue to impress us year after year with your dedication, understanding of the problem, and oral advocacy.

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 and problem-solving to adapt and refine the virtual platform started last year. Lorraine Rubich, the Program Manager, Achinthi Vithanage, the Associate Director of Pace's Environmental Law Programs, and Anne Olson, the Program Coordinator, have been at the forefront of these endeavors, constantly working to bring to life what the Board envisioned. Your dedication and support do not go unnoticed and are indispensable to the continued success of NELMCC. We would also like to thank Professor Karl Coplan, the author of this year's problem, and our faculty advisory, along with Katie Horner, our 2022 Environmental Law Fellow, who assisted Professor Coplan in these efforts and writing the supplemental documents for the competition. We are so thankful for the knowledge and time you both have given towards the competition. Additionally, we thank Tony Solano, who has helped us with all the hurdles of the virtual format of the competition.

I would like to say thank you to the NELMCC Board for their constant support and countless hours of hard work: Gabriella Mickel, Zach Roy, and Amalia Talty, Co-Vice-Chairs of Judges; Daniel Guarracino and Mackenzie Moonan, Co-Vice-Chairs of Grading and Scoring; Andre Arias and Juls Duran-Buchsbaum, CoVice-Chairs of Hospitality; Madison Bialkowski and Tatjana Calimpong-Burke, Co-Vice Chairs of Rules; Megan Gaddy and Alexandra Tamburrino, Co-Vice-Chairs of Bailiffs; and Carolyn Rumrill, Vice-Chair of Fundraising. Thank you for offering your talents, ideas, and time to create a new standard and ensure that future competitions will run even smoother. I would also like to recognize the first and second-year students who served as committee members. It is truly awesome to see your interest and efforts to be involved in our esteemed environmental law program.

Thank you is also due to the members of Pace Environmental Law Review, Pace Law Review, and Pace International Law Review. Thank you to the editors for facilitating successful grading and to the associates who spent time over their winter break to check brief citations.

A special thank you to the attorneys who have set aside their time and taken on the essential roles of judges and brief graders for the competition. It is a privilege to have such bright legal minds involved in the competition to give competitors feedback to apply to their academic and professional careers. I would like to extend our utmost gratitude to those joining us as final round judges - you make the final round professional and memorable for both competitors and spectators.

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Since before coming to law school, I wanted to participate in NELMCC. However, I did not imagine having the opportunity to serve as chair and interact with so many bright legal minds of the environmental law field. NELMCC has given me more than I could have envisioned and is a competition that serves as a constant reminder of the environmental law field's expanse, detail, and dedication. I am incredibly grateful to all involved in this competition and I am pleased to welcome you to NELMCC 2022. Best of luck to those competing, please, remember to enjoy and learn.

Best,

Christen T. Maccone

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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.

Alexandra Dapolito Dunn, Esq. Baker Botts, LLP Alexandra (Alex) Dunn is a Partner in the Environmental, Safety, and Incident Response group at the international law firm of Baker Botts with 25 plus years of practice at the local, state, and federal levels of government. Alex brings to clients extensive institutional knowledge and a keen ability to help solve regulatory problems. Her deep relationships across the nation and reputation for transparency, fairness, and equity, make her an effective presence in the difficult settings. Alex largely works with major companies and national organizations on the regulation and management of emerging contaminants - particularly integrated per- and polyfluoroalkyl substances (PFOS/PFAS) - on environmental justice and risk communication, chemical regulations, enforcement and compliance assistance, and risk communication.

From 2019-2021, with unanimous consent confirmation by the U.S. Senate, Alex served as Assistant Administrator for the U.S. Environmental Protection Agency's Office of Chemical Safety and Pollution Prevention. Overseeing 900 career staff, she was responsible for the creation of national policies implementing federal laws governing chemicals, pesticides, and pollution prevention. Prior, she was EPA Administrator for New England (Region 1) from 2018-2019, where she focused on watersheds, enforcement, and environmental justice.

Previously, Alex served as Executive Director and General Counsel of the Environmental Council of the States (ECOS), the national non-partisan association of U.S. state and territorial environmental commissioners. She held other dynamic positions in her career, including Executive Director and General Counsel of the Association of Clean Water Agencies (ACWA); Dean of Environmental Law Programs at the Elisabeth Haub School of Law at Pace University; General Counsel of the National Association of Clean Water Agencies; and Counsel at the American Chemistry Council. Alex is a nationally known author on the topics of green cities, urban sustainability, environmental justice, and watershed management; she also has taught environmental justice at three law schools.

Alex serves on the Leadership Council of the Environmental Law Institute, the Board of Regents of the American College of Environmental Lawyers, and as a leader in the American Bar Association’s Section of Environment, Energy and Resources and on the Section of Litigation’s Environmental Litigation Committee.

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Judge Mary Kay Lynch EPA Environmental Appeals Board Judge Mary Kay Lynch is an Environmental Appeals Judge on U.S. EPA’s Environmental Appeals Board and has extensive litigation and management experience in both the private and public sector. She has served in several leadership positions within the EPA, including as the Associate General Counsel for the Waste and Emergency Response Law Office, leading the Agency’s participation in U.S. Supreme Court, federal Appellate Court and federal rule making practice in these subject areas. Prior to that she served as Regional Counsel for U.S. EPA Region 4 in Atlanta, Georgia. There she led a large interdisciplinary staff including attorneys and engineers to provide legal counsel for civil and criminal enforcement cases, defensive litigation, counseling issues, and general law matters. Judge Lynch has served as the Vice Chair of the Deepwater Horizon Natural Resource Damage Trustee Council where she advised on complex and unprecedented issues. Prior to joining EPA, she was engaged in private law practice. Judge Lynch plays a leading role in the Board’s work on international judicial capacity building. Her work has been recognized with numerous awards including the Meritorious Presidential Rank Award, the EPA Excellence in Management Award and EPA Gold and Silver Medals. Judge Lynch earned a Juris Doctor degree, from the University of Georgia School of Law, where she served as the Executive Editor of the Georgia Journal of International and Comparative Law. She earned a Bachelor of Arts, magna cum laude, from Boston College where she majored in history and was part of the Scholars of the College program.

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James May Distinguished Professor James R. May, Esq. is Visiting Professor of Law, Elizabeth Haub School of Law, Pace University (2022), and S.J. Quinney College of Law, University of Utah (2021); and, Distinguished Professor of Law, Founder of the Global Environmental Rights Institute, and coFounder of the Dignity Rights Project at Widener University Delaware Law School.

Most recently May is the immediate past President and coFounder of Dignity Rights International, and a Board member of the Normandy Chair for Peace, the Earth Law Center, and the GreenWatch Institute. He serves as the Special Representative on Harmony With Nature for the International Council of Environmental Law, and chaired the American Bar Association Section on Environment, Energy and Resources Task Force on Environmental Justice, which culminated in the enactment of a Resolution on Environmental Justice and the establishment of a new ABA Presidential Task for on Environmental Justice.

He is an inductee of the American College of Environmental Lawyers (co-Chair, 2022 Annual Meeting), Phi Kappa Phi (Board), the Delaware Valley Environmental Inn of Court, and the National Judicial College.

May has authored, co-authored, edited or co-edited 21 books, including Environmental Human Rights and the Anthropocene (Cambridge forthcoming 2022), Dignity Law Handbook (2021), Dignity Law Casebook: Courts, Constitutions and Perspectives (Hein 2020); Advanced Introduction to Dignity Law (Edward Elgar 2020), Encyclopedia of Human Rights and the Environment (Edward Elgar 2020), Environmental Rights: The Development of Standards (Cambridge 2019), Judicial Handbook on Environmental Constitutionalism (United Nations 3d. Ed. 2019), Judicial Handbook on Environmental Constitutionalism: Compendium of Cases (United Nations 2d ed. 2019), Implementing Environmental Constitutionalism (Cambridge 2018), The Future of Sustainable Energy, (Edward Elgar 2016), New Frontiers in Environmental Constitutionalism (United Nations 2016), Environmental Constitutionalism (Edward Elgar 2016), Global Environmental Constitutionalism (Cambridge 2015), and Principles of Constitutional Environmental Law (American Bar Assn 2011).

