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JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

United States Department of Justice

LESLIE M. HILL (D.C. Bar No. 476008)

Leslie.Hill@usdoj.gov

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Telephone (202) 514-0375

Facsimile (202) 514-8865

Attorneys for Defendant

ROBERT UKEILEY, Admitted Pro Hac Vice

Law Office of Robert Ukeiley

255 Mountain Meadow Road

Boulder, CO 80302

Telephone (303) 442-4033

Email: rukeiley@igc.org

[additional attorney for Plaintiff included in signature block]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

SIERRA CLUB,

Plaintiff,

v.

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency,

Defendant.

Case No. 3:12-cv-06472-CRB

[PROPOSED] CONSENT DECREE

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WHEREAS, on December 21, 2012, Plaintiff Sierra Club filed the abovecaptioned matter against Gina McCarthy, in her official capacity as Administrator of the 

United States Environmental Protection Agency (hereinafter “EPA” or “Defendant”);

WHEREAS, Plaintiff alleges that EPA has failed to undertake certain nondiscretionary duties under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and 

that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. §

7604(a)(2);

WHEREAS, pursuant to CAA section 109(a)(1), 42 U.S.C. § 7409(d)(1), EPA 

promulgated a final rule revising the fine particulate matter, or PM2.5, National Ambient 

Air Quality Standard (“NAAQS”), Final Rule, 71 Fed. Reg. 61,144 (Oct. 16, 2006); 

WHEREAS, pursuant to CAA section 110(d)(1), 42 U.S.C. § 7410(d)(1), “[e]ach 

State shall, . . . submit to the Administrator, within 3 years . . . after the promulgation of a 

[NAAQS] (or revision thereof) under section 7409 of this title for any air pollutant, a plan 

which provides for implementation, maintenance, and enforcement of such primary 

standard in each air quality control region (or portion thereof) with each State,” a state 

implementation plan (“SIP”), often referred to as an infrastructure SIP;

WHEREAS, such SIP submittals must meet the requirements set forth in section 

110(a)(2)(A)-(M), 42 U.S.C. § 7410(a)(2)(A)-(M);

WHEREAS, EPA must then determine whether a State’s submittal is complete 

within six months after EPA receives the submission. 42 U.S.C. § 7410(k)(1)(B). If 

EPA does not determine completeness of the plan or revision within six months, then the 

submittal is deemed complete by operation of law after six months. Id.; 

WHEREAS, within 12 months of a determination of completeness or a 

determination by operation of law, EPA must act on the plan or revision. 42 U.S.C. § 

7410(k)(2). EPA must approve in whole or in part, disapprove, or conditionally approve 

in whole or in part the plan or revision. Id. § 7410(k)(3)-(4);

WHEREAS, if a state fails to make a required submission or if EPA finds that a 

plan or revision submitted by a state is incomplete or disapproves a plan or revision 

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submitted by a state, EPA must promulgate a Federal implementation plan (“FIP”) to 

address the deficiencies “at any time within 2 years,” 42 U.S.C. § 7410(c)(1);

WHEREAS, pursuant to CAA section 110(a)(1), 42 U.S.C. § 7410(a)(1), states 

were required to submit infrastructure SIPs within 3 years of promulgation of the 2006 

PM2.5 NAAQS, by no later than October 16, 2009;

WHEREAS, pursuant to CAA section 110(k)(2)-(4), 42 U.S.C. § 7410(k)(2)-(4), 

EPA was required to approve in whole or in part, disapprove, or conditionally approve in 

whole or in part, each plan or revision, within 12 months of a determination of 

completeness by EPA or a determination deemed by operation of law to be complete; 

WHEREAS, in Claim 1, Plaintiff alleges that EPA has failed to perform a duty 

mandated by CAA sections 110(k)(2)-(4), 42 U.S.C. §§ 7410(k)(2)-(4), to take final 

action to approve or disapprove, in whole or in part, certain infrastructure SIP

submissions for the 2006 PM2.5 NAAQS from the following states and requirements, see

Compl. ¶ 3 (Dkt. No. 1):

STATE REQUIREMENT(S)

Illinois 42 U.S.C. § 7410(a)(2)(D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. § 

7410(a)(2)(E)(ii)

Michigan 42 U.S.C. § 7410(a)(2)(D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. § 

7410(a)(2)(E)(ii)

