2:09-cv-02453-CW CONSENT DECREE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

 

WILDEARTH GUARDIANS, )

)

Plaintiff )

)

)

v. ) CASE NO. 4:09-CV-02453-CW 

)

)

LISA JACKSON, in her official capacity as )

Administrator of the Environmental Protection Agency )

)

Defendant ) 

CONSENT DECREE

WHEREAS, plaintiff WildEarth Guardians filed its complaint in this action in the

United States District Court for the Northern District of California on June 3, 2009;

WHEREAS, plaintiff’s complaint alleged that defendant Lisa Jackson, Administrator of

the U.S. Environmental Protection Agency, (“EPA”) has failed to perform a non-discretionary

duty to either approve a State Implementation Plan (“SIP”) or promulgate a Federal

Implementation Plan (“FIP”) for California, Colorado, Idaho, New Mexico, North Dakota,

Oklahoma, and Oregon to satisfy the requirements of Clean Air Act section 110(a)(2)(D)(i), 42

U.S.C. 7410(a)(2)(D)(i), with regard to the 1997 National Ambient Air Quality Standards

(“NAAQS”) for 8-hour ozone and fine particulate matter (“PM2.5");

WHEREAS, it is in the interest of the public, the parties and judicial economy to resolve

this matter without protracted litigation;

WHEREAS, the Court finds and determines that the settlement represents a just, fair,

adequate and equitable resolution of all claims raised in this action.

NOW THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that:

1. This Court has subject matter jurisdiction over the claims set forth in the

complaint and to order the relief contained in this consent decree.

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2. Venue lies in the Northern District of California.

3. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this

Court’s jurisdiction to enter and enforce this Consent Decree. Upon entry, no party shall

challenge the terms of this Consent Decree. This Consent Decree constitutes a final resolution of

all claims raised in the complaint.

4. No later than May 10, 2010, the Administrator shall sign a notice or notices:

(a) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for (i) New Mexico and North Dakota to meet the requirement of

42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding contributing significantly to nonattainment in other

states for the 1997 NAAQS for 8-hour ozone and PM2.5, and (ii) Colorado to meet the

requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding contributing significantly to

nonattainment in other states for the 1997 NAAQS for 8-hour ozone; and

(b) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP for North Dakota to meet the requirement of 42 U.S.C.

§ 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to prevention of

significant deterioration of air quality.

5. No later than November 10, 2010, the Administrator shall sign a notice or notices:

(a) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for Idaho to meet the requirement of 42 U.S.C.

§ 7410(a)(2)(D)(i)(I) regarding contributing significantly to nonattainment in other states for the

1997 NAAQS for 8-hour ozone and PM2.5;

(b) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for (i) Idaho, New Mexico, and North Dakota to meet the

requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding interfering with maintenance of

attainment in other states for the 1997 NAAQS for 8-hour ozone and PM2.5, and (ii) Colorado to

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meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding interfering with maintenance

of attainment in other states for the 1997 NAAQS for 8-hour ozone; and

(c) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for Idaho, New Mexico, and Oklahoma to meet the requirement of

42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to

prevention of significant deterioration of air quality.

6. No later than May 10, 2011, the Administrator shall sign a notice or notices:

(a) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for (i) California, Oklahoma, and Oregon to meet the requirement

of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding contributing significantly to nonattainment in other

states for the 1997 NAAQS for 8-hour ozone and PM2.5, and (ii) Colorado to meet the

requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding contributing significantly to

nonattainment in other states for the 1997 NAAQS for PM2.5; 

(b) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for (i) California, Oklahoma, and Oregon to meet the requirement

of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding interfering with maintenance of attainment in other

states for the 1997 NAAQS for 8-hour ozone and PM2.5, and (ii) Colorado to meet the

requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(I) regarding interfering with maintenance of

attainment in other states for the 1997 NAAQS for PM2.5; and

(c) either approving a SIP, promulgating a FIP, or approving a SIP in part with

promulgation of a partial FIP, for California, Colorado, and Oregon to meet the requirement of

42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures in other states related to

prevention of significant deterioration of air quality.

7. (a) No later than May 10, 2011, the Administrator shall sign a notice or notices

either approving a SIP, promulgating a FIP, or approving a SIP in part with promulgation of a

partial FIP, for California, Colorado, Idaho, New Mexico, North Dakota, Oklahoma, and Oregon

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to meet the requirement of 42 U.S.C. § 7410(a)(2)(D)(i)(II) regarding interfering with measures

in other states related to protection of visibility;

(b) If any of the States identified in paragraph 7(a) has not submitted an

administratively complete proposed SIP to address the visibility requirement of 42 U.S.C.