May has published 52 book chapters, including by Routledge (Oxford), Cambridge, Hart, Edward Elgar, Mare and Martin, Jindal Press, and the American Bar Association. His works have been widely adopted and translated. May has also published 67 law review articles – including by the Yale, UCLA, Cardozo, Kansas, Denver, Pace and Vermont Law Review – and 75 other legal works, including by the United Nations, American Bar Association, Environmental Law Institute, and Bloomberg. He has received numerous awards and recognitions, including from the American Bar Association, Sierra Club, American Canoe Association, Pace University Haub School of Law, and Widener University. LawDragon has recognized him as one of the world’s most influential environmental lawyers.

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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.

ABA, Section of Environment, Energy, and Resources Baker Botts, LLP Riker, Danzig, Scherer, Hyland & Perretti, LLP Nicholas Robinson Caroline Chen Douglas Cummings Elizabeth Luk

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The Jeffrey G. Miller National Environmental Moot Court Competition NELMCC CHAIR Christen Maccone

PROBLEM AUTHOR Professor Karl Coplan

VICE CHAIRS Andreas Arias Madison Bialkowski Tatjana Calimpong-Burke Julietta (Juls) Duran-Buschsbaum Megan Gaddy Daniel Guarrancino Gabriella Mickel Mackensie Moonan Zach Roy Carolyn Rumrill Amalia Talty Alexandra Tamburrino

BENCH MEMO AUTHOR Katherine Horner Environmental Law Fellow PROGRAM MANAGER Lorraine Rubich PROGRAM COORDINATOR Anne Olson ADDITIONAL SUPPORT Achinthi Vithanage, Assoc. Enviro Law Dir. Tony Solano, Educational Media Greg Likens, Web Master

MEMBERS Erica Aliperta Reni Axelrod Mackenzie Banks Marisa Barber Stefanie Baroutoglou Joe Beletti-Narccarato Samantha Blend Mariah Bowman Lindsay Carter Haleigh Catalano Lena Constable Bianca Cuccinello Michael Diekow Amanda Dinkin Kaitlynn Dixon Isabella Eitner Ralph Fasano Rita Flanagan Leah Frattellone

Brianna Grimes Molly Hammersmith Issabelle Hayes Destinee Heggie Fiona Herzig Jillian Houle Gabriella Izquierdo Laurel Jobe Sarah Kissel Daniel Krupa Kaila Kuschman Alexandra Lao Alana Lightenberg Tatiana Martin Kathryn McBryan Isabelle Nebel Alexis Neunteufel Logan O’Connell Elena O’Donnell

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Michael O’Hora Analyse Pena Diann Pena Gabriella Pereira Theresa Persico Hannah Pettis Sabrina Reheld Corey Rosen Erica Russo Nicole Sammon Anya Satawadi Victoria Schulman Kassie Seavy Jessica Serpe Jessica Taylor Jordan Thompson Kaitlyn Trank Abagail Tranor Daniel von Staats Chris Zapcic

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

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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.

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 student-run journal publishes scholarly articles from professors around the world, the annual Lloyd K.

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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 23, 2022 are followed by the third preliminary & quarterfinal rounds on Thursday, February 24, 2022 and conclude with the semifinal rounds on Friday, February 25, 2022. The Final Round will take place Saturday, February 26, 2022 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.

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 University of Miami School of Law, winner of the 2021 Competition, and will be passed on to the 2022 Competition winner. The Best Brief awards are printed by the Pace Environmental Law Review.

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PARTICIPATING SCHOOLS

American University Washington College of Law Antonin Scalia Law School at George Mason University Baylor Law School Boston College Law School Columbia Law School Duke Law Florida State College of Law Fordham University School of Law Georgia State University School of Law Golden Gate University School of Law IIT Chicago-Kent College of Law Indiana University Robert H. McKinney School of Law Lewis & Clark Law School Loyola Law School Loyola University College of Law New England Law | Boston Penn State Dickinson Law Stetson University College of Law Tulane University Law School University of Alabama School of Law University of Arizona James E. Rogers College of Law University of California, Berkeley University of California, Davis School of Law University of California, Hastings College of the Law University of Colorado Law University of Denver Sturm College of Law

University of Florida, Levin College of Law University of Georgia Law School University of Hawaii William S. Richardson School of Law University of Houston Law Center University of Kansas School of Law University of Maine School of Law University of Maryland Frances King Carey School of law University of Miami School of Law University of Michigan Law School University of Montana School of Law University of New Mexico, School of Law University of North Carolina Law School University of Oregon School of Law University of Pennsylvania Carey Law School University of Pittsburgh School of Law University of Tennessee College of Law University of Texas School of Law University of Utah, S.J. Quinney College of Law University of Washington School of Law University of Wyoming College of Law Vermont Law School Washington and Lee University School of Law West Virginia University College of Law Widener Commonwealth Law School William S. Boyd 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

PACE ENVIRONMENTAL LAW REVIEW

PACE INTERNATIONAL LAW REVIEW

Editor-in-Chief Jillian Anzalone

Editor-in-Chief Dana McClure

Editor-in-Chief Emily Borovskis

Managing Editor

Managing Editor

Managing Editor

Adam Thomas Executive Productions Editors

Jennifer Kelly Productions Editors

Tyler W. Rutherford Productions Editors

Cheyanna Fuchs Alina Gluzman

Jillian Aicher Sydney Byers

Áine M. Dillon Katherine Krahulik

Kseniya Zilberman

Andie D’Angelo

Olivia Incerto

Executive Acquisitions Editor

Articles Editors

Submissions Editors

Arjana Balaj Samantha Kelly

Madison Shaff Christopher Makowski

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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.

Kelly Brantner, Washington, DC Kurt Brauer, Michigan Jonathon Brown, New York Jim Creech, New Jersey, New York Ian Curry, New York Mary Desmond, New York Lauren Fischer, New York Thomas Gowan, New York Jennifer L. Gray, New York Andrea Hartung, Georgia Deborah Heller, New York, New Jersey Stuart E. Kahan, New York Taylor Keselica, New York, Connecticut Katrina Kuh, New York Robin J. Leigh, Georgia

Jean Lucasey, New York, Connecticut Paul Marrow, New York Claire McLeod, New York, California Catherine Mendolia, New York Anxhela Mile, New York, New Jersey Colin Myers, New York Russel Pecunies, New York Ann Powers, New York Amy Carpiniello, New York Samuel Richards, Georgia Danielle Schreiber, New York Alicia Stoklosa, New York Jennifer M. Ukeritis, New York, Washington, DC Amelia Wagner, New York

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2022 NELMCC JUDGES 2022 NELMCC JUDGES Sidney Ansbacher Sidney Ansbacher Law 780 N. Ponce de Leon Blvd.

