NOTE. Click here for the Revised
Problem reflecting these questions and answers.
1. Q. Is each member of a 3 person team required to do an oral
argument?
A. Each member of a 3 person team must argue in at least one of the
preliminary rounds. Rule VCl.
2. Q. How can the United States District Court for the District of
New Union deny a motion to dismiss all of the CWA causes of action and then certify an
order for appeal because there was a commonality of issues between the dismissed causes of
action under the CWA and the remaining causes of action under RCRA, if the CWA causes of
actin were not dismissed?
A. There are inconsistencies between the certification and the
order. The motions to dismiss the CWA counts were denied. To correct the inconsistencies,
the following changes are made:
l. The order of the Court of Appeals is amended by placing a period
(.) after §1292(b) on the eleventh line of the first paragraph and by striking the
remainder of the paragraph.
2. The District Court's opinion is amended by striking the first
sentence of the Certification paragraph on the last page, striking
"Accordingly," and "dismissal of these" in the second sentence, and
inserting "denial of the motions to dismiss the" in place of "dismissal of
these." This should not change your briefing, as the propriety of the
certification is not at issue.
3. Q. The rules state that teams must follow the Bluebook 16th
edition. Is compliance with Rule 1.2 (the new "See" rule) required?
A. Yes.
4. Q. Can the team assume that New Union is a state that does not
have a state-administered NPDES permit program?
A. Yes.
5. Q. The order indicates that only XXX is appealing. Is it also appealing issue #2
(ripeness), where the district court essentially ruled in its favor?
A. XXX made the motions to dismiss and only XXX is appealing their
denial, although FOR is appealing the ripeness ruling. Although New Union agrees with XXX
on the merits of the motion to dismiss the permit violation causes of action, it believes
XXX is time barred from challenging the enforceability of the underlying permit
provisions. These position are not as inconsistent as they may first appear to you. As the
administrator of permit programs under various state laws, New Union has an interest in
seeing that time bars, such as CWA §509 are strictly enforced, foreclosing further
dispute and litigation over the validity of permit terms. At the same time, it has an
interest to see that the water quality standard provisions of federal law are interpreted
in the same manner as the comparable provisions of state law.
6. Q. Is FOR appealing the ripeness ruling?
A. FOR is appealing that ruling and New Union joins it.
7. Is New Union appealing some issues but not others?
A. Although New Union intervened as a plaintiff, it doesn't
necessarily support the original plaintiff on all issues. It hasn't appealed any of the
dismissals of motions or specific rulings of the District Court. But it supports some of
those rulings and opposes others. The Court has given it leave to file a brief and time to
argue its positions on all issues.
8. Q. Isn't the MCL for selenium 0.05 mg/L, not 0.005 mgl as
indicated on page 5 of the problem? If so, doesn't the Roaritan meet the MCL both above
and below the XXX outfall?
A. You are right, the MCL is 0.05, 40 CFR §141.62. The figures in the problem are changed
to reflect that fact. The Roaritan meets the MCL above the XXX outfall, but not
below it.
Please address questions about the National Environmental Law Moot
Court Competition to Carole Speight, Competition Administrator:
E-mail - cspeight@law.pace.edu, Phone: (914) 422-4413.
Last updated February 10, 2003
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