NELMCC 2023 program

THE 35th 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 22-25, 2023

Premier Sponsor

ABA Section of Environment, Energy, and Resources

Baker Botts LLP

Major Sponsors

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

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

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

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

© 2023 Elisabeth Haub School of Law at Pace University

ONLINE SCHEDULE OF EVENTS FOR COMPETITORS

February 22-25, 2023 (EST)

COMPETITORS’ HEADQUARTERS:

Link: https://pace.zoom.us/j/98641018649

Meeting ID: 986 4101 8649

Password: 10603

WEDNESDAY, 2/22

2:00pm – 2:15pm Check in at Competitors’ HQ to Receive Room Assignments

2:15pm – 2:30pm Opening Welcome Remarks

3:00pm – 5:00pm Preliminary Round I

BREAK

6:15pm – 6:30pm Check in at Competitors’ HQ to Receive Room Assignments

7:00pm – 9:00pm Preliminary Round II

THURSDAY, 2/23

11:15am – 11:30am Check in at Competitors’ HQ to Receive Room Assignments

12:00pm – 2:00pm Preliminary Round III

BREAK

ABA SEER Environmental Law Career Panel - Join Zoom Meeting

https://pace.zoom.us/j/93297256199

3:00pm – 4:00pm

4:00pm –

Meeting ID: 932 9725 6199

Password: 773825

4:30pm Announcements at Competitors’ HQ – Best Briefs; 27 Teams Advancing to Quarterfinal Round

5:15pm – 5:30pm Check in at Competitors’ HQ to Receive Room Assignments

6:00pm – 8:00pm Quarterfinal Round

10:00pm –10:15pm Announcements at Competitors’ HQ – 9 Teams Advancing to Semifinal Round

FRIDAY, 2/24

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

Final Round: February 25, 2023

1:30 – 3:30 PM EST

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

THE JEFFREY G. MILLER NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

ONLINE SCHEDULE OF EVENTS FOR JUDGES

February 22-25, 2023 (EST)

WEDNESDAY, 2/22

2:00pm – 2:15pm Check in at Competition Room that is provided in emails from Vice Chairs - Samantha Blend & Maggie Minas

2:15pm – 2:30pm Opening Welcome Remarks

3:00pm – 5:00pm Preliminary Round I

BREAK

6:15pm – 6:30pm Check in at Competition Room that is provided in emails from Vice Chairs - Samantha Blend & Maggie Minas

7:00pm – 9:00pm Preliminary Round II

THURSDAY, 2/23

11:15am – 11:30am Check in at Competition Room that is provided in emails from Vice Chairs - Samantha Blend & Maggie Minas

12:00pm – 2:00pm Preliminary Round III

AlterEcho Professor and Attorney Workshop

Join Zoom Meeting

3:00pm - 4:00pm

https://pace.zoom.us/j/7339792467

Meeting ID: 733 979 2467

Password: 283772

5:15pm – 5:30pm Check in at Competition Room that is provided in emails from Vice Chairs - Samantha Blend & Maggie Minas

6:00pm – 8:00pm Quarterfinal Round

FRIDAY, 2/24

NYS Ethics CLE Program for Attorneys Join Zoom Meeting

9:00am – 11:00am

https://pace.zoom.us/j/92767078998

Meeting ID: 927 6707 8998

Password: 673796

11:15am – 11:30am Check in at Competition Room that is provided in emails from Vice Chairs - Samantha Blend & Maggie Minas

12:00pm – 2:00pm Semifinal Round

Final Round: Saturday, February 25, 2023 1:30 – 3:30 PM EST

DEAN'S WELCOME

Welcome to Elisabeth Haub School of Law at Pace University and our Thirty-first Annual Jeffrey G. Miller National Environmental Law Moot Court Competition.

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

Haub Law has a proud tradition and reputation in national and international fields of environmental law and policy, driven by the hard work of our students, faculty, staff, and alumni. It was our students who initiated the concept of this Competition many years ago, and who still today annually provide the leadership vital to its continued success. The Competition is also made possible by the hard work and dedication of the National Environmental Law Moot Court Board and in particular this year by the work of our Chair, Ms. Mariah Bowman; Prof. Todd Ommen, the NELMCC advisor and problem author; Caroline Chen, 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 our Premier Sponsors, The ABA, Alter Echo, Baker Botts, Riker Danzig LLP, and of course, all our sponsors who continue to support this event each year.

We wish all of you the best of luck and enjoyment during this year’s Competition. 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 our campus; and please let us know if there is anything, we can do to make your visit even more enjoyable.

Horace Anderson Dean

Elisabeth Haub School of Law at Pace University

WELCOME FROM THE MOOT COURT BOARD CHAIR

It is with great pleasure that I welcome you to the Thirty-Fifth 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. To all competitors, thank you for your time and effort spent on preparations. This competition would not be possible without the efforts of Pace faculty, staff, and students. I am especially grateful for Lorraine Rubich, the Program Manager, Achinthi Vithanage, the Associate Director of Pace's Environmental Law Programs, and Anne Olson, the Program Coordinator. Your dedication and support do not go unnoticed and are indispensable to the continued success of NELMCC. I would also like to thank Professor Todd Ommen, the author of this year's problem, along with Caroline Chen, our 2023 Environmental Law Fellow, who assisted Professor Ommen in these efforts and writing the supplemental documents for the competition.

I would like to say thank you to the NELMCC Board for their constant support and countless hours of hard work: Samantha Blend and Maggie Minas, Co-Vice-Chairs of Judges; Michelle David and Brianna Grimes, Co-Vice-Chairs of Grading and Scoring; Daniel Krupa, Alexis Neunteufel, and Michael O’Hora, Co-Vice-Chairs of Hospitality and Fundraising; Madison Bialkowski and Christen Maccone, Co-Vice Chairs of Rules; and Gabriella Izquierdo and Theresa Persico, Co-Vice-Chairs of Bailiffs. I would also like to recognize the students who served as committee members. I truly appreciate your efforts to be involved in Haub Law’s 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.

I am incredibly grateful to all involved in this competition and I am pleased to welcome you to NELMCC 2023. Best of luck to those competing, and please, remember to enjoy and learn.

Best,

Mariah R. Bowman

FINAL ROUND JUDGES

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

The Honorable Wendy L. Blake, U.S. EPA, Environmental Appeals Board

Judge Blake has extensive litigation experience both at the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice in administrative law matters and matters arising under the federal pollution control statutes. She also has substantial management experience, including serving as the Associate General Counsel for the General Law Office and the Assistant General Counsel for the Air and Radiation Law Office in EPA’s Office of General Counsel. In these capacities, she managed large teams of attorneys and professional staff and led the Agency’s participation in matters before the Supreme Court, federal appellate courts, and district courts. She also has substantial rulemaking and alternative dispute resolution experience. Most recently, as the Associate General Counsel for the General Law Office, she supervised the Agency’s Conflict Prevention and Resolution Center which provides alternative dispute resolution and conflict resolution services to the Agency. Prior to joining the Department of Justice, she served as a judicial law clerk for former Judge Christine Miller of the United States Court of Federal Claims.

Judge Blake earned her Juris Doctor degree, with distinction, from George Mason University School of Law and her Bachelor of Arts degree from the University of Virginia in Economics.

The Honorable Glen Bruening

Glen T. Bruening was first nominated by Governor David Paterson and confirmed by the New York State Senate in 2010 as a judge of the New York State Court of Claims, after more than 21 years of legal service for the State of New York. In 2015, he began serving as a full-time Acting Supreme Court Justice in Essex, Warren and Washington Counties, and was reappointed to a new 10-year term by Governor Andrew Cuomo in 2018. He previously served as an Assistant Counsel to Governors George Pataki, David Paterson, and Andrew Cuomo; as General Counsel to the NYS Department of State and NYS Office of Parks, Recreation and Historic Preservation; and as Senior Attorney, Deputy Counsel, and Deputy Commissioner for the NYS Department of Environmental Conservation. Glen graduated from Lake George High School, received a Bachelor of Arts degree in Biology from SUNY Albany, and a JD from Albany Law School. A resident of Warren County, Glen is a member of the NYS Bar Association, and the Warren County Bar Association where he serves as Treasurer and Chair of the High School Mock Trial Committee.

The Honorable Malachy E. Mannion, US District Court, Middle District of PA

Judge Mannion is a 1972 graduate of the Scranton Preparatory School; a 1976 graduate of the University of Scranton with a B.S. in Psychology; and a 1979 graduate of Pace University School of Law with a Juris Doctorate.His legal career began in White Plains, NY in 1979, where he was an associate with the law firm of Bartels, Pykett & Aronwald, Esqs. From 1980-1986 he served as an Assistant District Attorney in Nassau County, NY where, as a senior trial attorney, he investigated and tried numerous cases ranging from homicide to organized crime, burglary to narcotics, rape to armed robbery. He also served as the trial supervisor responsible for instructing and supervising 41 assistant district attorneys in trial practice and procedure.Judge Mannion was an Assistant United States Attorney and Chief of the Organized Crime Drug Enforcement Task Force (OCDETF) in the Middle District of Pennsylvania from 1986-1993 and 1997-2001. During that time he was also the District’s Security Manager, possessing a top secret United States Government security clearance. He was, and still is, a regular speaker, instructor and judge at the U.S. Department of Justice’s National Advocacy Center in Columbia, SC. Judge Mannion was also a member of the U.S. Department of Justice’s Evaluation and Review Staff (EARS) charged with critically evaluating the performance and procedures used in the 94 United States Attorney’s offices across the country.Judge Mannion was a partner in the Wilkes-Barre and Scranton, Pa. regional civil litigation firm of Hourigan, Kluger, Spohrer & Quinn, PC. from 1993-1997. In that time he handled and tried numerous civil matters, with a focus on medical malpractice, negligence and commercial litigation, in both federal and state courts.In 2001, Judge Mannion was appointed to the federal bench for an 8 year term as a United States Magistrate Judge in the Middle District of Pennsylvania. He was reappointed to a second 8 year term in 2009. In 2011 he became the Chief United States Magistrate Judge in the Middle District of Pennsylvania. In 2012, Judge Mannion was nominated by President Barack Obama to serve as a United States District Judge for the Middle District of Pennsylvania. The United States Senate confirmed his nomination on December 21, 2012. Judge Mannion was sworn in as a United States District Judge on December 28, 2012.Judge Mannion is the Treasurer and an Executive Committee member of the Federal Judges Association (FJA) and is a Past President of the Federal Magistrate Judges Association (FMJA). Additionally, he has been a member of the Administrative Office of United States Court’s Advisory Committee on Magistrate Judges. He is currently a member of the United States Court of Appeals for the Third Circuit’s Judicial Council’s Magistrate Judges’ Committee. He is a Past President of the Middle District of Pennsylvania’s chapter of the Federal Bar Association.He has written and lectured nationally in the areas of trial practice, e-discovery, federal rules, money laundering, the fourth amendment, federal trial & motion practice, official corruption, ethics, legal writing, and discovery. He is involved with numerous charitable organizations.