St. Augustine, FL

Lauren Bachtel Mayer Brown 1221 6th Ave New York, NY

Rachel Bauer US Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, DC

Karen Bernstein Seham, Seham, Meltz & Petersen, LLP 95 New Chalet Drive Mohegan Lake, NY

Norman Bernstein N.W. Bernstein & Associates, LLC 800 Westchester Ave. Rye Brook, NY

Nancye Bethurem US Army Corps of Engineers 100 Paradise St Waynesville, MO

Douglas R. Blazey Elliott Greenleaf, P.C. 925 Harvest Drive, Suite 300 Blue Bell, PA

Michael Bogin SIVE|PAGET|RIESEL 560 Lexington Avenue New York, NY

Olivia Bonner UN Environment Programme United Nations Avenue Nairobi, Kenya

Eileen Brown DOPF, P.C. 440 9th Ave New York, NY

Jonathan Brown Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Inga Caldwell Cole Schotz 25 Main Street Hackensack Hackensack, NJ

Michael Caruso Michael V. Caruso, P.C. and Town of Patterson Justice 3871 Danbury Road Brewster, NY

David Cassuto Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

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2022 NELMCC JUDGES

Ian Coghill Conservation Law Foundation 62 Summer Street Boston, MA

Carol Conyers NY State Dept. of Environmental Conservation Albany, NY

Jon Cooper George Washington University 3109 18th street nw washington, DC

Karl Coplan Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Marisa Corvisiero Corvisiero Law Firm 1180 Avenue of the Americas New York, NY

Timothy Cox Catskill Watershed Corporation 669 County Hwy 38 Arkville, NY

Amanda Crawford Department of the Interior 1849 C Street NW Washington, DC

Jody Cross Zarin & Steinmetz White Plains, NY

Jason Czarnezki Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Seth Davis Seth Davis Law 411 Theodore Fremd Avenue Rye, NY

Eric (Ricky) Dessen Consolidated Edison Company of New York, Inc. 4 Irving Place New York, NY

Sean Dixon Puget Soundkeeper 130 Nickerson st Seattle, WA

Norman Dupont Ring Bender LLP 3150 Bristol St., Ste 220, Ste 220 Costa Mesa, CA

David Dorfman Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

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2022 NELMCC JUDGES Greg Dutton Frost Brown Todd 400 West Market St Louisville, KY

Misti Duvall Manhattan Prep PO Box 170161 Brooklyn, NY

Alex Erwin Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Michael Feldman Feldman Perlstein and Greene 10 Waterside Dr. Farmington, CT

Theodore Firetog Law Offices of Theodore Firetog 111 Thomas Powell Blvd.

Farmingdale, NY

Fern Fleischer-Daves Conn Maciel Carey 5335 Wisconsin Avenue Washington, DC

Patrick Foster NYS Dept. of Environmental Conservation 4740 21st Street Long Island City, NY

Josh Galperin Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Andrew Goodman NMIC Legal Services 45 Wadsworth Ave New York, NY

Bennet Goodman Law Office of Bennet Goodman 144B Heritage Hls Somers, NY

Katherine Goyette Massachusetts Department of Public Utilities 1 South Station Boston, MA

John Gray NJ Transit 5 Willis Dr. Ewing, NJ

Shelby Green Elisabeth Haub School of Law at Pace University White Plains, NY

Melissa Hagan Law Office of Melissa Hagan, PLLC PO Box 1082 Houston, TX

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2022 NELMCC JUDGES Rosemarie Hebner Goldberg Segalla 1037 Raymond Blvd Newark, NJ

Hana Heineken Rainforest Action Network 425 Bush Street San Francisco, CA

Deborah Heller Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Michael Herz Cardozo School of Law 55 Fifth Avenue New York, NY

Randolph Hill US EPA 1200 Penna Ave., N.W. Washington, DC

Katie Horner Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Jack Hornickel Food and Beverage Law Clinic 80 North Broadway White Plains, NY

Richard Horsch White & Case LLP 670 N. Settlement Road Windham, NY

Catherine Janasie National Sea Grant Law Center University, MS

Charles Janoff Charles Janoff Law 655 6th Place S, 655 6th Place S Garden City, NY

Laura Jensen Maine Office of the Attorney General 111 Sewell Street Augusta, ME

Abigail Jones PennFuture 425 Carlton Rd, Ste 1 Mount Pocono, PA

Ruth Karfiol Glazer JD Advisor LLC 14 Nimrod Farm Rd Weston, CT

Taylor Keselica MMPS 355 Atlantic Street Stamford, CT

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2022 NELMCC JUDGES

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2022 NELMCC JUDGES Anxhela Mile Conservation Law Foundation 62 Summer Street Boston, MA

Andrew S. "Drew" Miller Kemp Smith LLP 6001 W. Parmer Lane Austin, TX

Michael Mushlin Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Todd Ommen Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Jessica O'Neill PennFuture 137 Richmond Street Philadelphia, PA

Dustin Ordway Ordway Law Firm, PLLC 3055 Shore Wood Dr Traverse City, MI

Richard Ottinger Elisabeth Haub School of Law at Pace University 78 Broadway White Plains, NY

Violaine Panasci Rockridge Venture Law 735 Broad Street Chattanooga, TN

Margot Pollans Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Ann Powers Elisabeth Haub School of Law at Pace University 15 Horn Point Courts Annapolis, MD

Nicholas Robinson Elisabeth Haub School of Law at Pace University 78 North Broadway White Plains, NY

Danielle Schreiber 3M 23 Cardinal Lane Wilton, CT

Lisa Secular NYCSCA 30-30 Thomson Avenue Long Island City, NY

Leanne Shofi Pastore LLC 4 High Ridge Park, Third Floor Stamford, CT

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2022 NELMCC JUDGES Nicholas Sioufas City of New Rochelle 75 Calton Rd New Rochelle, NY

Sarah Solarz NYSDEC 625 Broadway Albany, NY

Otto Spijkers Wuhan University’s Research Institute of Environmental Law (RIEL) Bayi Road 299 Wuhan (Wuchang District), Hubei

Teresa Grant Stoeth Teresa M. Grant Stoeth, Attorney 3336 Giles Place Bronx, NY

Alicia Stoklosa Harter Secrest & Emery LLP 1600 Bausch and Lomb Place Rochester, NY

Michelle Sullivan Canadian Pacific Rail 120 South 6th St. Minneapolis, MN

Brian Troy Consolidated Edison (retired) 421 Roosevelt Ave Massapequa Park, NY

Jennifer Ukeritis NYS Department of Environmental Conservation 625 Broadway Albany, NY

Achinthi Vithanage Elisabeth Haub School of Law at Pace University White Plains, NY

Amelia Wagner US EPA 290 Broadway, 17th Floor New York, NY

Renner Walker Levy Konigsberg LLP 605 3rd Ave. New York, NY

Richard Wallsgrove William S. Richardson School of Law, University of Hawaiʻi at Mānoa 2515 Dole Street Honolulu, HI

Dennis Whitaker Hawke McKeon & Sniscak 100 North Tenth Street Harrisburg, PA

Charter Williams Charter Williams, P.C. 129 Boerum Place Brooklyn, NY

26

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APPENDIX

31

THIRTY-FOURTH ANNUAL JEFFREY G. MILLER PACE NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 2022 Competition Problem*

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

C.A. No. 21-000123 CONSOLIDATED WITH C.A. No. 21-000124

CHESAPLAIN LAKE WATCH, Plaintiff-Appellant-Cross Appellee, and THE STATE OF NEW UNION, Plaintiff-Appellee-Cross Appellee v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant.

On Appeal from the United States District Court for the District of New Union in consolidated case nos. 66-CV-2020 and 73-CV-2020, Judge Romulus N. Remus.

1

ORDER Following the issuance of an Order of the United States District Court for the District of New Union dated August 15, 2021 in 66-CV-2020 and 73-CV-2020 (consolidated cases), Chesaplain Lake Watch (CLW), the State of New Union, and the United States Environmental Protection Agency (EPA) each filed a timely Notice of Appeal.

CLW appeals from the District Court’s determinations 1) that EPA’s interpretation of the term Total Maximum Daily Load to include wasteload allocations and load allocations violated the Clean Water Act (CWA) § 303(d), 33 U.S.C. § 1313(d), and 2) that EPA’s credit for nonpoint pollution reductions to be achieved through implementation of best management practices (BMPs) to make point source pollution reductions less stringent, was not arbitrary or capricious or an abuse of discretion based on the record before EPA. EPA appeals 1) from the District Court’s order vacating EPA’s rejection of New Union’s phosphorus TMDL for the Lake Chesaplain Watershed and vacating its regulatory definition of the term TMDL to include wasteload allocations and load allocations, and 2) from the District Court’s determination that phased implementation of an annual percentage reduction TMDL was a violation of CWA § 303(d), 33 U.S.C. § 1313(d).

Therefore, it is hereby ordered that the parties brief all of the following issues: 1) Whether EPA’s determination to reject the New Union Chesaplain Watershed phosphorus TMDL and adopt its own TMDL and implementation plan for the Lake Chesaplain Watershed is ripe for judicial review. (EPA argues that it is not ripe; CLW and New Union argue that it is ripe).

