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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION )

ASSOCIATION, MONTANA ENVIRONMENTAL )

INFORMATION CENTER, GRAND CANYON )

TRUST, SAN JUAN CITIZENS ALLIANCE, )

OUR CHILDREN'S EARTH FOUNDATION, )

PLAINS JUSTICE, POWDER RIVER BASIN ) CIVIL ACTION NO.

RESOURCE COUNCIL, SIERRA CLUB, ) 1: 11-cv-01548 (ABJ)

AND ENVIRONMENTAL DEFENSE FUND )

)

Plaintiffs, )

)

v. )

)

LISA JACKSON, in her official capacity as )

Administrator, United States Environmental )

Protection Agency, )

)

Defendant. )

________________________________________________)

CONSENT DECREE

This Consent Decree is entered into by Plaintiffs National Parks Conservation 

Association, Montana Environmental Information Center, Grand Canyon Trust, San Juan 

Citizens Alliance, Our Children's Earth Foundation, Plains Justice, Powder River Basin Resource 

Council, Sierra Club, and Environmental Defense Fund (“Plaintiffs”), and by Defendant Lisa 

Jackson, in her official capacity as Administrator of the United States Environmental Protection 

Agency (“EPA” or “the Administrator”).

WHEREAS, Section 110(c) of the Clean Air Act, 42 U.S.C. § 7410(c), requires the 

Administrator of EPA to promulgate a federal implementation plan (“FIP”) within two years of a 

finding that a state has failed to make a required a state implementation plan (“SIP”) submittal. 

The pertinent provision of Section 110(c) states:
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(1) The Administrator shall 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 section 110(k)(1)(A).

WHEREAS, on January 15, 2009, EPA found that the following 34 States1had failed to 

submit Clean Air Act SIPs addressing any of the required regional haze SIP elements of 40 

C.F.R. § 51.308: Alaska, California, Connecticut, District of Columbia, Florida, Georgia, 

Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, 

Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, 

Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin Islands, 

Virginia, Washington, and Wisconsin. 74 Fed. Reg. 2392, 2393 (Jan. 15, 2009);

WHEREAS, on January 15, 2009 EPA also found that the following five states had 

submitted some, but not all, of the required regional haze SIP elements set forth at 40 C.F.R. §§

51.308 and 51.309: Arizona—40 C.F.R. § 51.309(g) and 40 C.F.R. § 51.309(d)(4); Colorado—

40 C.F.R. § 51.308(d) and 40 C.F.R. § 51.308(e) for two sources; Michigan—40 C.F.R. § 

51.308(d) and 40 C.F.R. § 51.308(e) for six sources; New Mexico—40 C.F.R. § 51.309(g) and 

40 C.F.R. § 51.309(d)(4); Wyoming—40 C.F.R. § 51.309(g). 74 Fed. Reg. at 2393;

WHEREAS, on January 15, 2009, EPA stated that its finding “starts the two-year clock 

for the promulgation by EPA of a FIP. EPA is not required to promulgate a FIP if the state 

makes the required SIP submittal and EPA takes final action to approve the submittal within two 

years of EPA’s finding.” 74 Fed. Reg. at 2393; 

WHEREAS, EPA did not, by January 15, 2011, promulgate regional haze FIPs or 

approve regional haze SIPs for any of the 34 states for which it found on January 15, 2009 a 

 

1 Throughout this Consent Decree, the term “state” or “State” has the meaning provided in 42 

U.S.C. § 7602(d).
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failure to submit SIPs addressing any of the required regional haze SIP elements, and EPA also 

did not, by January 15, 2011, promulgate regional haze FIPs or approve regional haze SIPs 

correcting the non-submittal deficiencies that EPA found on January 15, 2009 with respect to 

the regional haze SIP requirements for Arizona, Colorado, Michigan, New Mexico and 

Wyoming;

WHEREAS to meet the regional haze implementation plan requirements that were due by

December 17, 2007 under EPA’s regional haze regulations the following states (and one region) 

submitted regional haze SIPs to EPA prior to January 15, 2009 (hereinafter, “regional haze SIP 

submittals”), and whereas EPA has yet to take final action on such submittals pursuant to 42 

U.S.C. 7410(k): Alabama; Albuquerque, NM; Iowa; Louisiana; Mississippi; Missouri; North 

Carolina; South Carolina; Tennessee; and West Virginia; 

WHEREAS, Plaintiffs served prior notice on the Administrator alleging that her failure to 

promulgate regional haze FIPs and take final action on regional haze SIPs as described above 

constituted failure to perform duties that are not discretionary under the Act, and of Plaintiffs’ 

intent to initiate the present action. This notice was provided via certified letters, posted January

19, 2011, and addressed to the Administrator;

WHEREAS, Plaintiffs filed a complaint pursuant to CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2), alleging failure by the Administrator to perform nondiscretionary duties as 

referenced above; 

WHEREAS, Plaintiffs and EPA (collectively, the “Parties”) wish to effectuate a 

settlement of the above-captioned cases without expensive and protracted litigation, and without 

a litigated resolution of any issue of law or fact;
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WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable 

resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; 

and

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

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq.