The Honorable Kenneth F. Ripple, US Court of Appeals for the Seventh Circuit

Honorable Kenneth F. Ripple has served as judge on the United States Court of Appeals for the Seventh Circuit since his appointment by President Reagan in 1985. Judge Ripple joined the Law School faculty in 1976 as an associate professor, and became a full professor in 1980. He graduated summa cum laude with an A.B. from Fordham University in 1965, received his J.D. from the University of Virginia in 1968 and earned an LL.M. summa cum laude in administrative law and economic regulation from the National Law Center of the George Washington University in 1972.

Before joining the Notre Dame faculty, Ripple held the position of special assistant to the chief justice of the United States (1973-77). He also served as the legal officer of the U.S. Supreme Court (1972-73), as an attorney in the Office of the General Counsel of International Business Machines Corporation, and as a branch head for the Judge Advocate General of the Navy.

A member of the Virginia, New York, Indiana and District of Columbia Bars, Ripple has the distinction of serving on the American delegation to the 1980 Anglo-American Judicial Exchange. He is also a member of the American Law Institute and chaired the Advisory Committee on Federal Appellate Rules of Procedure.

Jeffrey G. Miller National Environmental Law Moot Court Competition

February 22-25, 2023

NELMCC CHAIR

Mariah Bowman

VICE CHAIRS

Madison Bialkowski

Samantha Blend

Michelle David

Brianna Grimes

Gabriella Izquierdo

Daniel Krupa

Christen Maccone

Maggie Minas

Alexis Pierce Neunteufel

Michael O’Hora

MEMBERS

Sara Cody

Emily DiGiacomo

Michael Evans

Gabriela Hasaj

Laurie Heldman

Karina Krul

Natalie Lara

Camille Nicolas

Maggie Pahl

Samuel Pine

Kade Skelton

Tamika Thomas

Sara Uzatmaciyan

Pam Vegna

PROBLEM AUTHOR & FACULTY ADVISOR

Professor Todd Ommen

BENCH MEMO AUTHOR

Caroline Chen

Environmental Law Program Fellow

PROGRAM MANAGER

Lorraine Rubich

PROGRAM COORDINATOR

Anne Olson

ADDITIONAL SUPPORT

Achinthi Vithanage, Assoc. Dir. ELP

Winston Vera, Document Services

Jimmy Leon, Law IT & Staff

Greg Likens, Web Master

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:

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

 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

 Global Center for Environmental Legal Studies (GCELS) – GCELS provides high-level legal research to many international organizations. Students working with the Center assist with researching and editing important publications, such as the 50 States Climate Change Survey. The Center is a voting member of the International Union for the Conservation of Nature (IUCN), the world’s oldest and largest global environmental network, as well as Secretariat to the IUCN Academy of Environmental Law with the University of Maryland Francis King Carey School of Law.

 Land Use Law Center for Sustainable Development – Students are involved in all aspects of this Center which produces leading conferences, courses, trainings, publications, and resources on contemporary land use, real estate, and environmental issues. The student-driven Research and Innovation Program identifies solutions to complex land use problems of urban and suburban communities. The Land Use Leadership Alliance (LULA) program leads the nation in educating local land use leaders in land use law and community decision-making.

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

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

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

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 the preliminary rounds on Thursday, February 21, and conclude with the final round on Saturday afternoon, February 23. Each argument will feature three adverse teams. Judges evaluating the oral arguments include attorneys with environmental law expertise, members of the Pace environmental law faculty and judges from the Nation’s courts. Final round judges will be members of the federal bench and the U.S. Environmental Protection Agency's Environmental Appeals Board.

AWARDS

Awards are conferred on the winners in each of the following categories:

Winning Team

Finalist Teams (two)

Best Oralist

Best Oralist-Honorable Mention

David Sive Award for Best Brief

Best Briefs (representing the two remaining parties)

Semifinalist Teams

The Competition’s perpetual trophy is awarded to the winning team. The trophy is an original watercolor, DAWN-STORM KING, by John Hulsey, a Hudson Valley artist. The painting is featured on the cover of this program. The trophy is currently resides at U.C. Berkeley School of Law, winner of the 2019 Competition, and will be passed on to the 2020 Competition winner. The Best Brief awards are printed by the Pace Environmental Law Review

Atlanta John Marshall Law School

Baylor University School of Law

Boston College School of Law

Charleston School of Law

Columbia Law School

Drake University Law School

Duke University School of Law

Emory University School of Law

Georgia State College of Law

Golden Gate University School of Law

IIT Chicago-Kent College of Law

Indiana University McKinney School of Law

Lewis & Clark Law School

Loyola Law School

Loyola Law School of New Orleans

Marquette University Law School

Mississippi College School of Law

Mitchell Hamline School of Law

New England Law | Boston

Penn State Dickinson Law

Pepperdine University Caruso School of Law

Seattle University School of Law

Stetson University College of Law

Tulane Law School

UC Davis School of Law

UCLA School of Law

University of Alabama School of Law

University of Arizona James E. Rogers College of Law

University of California, Berkeley, School of Law

University of California, Hastings College of the Law

University of Connecticut School of Law

University of Denver Sturm College of Law

University of Detroit Mercy School of Law

University of Florida Levin College of Law

University of Georgia School of Law

University of Houston Law Center

University of Kansas School of Law

University of Maine School of Law

University of Maryland Carey School of Law

University of Michigan Law School

University of Montana, ABIII School of Law

University of New Mexico School of Law

University of Oregon, School of Law

University of Utah, S.J. Quinney College of Law

University of Washington School of Law

University of Wisconsin Law School

University of Wyoming College of Law

Vermont Law School

Wayne State University Law School

West Virginia University College of Law

Western New England University School of Law

William S. Richardson School of Law

2023 OFFICIAL RULES FOR VIRTUAL COMPETITION

November 9, 2022

The following represent the official rules of The Jeffrey G. Miller National Environmental Law Moot Court Competition (“Rules”).

RULE I. ORGANIZATION OF THE NATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

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

RULE II. THE PROBLEM

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

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

B. Questions about the Problem. The Board will accept questions relevant to the Problem until the deadline specified in the Fact Sheet (October 27, 2022).

RULE III. THE TEAMS

A. Number and composition of Teams. Each school may enter only one team (“Team”). The Team shall be composed of two or three law students, all of whom must be registered current law students seeking a Juris Doctor degree and in good standing at their respective schools at the time of brief writing and oral argument. There are to be no alternate Team members. Each Team member must argue in at least one preliminary round.

B. Substitution or addition of Team members. There shall be no substitution or addition of Team members after the release date of the Problem, except for extreme hardship upon written permission of the Board. The Board recognizes that some schools may not have constituted a team by the release date of the Problem (on or about October 3, 2022). In this instance, Rule III (B) applies as soon as the team is constituted by October 27, 2022.

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. Format. All briefs shall comply with Federal Rules of Appellate Procedure 28 and 32, except as modified by these Rules. 1 All text and footnotes shall be in 12-point Times

New Roman type. Briefs should be double-sided. Total length of the brief, excluding the Table of Contents, Table of Authorities and Appendices, may not exceed thirtyfive (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

1 Briefs of Appellants and Appellees shall comply with Federal Rules of Appellate Procedure 28(a)(2)-(9), 28(d) and 28(e). Excluded are 28(a)(1), 28(a)(4)(C), 28(a)(10), 28(b)-(c) and 28(f)-(j). References to the record under FRAP 28 should be to the record of the court. The applicable parts of Rule 32 are Rule 32(a)(1)-(4), with the exception of 32(a)(1)(A), 32(a)(2)(F) and reference to cover color. For the purpose of this Competition, Teams should use the cover colors on briefs specified as follows: FARTOWN ASSOCIATION FOR WATER SAFETY, blue; BETTER LIVING CORPORATION, red and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, tan; The name of the court shall be the United States Court of Appeals for the Twelfth Circuit. Recycled paper should be used.

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.

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

2The 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.

Team Member

Team Member

Date__________________

Team Member

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, 2022 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

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 25, 2023 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 scores 4 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

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.

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

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 25, 2023 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

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 25, 2023.

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, 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).

thus reserving a total of 3 minutes for rebuttal by one Team Member).

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

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

member’s scores will be distributed.

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

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.

C. Muting Video and Microphones. All Team members and coaches 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 22

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 23

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 24

FINAL ROUND

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

Saturday, February 25 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 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.

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 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.