Nebraska 42 U.S.C. § 7410(a)(2)(A)-(C), (D)(i)(I) (Prong 1, interstate transport, 

significant contribution only), (D)(i)(II) (Prong 3, PSD only), (D)(ii), (E)-(M)

South 

Dakota

42 U.S.C. § 7410(a)(2)(A)-(D)(i), (E)-(M)

Wisconsin 42 U.S.C. § 7410(a)(2)(D)(i)(II) (Prong 3 PSD and Prong 4 visibility), (E)(ii)

California 42 U.S.C. § 7410(a)(2)(A)-(B), (D)-(H), and (K)-(M)

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WHEREAS, EPA took final action disapproving Illinois’ SIP revision addressing 

part of the requirements of the requirements of section 110(a)(2)(D)(i)(II)(prong 3 PSD 

only), 42 U.S.C. § 7410(a)(2)(D)(i)(II)(prong 3 PSD only). Final Rule, 77 Fed. Reg. 

65,478, 65,485 (Oct. 29, 2012). Therefore Claim 1 as to that provision section 

110(a)(2)(D)(i)(II)(prong 3 PSD only) fails to state a claim;

WHEREAS, on September 29, 2014, EPA took final action finding that California 

failed to submit a SIP to satisfy the attainment and maintenance interstate transport 

requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. § 7410(a)(2)(D)(i)(I), with respect 

to the 2006 24-hour NAAQS for PM2.5, Final Rule, 79 Fed. Reg. 63,536 (Oct. 24, 2014), 

and therefore Claim 1 is moot as to that provision;

WHEREAS, in Claim 2, Plaintiff alleges that EPA has failed to perform a duty 

mandated by CAA sections 110(c)(1), 42 U.S.C. §§ 7410(c)(1), to “promulgate a Federal 

implementation plan at any time within 2 years after the Administrator--(A) finds that a 

State has failed to make a required submission or finds that the plan or plan revision 

submitted by the State does not satisfy the minimum criteria established under subsection 

(k)(1)(A) of this section, or (B) disapproves a State implementation plan submission in 

whole or in part,” addressing the requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. §§ 

7410(a)(2)(D)(i)(I), for the following states, see Compl. ¶ 4 (Dkt. No. 1):

Alaska, Colorado, District of Columbia, Idaho, Illinois, Iowa, 

Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, 

North Dakota, Oregon, Pennsylvania, South Dakota, Utah, West 

Virginia, Wisconsin, and Wyoming;

WHEREAS, effective July 9, 2010, EPA found that the following states or 

territories failed to submit SIPs to satisfy the attainment and maintenance interstate 

transport requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. § 7410(a)(2)(D)(i)(I), with 

respect to the 2006 24-hour NAAQS for PM2.5, Final Rule, 75 Fed. Reg. 32,673 (June 9, 

2010):

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Alaska, Colorado, Idaho, Illinois, Iowa, Louisiana, Maryland, 

Michigan, Minnesota, Montana, Nebraska, North Dakota, Oregon,

Pennsylvania, South Dakota, Utah, Virginia, West Virginia, 

Wisconsin, Wyoming, and the District of Columbia;

WHEREAS, EPA promulgated the Cross-State Air Pollution Rule (the “Transport 

Rule”), in part to address, for the following ten states, the requirements of section 

110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM2.5 NAAQS, Federal 

Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and 

Correction of SIP Approvals, 76 Fed. Reg. 48,208 (Aug. 8, 2011):

Illinois, Iowa, Maryland, Michigan, Minnesota, Nebraska, 

Pennsylvania, Virginia, West Virginia, and Wisconsin;

WHEREAS, the Transport Rule “defines each State’s emissions reduction 

obligations under the good neighbor provision” and “prescribes Federal Implementation 

Plans to implement those obligations at the State level.” EME Homer City Generation, 

L.P. v. EPA, 696 F.3d 7, 15 (D.C. Cir. 2012), rev’d and remanded, 572 U.S. --, 134 S.Ct. 

1584 (2014);

WHEREAS, the Transport Rule was vacated on August 21, 2012, EME Homer 

City, 696 F.3d at 11-12, 38; however, the judgment of the D.C. Circuit was reversed and 

the cases remanded for further proceedings consistent with the Supreme Court’s opinion, 

EPA v. EME Homer City Generation, L.P., 572 U.S. --, 134 S.Ct. 1584, 1610 (2014). On 

EPA’s motion, the Court of Appeals lifted the stay of the Transport Rule, Order (D.C. 