2) Whether EPA’s determination to reject the New Union Chesaplain Watershed phosphorus TMDL on the grounds that the TMDL failed to include wasteload allocations and load allocations is contrary to law, as an incorrect interpretation of the term “total maximum daily load” in CWA § 303(d). (EPA and CLW argue that this interpretation is correct; New Union argues that it is not).

3) Whether EPA’s adoption of a TMDL for the Lake Chesaplain Watershed consisting of an annual pollution loading reduction to be phased in over five years violates the CWA § 303(d) requirements for a valid TMDL. (CLW argues EPA’s action violates CWA § 303(d); EPA and New Union argue that it does not).

4) Whether EPA’s adoption of a credit for anticipated BMP pollution reductions to reduce the stringency of wasteload allocations for point sources for implementation of the Lake Chesaplain TMDL was arbitrary and capricious or an abuse of discretion due to the lack of assurance of BMP implementation. (CLW argues that EPA’s BMP credit was arbitrary and capricious and an abuse of discretion; EPA and New Union argue that it was not).

2

SO ORDERED Entered 1st day of September 2021 [NOTE: No decisions decided or documents dated after September 1, 2021 may be cited in the briefs or in oral argument.]

3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION CHESAPLAIN LAKE WATCH, Plaintiff-Appellee-Cross Appellant, v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant.

No. 73-CV-2020 (RNR)

THE STATE OF NEW UNION Plaintiff-Appellee-Cross Appellee v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant.

No. 66-CV-2020 (RNR)

CONSOLIDATED CASES

Judge Romulus N. Remus.

DECISION AND ORDER These consolidated actions, commenced under Administrative Procedure Act § 702, 5 U.S.C. § 702, concern the declining water quality in Lake Chesaplain, and the regulatory response measures taken by the State of New Union and the United States Environmental Protection Agency (EPA). In these actions the State of New Union and the environmental organization Chesaplain Lake Watch, Inc. (CLW) seek to challenge various aspects of the determination of the United States Environmental Protection Agency (EPA) to reject New Union’s proposed Total Maximum Daily Load (TMDL) determination for phosphorus loadings in the Lake Chesaplain watershed and to substitute its own TMDL under Clean Water Act §

4

303(d), 33 U.S.C. § 1313(d). In No. 66-CV-2020, New Union seeks a declaration that EPA’s rejection of its proposed TMDL, and the regulations governing TMDL submissions EPA based this rejection on, are invalid. In No. 73-CV-2020, Chesaplain Lake Watch seeks a declaration that the substantive provisions of the EPA Lake Chesaplain phosphorus TMDL are insufficiently protective and subject to being vacated under the APA as contrary to law, arbitrary and capricious, and unsupported by the record. Cross-motions for summary judgment having been fully briefed, and all parties having agreed that the instant case should be decided on the basis of the applicable law and the administrative record before EPA, this case is ready for decision. For the reasons stated below, this Court denies EPA’s motion for summary judgment in part, grants CLW’s motion for summary judgment in part, and grants New Union’s motion for summary judgment vacating EPA’s determination to reject New Union’s proposed phosphorus TMDL for the Lake Chesaplain watershed and substitute its own TMDL. I.

FACTUAL AND LEGAL BACKGROUND A. Overview of Clean Water Act Water Quality Provisions

The declining water quality in Lake Chesaplain has led to a series of regulatory actions by both the State of New Union Department of Fisheries and Environmental Control and the United States EPA. These actions have been undertaken under the regulatory framework established by the Federal Water Pollution Control Act Amendments of 1972, now known as the Clean Water Act (CWA). The CWA established a comprehensive system of permitting and regulation for point source discharges of pollutants into the waters of the United States. Point sources are specifically defined by CWA § 502(14), 33 U.S.C. § 1362(14), but generally include pollution discharge pipes, and specifically include concentrated animal feeding operations (CAFOs) that discharge to waters. Individual numerical permit limits for point sources are established for specific water pollutants based on technology-based standards set by EPA industry by industry, as well as based on standards designed to achieve desired levels of water quality. Pollution coming from nonpoint sources, largely consisting of agricultural runoff and other unchanneled pollution, is not subject to direct regulation under the CWA permitting program.

The CWA regulatory program is based on what is known as “cooperative federalism,” see New York v. United States, 505 U.S. 144 (1992); Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981), under which the federal EPA establishes national standards that states are expected to implement through their own regulatory programs. States are expected to administer both the permitting aspects of the CWA, see CWA § 402(b), 33 U.S.C. § 1342(b), and the water quality improvement aspects of the CWA, see CWA §§ 208 (planning process for nonpoint sources), 303 (state establishment of water quality standards), 33 U.S.C. §§ 1288, 1313. Failure of a state to undertake the permitting or certain aspects of the water quality program results in EPA administration of these programs, with some significant limitations with respect to water quality.

It is the water quality-based regulation of water pollution that is the subject matter of these lawsuits. CWA § 303(a) directs each state to adopt water quality standards (WQS) for waters within the state. 33 U.S.C. § 1313(a). Section 303(c) directs states to review, and as

5

appropriate, revise these water quality standards no less frequently than once every three years.

33 U.S.C. § 1313(c). A WQS consists of the designated uses for each waterbody and the water quality criteria necessary to support the designated use. 33 U.S.C. § 1313(c)(2)(A). Water quality criteria may take the form of numerical limits on pollutant concentrations in the water body, or narrative standards for aesthetic qualities and non-specific pollutants such as toxicity. See CWA § 303(c)(2)(B), 33 U.S.C. § 1313(c)(2)(B); 40 C.F.R. § 131.3(b).

Once a state has established WQS for its water bodies, it must perform an assessment of the ability of each water body to meet these standards following full implementation of the technology-based point source controls established by the CWA. See CWA § 303(d), 33 U.S.C. § 1313(d) (cross referencing technology-based controls of CWA § 301(b)(1), 33 U.S.C. § 1311(b)(1)). As a practical matter, as the time for achievement of technology-based permit limits has long since passed, this section requires states to identify those water bodies that presently do not meet water quality standards. By regulation, EPA requires states to review and update their impaired waters list biennially. 40 C.F.R. § 130.7(d).

Once a water is listed as impaired, CWA § 303(d) directs the state to develop, and submit to EPA, a TMDL for the offending pollutants for that water body “at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.” CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C). By regulation (which New Union challenges in this action), EPA defines a TMDL as “the sum of individual [wasteload allocations] for point sources and [load allocations] for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i). In essence this regulation requires a state, as part of its TMDL submission, not only to establish the total maximum level of pollutant loading for a water body, but to allocate that level of loading among CWA permitted point sources in the watershed, taking into account the non-permitted nonpoint sources and natural background sources. A state must thus decide which dischargers will have to reduce their discharges beyond existing permit limits, and by how much. Alternatively, a state may take credit for nonpoint source pollution reductions: If Best Management Practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent. Thus, the TMDL process provides for nonpoint source control tradeoffs.

40 C.F.R. § 130.2(i).

EPA has authority to review and approve – or reject – each step of the water quality standards process, from the designation of uses to the establishment of water quality criteria to the listing of impaired waters to the establishment of TMDLs for impaired waters. See 33 U.S.C. § 1313(c)(3), (d)(2). If the EPA Administrator disapproves of the proposed WQS, list of impaired waters, or TMDLs, then EPA is directed to establish its own WQS, list, or TMDLs. Id.

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B. Lake Chesaplain Water Quality Except as otherwise noted, the following facts are taken from the administrative record for the establishment of the Lake Chesaplain Phosphorus TMDL before EPA. Lake Chesaplain is a fifty-five mile-long, five-mile-wide natural lake located entirely within the State of New Union. Lake Chesaplain is bounded on the west side by the Chesaplain National Forest, which is used for timber production and harvesting as well as for recreational purposes such as hiking and fishing, and the twenty-mile-long shorefront of Chesaplain State Park, which has hiking trails, boat ramps, a public beach, and a campground. On the east side, Lake Chesaplain is bounded primarily by agricultural lands, with several lakefront vacation communities. The City of Chesaplain Mills is located at the north end of the lake, where the Union River flows into Lake Chesaplain. Lake Chesaplain’s outlet is the Chesaplain River, which is a navigable-in-fact interstate body of water.