Editor-in-Chief Editor-in-Chief

Kaitlin Campanini

Gabriella Mickel

Managing Editor Managing Editor

Christina Avery

Christen Maccone

Executive Productions Editors Productions Editors

Raphaella Cipollina

Daniel Digiacomo

Stephanie Giralt

Executive Acquisitions Editors

Gregory Bruno

Christopher Sudol

Executive Promotions Editor

Sabrina Bellantoni

Articles Group Editors

James Diven

Stefania-Maria Lessen

Katelyn Schillaci

Thomas Serino

Case Note & Comment Editors

Joshua Brachfeld

Aedan Raleigh

Senior Members

Zachary L. David

Francine R. Michel

Aric Prazers

Zachary Roy

Timothy Smith

Associate Members

Devin Auriana

Joshua Briggs

Addie Cusick

Robert J. Deckert

Molly R. Hammersmith

Rianna Iorillo

Melissa Iturralde

Remila Jasharllari

Mary Elizabeth Kellerman

Nick Lamari

Kaitlyn Marchant

Alexis Neunteufel

Hailey Pedicano

William Planeta

Madison Powers

Daniel Reyes

Nicole Sammon

Daniel von Staats

Ellie Taranto

Kasama Star

Lindsay Carter

William West

Mackenzie Moonan

Articles Editors

James Brody

Kaitlin Flores

Mia Petrucci

Research & Writing Editors

Brooke Mercaldi

Carly Hopkins

Acquisitions Editors

Daniel Guarracino

Samantha Ladines

Promotions Editor

Alexa Maratos

Senior Associates

Chris Rienzi

Evan Patton

Stephen Ferrante

Maggie Pahl

Shaune Hickson

Junior Associates

Samantha Blend

Benjamin Bovi

Mariah Bowman

Haleigh Catalano

Jillian Houle

Joseph Beletti-Naccarato

Gabriella Izquierdo

Jacqueline Graf

Kaitlyn Cameron

Michael O’Hora

Isabelle Hayes

Daniel Krupa

Maggie Minas

Jared Williamson

Pamela Cepedes

Carolyn Drell

Brianna Grimes

Kathleen Seavy

Michael Boncardo

Editor-in-Chief

Alexandra Tamburrino

Managing Editor

Bailey Andree

Productions Editors

Madison Bialkowski

Vito Arango

McKenzie Franck

Submissions Editors

Gina Hervey

Carolyn Rumrill

Articles Group Editors

Alexis Francis

Abigail Dove

Sook Brar

Case Note & Comment Editors

Brianna Weissman

Margaret Cyr-Ohngemach

Promotions Editor

Tatjana Calimpong-Burke

Senior Associates

Luis Evangelista

Andy Garcia

Favour Agunu

Natalie Drainville

Andrew Sammarco

Junior Associates

Alexandra Tasev

Amanda Bombino

Arianna Cruickshank

Bianca Cuccinello

Brianna Fanzo

Colin Savino

Courtney Henf

Hayley Margulis

Jade Pagel

Jazmine Merino

Julie Tokar

Kaitlin Maguire

Kaylin Bridglall

Leah Frattellone

Marco Del Grosso

Matthew Mattesi

Reni Axelrod

Samuel Stewart

Sheila Tapia

Douglas Weeks

Rachel Yusupova

John Zimmerman

Faculty Advisors

Professor Leslie Garfield Tenzer

Zachary Feder

Fiona Herzig

Marisa Barber

Tatiana Martin

Michelle David

Anna Sekiguchi

Zachary Crosby

Faculty Advisor

Professor Katrina Fischer Kuh

Professor Jason Czarnezki

Faculty Advisors

Professor Alexander Greenawalt

Professor Smita Narula

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 Ann Brantner

Sr. Attorney

US EPA, Office of Civil Enforcement

1200 Pennsylvania, Ave, NW, Washington DC

Tamar J. Cerafici Attorney

Retired

Shaker Rd., Northfield NH

Alexa Cole

Dir. Attorney

NOAA Fisheries

1315 East West Highway, Silver Spring MD

Lauren Fischer Attorney

US EPA

290 Broadway, New York NY

Randy Hill Attorney

US EPA

1200 Pennsylvania, Ave, NW, Washington DC

Jonathan Brown Attorney, Professor

Elisabeth Haub School of Law

78 N. Broadway, White Plains NY

Andrea Cerbin Attorney FERC

888 First St., NE, Washington DC

Mary Desmond Associate

Abrams Fensterman

81 Main Street, White Plains NY

Deborah Heller

Asst. Dean

Elisabeth Haub School of Law

78 N. Broadway, White Plains NY

Katie Horner

Court Attorney

Supreme Court, New York County 60 Court Street, New York NY

Erin Flannery Keith Attorney

US EPA

5 Post Office Square, Boston MA

Jean Lucasey Attorney

Attorney - Self Employed Dobbs Ferry NY

Robin J. Leigh Attorney

Georgia Department of Law 40 Capitol Square, Atlanta NY

Catherine Mendolia Attorney

NYS Supreme Court, Appellate Division, 2nd Dept. 45 Monroe Place, Brooklyn NY

Edward J. Messina Director

US EPA

1200 Pennsylvania Ave, Washington DC

Kara Murphy Attorney

U.S. EPA, REGION 2

290 Broadway, New York NY

Amy O'Brien Attorney

Holland & Knight LLP

800 17th Street N.W., Suite 1100, Washington DC

Mark Palermo Attorney

US EPA 1200 Pennsylvania Avenue NW, Washington DC

Russ Pecunies Attorney

NYC Department of Environmental Protection

59-17 Junction Blvd., Flushing NY

David Osterman

Sr. Partner

Goldberg Segalla. LLP

301 Carnegie Center Drive, Princeton NJ

Erin Palmer Attorney

Cole Shotz

25 Main St., Hackensack NJ

Ann Powers Attorney

Elisabeth Haub School of Law

78 N. Broadway, White Plains NY

Karissa Roskind Attorney

US EPA 1200 Pennsylvania Ave, Washington DC

Jennifer M. Ukeritis Attorney

DEC OHMS

625 Broadway, Albany NY

Michael Walker Attorney

Sr. Counnsel, EPA (Ret.)

Cavendish Dr., Alexandria VA

Nathan Schindler Attorney

Law Offices of Marth A. Dean

144 Reverknolls, NY NY

Amelia Wagner

Asst. Regional Council

US EPA

290 Broadway, New York NY

Victor Zertuche Attorney

US EPA 1200 Pennsylvania Ave, Washington DC

Sid Ansbacher

Shareholder

Upchurch, Bailey and Upchurch

780 N. Ponce De Leon Blvd.

St. Augustine, FL

Hope Babcock

Professor of Law

Georgetown law

600 New Jersey Ave NW

Washington, DC

Delight Balducci

Senior Attorney Advisor

Department of the Army

9275 Gunston Rd

Fort Belvoir, VA

Elizabeth Bennett Partner

Fox Rothschild LLP

101 Park Avenue

New York, NY

Eileen Brown Attorney

DOPF, P.C.

112 West 34th St., Suite 1555

New York, NY

David Brown

Commercial Counsel

Grayscale Investments

290 Harbor Drive

Stamford, CT

Camila Bustos

Asst. Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Stevie Asao

Senior Attorney

California Department of Toxic Substances Control

9211 Oakdale Avenue

Chatsworth, CA

Alice Baker

Senior Counsel

NYC Law Department

100 Church Street

New York, NY

Rachel Bauer

Attorney-Advisor

U.S. Environmental Protection Agency

1900 Chapman Avenue

Rockville, MD

Olivia Bonner

Legal Teaching Fellow

Stanford Law School Climate and Energy Policy Program

559 Nathan Abbott Way

Stanford, CA

Jonathan Brown

Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Alex Bueno

Associate Attorney

Vernis & Bowling of Saint Petersburg

696 1st Avenue N

Saint Petersburg, FL

Michael Caruso

Attorney and Judge (P/T)

Cuddy & Feder LLP and Town of Patterson

445 Hamilton Avenue

White Plains, NY

David Cassuto

Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Caroline Chen

Environmental LLM Fellow

Elisabeth Haub School of Law

22 Hunter Ave.

Sleepy Hollow, NY

Karl Coplan

Professor Emeritus

Elisabeth Haub School of Law

78 North Broadway

White Plains, NY

Jody Cross Partner

Zarin & Steinmetz

81 Main Street, Suite 415

White Plains, NY

Seth Davis Attorney

Seth A. Davis, Attorney at Law

411 Theodore Fremd Avenue

Rye, NY

Tess Dernbach Assistant Corporation Counsel

New York City Law Department

100 Church Street New York, NY

Sean Dixon

Soundkeeper & Executive Director

Puget Soundkeeper Alliance

130 Nickerson St. Seattle, WA

Andrea Cerbin

Attorney-advisor

FERC

1101 South Arlington Ridge rd.

Arlington, VA

Jon Cooper Attorney Shipley

3109 18th St. NW

Washington, DC

Timothy Cox Corporate Counsel

Catskill Watershed Corp.