Cir., Doc. No. 1518738, Oct. 23, 2014);

WHEREAS, Claim 2, therefore, is now moot as to Illinois, Iowa, Maryland, 

Michigan, Minnesota, Nebraska, Pennsylvania, Virginia, West Virginia, and Wisconsin;

WHEREAS, EPA took final action approving Alaska’s SIP revision addressing 

the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I), Final Rule, 79 Fed. Reg. 45,103, 

45,104 (Aug. 4, 2014), and therefore Claim 2 as to Alaska is moot;

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WHEREAS, EPA took final action approving in part and disapproving in part, 

Montana’s SIP submittal addressing the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I), 

concluding that the “existing Montana SIP is . . . adequate to meet the requirements of

CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS,” Final Rule, 78 

Fed. Reg. 45,869 (July 30, 2013), and therefore Claim 2 as to Montana is moot;

WHEREAS, EPA took final action approving North Dakota’s SIP submittal 

addressing the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I), concluding that “that 

North Dakota’s existing SIP is adequate to address the requirements of CAA section 

110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS,” Final Rule, 78 Fed. Reg. 45,457 (July 

29, 2013), and therefore Claim 2 as to North Dakota is moot;

WHEREAS, EPA took final action approving Louisiana’s SIP submittal

addressing the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I), Final Rule, 79 Fed. Reg. 

21,142 (April 15, 2014), and therefore Claim 2 as to Louisiana is moot;

WHEREAS, EPA took final action disapproving Utah’s SIP submittal addressing 

the requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I), Final Rule, 78 Fed. Reg. 48,615

(Aug. 9, 2013), and therefore Claim 2 as to Utah is moot;

WHEREAS, EPA has not taken final action pursuant to CAA section 

110(a)(2)(D)(i)(I), 42 U.S.C. § 74110(a)(2)(D)(i)(I), to promulgate a FIP for the six

remaining states or territories:

Colorado, the District of Columbia, Idaho, Oregon, South Dakota, 

and Wyoming;

WHEREAS, the relief requested in the Complaint includes, among other things, 

an order from this Court to establish a date certain by which EPA must fulfill its 

obligations for both Claims 1 and 2;

WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without 

admission of any issue of fact or law, except as expressly provided herein;

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WHEREAS, Plaintiff and EPA, by entering into this Consent Decree, do not 

waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA 

action;

WHEREAS, Plaintiff and EPA consider this Consent Decree to be an adequate 

and equitable resolution of all the claims in this matter and therefore wish to effectuate a 

settlement;

WHEREAS, it is in the interest of the public, Plaintiff Sierra Club, Defendant 

EPA, and judicial economy to resolve this matter without protracted litigation;

WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 

U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3-2(c)-(d);

WHEREAS, the Court, by entering this Consent Decree, finds that the Consent 

Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;

NOW THEREFORE, before the taking of testimony, without trial or 

determination of any issues of fact or law, and upon the consent of Plaintiff Sierra Club

and Defendant EPA, it is hereby ordered, adjudged and decreed that:

1. Claim 1 and 2.

a. Claim 1. The appropriate EPA official shall sign a notice of final 

rulemaking to approve, disapprove, or approve in part and disapprove in part, certain 

plans pursuant to sections 110(k)(2)-(4) of the CAA, 42 U.S.C. §§ 7410(k)(2)-(4), no 

later than the date indicated below for the following areas for the 2006 PM2.5 NAAQS:

i. California for the requirements of 42 U.S.C. § 7410(a)(2)(A)-

(B), (D)(i)(II), (D)(ii), (E)-(H), and (K)-(M) by November 30, 2015;

ii. Illinois for the requirements of 42 U.S.C. § 7410(a)(2)(E)(ii) by 

November 30, 2015;

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iii. Michigan for the requirements of 42 U.S.C. § 

7410(a)(2)(D)(i)(II) (Prong 3 PSD only) and 42 U.S.C. § 7410(a)(2)(E)(ii) by November 

30, 2015; 

iv. Nebraska for the requirements of 42 U.S.C. § 7410(a)(2)(A)-

(C), (D)(i)(I)(Prong 1 – Interstate Transport – significant contribution only), 

(D)(i)(II)(Prong 3 PSD only), (D)(ii), and (E)-(H), (J)-(M) by November 30, 2015; 

v. South Dakota for the requirements of 42 U.S.C. § 

7410(a)(2)(A)-(D)(i), (E)-(M) by November 30, 2015; and

vi. Wisconsin for the requirements of 42 U.S.C. § 

7410(a)(2)(D)(i)(II) (Prong 3 PSD and Prong 4 visibility), and (E)(ii) by November 30, 