Prior to the turn of the twenty-first century, Lake Chesaplain enjoyed excellent water quality. Its clear waters attracted recreational boaters and fishers from the entire mid-north region of the country, as well as supporting the vacation communities on the east shore of the lake.

However, starting in the 1990s, the Lake Chesaplain watershed experienced various economic development pressures. Over that decade, ten large-scale hog production facilities, also known as concentrated animal feeding operations (CAFOs), were developed in the Union River watershed, and a large-scale (greater than fifty million pounds per year) slaughterhouse was built in Chesaplain Mills to service the hog production facilities. At the same time, the recreational attractions of Lake Chesaplain led to a boom in second home construction on and near the eastern lake shore. The slaughterhouse has a CWA National Pollutant Discharge Elimination System (NPDES) permit issued by the State of New Union for a direct discharge into the Union River. Second home development on the Lake Chesaplain shoreline were largely serviced by septic systems that are not subject to CWA permits. In addition, Chesaplain Mills has a publicly owned sewage treatment plant (STP) which discharges directly into Lake Chesaplain, as regulated by a CWA point source permit. The hog CAFOs are not subject to CWA permits, because although CAFOs are included in the definition of “point source” under the CWA, 33 U.S.C. § 1362(14), they are considered to be “non-discharging” CAFOs exempt from permitting requirements under the EPA regulatory definition of CAFOs. See 40 C.F.R. § 122.23; see generally Nat’l Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011). The hog CAFOs are, however, regulated and subject to permits under a New Union statute providing for New Union Agricultural Commission review and approval of site specific nutrient management plans for the application of liquid manure wastes to fields.

Lake Chesaplain water quality visibly declined during the first decade of the twenty-first century. Mats of algae formed during the summer months, reducing the clarity of the water and promoting offensive odors. Fish productivity declined. The swimming beach at Chesaplain State Park became unsuitable for swimming, and property values for the vacation home communities declined. Tourism revenues from fishing and boating trips also declined.

C. Lake Chesaplain TMDL and Water Quality Standards Regulatory Actions

7

Pursuant to the New Union WQS, Lake Chesaplain is designated as Class AA, which is the classification reserved for highest quality waters of the state. The designated uses include drinking water source, primary contact recreation (swimming), and fish propagation and survival. In response to the decline in water quality, New Union created a Lake Chesaplain Study Commission in 2008 (the Chesaplain Commission). The Chesaplain Commission issued a report in August 2012 (the 2012 Chesaplain Report),1 which included the following scientific conclusions. First, the Commission determined that Lake Chesaplain was suffering from eutrophication, the ecological process by which a lake becomes less biologically productive due to excessive algae growth. Besides being aesthetically displeasing, this algae growth was also responsible for objectionable odors, decreased water clarity, and a decrease in dissolved oxygen (DO) levels in the water column below the levels needed for a healthy fishery. Summertime DO levels were found to be three milligrams per litre (mg/l), well below the five mg/l DO standard designated for class AA waters in the State of New Union. This excess algae growth, in turn, was caused by excessive amounts of the nutrient phosphorus in the water body. The commission determined that the maximum phosphorus levels consistent with a healthy lake ecosystem would be 0.014 mg/l throughout the lake. Measured phosphorus levels in the lake varied from 0.020 to 0.034 mg/l, well above the desired level. In addition to the DO violations, the Chesaplain Commission also identified violations of the state’s water quality standards for odor and water clarity.

In the next triennial WQS review following the 2012 Chesaplain Report, conducted in 2014, the New Union Division of Fisheries and Environmental Control (DOFEC) adopted a water quality criteria for Class AA waters of 0.014 mg/l. As that standard was being violated along with the water quality criteria for DO, odors, and water clarity, DOFEC (as the designated New Union agency) included Lake Chesaplain on its impaired waters list also submitted to EPA in 2014.

DOFEC did not, however, submit a TMDL for Lake Chesaplain in its list of impaired waters. Despite this failure, EPA did not object to the § 303(d) submission. In 2015, plaintiff Chesaplain Lake Watch served a notice letter on both New Union and EPA, threatening to sue based on the failure of either agency to establish a TMDL for Lake Chesaplain. CLW agreed to refrain from suit as long as New Union conducted a TMDL rulemaking. DOFEC then commenced a state rulemaking proceeding to establish a TMDL. The Chesaplain Commission issued a supplemental report in July 2016, calculating the maximum phosphorus loadings consistent with achieving the 0.014 mg/l phosphorus standard, as well as identifying the existing sources of phosphorus inputs. The maximum loading was calculated at 120 metric tons (mt) annually. Existing loadings as of 2015 were calculated as totaling 180 mt, as follows: Point Sources Chesaplain Mills STP Chesaplain Slaughterhouse

23.4 38.5

Nonpoint Sources 1

The 2012 Chesaplain Report was ultimately included in the record before EPA, and no party has challenged any of the findings of the 2012 Chesaplain Report.

8

CAFO Manure Spreading Other agricultural sources Septic tank inputs

Natural sources

54.9 19.3 11.6

32.3 Total

180 mt

The Chesaplain Supplemental Report specifically determined that the hog CAFOs contributed substantial phosphorus loadings to the Lake Chesaplain watershed, despite their status as “nondischarging” CAFOs. A substantial portion of their manure spreading eventually reached Lake Chesaplain through groundwater flows and surface runoff, despite compliance with statemandated nutrient management plans and the CWA exemption for agricultural stormwater runoff. See 33 U.S.C. § 1362(14). Likewise, a substantial amount of phosphorus reached Lake Chesaplain from private septic systems, even though these sources are exempt from CWA permitting as discharges to groundwater rather than surface water. See Septic Systems Overview, EPA, https://www.epa.gov/septic/septic-systems-overview (last visited Aug. 10, 2021). The Supplemental Report also noted that neither of the point sources in the Chesaplain Watershed had any permit limits for phosphorus, as no such limits are provided for in the relevant technology-based effluent limitations guidelines issued by EPA. In October 2017, DOFEC publicly noticed a proposal to implement the TMDL through an equal phased reduction in phosphorus discharges by both the point sources and the nonpoint sources. This reduction was proposed to be phased in over a period of five years – that is, a 7% reduction from the 180 mt baseline in the first year, a 14% reduction from the baseline in the second year, a 21% reduction from the baseline in the third year, a 28% reduction from the baseline in the fourth year, and a 35% reduction from the baseline by the fifth year. Point source reductions would be incorporated as permit limits, while the nonpoint source reductions were proposed to be achieved through a series of BMP programs designed to encourage the hog CAFOs and other agricultural sources. Proposed BMPs for agricultural sources included modified feeds for animal production facilities that would reduce phosphorus in manure, physical and chemical treatment of manure streams, and restrictions on manure spreading at times when the soil is frozen or saturated. Proposed BMPs for private septic systems consisted of increased septic tank inspection and pumping schedules.

Although the scientific conclusions of the Chesaplain Commission were not subject to substantive challenge, DOFEC’s proposal to require an equal 35% annual reduction among CAFO, other agricultural, residential septic system, and point source categories proved highly controversial. Residential lakefront homeowners objected to the expensive septic tank maintenance and pumping that would be required. The slaughterhouse and Chesaplain Mills objected to the expensive phosphorus treatment system that would be required to reduce discharges by 35%. Chesaplain Lake Watch objected to taking any credit for nonpoint source phosphorus reductions, arguing that the proposed BMPs for manure spreading, other agricultural practices, and septic tanks were insufficient to achieve a 35% reduction in nonpoint phosphorus

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inputs, and that New Union lacked the statutory authority to impose and enforce such BMPs against agricultural sources. Chesaplain Lake Watch demanded that the sixty-three mt annual reduction be achieved by requiring zero phosphorus discharges from the two identified point sources. In addition, Chesaplain Lake Watch argued that a 35% phased annual reduction was inconsistent with the CWA requirement for a TMDL, which, by statutory terms, should be a daily limit based on the scientific calculation without a phased implementation. The Hog CAFOs objected to the possible imposition of BMPs on their operations, and argued to DOFEC that EPA lacked the statutory authority to require implementation of loading limits against nonpoint sources.