669 County Hwy 38

Arkville, NY

Jason Czarnezki

Assoc. Dean, Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Alexander DerGarabedian Attorney Advisor EPA

1200 Pennsylvania Ave NW

Washington DC, DC

Kristen DeWire

Adjunct Professor

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Renee Dopplick Attorney

Inside Justice

Washington, DC

Norman Dupont Partner

Ring Bender LLP

3150 Bristol St., Ste 220, Ste 220

Costa Mesa, CA

Cayleigh Eckhardt

Attorney-Advisor

USEPA, Region 1

5 Post Office Square

Boston, MA

Pamela Esterman Partner

SIVE|PAGET|RIESEL

560 Lexington Avenue NY, NY

Howard Fields

Senior Vice President, Deputy Chief Compliance Off

Mastercard

2000 Purchase Street

Purchase, NY

Gillian Fisher Trial Partner

McGivney Kluger Clark & Intoccia

18 Columbia Tpke

Florham Park, NJ

Melanie Franco

Associate Attorney

Couch White LLP

540 Broadway

Albany, NY

Catherine Garypie

Associate Regional Counsel

USEPA Region 5

77 W Jackson Blvd

Chicago, IL

Gregory Dutton

Partner

Frost Brown Todd

400 W Market St

Louisville, KY

Caitlin Ens

Assistant General Counsel

District of Columbia Department of Energy and Environment

1200 First Street NE

Washington, CT

Daniel Estrin

General Counsel

Waterkeeper Alliance

180 Maiden Lane Ste 603 New York, NY

Theodore Firetog

Environmental Attorney

Law Offices of Theodore W. Firetog

111 Thomas Powell Blvd.

Farmingdale, NY

Fern Fleischer-Daves

Assistant General Counsel EHS & Real Estate

Northrop Grumman

2980 Fairview Park Drive Falls Church, VA

Josh Galperin

Professor of Law

Elisabeth Haub School of Law

78 N Broadway, Preston Hall

White Plains, NY

Jesse Glickstein

Corporate Counsel, ESG Reporting

Amazon

813 Hayward Ave

Takoma Park, MD

Andrew Goodman

Supervising Attorney

NMIC Legal Services

45 Wadsworth Avenue

New York, NY

Katherine Lee Goyette

Staff Attorney

Conservation Law Foundation

62 Summer Street Boston, MA 02110

Boston, MA

Jill Gross

Assoc. Dean, Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Michael Hamersky Partner

Griffin Hamersky LLP

420 Lexington Avenue, New York, NY

Rosemarie Hebner

Environmental Associate

Goldberg Segalla

110 Mallinson street

Allendale, NJ

Deborah Heller

Assistant Dean, Law Library

Elisabeth Haub School of Law at Pace University

75 S Broadway

White Plains, NY

Randolph Hill

Associate General Counsel

US EPA

2824 Raymond Court

Falls Church, VA

Bennet Goodman Attorney

Self-Employed

144B Heritage Hills

Somers, NY

Shelby Green

Professor of Law

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Melissa Hagan

Lawyer

The Law Office of Melissa B Hagan, PLLC

P.O. Box 1082

Houston, TX

Craig Hart

Exec. Dir. Energy Climate Center

Elisabeth Haub School of Law

78 N. Broadway

White Plains, NY

Hana Heineken

Senior Attorney

Center for International Environmental Law

1101 15th St NW, 11th Floor

Washington, DC

Michael Herz

Arthur Kaplan Professor of Law

Cardozo School of Law

55 Fifth Ave

New York, NY

Katie Horner

Court Attorney

NYS Supreme Court

60 Centre Street

New York, NY

Jack Hornickel

Staff Attorney

Food & Farm Business Law Clinic

78 N. Broadway

White Plains, NY

Charles Janoff Attorney

Retired

655 6th Place S. Garden City, NY

Taylor Keselica

Associate Attorney

Wilson Elser

1010 Washington Blvd

Stamford, CT

Sam Laffey

Assistant Public Advocate

Office of Public Advocacy

645 G Street Ste 100

Anchorage, AK

Eric Laschever Attorney

Laschever Law

SE 43rd St

Mercer Island, WA

Matt Liponis Attorney

Whiteman Osterman & Hanna LLP

One Commerce Plaza

Albany, NY

Ronald Long Attorney

Retired PO 871

Nyack, NY

Richard Horsch Instructor

Columbia University

670 N. Settlement Road

Windham, NY

Abby Jones

Vice President of Legal and Policy

PennFuture

1539 Cherry Lane Road

East Stroudsburg, PA

Satvika Krishnan Intern

UNEP

2 United Nations Plaza New York, NY

Patrick Lanciotti

Senior Associate

Napoli Shkolnik PLLC

360 Lexington Ave

New York, NY

Christopher Len

Assistant Regional Counsel

US EPA

1000 1st Ave West

Seattle, WA

James Logan

Senior Attorney

New York State Department of Environmental Conservation

625 Broadway

Albany, NY

Grant MacIntyre

Senior Counsel

U.S. EPA Environmental Appeals Board

1201 Constitution Ave. NW

Washington, DC

Charles R. Mackenzie Attorney

Mackenzie Law Offices

250 Park Avenue

New York, NY

Robert Martin

Assistant Attorney General

Maine Office of the Attorney General

6 State House Station

Augusta, ME

Charles Mason Owner

C.A. Mason DDS ESQ

482 Weaver Street

Larchmont, NY

James May

Distinguished Professor of Law

Widener University - Delaware Law School

Delaware Law School

Wilmington, DE

Frederick McDonald Deputy Attorney General

New Jersey Office of the Attorney General

1 Apollo Drive

Whippany, NJ

Daniel Moretti Member

Landman Corsi Ballaine & Ford P.C

120 Broadway

New York, NY

Brigid O'Hara

Corporate Counsel

Wine.com

2756 Alvarado St.

San Leandro, CA

Sarena Malsin Attorney

EPA Region 2, Superfund Branch

290 Broadway

New York, NY

Alejandro Martínez Sánchez

LLM Candidate / Lawyer

Cardozo School of Law

148 Lexington Ave

New York, NY

Laurie Matthews Of Counsel

Morgan, Lewis & Bockius

502 Carnegie Center

Princeton, NJ

Brendan Mayer Chief Counsel

409th Contract Support Brigade

CMR 469, Box 1358

APO, AE

Anxhela Mile Staff Attorney

Conservation Law Foundation

62 Summer Street

Boston, MA

Smita Narula Professor of Law

Elisabeth Haub School of Law

78 N Broadway

White Plains, NY

Thomas O'Keefe President

Mercosur Consulting Group. Ltd.

1177 Avenue of the Americas

New York, NY

Todd Ommen

Managing Attorney

Pace Environmental Litigation Clinic, Inc

78 N Broadway, Preston Hall

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UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

C.A. No. 22-000677

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Plaintiff-Appellant-Cross Appellee, v.

BETTER LIVING CORPORATION,

Defendant-Appellee-Cross Appellant,

FARTOWN ASSOCIATION FOR WATER SAFETY, et al.,

Intervenor Plaintiffs-Appellants-Cross Appellants.

FARTOWN ASSOCIATION FOR WATER SAFETY, et al.,

Plaintiffs-Appellants,

v.

BETTER LIVING CORPORATION,

Defendant-Appellee.

On Appeal from the United States District Court for the District of New Union in consolidated case nos. 17-CV-1234 and 21-CV-1776, Judge Douglas Bowman.

ORDER

Following the issuance of an Order of the United States District Court for the District of New Union dated June 1, 2022, in 17-CV-1234 and 21-CV-1776 (consolidated cases), Better Living Corporation (“BELCO”), the United States Environmental Protection Agency (“EPA”) and Fartown Association for Water Safety (“FAWS”) each sought leave to file an interlocutory appeal from different parts of the district court’s order. Considering the resolution of the federal law claims under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the jurisdictional issues surrounding the District Court’s decision to retain jurisdiction of the state law claims, this Court granted leave to appeal.

BELCO appeals from: (1) the District Court’s order upholding EPA’s Unilateral Administrative Order (“UAO”) directing BELCO to take additional investigation and response actions, based on EPA’s determination that the New Union Environmental Rights Amendment (the “ERA”) constitutes a new Applicable or Relevant and Appropriate Requirement (“ARAR”) under CERCLA; and (2) the District Court’s order vacating as arbitrary, capricious and contrary to law EPA’s determination that BELCO is not required to install filtration systems on Fartown residents’ private wells.

FAWS appeals from: (1) the District Court’s order that costs it incurred in sampling and analyzing residents’ private drinking water wells are not reimbursable under CERCLA as a response cost; and (2) the District Court’s denial of its motion to dismiss the remaining state court claims and retaining supplemental jurisdiction over those claims.

Like BELCO, EPA appeals from the District Court’s order vacating EPA’s determination that BELCO need not install filtration systems on contaminated wells in Fartown.

Therefore, it is hereby ordered that the parties brief the following issues:

1) Did the District Court err when it determined that costs incurred by FAWS in sampling, testing and analyzing well water samples of its members’ private drinking water wells are not reimbursable as response costs under CERCLA? FAWS argues it did; EPA and BELCO argue it did not.

2) Did the District Court err when it upheld EPA’s determination that the ERA constitutes an ARAR, and, accordingly finding that EPA’s reopening the Consent Decree based on that ARAR and ordering further remedial action in the UAO was proper? BELCO argues it did; EPA and FAWS argue it did not.

3) Did the District Court err when it vacated as arbitrary, capricious or contrary to law EPA’s determination that BELCO is not required to install filtration systems in Fartown despite the existence of the ERA? EPA and BELCO argue it did; FAWS argues it did not.

4) Did the District Court err in retaining jurisdiction over FAWS’ remaining state law tort claims after resolving the federal claims? FAWS argues it did; EPA and BELCO argue it did not.

Entered 1st day of June 2022 [NOTE: No decisions decided or documents dated after June 1, 2022 may be cited in the briefs or in oral argument.]

BETTER LIVING CORPORATION, Plaintiff-Appellant-Cross Appellee, v.

UNITED STATE ENVIRONMENTAL PROTECTION AGENCY,

Defendant-Appellee-Cross Appellant.

FARTOWN ASSOCIATION FOR WATER SAFETY, et al.,

Intervenor Plaintiffs-Appellants-Cross Appellees.

FARTOWN ASSOCIATION FOR WATER SAFETY, et al.,

Plaintiffs-Appellants, v.