2015.

b. Claim 2. The appropriate EPA official shall sign a notice of final 

rulemaking to either promulgate a Federal implementation plan pursuant to section 

110(c)(1)(A)-(B) of the CAA, 42 U.S.C. §§ 7410(c)(1)(A)-(B), or to approve in full, a 

state implementation plan pursuant to section 110(k)(2)-(4) of the CAA, 42 U.S.C. § 

7410(k)(2)-(4), addressing the requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. § 

7410(d)(2)(D)(i)(I), no later than the date indicated below for the following states for the 

2006 PM2.5 NAAQS:

i. Colorado by July 31, 2015;

ii. District of Columbia by November 30, 2015;

iii. Idaho by November 30, 2015;

iv. Oregon by September 30, 2015; 

v. South Dakota by November 30, 2015; and

vi. Wyoming by July 31, 2015. 

2. EPA shall, within 15 days of signature, deliver notice of each action taken 

pursuant to Paragraph 1 of this Consent Decree to the Office of the Federal Register for 

review and publication.

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3. After EPA has completed the actions set forth in Paragraph 1 of this Consent 

Decree and after notice of each final action required by Paragraph 1 has been published 

in the Federal Register and the issue of costs of litigation, including attorneys fees, has 

been resolved, EPA may move to have this Decree terminated and the action dismissed. 

Plaintiff shall have fourteen (14) days in which to respond to such a motion, unless the 

parties stipulate to a longer time for Plaintiff to respond.

4. The deadlines established by this Consent Decree may be extended (a) by 

written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon 

motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure 

and upon consideration of any response by Plaintiff and any reply by EPA. 

5. If a lapse in appropriations for EPA occurs within one hundred and twenty 

(120) days prior to any deadline in Paragraph 1 in this Decree, that deadlines shall be 

extended automatically one day for each day of the lapse in appropriations.

6. Plaintiff and EPA agree that this Consent Decree shall constitute a complete 

and final settlement of all claims that Plaintiff has asserted against the United States, 

including EPA, under any provision of law in connection with Sierra Club v. McCarthy, 

Case No. 3:12-cv-06472-CRB (N.D. Cal.). The Sierra Club therefore discharges and 

covenants not to sue the United States, including EPA, for any such claims.

7. In the event of a dispute between Plaintiff and EPA concerning the 

interpretation or implementation of any aspect of this Consent Decree, the disputing party 

shall provide the other party with a written notice outlining the nature of the dispute and 

requesting informal negotiations. These parties shall meet and confer in order to attempt 

to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) 

business days after receipt of the notice, either party may petition the Court to resolve the 

dispute.

8. No motion seeking to enforce this Consent Decree or for contempt of Court 

shall be properly filed unless the procedure set forth in Paragraph 7 has been followed, 

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and the non-moving party has been provided with written notice at least ten (10) business 

days before the filing of such motion.

9. The deadline for filing a motion for costs of litigation (including attorney fees) 

for activities performed prior to entry of the Consent Decree is hereby extended until 

ninety (90) days after this Consent Decree is entered by the Court. During this period, 

the Parties shall seek to resolve informally any claim for costs of litigation (including 

attorney fees), and if they cannot, the Sierra Club will file a motion for costs of litigation 

(including attorney fees) or a stipulation or motion to extend the deadline to file such a 

motion. EPA reserves the right to oppose any such request. 

10. This Court shall retain jurisdiction over this matter to enforce the terms of 

this Consent Decree and to consider any requests for costs of litigation, including 

attorney fees.

11. Nothing in the terms of this Consent Decree shall be construed (a) to confer 

upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction 

of the United States Courts of Appeals under CAA section 307(b)(1), 

42 U.S.C. § 7607(b)(1), including final action take pursuant to section 110(k) of the 

CAA, 42 U.S.C. § 7410(k), approving, disapproving, or approving in part and 

disapproving in part a SIP submittal and promulgating a FIP pursuant to section 110(c) of 

the CAA, 42 U.S.C. § 7410(c), or (b) to waive any claims, remedies, or defenses that the 

parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

12. Nothing in this Consent Decree shall be construed to limit or modify any 

discretion accorded EPA by the Clean Air Act or by general principles of administrative 

law in taking the actions which are the subject of this Consent Decree, including the 

discretion to alter, amend, or revise any final actions promulgated pursuant to this 

Consent Decree. EPA’s obligation to perform each action specified in this Consent 

Decree does not constitute a limitation or modification of EPA’s discretion within the 

meaning of this paragraph.

