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CONSENT DECREE Case No. 10-cv-01954 CRB

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

ROCHELLE L. RUSSELL (Cal. Bar No. 244992)

Trial Attorney

U.S. Department of Justice

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94150

Tel: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

Attorney for Defendants

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB and MEDICAL

ADVOCATES FOR HEALTHY AIR,

Plaintiffs,

v.

LISA P. JACKSON, in her official capacity as

Administrator of the United States

Environmental Protection Agency, and

JARED BLUMENFELD, in his official

capacity as Regional Administrator for Region

IX of the United States Environmental

Protection Agency, 

Defendants.

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Case No. 10-cv-01954 CRB

CONSENT DECREE

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CONSENT DECREE 1 Case No. 10-cv-01954 CRB

WHEREAS, on May 6, 2010, Plaintiffs Sierra Club and Medical Advocates for Healthy

Air filed the complaint in the above-captioned matter against Defendants Lisa P. Jackson, in her

official capacity as Administrator of the United States Environmental Protection Agency, and

Jared Blumenfeld, in his official capacity as Regional Administrator for Region IX of the United

States Environmental Protection Agency (collectively, “EPA”), alleging that EPA failed to fulfill

a certain nondiscretionary duty 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 Act, 42 U.S.C. § 7604(a)(2); 

WHEREAS, section 110(a)(1) of the CAA, 42 U.S.C. § 7410(a)(1), requires States to

adopt and submit to EPA for review state implementation plans (“SIPs”), which establish

specific control measures and other requirements that apply to particular sources of air pollution

within a State and are designed to attain, maintain, and enforce National Ambient Air Quality

Standards established by EPA that specify the maximum permissible concentrations for those 

pollutants in the ambient air, see 42 U.S.C. §§ 7408, 7409; 

WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets forth the process by

which EPA is to review SIP submissions, including SIP revisions;

WHEREAS, Plaintiffs’ complaint alleges that EPA has a nondiscretionary duty to act on

SIP submissions and revisions submitted to EPA within the time lines set forth in section

110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2);

WHEREAS, Plaintiffs’ complaint alleges that EPA has failed to take timely action to

approve or disapprove the San Joaquin Valley Air Pollution Control District’s 8-Hour Ozone

Plan, which was submitted to EPA on November 16, 2007 and includes regulatory and incentivebased measures to reduce emissions of nitrogen oxides and volatile organic compounds, which

react in the atmosphere to form ozone, throughout the San Joaquin Valley (hereinafter, the “8-

Hour Ozone Plan”);

WHEREAS, Plaintiffs’ complaint seeks an order from this Court directing EPA to take

action on the 8-Hour Ozone Plan pursuant to section 110(k) of the CAA;

WHEREAS, the parties have agreed to a settlement of this action without admission of

any issue of fact or law;

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CONSENT DECREE 2 Case No. 10-cv-01954 CRB

WHEREAS, EPA intends to provide public notice and an opportunity to comment on its

proposed action on any SIP submission, or revision thereto, that provides a basis for the final

action specified in Paragraph 1 below, and to consider and address in that final action any

relevant comments received; 

WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any

claim or defense, on any grounds, related to any final EPA action;

WHEREAS, the parties consider this Consent Decree to be an adequate and equitable

resolution of all of the claims in this matter;

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

this matter without protracted litigation; 

WHEREAS, the parties agree that this Court has jurisdiction over this matter pursuant to

the citizen suit provision in section 304(a)(2) of the CAA and that venue lies in the Northern

District of California; 

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

fair, reasonable, in the public interest, and consistent with the CAA;

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

issue of fact or law, and upon the consent of the parties, it is hereby ordered, adjudged and

decreed that:

1. No later than December 15, 2011, EPA shall sign a notice of the Agency’s final

action on the 8-Hour Ozone Plan pursuant to section 110(k) of the CAA, and thereafter send the

notice to the Office of the Federal Register for publication. 

2. When EPA’s obligations under Paragraph 1 have been completed, the parties will

file a joint request to the Court to dismiss this matter with prejudice.

3. The parties may extend the deadlines established in Paragraphs 1 and 9 by written

stipulation executed by counsel for the parties and filed with the Court. In addition, the deadlines

established in Paragraphs 1 and 9 may be extended by the Court upon motion by any party to this

Consent Decree for good cause shown, after consideration of any response by the non-moving

party. 

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CONSENT DECREE 3 Case No. 10-cv-01954 CRB

4. Nothing in this Consent Decree shall be construed to limit or modify the

discretion accorded EPA by the CAA and by general principles of administrative law, including

the discretion to alter, amend or revise any response and/or final action contemplated by this

Consent Decree. EPA’s obligation to take the action set forth in Paragraph 1 by the time

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

meaning of this paragraph.