BETTER LIVING CORPORATION,

Defendant-Appellee.

CONSOLIDATED CASES

17-CV-1234 (DTB)

21-CV-1776 (DTB)

DECISION AND ORDER

These consolidated cases stem from contamination of an aquifer in the State of New Union. The parties have cross moved for summary judgment on several claims, mostly concerning determinations by the United States Environmental Protection Agency (“EPA”) regarding the rights and obligations of the company responsible for the contamination, Better Living Corporation (“BELCO”), and a group of residents who claim to be harmed by the contamination along with an organization they formed, the Fartown Association for Water Safety (the individual plaintiffs and organization will be collectively referred to as “FAWS”). The issues relate to costs incurred and obligations associated with investigating and remediating

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION

contamination under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., and to what extent those obligations and rights are altered in light of the recently enacted New Union Constitutional Environmental Rights Amendment (“ERA”). N.U. CONST. art. I, § 7.

At its core this case involves disagreement about how to reconcile the ERA with CERCLA’s requirement that contaminated resources be remediated to meet what are known as Applicable or Relevant and Appropriate Requirements (“ARARs”). 42 U.S.C. § 9621(d). Here, the Court must decide: (1) whether FAWS’ costs for monitoring groundwater contamination are reasonable and reimbursable under CERCLA; (2) whether EPA’s interpretation that the ERA constitutes an ARAR under CERCLA was correct, which EPA contends allowed it to reopen the Consent Decree it has with BELCO and require BELCO to provide bottled water to Fartownians who have low levels of Nitro-Acetate Titanium (“NAS-T”) in their private wells; (3) whether EPA’s application of the ERA as an ARAR was arbitrary and capricious where EPA determined that the ERA did not require BELCO to install filtration systems on those same Fartown private wells; and (4) whether to retain jurisdiction of the remaining state law claims after the Court has resolved all of the federal claims in this matter.

FACTUAL AND LEGAL BACKGROUND

A. The Source and Discovery of the Contamination

Centerburg, in the State of New Union, is a town of approximately 4,500 residents that sits on County Highway 6. Fartown, a rural community of approximately 500 residents also in the State of New Union, sits on Highway 6 about 2 miles south of Centerburg. The parties agree that Fartown qualifies as an environmental justice community based on socio-economic conditions.

An underground body of water - the Sandstone Aquifer - lies about 300 feet beneath both Centerburg and Fartown. Groundwater in the Sandstone Aquifer moves slowly downgradient in a southerly direction, meaning groundwater underneath Centerburg eventually flows under Fartown.

Centerburgers receive tap water from the Centerburg Water Supply (“CWS”), a publicly owned source. CWS pumps its supply water from the Sandstone Aquifer, then treats it before distribution to Centerburgers. Fartownians, on the other hand, are not connected to the CWS and instead use private drinking water wells in each of their homes that pump directly from the Sandstone Aquifer.

In 1972, BELCO patented an inexpensive, durable sealant coating used to prevent corrosion, which it trademarked under the name “LockSeal.” LockSeal is used primarily in industrial applications for metal pipes and machinery exposed to water or other corrosive liquids through outdoor use or otherwise. Lockseal is made by combining two chemicals. The first is the liquid NAS-T. The second is a powdered non-toxic “activation agent,” which when combined with NAS-T produces a chemical reaction that makes a solid at room temperature, LockSeal. A company seeking to use LockSeal would contract with BELCO to deliver and apply the coating

through a spray process that combines NAS-T and the activation agent, creating the sealant coating - LockSeal - wherever it is applied.

BELCO manufactured NAS-T and its activation agent at a factory (the “Facility” or “Site”) in Centerburg from 1973 through 1998, when it opened a new, more efficient factory in northern New Union and shuttered the old factory. BELCO still owns the property in Centerburg, which it uses for storage and training activities.

A variety of medical studies published in the mid-1980’s showed NAS-T to be a probable human carcinogen. Based on these studies, EPA in 1995 adopted a Health Advisory Level (“HAL”) for NAS-T in drinking water of 10 parts per billion (“ppb”), which incorporates a significant margin of error to ensure that level of exposure is non-toxic to humans. Even if NAST is not toxic at or below the HAL, the parties agree that the human nose can detect NAS-T in water at concentrations as low as 5 ppb, where it produces a sour or stale smell.

Perhaps due to its scarcity of use, there are no further state or federal regulations regarding NAS-T beyond the HAL. The chemical is not regulated under the Safe Drinking Water Act, nor is EPA monitoring it as an unregulated contaminant in drinking water.

Beginning in 2013, Centerburgers began complaining to the Centerburg County Department of Health (“DOH”) that their water smelled “sour” or “off.” Prompted by these complaints, in January of 2015 DOH began testing the public water supply for chemical contamination. DOH included NAS-T in its testing protocol because of the existence of the BELCO Facility in town. DOH determined that the water in the CWS contained between 45 and 60 ppb NAS-T. On September 17, 2015, DOH notified the residents of Centerburg to cease drinking their tap water. At the same time, BELCO voluntarily began supplying all Centerburgers with bottled water while the state investigated the contamination.

The New Union Department of Natural Resources (“DNR”) began an investigation of the contamination at the Facility on September 22, 2015. Citing a lack of resources and expertise, however, DNR referred the investigation and remediation to EPA on January 30, 2016.

B. The Investigation, Record of Decision and Consent Decree

In March 2016, EPA and BELCO entered into an agreement where BELCO agreed to continue to provide bottled drinking water to residents of Centerburg and to investigate the cause of and extent of the NAS-T contamination. After this investigation, BELCO agreed to evaluate proposed cleanup remedies for the Site. Through this process, known as a remedial investigation and feasibility study (“RI/FS”), BELCO investigated the sources of the contamination, assessed risk to human health and the environment and evaluated remedial alternatives for the Site.

BELCO began its investigation by identifying the source of the NAS-T contamination. Through soil testing at the Site and studying records of operation at the Facility, BELCO concluded that NAS-T entered the soils from sporadic spills and from an unlined lagoon used to store wastewater and stormwater in the 1980s and early 1990s. This contamination eventually migrated to the groundwater, creating a plume of NAS-T in the Sandstone Aquifer.

Under EPA oversight, BELCO also investigated the extent of the plume. From July of 2016 through January of 2017, BELCO installed three successive lines of monitoring wells progressively further from Centerburg and closer to Fartown. The final five wells were installed approximately half a mile north of Fartown (1.5 miles south of Centerburg); when sampled, these five wells showed no detectable amounts of NAS-T. Consequently, believing that it had reached the end of the NAS-T plume, EPA did not direct BELCO to install any additional wells. Based on this investigation, BELCO’s RI/FS recommended no remediation of the plume, but rather excavation of the soils at the Site to remediate the source area and the implementation of filtration of Centerburg’s CWS. The RI/FS estimated that remediation of the NAS-T plume in the Sandstone Aquifer by pumping and treating the water would take decades and cost over $45 million, and was therefore not feasible.

Based on this RI/FS and the comments received by EPA after it issued a Proposed Plan to the public, in June of 2017 EPA selected a clean-up plan for the Site through what is known as a Record of Decision (the “ROD”). On June 30, 2017, EPA brought a cost recovery action against BELCO (Case No. 17-CV-1234; the “BELCO Action”), immediately after which BELCO and EPA entered into and filed a Consent Decree (“CD”). Pursuant to the CD, BELCO agreed to design and implement the remedy selected by EPA in the ROD. This Court approved and entered the CD on August 28, 2017, after taking public comment and determining it to be fair and reasonable. No citizens of Fartown or Centerburg objected to the RI/FS, the Proposed Plan or the entry of the Consent Decree.

Pursuant to the CD, upon completion of the clean up, EPA would be required to issue to BELCO a Certificate of Completion (the “COC”). The Consent Decree further dictates that upon issuing the COC, EPA is not permitted to order BELCO to further remediate the Site without EPA “reopening” the CD. The CD explicitly sets forth two grounds upon which EPA can reopen it:

1) Where new information not previously available or known to EPA is revealed, showing that the clean-up plan is no longer protective of human health or the environment; or

2) Where new, more stringent Regulatory Standards are established that the clean-up plan does not satisfy.

CD, § 13.3. Relevant to this dispute, the Consent Decree defines Regulatory Standards to include, among other things, “applicable or relevant and appropriate requirements under CERCLA (‘ARARs’).” CD, § 1.12.

C. The Remediation

Pursuant to the CD, BELCO (1) installed and maintained a water filtration system known as “CleanStripping” to remove NAS-T at the CWS public water well; (2) excavated soils contaminated with NAS-T from around the abandoned lagoon at the Site; and (3) conducted monthly sampling of the monitoring wells installed during the investigation. The Consent Decree does not require further remediation of the plume in the Sandstone Aquifer. This type of remedy is often referred to as “monitored natural attenuation.”

BELCO installed CleanStripping on Centerburg’s public water well in September of 2017 (which is still in operation) and completed the soil excavation in December of 2017.

Over the following several years, BELCO’s monitoring well test results were largely consistent with prior results, with the notable exceptions in January 2018 of two detections of NAS-T in the final line of wells (those closest to Fartown) at low levels (5 ppb and 6 ppb, respectively). Given the multiple non-detects and the low numbers found in this final line of wells, EPA issued the COC to BELCO in September of 2018.

D. Contamination of Fartown’s Private Water Wells

Some Fartownians (now members of FAWS) submitted sworn testimony that they noticed that the water from their private wells began to occasionally smell “off” since at least 2016. When they became aware of the investigation and entry of the CD, they immediately requested that DOH sample and test their drinking water for NAS-T contamination. In February of 2019, DOH tested five private drinking water wells in Fartown, but did not detect NAS-T. Not satisfied with that result, in May 2019 a group of these Fartownians then asked EPA to order BELCO conduct further testing in Fartown. Citing the non-detects in sampling from the monitoring wells to the north of Fartown, EPA declined.