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

and to order the relief contained in this Consent Decree. 

2. Venue is proper in the United States District Court for the District of Columbia.

Resolution of Claims

3. By the “Proposed Promulgation Deadlines” set forth in Table A below EPA shall 

sign a notice(s) of proposed rulemaking in which it proposes approval of a SIP, 

promulgation of a FIP, partial approval of a SIP and promulgation of a partial FIP, or 

approval of a SIP or promulgation of a FIP in the alternative, for each State therein, 

that collectively meet the regional haze implementation plan requirements that were 

due by December 17, 2007 under EPA’s regional haze regulations.

4. By the “Final Promulgation Deadlines” set forth in Table A below, EPA shall sign a 

notice(s) of final rulemaking promulgating a FIP for each State therein to meet the 

regional haze implementation plan requirements that were due by December 17, 2007 

under EPA’s regional haze regulations, except where, by such deadline EPA has for a 

State therein signed a notice of final rulemaking unconditionally approving a SIP, or 
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promulgating a partial FIP and unconditional approval of a portion of a SIP, that

collectively meet the regional haze implementation plan requirements that were due 

by December 17, 2007 under EPA’s regional haze regulations.

TABLE A

Deadlines for EPA to Sign Notice of Promulgation for Proposed and 

Final Regional Haze FIPs and/or Approval of SIPs (“RH” = Regional Haze)

Proposed 

Promulgation 

Deadlines

Final 

Promulgation 

Deadlines

State 

December 13, 2011 Nevada

Oklahoma (all BART elements)

December 15, 2011 Kansas

New Jersey

November 15, 

2011

March 15, 2012 District of Columbia 

Maine

November 29, 

2011

March 29, 2012 South Dakota

January 17, 2012 May 15, 2012 Minnesota

Illinois

Indiana

New York

Ohio

Pennsylvania

Virginia

February 15, 2012 June 15, 2012 Alaska (all BART elements) 

Georgia 

Maryland 

Nebraska

New Hampshire

New Mexico(all remaining RH SIP elements)

Rhode Island

Vermont

Wisconsin

March 15, 2012 July 13, 2012 Connecticut

Massachusetts

May 14, 2012 September 14, 2012 Hawaii

Virgin Islands

May 15, 2012 November 15, 2012 Alaska (all remaining RH SIP elements)

Arizona

Idaho (all remaining RH SIP elements)

Florida

Michigan

Oklahoma (all remaining RH SIP elements)

Oregon (all remaining RH SIP elements)

Texas

Washington
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5. By the “Proposed Promulgation Deadlines” set forth in Table B below EPA shall sign 

a notice of proposed rulemaking in which it proposes to approve or disapprove, in 

accordance with 42 U.S.C. § 7410(k), the regional haze SIP submittals for each state

or area indicated.

6. By the “Final Promulgation Deadlines” set forth in Table B below, EPA shall sign a 

notice of final rulemaking in which it approves or disapproves, in accordance with 42 

U.S.C. § 7410(k), the regional haze SIP submittals for each state or area indicated. 

TABLE B

Deadlines for EPA to Sign Notices of Promulgation for Proposed and Final 

Approval or Disapproval of Regional Haze SIP Submissions

Proposed 

Promulgation 

Deadlines

Final 

Promulgation 

Deadlines

State or Area

March 15, 2012 Tennessee 

West Virginia

February 15, 

2012

June 15, 2012 Alabama 

Albuquerque, NM

Iowa 

Louisiana 

Mississippi 

Missouri 

North Carolina 

South Carolina 

General Provisions

7. The deadlines in Table A or B may be extended for a period of 60 days or less by

written stipulation executed by counsel for EPA and Plaintiffs and filed with the 

Court. Any other extension of a deadline in Table A or B may be approved by the 

Court upon motion made pursuant to the Federal Rules of Civil Procedure by EPA 

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

8. EPA agrees that Plaintiffs are entitled to recover their costs of litigation (including 

attorneys’ fees) (“litigation costs”) incurred in this matter pursuant to 42 U.S.C. § 
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7604(d). The deadline for the filing of any motion for litigation costs for activities 

performed prior to the lodging of this decree with the Court is hereby extended for a 

period of 120 days. During this time the Parties shall seek to resolve informally any 

claim for litigation costs, and if they cannot reach a resolution, Plaintiffs may seek 

such litigation costs from the Court. The Court shall retain jurisdiction to resolve any 

request for litigation costs. Plaintiffs reserve their right to seek litigation costs for any 

work performed after the lodging of this Consent Decree. EPA does not concede that 

Plaintiffs will be entitled to fees for any work performed after the lodging of the 

Consent Decree, and the parties reserve all claims and defenses with respect to any

future costs of litigation claim. 