5. Nothing in this Consent Decree shall be construed to confer upon the district court

jurisdiction to review any decision made in the final action identified in Paragraph 1. Nothing in

this Consent Decree shall be construed to confer upon the district court jurisdiction to review any

issues that are within the exclusive jurisdiction of the United States Courts of Appeals pursuant

to sections 307(b)(1) and 505 of the CAA, 42 U.S.C. §§ 7607(b)(1), 7661d.

6. This Court shall retain jurisdiction to enforce the terms of this Consent Decree

and to consider any requests for costs of litigation, including attorneys’ fees. 

7. 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 provide the other

party with a written notice outlining the nature of the dispute and requesting informal

negotiations. If the parties cannot reach an agreed-upon resolution within ten (10) business days

after receipt of the notice, any party may move the Court to resolve the dispute. 

8. No motion or other proceeding seeking to enforce this Consent Decree shall be

considered properly filed, unless Plaintiffs have followed the procedure set forth in Paragraph 7

and provided EPA with written notice received at least ten (10) business days before the filing of

such motion or proceeding.

9. EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d),

Plaintiffs are both eligible and entitled to recover their costs of litigation in this action, including

reasonable attorneys’ fees, incurred prior to entry of this Consent Decree. The deadline for filing

a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including

reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior

to entry of this Consent Decree, is hereby extended until 90 days after the date on which the

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CONSENT DECREE 4 Case No. 10-cv-01954 CRB

Court enters this Consent Decree. During this time the parties shall seek to resolve informally

any claim for costs of litigation, including reasonable attorneys’ fees. 

10. The obligations imposed upon EPA under this Consent Decree may only be

undertaken using appropriated funds. No provisions of this Consent Decree shall be interpreted

as or constitute a commitment or requirement that EPA obligate or pay funds in contravention of

the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal law. 

11. The parties agree and acknowledge that before this Consent Decree is entered by

the Court, EPA must provide notice of this Consent Decree in the Federal Register and an

opportunity for public comment pursuant to section 113(g) of the CAA, 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 such written comments in

determining whether to withdraw or withhold their consent to the Consent Decree, in accordance

with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to

withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to

enter this Consent Decree.

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

writing, via facsimile, e-mail or other means, and sent to the following:

For Plaintiffs:

Paul R. Cort

Deborah S. Reames

Earthjustice

426 17th Street, 5th Floor

Oakland, CA 94612

Phone: (510) 550-6725

Fax: (510) 550-6749

Email: pcort@earthjustice.org

Email: dreames@earthjustice.org

For Defendants:

Rochelle L. Russell

U.S. Department of Justice

Environment and Natural Resources Division

301 Howard Street, Suite 1050

San Francisco, CA 94105

Phone: (415) 744-6566

Fax: (415) 744-6476

Email: rochelle.russell@usdoj.gov

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CONSENT DECREE 5 Case No. 10-cv-01954 CRB

Jan Tierney

Office of General Counsel

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Phone: (202) 564-5598

Fax: (202) 564-5603

Email: tierney.jan@epa.gov

Jeanhee Hong

Office of Regional Counsel

U.S. Environmental Protection Agency

75 Hawthorne Street, ORC-2

San Francisco, CA 94105

Phone: (415) 972-3921 

Fax: (415) 947-3570

Email: hong.jeanhee@epa.gov

13. The undersigned representatives of each party certify that they are fully authorized

by the party that they represent to bind that party to the terms of this Consent Decree.

IT IS SO ORDERED.

Dated: _________________ __________________________________

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

COUNSEL FOR PLAINTIFFS:

Dated: November 8, 2010 /s/ Paul R. Cort 

PAUL R. CORT

DEBORAH S. REAMES

Earthjustice

426 17 Street, 5 Floor th th

Oakland, CA 94612

Phone: (510) 550-6725

Email: pcort@earthjustice.org

Email: dreames@earthjustice.org

Counsel for Plaintiffs Sierra Club and 

 Medical Advocates for Healthy Air

COUNSEL FOR DEFENDANTS:

Dated: November 8, 2010 IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

 /s/ Rochelle L. Russell 

ROCHELLE L. RUSSELL

Trial Attorney 

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CONSENT DECREE 6 Case No. 10-cv-01954 CRB

U.S. Department of Justice

Environmental Defense Section

301 Howard Street, Suite 1050

San Francisco, CA 94150

Phone: (415) 744-6566

Email: rochelle.russell@usdoj.gov

Counsel for Defendants

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