Frustrated by EPA, in December of 2019 approximately 100 Fartownians formed FAWS and retained Central Laboratories, Inc. (“Central Labs”) to test their private wells. Central Labs took three samples each from 75 private wells in Fartown. Results from Central Labs’ 225 samples, reported in March of 2020, were varied: 120 showed no detectable levels of NAS-T; 51 showed concentrations of 1 to 4 ppb; and 54 had detections of NAS-T in the 5 to 8 ppb range. Based on those results, in May 2020 FAWS wrote to EPA again and asked it to reopen the CD and order further investigation of their wells and for remediation of the plume of contamination. On June 10, 2020, EPA declined to take further action, citing the low levels of NAS-T and the limited reopener provisions in the CD. FAWS paid Central Labs $21,500 for the testing and analysis.

E. The Environmental Rights Amendment

On November 3, 2020, the citizens of New Union passed the Environmental Rights Amendment to the State of New Union Constitution (“ERA”). That Amendment reads:

Each and every person of this State shall have a fundamental right to clean air and clean water and to a healthful environment free from contaminants and pollutants caused by humans.

N.U. CONST. art. I, § 7.

As with all Constitutional Amendments in New Union, the Amendment was passed by the New Union legislature, signed by the governor, and was then included in the November 3, 2020, election as a ballot measure. The measure passed with 71% voting in favor of the Amendment, and 29% voting against.

In January of 2021, EPA wrote to DNR to ask whether it believed that the ERA constitutes an ARAR for CERCLA purposes. On February 14, 2021, DNR responded, stating that “EPA should identify the ERA as an ARAR where it provides guidance consistent with CERCLA and where it is not inconsistent with any state or federal regulations.” New Union does not have a State Memorandum of Agreement regarding ARARs.

F. Reopening the Consent Decree

On March 20, 2021, citing the 2020 Central Labs results and the passage of the ERA, which EPA deemed to be a change in the Regulatory Standards under the Consent Decree, EPA re-opened the Consent Decree and ordered BELCO to sample and analyze water from 50 private wells in Fartown.

Prior to reopening the Consent Decree, EPA included in its administrative record the new information relied upon to reopen the CD, the fact that Fartown is an environmental justice community, the possible endangerment including potential carcinogenic effects, and the presence of odors from NAS-T. The response actions demanded by EPA consisted of sampling of private wells in Fartown, supplying bottled water to any Fartownian whose well returned positive results for NAS-T, and the continuing monitoring of Fartown wells. EPA then held a conference with BELCO in an attempt to get BELCO’s agreement to perform these tasks. BELCO challenged EPA’s demand, arguing that EPA did not have the legal right to reopen the Consent Decree because the ERA did not and legally could not constitute an ARAR, and, as such, the response action ordered was inconsistent with CERCLA. On June 24, 2021, over BELCO’s objection, EPA issued an order, referred to as a Unilateral Administrative Order (“UAO”), directing BELCO to conduct the response actions noted above.

In addition, prior to EPA issuing the UAO, FAWS submitted in writing a request for EPA to order BELCO to install CleanStripping at each residential well that had tested positive for NAS-T or take other remedial actions sufficient to remove NAS-T entirely from their water supply. EPA expressly declined to include this requirement in the UAO on grounds that FAWS’ 2019 results and EPA’s own sampling results found no wells in Fartown testing above the HAL for NAS-T. This request, and EPA’s response and justifications, were similarly fully noted in EPA’s administrative record.

The relevant directives to BELCO in the UAO are:

1. Sample 50 private wells in Fartown, selected by EPA, each month.

2. For any well where sampling shows NAS-T concentrations between 5 ppb and 10 ppb, supply such households with sufficient monthly bottled water for each resident until testing reveals levels of 4 ppb or lower.

3. For any well where sampling shows NAS-T concentrations exceeding 10 ppb, install CleanStripping filtration on the well.

BELCO refused to comply with the UAO. Thus, on July 7, 2021, EPA began supplying water to Fartownians whose wells tested positive for NAS-T in excess of 5 ppb and monitoring those wells through monthly sampling. That sampling has been largely consistent with the sampling done by FAWS, showing approximately 55% of samples having non-detect levels for NAS-T, 25% in the 1 to 4 ppb range and 20% in the 5 to 8 ppb range. As before, no Fartown wells have tested above 8 ppb.

On August 2, 2021, EPA made a motion in the BELCO Action seeking to recover its costs incurred in Fartown and for penalties for BELCO’s violation of the UAO. BELCO answered, arguing that because the ERA cannot properly be considered an ARAR, EPA did not have the right to reopen the Consent Decree, and thus the UAO was without legal foundation.

G. The FAWS Action

FAWS filed a motion to intervene in the BELCO Action on August 30, 2021, to assert a claim against EPA. This Court granted that motion on September 24, 2021. FAWS challenges the UAO as arbitrary, capricious and contrary to law under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A), to the extent that it failed to compel BELCO to provide CleanStripping filtration systems on FAWS’ members’ private wells, which FAWS argues is required under the ERA.

Separately on August 30, 2021, FAWS and 85 individual plaintiffs from Fartown filed an action against BELCO in this Court (the “FAWS Action”; Dkt 21-CV-1776). The complaint’s first cause of action is a CERCLA cost recovery claim against BELCO for the $21,500 FAWS spent on testing and analysis. FAWS’ complaint further contends that BELCO’s contamination of the Sandstone Aquifer constituted negligence and a private nuisance under New Union state law. FAWS asked that the Court order BELCO to: (1) pay its response costs; (2) install CleanStripping on their private wells that test positive for NAS-T; (3) remediate the Sandstone Aquifer; (4) pay them damages for the loss of use and enjoyment of their property and diminished property values; and (5) pay punitive damages.

All members of FAWS reside in New Union. BELCO is a Delaware Corporation with a principal place of business in Centerburg, New Union. The United States District Court for the District of New Union exercised original jurisdiction over the CERCLA claim under 28 U.S.C. § 1331, and supplemental jurisdiction over the associated state law claims under 28 U.S.C. § 1367. At the parties’ joint request, the Court subsequently consolidated the BELCO Action and FAWS Action.

FAWS expressly stated in its complaint (and in briefing the instant motions), that it initially brought the FAWS Action in this Court due to the pendency of the BELCO Action, this Court’s jurisdiction over the closely related CERCLA claims, and to avoid any contentions of “claim splitting.” FAWS has also made clear that it intended to seek dismissal of its state law claims from this Court once the CERCLA claims have been resolved so that it can litigate any remaining state law claims in state court. See 28 U.S.C. § 1367(d) (statute of limitations tolled for state claims brought as supplemental jurisdiction claims). Because BELCO has answered in

the FAWS Action, FAWS cannot unilaterally dismiss - it must move this Court for dismissal. See FRCP 41(a). The parties then commenced discovery on the CERCLA claims.

On December 30, 2021, after completing discovery on the CERCLA claims, all three parties moved and cross-moved for summary judgment on the CERCLA claims, with FAWS additionally moving to dismiss any remaining state law claims without prejudice should the CERCLA claims be resolved by motion. BELCO and EPA opposed FAWS’ motion to dismiss. As discussed in detail below, those motions are partially denied and partially granted. Despite the resolution of the federal issues, this Court denies Fartown’s motion to dismiss its state law claims and will retain jurisdiction over those claims, as explained below.

The parties stipulate that (1) all parties have standing and that the case is not moot; (2) that the CD and UAO are final agency actions; and (3) that FAWS had exhausted its administrative remedies.

I. BELCO’s Liability for FAWS’ Testing Costs

The first issue is whether CERCLA entitles FAWS to recover $21,500 against BELCO as a response cost.

CERCLA provides that potentially responsible parties (“PRPs”) can be liable to private parties who are not PRPs for response costs incurred by those private parties. See 42 U.S.C. § 9607(a)(4)(B). The plaintiff seeking recovery of those costs must prove that: “(1) the site in question is a ‘facility’ as defined by CERCLA; (2) the defendant is a responsible party; (3) there has been a release or there is a threatened release of hazardous substances; and, (4) the plaintiff has incurred costs in response to the release or threatened release.” Rolan, et al. v. Atlantic Richfield Co., et al., 2019 WL 542905, at *5 (N.D. Ind. Oct. 22, 2019) (citing Sycamore Indus. Park Assocs. v. Ericsson, Inc., 546 F.3d 847, 850 (7th Cir. 2008). A non-governmental plaintiff additionally “must show that any costs incurred in responding to the release were ‘necessary’ and ‘consistent with the national contingency plan.’” Forest Park Nat. Bank & Trust v. Ditchfield, 881 F.Supp.2d 949, 977 (N.D. Ill. July 24, 2012) (citations omitted).