Ultimately, DOFEC adopted the Hog CAFO’s position and, in July of 2018, adopted a TMDL that consisted solely of a 120 mt annual maximum, without any wasteload allocations or load allocations. Pursuant to CWA § 303(d)(2), EPA rejected the July 2018 TMDL, and, in May 2019, after notice and comment, adopted the original DOFEC TMDL proposal, consisting of a 35% reduction of annual phosphorus discharges by both point and nonpoint sources phased in over five years, to be implemented through permit controls on point sources and BMP requirements for nonpoint sources. EPA called its combination of phased point source limits and BMP measures the “Chesaplain Watershed Implementation Plan” (CWIP). The CWIP did not specify whether or how the proposed BMP measures would be enforced. EPA incorporated the entire record of scientific reports and public comments before the DOFEC into its own record.

Although not part of the record before EPA, the following additional facts have been established by affidavits submitted by Chesaplain Lake Watch, and are not disputed by either New Union or EPA. The NPDES permit for the slaughterhouse expired in November 2018, and has not yet been reissued. The NPDES permit for the Chesaplain Mills sewage treatment plant likewise expired in February 2019. Both plants continue to operate under their expired permits as administratively extended based on their timely applications for permit renewal. See 40 C.F.R. § 122.6. As such, neither plant is currently subject to any limit on phosphorus discharges. DOFEC has proposed to modify each permit to reflect the 35% annual phosphorus loading reduction phased in over five years after permit issuance, but both facilities have sought administrative hearings on this proposed requirement based on the cost of compliance. Since EPA’s adoption of the Lake Chesaplain TMDL, New Union has taken no steps to require phosphorus reduction BMPs by nonpoint sources in the Lake Chesaplain watershed. The state-issued nutrient management permits for the hog CAFOs have not been modified to incorporate any phosphorus reduction measures contemplated by the CWIP. Lake Chesaplain waters continue to violate water quality standards.

II.

PROCEDURAL HISTORY AND JURISDICTION

Plaintiff New Union filed action No. 66-CV-2020 on January 14, 2020. Plaintiff Chesaplain Lake Watch filed action No. 73-CV-2020 on February 15, 2020. Both actions are brought pursuant to the judicial review provisions of the Administrative Procedure Act, APA § 702, and this court has jurisdiction pursuant to 28 U.S.C. § 1331. This Court granted unopposed motions to consolidate the two actions on March 22, 2020, and EPA lodged the administrative record with the Court on July 1, 2020.

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Chesaplain Lake Watch submitted affidavits with its motion for summary judgment establishing that its membership includes individuals who reside near Lake Chesaplain and use Lake Chesaplain for recreational purposes including swimming, boating, and fishing. These affidavits further establish that these members’ enjoyment of these activities has been diminished by the decline in Lake Chesaplain water quality. This Court is satisfied that Chesaplain Lake Watch meets the requirements for standing under Article III of the Constitution, having established injury in fact, causation, and redressability. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167 (2000). Likewise, this Court is satisfied that the State of New Union has standing to challenge EPA’s rejection of its Lake Chesaplain TMDL and substitution of EPA’s own TMDL, as EPA’s action will require implementation by New Union in the form of state-issued NPDES permits as well as affecting New Union’s eligibility for federal water quality planning funds under CWA § 208, 33 U.S.C § 1288, as well as its eligibility to maintain its delegated NPDES permitting program. CWA § 303(e)(2), 33 U.S.C. § 1313(e)(2).

III.

LEGAL ANALYSIS A. Claims of the Parties The parties make the following claims.

Plaintiff New Union challenges EPA’s rejection of its proposed TMDL consisting solely of the 120 mt/year total loading for the Lake Chesaplain watershed. New Union argues that its proposed TMDL satisfied all the requirements for a valid TMDL under the CWA, and that EPA’s regulation, 40 C.F.R. § 130.2(i), purporting to require that a state’s TMDL submission include not just the total maximum daily load, but an allocation of that load between and among point, nonpoint, and natural sources, is contrary to law.

Plaintiff Chesaplain Lake Watch mounts two challenges to EPA’s adoption of the Chesaplain TMDL. First, CLW argues that a TMDL consisting of an annual loading limit to be phased in over a period of five years is contrary to the legal requirements of the CWA, specifically the claimed requirements a) that a TMDL must be stated in terms of a daily load, not an annualized load, and b) that the TMDL must be adequate to ensure achievement of water quality standards on the date of its adoption, not five years later after a phased implementation.

Second, CLW challenges the WLA and LA adopted in the CWIP TMDL. CLW argues that EPA may not take any credit for phosphorus load allocation reductions anticipated from the implementation of BMPs for nonpoint sources where EPA has no authority to require implementation of these BMPs, and there is thus no reasonable assurance the reductions will be achieved.

EPA disagrees with the merits of the claims of both plaintiffs, arguing that its final Lake Chesaplain TMDL and CWIP is consistent with the requirements of the CWA and adequately supported by scientific evidence in the record. EPA also argues that both complaints should be dismissed as lacking ripeness, as the Lake Chesaplain TMDL will not have any immediate regulatory effect and its effect will depend on later administrative actions such as modification to NPDES permits or New Union implementation of BMP requirements.

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B. Analysis 1. Ripeness EPA argues that none of the challenges to the Lake Chesaplain TMDL are ripe for judicial review, as the mere adoption of a TMDL does not have any impact on the parties unless and until it is incorporated into specific permits or other regulatory actions. Ripeness is the doctrine requiring that for a dispute to be subject to adjudication, all necessary administrative actions giving the challenged agency action concrete effect must have been taken. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967). According to the Supreme Court, a ripeness determination requires judicial evaluation first, of the fitness of the issues for judicial review, and second, of the possible prejudice to the parties if judicial review is delayed pending further agency implementation action. Id. at 149. EPA relies heavily on City of Arcadia v. U.S. EPA, 265 F. Supp. 2d 1142 (N.D. Cal. 2003), and Bravos v. Green, 306 F. Supp. 2d 48 (D. D.C. 2004), both cases in which the courts determined that EPA approvals of state submitted TMDLs were not ripe for review, as the effect of that approval depended on further implementation actions by the states involved. These cases are inapposite, however, as the TMDL in question here (unlike those in Arcadia and Bravos) contemplates specific NPDES permit limits for the point sources discharges, which the State of New Union will be required to implement, without delay, as the issuer of NPDES permits within the State of New Union. All of the facts necessary to adjudicate the claims in this case have been developed and are part of the record before EPA; accordingly, this Court finds that the issues raised are fit for adjudication and that plaintiffs New Union and Chesaplain Lake Watch will be prejudiced if the validity of EPA’s Lake Chesaplain TMDL is not subject to immediate judicial review. This Court notes that the Third Circuit Court of Appeals found a very similar challenge to an EPA-issued TMDL to be ripe for review in American Farm Bureau Federation v. U.S. EPA, 792 F.3d 281 (3d Cir. 2015), although, as noted below, this court disagrees with the Third Circuit’s resolution of the merits of that case.

2. Inclusion of Wasteload Allocations and Load Allocations in TMDL EPA’s rejection of New Union’s proposed unallocated Lake Chesaplain TMDL was based entirely on the failure of the New Union TMDL to include WLAs and LAs allocating the proposed total phosphorus loading among individual point sources and nonpoint sources. EPA relies on its longstanding definition of a TMDL to include a WLA and LA, adopted by regulation in 1985. See Final Rule, Water Quality Planning and Management, 50 Fed. Reg. 1774 (Jan. 11, 1985). New Union argues that EPA’s interpretation of the statutory phrase “total maximum daily load” to include detailed specific allocations to individual point sources and nonpoint sources is contrary to the plain meaning of the term “total,” as well as being contrary to the structure of the CWA and its incorporation of principles of comity and federalism.

