UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

 

WILDEARTH GUARDIANS, )

)

Plaintiff )

)

)

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

)

)

LISA JACKSON, in her official capacity as )

Administrator of the Environmental )

Protection Agency, )

)

Defendant )

 

JOINT MOTION TO 

MODIFY CONSENT DECREE

Plaintiff Wildearth Guardians (“Wildearth”) and Defendant Lisa Jackson, in her official

capacity as Administrator of the Environmental Protection Agency, (“EPA”) jointly move,

pursuant to paragraph 9 of the Consent Decree, to modify the Consent Decree entered in this

case on February 23, 2010 (Docket Entry 26) to: 

(1) extend the deadline in paragraph 7(a) of the Consent Decree to October 14, 2011 for

the Administrator to sign a notice or notices approving a State Implementation Plan (“SIP”),

promulgating a Federal Implementation Plan (“FIP”), or approving a SIP in part with

promulgation of a partial FIP for 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 protection of

visibility;

Case4:09-cv-02453-CW Document34 Filed04/28/11 Page1 of 4
1/

 This requirement was added to the Consent Decree by the Court’s Order of January 14, 2011. 

Docket Entry 31.

2

(2) extend the deadline in paragraph 6(c) of the Consent Decree to November 10, 2011

for the Administrator to sign a notice or notices approving a SIP, promulgating a Federal

Implementation Plan FIP, or approving a SIP in part with promulgation of a partial FIP for

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;

(3) extend to July 21, 2011 the deadline for the Administrator to sign a notice proposing

either approval of a SIP, promulgation of a FIP, or approval of 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 protection of visibility;1/

(4) extend the deadline in paragraph 7(a) of the Consent Decree to January 26, 2012 for

the Administrator to sign a notice 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 protection of

visibility;

(5) extend the deadlines in paragraphs 6(a) and 6(b) of the Consent Decree to December

16, 2011 for the Administrator to sign a notice approving a SIP, promulgating a FIP, or

approving a SIP in part with promulgation of a partial FIP for Oklahoma to meet the

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

nonattainment in other states and interfering with maintenance of attainment in other states. 

Case4:09-cv-02453-CW Document34 Filed04/28/11 Page2 of 4
2/

 EPA and Wildearth have also stipulated to additional extensions pursuant to paragraph 9 of the

Consent Decree.

3

Wildearth’s complaint in this matter alleged that EPA had failed to perform a

non-discretionary duty to either approve a SIP or promulgate a 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 for 8-hour ozone and fine particulate matter. The case was

resolved through a consent decree that was entered by the Court on February 23, 2010, Docket

Entry 26, which has been modified on several occasions by stipulation or order of the Court. 

The consent decree requires EPA to approve a SIP or promulgate a FIP for each of the seven

States for each of the elements of 42 U.S.C. § 7410(a)(2)(D)(i).

The decree as originally entered required that EPA take specified actions by May 10,

2010, November 10, 2010, and May 10, 2011. All of the actions required by May 10, 2010 and

November 10, 2010 have been taken (in some cases with extensions). However, EPA has

determined that it needs additional time to comply with some of the actions required to be taken

by May 10, 2011, and Wildearth has agreed to these extensions.2/

 Accordingly, pursuant to

paragraph 9 of the Consent Decree, the parties jointly move the Court to modify the Consent

Decree as described herein. A Proposed Order is attached. 

Respectfully Submitted,

April 28, 2011 IGNACIA S. MORENO

Assistant Attorney General 

Environment and Natural Resources

Division

Case4:09-cv-02453-CW Document34 Filed04/28/11 Page3 of 4
4

 /S/ Norman L. Rave, Jr. 

NORMAN L. RAVE, JR., Trial Attorney

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, DC 20026-3986

Telephone : (202) 616-7568

Fax: (202) 514-8865 

Email: norman.rave@usdoj.gov

Counsel for Defendant

 /S/ James J. Tutchton

JAMES J. TUTCHTON (CA Bar No. 150908)

WildEarth Guardians

1536 Wynkoop St., Suite 301

Denver, CO 80202

Telephone: (303) 573-4898

Email: jtutchton@wi1dearthguardians.org

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

E-mail: rukeiley@igc.org

Counsel for Plaintiff

Case4:09-cv-02453-CW Document34 Filed04/28/11 Page4 of 4