The issue here is whether FAWS’ response actions were “necessary” and “consistent with the national contingency plan.” For a response action to be "necessary," it cannot be duplicative of the EPA or state agency's actions responding to or remedying the release of the substance in question. U.S. v. Iron Mountain Mines, Inc., 987 F.Supp. 1263, 1272 (E.D. Ca., Oct. 28, 1997). The actions may be “duplicative” if they occur at the same time as the EPA's own actions and do not seek to uncover information different than or above and beyond that of EPA; or if they occur after the EPA had already informed the private parties that it would be conducting its own investigation. See, e.g., Louisiana-Pacific Corp. v. Beazer Materials & Servs., Inc., 811 F.Supp. 1421, 1425 (E.D. Ca. Jan. 27, 1993). Further, response actions are necessary if they are “closely tied to the actual cleanup of hazardous releases.” Young v. U.S., 394 F.3d 858, 863 (10th Circ. 2005) (emphasis in original) (string citations omitted). There must be some evidence that the response actions were taken to “assist with and help plan the eventual remediation and cleanup efforts.” See Wilson Road Dev’t Corp. v. Fronabarger Concreters, Inc., 209 F.Supp.3d 1093, 1114-15 (E.D. Mo. Sept. 16, 2016); see also Walnut Creek Manor, LLC v. Mayhew Ctr., 622 F.Supp.2d 918, 929 (N.D. Ca. April 16, 2009). The actions cannot be taken solely for the

purpose of “overseeing another private party's legal obligation to [remediate] a property . . . without direct involvement in the responsible party's remediation and detoxification efforts.” Wilson Road Dev’t Corp., 209 F.Supp.3d at 1113.

BELCO argues that the testing done by FAWS was not necessary, and thus is not subject to recovery under CERCLA. Specifically, BELCO argues that the testing of the perimeter wells that lie between Centerburg and Fartown from July 2016 through January 2017 showed no significant contamination in the Sandstone Aquifer that reached wells in Fartown, and, accordingly, there was no need for further testing.

FAWS argues that despite that testing of the perimeter wells resulted largely in nondetects, the fact that Central Labs’ test results revealed that NAS-T had reached the wells in Fartown showed that the testing was, in fact, necessary. FAWS also points out that the BELCO facility is the only possible source for NAS-T (a fact that is not in dispute here), and that there had been two positive detections of NAS-T (in January 2018) in the closest monitoring wells prior to FAWS’ own testing, indicating that the NAS-T was making its way to Fartown by some path out of the reach of the monitoring wells. FAWS argues that, even if EPA ultimately may not have ordered remediation prior to adoption of the ERA, its members had a right to know about exposure levels, and hence its own investigation was necessary and reasonable.

In reply, BELCO makes two arguments. First, BELCO argues that at the time of the Central Labs testing, there was no need because there was no scientific evidence supporting further testing. Second, BELCO contends that, even if one assumes that all parties were aware of what BELCO describes as “trace” amounts of contamination in the Fartown wells, that would not have justified further response actions, including testing, bottled water, and installation of individual, expensive filtration systems on private wells.

EPA joins BELCO’s motion on this issue primarily on policy grounds. EPA argues that it would frustrate CERCLA and EPA’s authority under the statute if private parties were encouraged to undertake their own response actions, and thereafter obtain relief, where objective investigations concluded it would be highly unlikely that any significant or harmful contamination would be discovered. EPA concedes that in this particular case, further testing revealed the presence of contamination, but argues nonetheless that “fishing” expeditions by untrained laypersons would hamper its ability to conduct orderly investigations and enforcement of CERCLA cleanups. Further, EPA argues, the ERA had not yet been adopted, so there was no legal basis at the time of FAWS’ testing to justify it. As such, EPA argues that the “reasonableness” of response measures taken must be gauged at the time they were taken, not in hindsight, and must be based on some objective evidence that the testing could produce useful information.

Here, the question of whether FAWS’ costs were “necessary” is one of timing. When the costs were incurred, there was no question that EPA was no longer investigating the spread of contamination. In addition, there was no indication that further testing was needed, given existing test results. There was no indication that any further investigation or remediation was “necessary” or warranted, and all indications are that FAWS conducted the tests at the time to try to prove liability of BELCO and alter EPA’s decisions and course of action. As such, when

FAWS undertook the testing, it was doing so at its own expense for its own purposes, and not attempting to further any existing investigation or remediation plan. The fact that those tests ultimately showed the presence of some contamination does not change the analysis, as to do so would obviate the standard set forth by courts on this issue. The Court notes that this does not leave FAWS without a remedy, as FAWS still has common law claims against BELCO available to seek compensation for damages and expenses.

For these reasons, the Court holds that these costs are not “necessary” CERCLA response costs, and thus are not reimbursable under the statute. FAWS’ motion for summary judgment on this claim is denied, and BELCO’s motion is granted.

II. EPA’s Decision to Reopen the Consent Decree Based on its Determination that the ERA is an ARAR

The next issue is whether EPA could reopen the CD based on its determination that the ERA constituted an ARAR. BELCO contends that it did not as the ERA was not an ARAR so could not be considered a new “Regulatory Standard,” and thus no basis existed to reopen the CD. BELCO does not dispute that, if the Court finds EPA was correct that the ERA is an ARAR and a new “Regulatory Standard” under the CD, then EPA would have the authority to issue the UAO. Thus, the Court must determine whether EPA’s interpretation that the ERA constitutes an ARAR was correct. The issue of whether the ERA can properly be considered an ARAR is also relevant to the FAWS Action insofar as, if the Court were to determine that the ERA cannot be an ARAR, then FAWS’ claim seeking further remediation than that ordered through the UAO would also fail.

ARAR stands for “applicable or relevant and appropriate requirements,” and their identification allows for the determination of cleanup goals, remedy selection and implementation. Under Section 121 of CERCLA, selected remedial actions must attain (or waive) ARARs to assure an implemented remedy is protective of human health and the environment. 42 U.S.C. § 9621(d).

A state environmental standard constitutes a state ARAR to which the remedy must comply if it is: (1) properly promulgated, (2) more stringent than federal standards, (3) legally applicable or relevant and appropriate, and (4) timely identified. US v. Akzo Coating of Am., 949 F.2d 1409, 1440 (6th Cir. 1991). When examining this issue, the Court notes that EPA’s interpretation of what constitutes an ARAR under CERCLA must be given deference “according to its persuasiveness.” See United States v. Mead Corp., 533 U.S. 218, 219-20 (2001) (citing Skidmore v. Swift & Co., 65 S.Ct. 161 (1944)). The weight accorded to an administrative determination “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Mead Corp., 533 U.S. at 219.

BELCO argues that the ERA cannot be an ARAR for multiple reasons. First, because it was not “properly promulgated.” This term has been defined as a measure “imposed by state legislative bodies and regulations developed by state agencies that are of general applicability and are legally enforceable.” Akzo Coating of Am., 949 F.2d at 1440. Second, BELCO argues

that the ERA cannot be deemed more stringent than any federal environmental standards where it essentially mirrors the first criteria to be analyzed pursuant to the NCP by a remediating party when determining viable alternatives. See Sealy Conn. Inc. v. Litton Indus., 93 F.Supp.2d 177, 184 (D.C. Conn. Feb. 9, 2000) (“overall protection of human health and the environment”). Third, BELCO argues that the ERA is not applicable as it does not “specifically address a hazardous substance, pollutant, or contaminant, remedial action, location, or other circumstance found at a CERCLA site.” Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F3d 534, 544 (6th Cir. 2001) (citing 40 C.F.R. § 300.5). Lastly, it argues that the ERA is similarly not “relevant or appropriate” because it does not “address problems or situations sufficiently similar to those encountered at the CERCLA site such that their use is well suited to the particular site.” Id. Boiled down, BELCO’s argument is that the ERA, while perhaps noble and worthwhile as a concept, absent some further legislative or regulatory action by New Union to define “clean” or “healthful,” the ERA does not actually provide any “measurable” standard for any specific situation, including the remediation at issue here.

EPA and FAWS argue that the ERA is a proper ARAR in that it offers a standard that is of general applicability and is legally enforceable. Ohio v. U.S. E.P.A., 997 F.2d 1520, 1527 (D.C. Cir. 1993) (citing 40 C.F.R. 300.400(g)(4)). They note that the ERA was adopted through the legislature originally, and signed by the Governor, as with statutory enactments that are deemed “properly promulgated.” They also argue that the ERA further meets the “more stringent” test where it grants a “fundamental right” to clean water above and beyond any general or specific relevant federal environmental laws, and that in fact, the ERA is relevant or appropriate here because it is covering an unregulated hazardous material “caused by humans” at the Site (NAS-T). See Akzo Coatings of Am., 949 F.2d at 1443 (“Where no federal applicable ARAR exists for a chemical, location, or action, but a state ARAR does exist, or where a state ARAR is broader in scope than the federal ARAR, the state ARAR is considered more stringent.”).

EPA and FAWS posit that to ignore the ERA would be contrary to its passage and would defy the will of the people of New Union. They refer to multiple instances in the legislative history of the ERA demonstrating that it was enacted to cover just this sort of situation, where a contaminant that is known to be harmful is not regulated under existing laws or regulations. Both argue that EPA had the obligation to interpret and apply the ERA as an ARAR, though, as discussed below, they differ as to its proper interpretation.

The Court finds the interpretation advanced by EPA and FAWS to be persuasive given the legislative history and wording of the ERA. As both parties note, the ERA serves no purpose if it cannot be implemented when there is no regulatory standard in place. Such an interpretation would fly in the face of the legislative history and vote of the people of New Union. Indeed, the legislative history makes clear that the right was intended to be “self-executing,” needing no further legislation or regulation to take effect. This self-executing provision, which it undeniably is, on its face, “of general applicability” leads this Court to find that the ERA is properly promulgated.

Moreover, the Court agrees that the ERA meets the stringency test as it expressly grants a “fundamental right” to clean water that was intended to be more protective than existing

regulations, especially where, as here, there are no more specific applicable regulations. Finally, while the parties appear to agree that the ERA is not directly “applicable,” the Court agrees with EPA and FAWS that it is nevertheless “relevant and appropriate” as it does “address problems or situations sufficiently similar to those encountered at the site” by covering the type of situation we are presented here, involving a new, unregulated contaminant. See Franklin Cnty. Convention Facilities Auth., 240 F3d at 544.