Although the regulation in question has been in place for some decades now, New Union may bring this as an “as applied” challenge to the regulation. See 5 U.S.C. § 704; DunnMcCampbell Royalty Int. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997) (“[W]hen an agency applies a rule, the limitations period running from the rule’s publication will not bar a claimant from challenging the agency’s statutory authority.”). This Court analyzes New Union’s challenge to the lawfulness of EPA’s expansive definition of the term total maximum daily load

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under the familiar framework of Chevron, U.S.A, Inc. v. NRDC, Inc., 467 U.S. 837 (1984). First, this Court must determine whether Congress has spoken directly to the interpretation in question, based on the statutory language, legislative history, and structure. If so, then Congress’s intended interpretation must prevail over a contrary interpretation by the administering agency. Second, if the meaning of the statute is unclear, or Congressional intent is otherwise ambiguous, the Court must inquire whether the agency’s interpretation is a permissible one. Id. at 842-843.

Here, EPA’s interpretation of the phrase “total maximum daily load” to require allocation of all of the proposed individual reductions needed to meet that total runs counter both to the meaning and context of CWA § 303(d). The word “total” in “total maximum daily load” does not admit of a construction that would require the total to include a specification of proposed (not existing) components of the total. The context of section 303(d) likewise supports the construction that Congress meant total when it said total. Far from containing an implementation provision for allocation of loadings among sources, section 303(d) itself appears to be nothing more than an information gathering provision, to gather the necessary information about the total pollution loading an impaired water body can withstand without remaining impaired. Nothing about section 303(d) implies that the process of setting the TMDL was meant to include an allocation and limitation process of point and nonpoint sources, which is addressed in other sections of the CWA. To the contrary, § 303(d) itself seems to defer implementation of TMDLs to the planning process contemplated by section 303(e): “such State shall incorporate [EPA approved TMDLs] into its current plan under subsection (e) of this section.” Subsection (e) cross references other planning and implementation sections of the CWA. 33 U.S.C. § 1313(e) (cross referencing CWA §§ 208, 209 (basin and waste management planning), 301(b)(1) (point source controls necessary to meet water quality standards), 33 U.S.C. §§ 1288, 1289, 1311(b)(1)).

Notably, section 303(e), in marked contrast to section 303(d), does not contemplate EPA imposition of a TMDL implementation plan in the event EPA is dissatisfied with the state’s planning process, instead limiting EPA’s remedies to denial of federal funding and denial of permit authority.

This Court is likewise mindful of the fact that when Congress adopted the 1972 CWA, it deliberately declined to include an EPA supervised state implementation requirement for water quality standards, despite having incorporated such a framework for implementation of air quality standards under the 1970 Clean Air Act, see Clean Air Act § 110(a), 42 U.S.C. § 7410(a), together with specific authority for EPA to impose a federal implementation plan on states that fail to submit a satisfactory plan. See CAA § 110(c)(1), 42 U.S.C. § 7410(c)(1). Rather, the lack of specific direction to states to perform the pollution reduction allocation, and the lack of specific authority for EPA to perform that allocation on their behalf, seems to be an intentional omission by Congress out of deference to the primary role of states in protecting water quality and making local land use and agricultural practices decisions. Cf. CWA §§ 101(b), 510, 33 U.S.C. §§ 1251(b), 1370.

Thus, this Court concludes that EPA’s definition of the phrase TMDL to require WLAs and LAs contradicts the plain meaning and intention of Congress in enacting CWA § 303(d), and that the regulation 40 C.F.R. § 130.2(i) is contrary to law under Chevron step one. In reaching this conclusion, we part company with our sister court, the Court of Appeals for the Third Circuit in American Farm Bureau Federation v. U.S. EPA, 792 F.3d 281 (3d Cir. 2015). However, we

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believe that the Third Circuit misconstrued the plain language and structure of the Clean Water Act. In addition, EPA’s assertion of the authority to direct an allocation of pollution reductions among individual sources throughout a watershed constitutes a dramatic expansion of EPA’s regulatory jurisdiction without any clear support in the statute, thus violating the presumption against such regulatory authority expressed by the Supreme Court in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).

Accordingly, as EPA’s rejection of the New Union TMDL submissions was based solely on New Union’s refusal to perform and submit WLAs and LAs for phosphorus, and EPA’s regulation requiring such information as part of a TMDL is contrary to law, this Court grants summary judgment in favor of New Union and vacates the determination to reject the Lake Chesaplain TMDL. This Court also vacates the definition of “total maximum daily load” in 40 C.F.R. § 130.2(i).

3. Validity of Phased Annual TMDL Plaintiff CLW challenges the Lake Chesaplain TMDL on the grounds that it is framed as a phased percentage reduction in annual loadings, rather than a fixed daily limit on total loadings necessary to provide for achievement of water quality standards. There are two components to CLW’s challenge: first, that the TMDL is expressed in annual terms rather than in daily terms, and second, that by adopting a phased TMDL, EPA has not adopted a TMDL at the level necessary to assure achievement of water quality standards (at least until the reduction is fully phased in after five years). Although CLW’s challenges to the TMDL may be partially mooted by this Court’s determination to vacate EPA’s rejection of the New Union Lake Chesaplain TMDL, the issues raised are still pertinent to the validity of the New Union TMDL and the Court will address them.

As with New Union’s challenges, CLW’s challenge to the Lake Chesaplain TMDL turns on EPA’s legal construction of the phrase “total maximum daily load” in the statute.

Accordingly, this Court again applies the analysis of Chevron v. NRDC, and must first determine whether Congress has resolved the issue through its choice of language in the statute. Section 303(d)’s full text regarding “total maximum daily load” reads as follows: (C) Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section [304(a)(2)] of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

33 U.S.C § 1313(d)(1)(C). Congress chose the word “daily” to describe the relevant period of pollutant loading to be determined by the state (or EPA), and this choice is reinforced by reference to “seasonal variations.” An annual limit is not a daily limit, and an annual limit does

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not allow for seasonal variations. Accordingly, this issue is resolved by the plain meaning of the statute, and EPA’s contrary interpretation is contrary to law under Chevron step one. Accord Friends of Earth, Inc. v. EPA, 446 F.3d 140, 144 (D.C. Cir. 2006); contra NRDC v. Muszynski, 268 F.3d. 91, 98 (2d Cir. 2001); Am. Farm Bureau Fed’n v. EPA, 792 F.3d at 297.

EPA’s construction of the phrase “total maximum daily load” to allow for a phased percentage reduction in phosphorus loadings likewise contradicts the plain meaning and structure of the CWA. A “total maximum daily load” does not mean a percentage reduction in loadings.

See NRDC v. EPA, 301 F. Supp. 3d 133 (D.D.C. 2018). Likewise, the clear intent of section 303(d)’s direction to calculate a “total maximum daily load . . . at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety,” does not admit of a loading standard that will not achieve water quality standards until five years hence.

This reading is reinforced by the direction of CWA § 301(b)(1)(C) that “there shall be achieved . . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations.” 33 U.S.C. § 1311(b)(1)(C). The TMDL calculation is clearly designed to form the basis of section 301(b)(1)(C) effluent limitations on point sources; indeed the section 303(e) planning process for state implementation of TMDLs specifically cross references section 301(b). CWA § 303(e)(3)(A), 33 U.S.C. § 1313(e)(3)(A). The July 1, 1977 deadline for achievement of effluent limitations is a hard deadline that may not be extended by administrative action. See Bethlehem Steel Corp. v. Train, 544 F.2d 657, 661 (3d Cir. 1976).

EPA may not, in effect, grant a five-year extension for achievement of water quality standards when the statutory deadline has long since passed.