§ 7410(a)(2)(D)(i)(II) by May 10, 2010, then by November 10, 2010, the Administrator shall

sign a notice or notices proposing for each such State either promulgation of a FIP, approval of a

SIP (if one has been submitted in the interim), or partial promulgation of a FIP and partial

approval of a SIP, to address the visibility requirement.

8. Within 15 business days following signature of such action required by

paragraphs 4 - 7, EPA shall deliver notice of such action to the Office of the Federal Register for

prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not

take any step (other than as necessary to correct within 10 business days after submittal any

typographical or other errors in form) to delay or otherwise interfere with publication of such

notice in the Federal Register.

9. The deadlines in paragraphs 4 through 7 may be extended for a period of 60 days

or less by written stipulation executed by counsel for WildEarth Guardians and EPA and filed

with the Court. Any other extension to the decree deadlines may be approved by the Court upon

motion by any party to this Consent Decree and upon consideration of any response by the

non-moving party.

10. Plaintiff alleges that it is the “prevailing party” in this action and that,

as such, it is entitled to reasonable attorney’s fees and costs pursuant to section 304 of the CAA,

42 U.S.C. § 7604. The parties hereby agree to settle all of Plaintiff’s claims for attorney’s fees

and costs in this action, without further litigation or any final determination regarding

entitlement to or reasonableness of attorney’s fees and costs, for a total of $ 22,420.00. 

Payment shall be made by electronic funds transfer to the account specified by Plaintiff’s

counsel Robert Ukeiley. Plaintiff agrees to provide counsel for Defendant all necessary

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information for processing the electronic funds transfer within five (5) business days of receipt

of the Court’s order entering this Consent Decree. In the event that the payment required by this

Paragraph is not made within 90 days of entry of this Order, interest on the unpaid balance shall

be paid at the rate established pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a),

commencing on the effective date of this Order and accruing through the date of the payment.

11. Plaintiff agrees that receipt from Defendant of the payment described in

Paragraph 10 shall operate as a release of Plaintiff’s claims for attorneys’ fees and costs in this

matter through and including the date of this agreement. The parties agree that Plaintiff reserves

the right to seek additional fees and costs incurred subsequent to this agreement arising from a

need to enforce or defend against efforts to modify the schedule outlined herein, or for any other

unforeseen continuation of this action.

12. By this agreement, Defendant does not waive any right to contest fees claimed by

Plaintiff or Plaintiff’s counsel, including the hourly rate, in any future litigation, or in any

continuation of the present action. Further, this stipulation as to attorney’s fees and costs has no

precedential value and shall not be used as evidence in any other attorneys’ fees litigation.

13. The Court shall retain jurisdiction to determine and effectuate 

compliance with this Consent Decree. Upon EPA’s demonstration that it has satisfied all of the

obligations of this Consent Decree it may move to have this decree terminated. Plaintiff shall

have twenty days in which to respond to such motion.

14. Except as provided herein, 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.

15. The parties agree and acknowledge that final approval and entry of this proposed

Consent Decree are subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). 

That subsection provides that notice of this proposed Decree be given to the public, that the

public shall have a reasonable opportunity to make any comments, and that the Administrator or

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the Attorney General, as appropriate, must consider those comments in deciding whether to

consent to this Consent Decree.

16. Nothing in the terms of this Consent Decree shall be construed to waive any

remedies plaintiff may have under section 307(b)(1) of the Clean Air Act, 42 U.S.C. §

7607(b)(1). 

17. In the event of a dispute between the parties concerning the interpretation or

implementation of any aspect of this Consent Decree, the disputing party shall contact the other

party to confer and attempt to reach an agreement on the disputed issue. If the parties cannot

reach an agreed-upon resolution, then either party may move the Court to resolve the dispute. 

18. EPA’s commitments in this Decree are subject to the availability of appropriated

funds. No provision of this Decree shall be interpreted as or constitute a commitment or

requirement that EPA obligate funds in contravention of the Anti-Deficiency Act, 31 U.S.C. §

1341 or any other applicable law or regulation.

19. The undersigned representatives of each party certify that he is

fully authorized to consent to the Court’s entry of the terms and conditions of this Consent

Decree.

Dated: February 18, 2010 /S/ James J. Tuchton (by permission)

James J. Tutchton (CA Bar No. 150908)

WildEarth Guardians

1536 Wynkoop St., Suite 301

Denver, CO 80202

Telephone: (303) 573-4898

Of Counsel:

Robert Ukeiley

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Tel: (859) 986-5402

Fax: (859) 618-1017

Counsel for Plaintiff

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IGNACIA S. MORENO

Assistant Attorney General

Dated: February 18, 2010 /S/ Norman L. Rave, Jr. 

NORMAN L. RAVE, JR.

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 616-7568

Fax: (202) 514-8865

Counsel for Defendant

IT IS SO ORDERED.

2/23/10

Dated: _________________ _______________________________

The Honorable Claudia Wilken

United States District Judge

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