Indeed, the New Union legislature envisioned just such a gap-filling role; as the Senate Report explained:

This Amendment is necessary and justified by the fact that on occasion, the existing statutes and regulations are insufficient to protect the people from exposure to unclean or unhealthful air and water. This shortfall has been evident in New Union and other states where chemicals that are toxic remain unregulated. Where those regulatory gaps exist, the Amendment will serve to create a safety net to ensure that protections of our residents do not fail, and the people of the State will be guaranteed clean air, clean water and a healthful environment, including and in particular due to non-natural, human-caused pollutants and contaminants.

Senate Report, p. 1. Moreover, the legislative history shows that the ERA was intended to be “self-executing,” meaning that, contrary to BELCO’s contention, no further legislation or regulation is required to make it effective.

Accordingly, to adopt BELCO’s argument that the ERA cannot constitute an ARAR would be to ignore the language, purpose and intent of the ERA, and the Court declines to do so. This Court finds EPA’s interpretation that the ERA constitutes an ARAR to be reasonable and persuasive.

Having affirmed EPA’s use of the ERA as an ARAR, EPA had the authority to reopen the CD based on new Regulatory Standards. Accordingly, the Court grants EPA’s motion for summary judgment as to its costs and penalties against BELCO for BELCO’s failure to comply with the UAO, and BELCO must comply with that order going forward. BELCO’s motion for summary judgment on this claim is denied.

III. EPA’s Decision Not to Order BELCO to Install Filtration Systems in Fartown

Given that the EPA had determined that the ERA constitutes an ARAR, FAWS challenges EPA’s determination that BELCO need not pay for or install CleanStripping on residential wells in Fartown testing below 10 ppb. Where a challenge is made to an EPA enforcement order under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), courts must determine “whether the Agency's action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Alaska Dep't of Env't Conservation v. E.P.A., 540 U.S. 461, 496-97 (2004); Sackett v. E.P.A., 566 U.S. 120, 131 (2012) (challenges to EPA orders of compliance fall under the APA).

FAWS contends that “clean water . . . free from contaminants and pollutants caused by humans” cannot reasonably be interpreted to mean “slightly contaminated water impacted by a human-caused chemical that occasionally makes water used in cooking, bathing, showering, cleaning and other household tasks smell bad.” FAWS Mem. of Law at 14. FAWS contends that EPA’s decision that filtration is not required below 10 ppb is arbitrary, capricious and contrary to law as a result. FAWS reasons that, because of the ERA, BELCO must be required to provide “clean” water for all Fartownians and for all uses, not just for drinking.

EPA and BELCO both move for summary judgment on this claim, but in slightly different ways. EPA concedes that the ERA is an ARAR, but argues that “clean water” does not necessarily mean water free from any contamination, notwithstanding the final clause of the ERA. Further, it argues that the provision of bottled water is sufficient to address the low amounts of contamination at issue in Fartown. EPA further reasons that requiring water entirely free from any contamination would result in invalidating countless permits under the Clean Air Act and Clean Water Act and other federal regulatory schemes that all allow some “safe” levels of contamination in discharges. EPA concedes that the ERA changed the regulatory landscape, but it argues that its interpretation of how to apply that amendment must be left to its discretion in the context of CERCLA, and deference requires upholding the entirety of the UAO as written.

BELCO makes two additional arguments. First, it contends, as discussed above, that the ERA cannot be an ARAR so it cannot be relied upon to require remedial measures, an argument that the Court has rejected. Additionally, BELCO points to its uncontested evidence that the CleanStripping systems for individual homes are costly - as much as $4,500 per household - and that the Court should uphold EPA’s decision not to require this technology on this basis as well, given that FAWS has not introduced any evidence that these levels of contamination are harmful in drinking, let alone showering, watering plants or any of the non-drinking uses identified by FAWS.

As indicated above, as applied to CERCLA and the application of ARARs, the Court finds that EPA is entitled to deference. The question is therefore, whether EPA’s refusal to require filtration is arbitrary, capricious or contrary to law. While the Court may otherwise adopt EPA’s interpretation of what constitutes “clean water,” which would allow some levels of contamination in permitted discharges or emissions, the Court cannot agree that this interpretation is reasonable in these circumstances. Here, the contamination does not result from a well-regulated and permitted discharge, nor does it result from natural sources that do not require a permit. Rather, here the contamination is from a human-caused chemical contamination that resulted from illegal spills or was left to soak into soils in an unlined wastewater pond. This is precisely the situation meant to be covered by the ERA, as discussed above. What “clean water” means in other contexts is best left to the State or to EPA’s regulatory framework, but EPA’s conclusion here that it does not mean the removal of illegally discharged chemicals that can be perceived by smell and may be toxic at higher levels is arbitrary, capricious and contrary to law.

Given this, the Court concludes that the ERA contradicts EPA’s determination that installation of CleanStripping technology on Fartown’s wells is not required under the state ARAR. EPA’s interpretation was contrary to the language, intent and purpose of the ERA, and thus, was contrary to law. Consequently, EPA’s and BELCO’s motions for summary judgment are denied, and FAWS’ motion is granted vacating that portion of the UAO that requires only bottled water, rather than filtration or some other remedy that removes NAS-T from Fartown’s wells.

IV. Dismissal of the Remaining Tort Claims

The Court has granted summary judgment regarding the outstanding CERCLA issuesagainst FAWS’ claim to recover response costs, in favor of EPA’s use of the ERA as an ARAR supporting the UAO, and against EPA’s failure to order filtration systems. This order is thus resolving all outstanding federal claims. The final issue concerns supplemental jurisdiction - that is, whether this Court should retain jurisdiction over Plaintiff’s supplemental state law claims in light of the resolution of the CERCLA claims.

The Court elects to retain jurisdiction over the remaining state law claims. A federal court has “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). In deciding whether to retain jurisdiction over pendent state law claims upon dismissal or resolution of federal claims over which they have original jurisdiction, district courts are further to consider factors such as “judicial economy, convenience, fairness, and comity.” Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir. 1996) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994)). “Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer footed reading of applicable law.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). In fact, “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 35 (1988). Courts have thus readily dismissed remaining pendent state law claims concerning “novel or complex” issues of state law. See, e.g., Miller v. City of Fort Myers, 424 F.Supp.3d 1136, 1152-53 (D.C. Fl. Jan. 6, 2020) (class action suit involving state environmental tort claims); MediGrow, LLC v. Natalie M. LaPrade Med. Cannabis Comm’n, 487 F.Supp.3d 364 (D.C. Md. Sept. 16, 2020) (state law claims concern “the intricacies of a new state regulatory scheme”).

Still, courts have found proper district courts’ exercise of discretion in retaining jurisdiction over pendent state law claims after federal claims were dismissed where substantial proceedings had taken place prior to the dismissal of the federal claims and where the remaining state law claims involved no novel legal questions. See, e.g., Nowak, 81 F.3d at 1191-92 (upholding discretionary exercise of supplemental jurisdiction over a state contract claim where the court had expended much effort to acquaint itself with the facts and issues of the case); Raucci v. Town of Rotterdam, 902 F.2d 1050, 1055 (2d Cir. 1990) (the federal claims were dismissed after discovery was completed, the court had decided three dispositive motions and the case was ready for trial, and the state law claims involved settled municipal liability doctrine).

Moreover, “generally, state tort claims are not considered novel or complex.” Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743-44 (11th Cir. 2006) (string citations omitted).

FAWS contends that the only issues remaining in the case are purely based on state law. It further argues that the resolution of its tort claims in nuisance and negligence involve novel and complex issues of state law, including the application and interpretation of the ERA in the context of state tort claims such as nuisance per se. FAWS further argues that further discovery is needed with respect to the state law claims. Indeed, FAWS points out, expert discovery on the state law claims regarding damages (including some expert discovery) has not even begun. As such, FAWS urges the Court to dismiss the state law claims so that they may be appropriately addressed by the state court.

BELCO and EPA respond that dismissal at this stage would be counterproductive and that resolution of the tort claims should remain in this Court. They point out that nuisance and negligence claims are in and of themselves not novel or complex state law claims and the determination of damages arising from these claims need not involve the admittedly novel question of whether the ERA was properly identified as an ARAR. Further, BELCO and EPA point out that FAWS has sought injunctive relief in connection with its tort claims, including an injunction compelling BELCO to remediate the aquifer. Both EPA and BELCO fear that such an order, should it be entered in state court, would be inconsistent with EPA’s prior determinations of the proper remedy and EPA’s arguable primary jurisdiction over remediation of the site. They point out that this Court has continuing jurisdiction over the BELCO Action to enforce the CD, so should maintain the state law claims to avoid any inconsistencies that otherwise may arise.

Here, recognizing that a tremendous amount of work has gone into these cases in this Court and that there are efficiencies to be had in trying the case here, this Court chooses to continue to exercise supplemental jurisdiction over the remaining state law claims. The Court has already been compelled to address the questions related to the ERA that fell under the umbrella of CERCLA, and as things stand the Court does not see a reasonable chance that the ERA will substantially alter the tort claims. On the other hand, FAWS and its members seek several remedies from BELCO - such as remediation of the aquifer - that have the potential to interfere with decisions made in the BELCO Action and EPA’s continued oversight at the Site. Consequently, the Court denies FAWS’ motion to remand the matter to state court and will set a trial date upon the completion of discovery.

CONCLUSION

For the foregoing reasons, this Court grants summary judgment in favor of BELCO with respect to reimbursement of FAWS’s expenses in testing; in favor of EPA with respect to its determination to reopen the Consent Decree and issue the UAO; in favor of FAWS as to vacating EPA’s decision not to require installation of CleanStripping technology on Fartown’s wells; and the Court denies FAWS’ motion to dismiss the remaining state law claims.

IT IS SO ORDERED.

Dated this 1st Day of June, 2022, T. Douglas Dolman

United States District Judge