9. No later than ten business days following signature by the Administrator or her 

delegatee of the notice of any proposed or final rulemaking referenced above, EPA 

shall deliver the notice to the Office of the Federal Register for review and prompt 

publication. Following such delivery to the Office of the Federal Register, EPA shall 

not take any action (other than is necessary to correct any typographical errors or 

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

the Federal Register. EPA shall make available to Plaintiffs copies of the notices 

referenced herein within five business days following signature by the Administrator

or her delegatee. 

10. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree.

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

accorded EPA by the CAA or by general principles of administrative law in taking 
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the actions which are the subject of this Consent Decree, including the discretion to 

alter, amend, or revise any responses or final actions contemplated by this Consent 

Decree. EPA’s obligation to perform the actions specified by Paragraphs 3 through 6 

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

meaning of this paragraph.

12. Nothing in this Consent Decree shall be construed as an admission of any issue of 

fact or law or to waive or limit any claim or defense, on any grounds, related to any

final action EPA may take with respect to the SIPs or FIPs identified in paragraphs 3 

through 6 of this Consent Decree. 

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

jurisdiction to review any final decision made by EPA pursuant to this Consent 

Decree. 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 Court of Appeals pursuant to 42 U.S.C. §§ 7607(b)(1) and 7661d. 

Nothing in this Consent Decree shall be construed to waive any remedies or defenses 

the Parties may have under 42 U.S.C. § 7607(b)(1).

14. The Parties 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 EPA obligate or pay funds in 

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

provision of law.
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15. Any notices required or provided for by this Consent Decree shall be made in writing 

and sent via e-mail to the following:

For Plaintiffs:

David Baron

dbaron@earthjustice.org

Reed Zars

rzars@lariat.org

ForDefendant:

Eileen T. McDonough

eileen.mcdonough@usdoj.gov

Lea Anderson

anderson.lea@epa.gov

16. In the event of a dispute among 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, any Party may move the Court to resolve the dispute.

17. No motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of court shall be properly filed unless the Party seeking to enforce this 

Consent Decree has followed the procedure set forth in Paragraph 16. 

18. The Court shall retain jurisdiction to determine and effectuate compliance with this 

Consent Decree, to resolve any disputes thereunder, and to consider any requests for 

costs of litigation (including reasonable attorneys’ fees). After EPA’s obligations 

under Paragraphs 3 through 6 have been completed, EPA may move to have this 
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consent decree terminated. Plaintiffs shall have 14 days in which to respond to such

motion.

19. The Parties agree and acknowledge that before this Consent Decree can be finalized 

and entered by the Court, EPA must provide notice in the Federal Register and an 

opportunity for comment pursuant to 42 U.S.C. § 7413(g). EPA will deliver a public

notice of this Consent Decree to the Federal Register for publication and public 

comment within 10 business days after lodging this Consent Decree with the Court. 

After this Consent Decree has undergone an opportunity for notice and comment, 

EPA’s Administrator and the Attorney General, as appropriate, will promptly

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

consent to this Consent Decree, in accordance with section 113(g) of the Clean Air 

Act. If the Administrator or the Attorney General elects not to withdraw or withhold 

consent to this Consent Decree, the Parties will promptly file a motion that requests 

the Court to enter this Consent Decree. If a motion to enter the Consent Decree is not 

filed within 60 days after the notice is published in the Federal Register, any party

may file dispositive motions in this matter.

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

drafted by the Parties and 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.
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21. The undersigned certify that they are fully authorized by the Party or Parties they

represent to bind that Party or those Parties to the terms of this Consent Decree.

SO ORDERED this day of 2011.

 

HON. AMY BERMAN JACKSON

United States District Judge

SO AGREED:

FOR PLAINTIFFS:

/s/ REED ZARS /s/ DAVID BARON

Attorney at Law Earthjustice

910 Kearney Street 1625 Massachusetts Ave., NW, #702

Laramie, WY 82070 Washington, DC 20036

307-745-7979 202-667-4500 ext.203

rzars@lariat.org dbaron@earthjustice.org

FOR DEFENDANT

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

/s/ EILEEN T. MCDONOUGH

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-3126

Of Counsel:

M. LEA ANDERSON

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N. W. 

Washington, DC 20460

(202) 564-5571

anderson.lea@epa.gov