Accordingly, this Court grants summary judgment in favor of plaintiff CLW on its challenge to the EPA TMDL. 4. Validity of Wasteload Allocation Credits Based on Assumed Nonpoint Source BMPs As noted, the EPA regulation governing wasteload allocations specifically allows a credit against the total maximum daily load for loading reductions achieved through BMPs: “If Best Management Practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent.” 40 C.F.R. § 130.2(i). CLW argues that in order to take credit for nonpoint source BMP pollutant loading reductions, there must be a “reasonable assurance” that the reductions will in fact be achieved, citing to a 1991 EPA guidance document. EPA, Guidance for Water Quality Based Decisions: The TMDL Process (1991).

As EPA’s calculation of wasteload and load allocations is a matter of EPA applying its regulatory standards to the record before the agency, this Court applies the highly deferential “arbitrary and capricious” standard of review and must not substitute its judgment for that of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); City of New York v. Shalala, 34 F.3d 1161, 1167 (2d Cir. 1994). Rather, this Court must simply consider whether the agency considered the relevant factors and gave a reasonable basis for its decision.

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CLW points to the complete absence in the record of any indication that the State of New Union had any intention to require implementation of the BMPs contemplated by the CWIP. To the contrary, political opposition to the implementation of BMPs prompted New Union to abandon its efforts to develop its own watershed implementation plan including BMPs, and to limit its efforts to simply establishing a total loading, without any attempt to allocate the loading among sources. CLW points to the undisputed fact that in the two years since the adoption of the TMDL, New Union has in fact taken no action to implement the BMPs contemplated by the CWIP. If the standard for taking credit for BMPs was indeed the “reasonable assurance” standard, then this Court would be convinced that EPA’s reliance on BMP implementation was indeed arbitrary and capricious, and contrary to the record before EPA. However, the “reasonable assurance” standard has never been adopted by EPA through notice-and-comment rulemaking, and accordingly receives no deference. As this Court has held in rejecting EPA’s wasteload and load allocation requirements, the CWA § 303 TMDL program is a planning and information program, not an implementation program. EPA’s TMDL provides New Union with information concerning possible BMPs that might be used to achieve compliance with water quality standards. Nothing in the CWA requires actual implementation and compliance by nonpoint sources, which Congress left optional to the states. See Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002); City of Arcadia v. U.S. EPA, 265 F.Supp.2d 1142, 1144-45 (N.D. Cal. 2003).

Accordingly, this Court finds that EPA’s determination to suggest nonpoint source BMPs as an offset to point source reductions as a matter of planning for water quality standard compliance is not arbitrary and capricious or an abuse of discretion. This Court grants summary judgment in favor of EPA and against CLW on CLW’s second cause of action.

CONCLUSION For the foregoing reasons, this Court grants summary judgment in favor of New Union and against EPA in No. 66-CV-2020, and EPA’s determination to reject the New Union Lake Chesaplain TMDL is vacated. EPA is directed to approve New Union’s Lake Chesaplain TMDL. This Court grants summary judgment in favor of EPA dismissing the complaint in No. 73-CV2020.

IT IS SO ORDERED. Dated this 15th Day of August, 2021, Romulus N. Remus United States District Judge

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THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 2022 OFFICIAL RULES FOR VIRTUAL COMPETITION as of November 1, 2021 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 UniversityPace.

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 26, 2021).

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, 2021). In this instance, Rule III (B) applies as soon as the team is constituted by October 26, 2021.

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. Points will be deducted for noncompliance with this rule during the competition.

RULE IV. THE BRIEFS A. General. Each Team may write only one brief. The Team may choose which side to argue 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 that are 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. ** See schedule on page 8 for side distribution.

B. Length and form of briefs. Each team is required to email PDFs of both a Measuring Brief and Non-Measuring Brief as specified in Rule IV (C). The format should read exactly as follows (points will be deducted for non-compliance).

BRIEF [NUMBER]_MEASURING BRIEF [NUMBER] _NON MEAUSRING 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

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: CHESAPLAIN LAKE WATCH, Blue; THE STATE OF NEW UNION Green; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 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 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. 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.

2. The Measuring Brief. As set forth in Rule IV (C)(1)(a)(i), each Team shall submit to the Board the Measuring Brief via email to nelmcc@law.pace.edu. The Measuring Brief (marked “Measuring Brief” on front cover) 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.

3. Non-Measuring Brief. The Non-Measuring Brief will be identical to the 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 Non-Measuring Brief. Each team must submit by email its Measuring Brief and Non-Measuring 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 on the last page of the Measuring Brief page. No certification shall be included in any other brief except the Measuring Brief.

C. Service of briefs and certification.

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 1. Service upon the Board. a. Each Team shall serve upon the Board the following items via email: i. The Measuring Brief, clearly marked “Measuring Brief”; ii. The Non-Measuring Brief (pursuant to Rule IV (B)(3)); and iii. The Team’s original certification (pursuant to Rule IV (B)(4)). b. Briefs shall be sent via email bearing the Team name or Team number as specified in Rule IV (B)(2) and (3). c. Briefs served upon the Board shall be directed to: nelmcc@law.pace.edu d. Briefs emailed to the incorrect email address will be subject to a one-point deduction. e. Briefs emailed late will be subjected to a one-point deduction per day late.

2.

Service of briefs on opposing Teams. Each Team must email a copy of its briefs as attachments in PDF file format by 11:59 p.m. EST, November 22, 2021 to the NELMCC email address: nelmcc@law.pace.edu. Failure to do so will result in a one-point deduction.

The email should bear the subject line, “Briefs for Team # [ ].” All Team NonMeasuring Briefs 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

3

Briefs will be scored on the following bases: 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.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION B. Preliminary rounds.

1. Time and place. All preliminary, quarterfinal, and semifinal rounds will be held online. The final round will be held virtually on Zoom Saturday, February 26, 2022 at 1:30PM EST. 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 shall be randomly selected, except as qualified by Rule V (B)(2). No Team shall draw 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 on February 26, 2022 at 1:30PM EST. 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

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 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 February 26, 2022.

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 in 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 (30) 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

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 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. Cell phones may be used only for technology and Zoom issues that may arise.

5. Final round recording will be made available online.

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. Point deductions will be made, if upon request, it is determined that interference has taken place by a coach or faculty member.

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 2022 HYBRID COMPETITION A. Registration Fee. The registration fee will cover the online technology and other technology support, as well as the costs of travel to White Plains, NY for finalist Team members should there be an in-person final round.

B. Virtual Backgrounds. Virtual backgrounds are recommended, but not required. If Team members use a virtual background, it is recommended the background be professional and non-distracting.

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION C. Muting Video and Microphones. All Team members must mute their microphones and videos when they are not speaking. Only the judges, bailiffs, and current Team oralist should have their microphones and videos unmuted at any given time.

D. Use of Headphones. Use of headphones is optional.

E. Certification Prior to Each Round. Prior to each online round, the Bailiff will ask all Team members to certify that there is no coaching by faculty or other assistance prohibited

by Rule VI. F. Oralists Have the Option of Sitting or Standing During Oral Arguments.

G. Online Rounds Recorded. The Board will record all 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 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 23

Preliminary Round 1, Online, 3pm – 5pm (Sides will be given for Round 1 at 3PM February 22)

Preliminary Round 2, Online, 7pm – 9pm (Sides will be given for Round 2 February 23rd @ 6:00PM)

Day 2, Thursday, February 24

Preliminary Round 3, Online, 12pm – 2pm (Sides will be confirmed for Round 3 February 23rd @ 10PM) Quarterfinal Round, Online 6pm – 8pm (announcements and sides for Quarterfinal Round,TBD)

Day 3, Friday, February 25

Semifinal Round, Online, 12pm – 2pm (Sides for Semifinal Round, TBD)

FINAL ROUND

Saturday, February 26 at 1:30PM (sides for Final round will be provided, TBD)

RULE X.

INTERPRETATION OF THE RULES

Requests for interpretation of these Rules should be addressed to the National Environmental

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION Law Moot Court Competition, 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.