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13. Except as expressly provided herein, nothing in this Consent Decree shall be 

construed as an admission of any issue of fact or law nor to waive or limit any claim, 

remedy, or defense, on any grounds, related to any final action EPA takes with respect to 

the actions addressed in this Consent Decree.

14. Plaintiff reserves the right to seek additional costs of litigation, including 

reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising 

from Plaintiff’s need to enforce or defend against efforts to modify its terms or the 

underlying schedule outlined herein, or for any other unforeseen continuation of this 

action. EPA reserves the right to oppose any such request for additional costs of 

litigation, including reasonable attorney fees. 

15. It is hereby expressly understood and agreed that this Consent Decree was 

jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree that any and 

all rules of construction to the effect that ambiguity is construed against the drafting party 

shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of 

this Consent Decree.

16. The parties agree and acknowledge that before this Consent Decree can be 

finalized and entered by the Court, EPA must provide notice of this Consent Decree in 

the Federal Register and an opportunity for public comment pursuant to CAA 

section 113(g), 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and 

comment, the Administrator and/or the Attorney General, as appropriate, shall promptly 

consider any written comments in determining whether to withdraw or withhold their 

consent to the Consent Decree, in accordance with CAA section 113(g). If the 

Administrator and/or the Attorney General do not elect to withdraw or withhold consent, 

EPA shall promptly file a motion that requests that the Court enter this Consent Decree.

17. Any notices required or provided for by this Consent Decree shall be in 

writing, via electronic mail or other means, and sent to the following (or to any new 

address of counsel as filed and listed in the docket of the above-captioned matter, at a 

future date):

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For Plaintiff Sierra Club:

Robert Ukeiley

Law Office of Robert Ukeiley

255 Mountain Meadow Road

Boulder, CO 80302

Tel. (303) 442-4033Email: rukeiley@igc.org

ANDREA ISSOD (Cal. Bar No. 230920) 

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Tel. (415) 977-5544 

Facsimile (415) 977-5793

Email: andrea.issod@sierraclub.org 

For Defendant EPA: Leslie M. Hill

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

18. EPA and Plaintiff recognize and acknowledge that the obligations imposed 

upon EPA under this Consent Decree can only be undertaken using appropriated funds 

legally available for such purpose. No provision of this Consent Decree shall be 

interpreted as or constitute a commitment or requirement that the United States obligate 

or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other 

applicable provision of law. 

19. If for any reason the Court should decline to approve this Consent Decree in 

the form presented, this agreement is voidable at the sole discretion of either party and 

the terms of the proposed Consent Decree may not be used as evidence in any litigation 

between the parties.

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20. The undersigned representatives of Plaintiff Sierra Club and Defendant EPA 

certify that they are fully authorized by the party they represent to consent to the Court’s 

entry of the terms and conditions of this Decree.

SO ORDERED on this _____ day of _____________________, 2015. 

 

 

________________________________

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFF:

 /s/ Robert Ukeiley (email authorization 1/9/15) 

Robert Ukeiley, Admitted Pro Hac Vice

Law Office of Robert Ukeiley

255 Mountain Meadows Road

Boulder, CO 80302

Telephone (303) 442-4033

Email: rukeiley@igc.org

ANDREA ISSOD (Cal. Bar No. 230920) 

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Telephone (415) 977-5544 

Facsimile (415) 977-5793

andrea.issod@sierraclub.org 

Attorneys for Plaintiff Sierra Club

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CASE NO. 3:12-CV-06472-CRB

[Proposed] Consent Decree

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COUNSEL FOR DEFENDANT: JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

/s/ Leslie M. Hill

LESLIE M. HILL (D.C. Bar No. 476008)

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

Attorneys for Defendant EPA

Of counsel:

Ragan S. Tate

Office of General Counsel

U.S. Environmental Protection Agency

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CASE NO. 3:12-CV-06472-CRB

[Proposed] Consent Decree

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