.-------------------------------------------------------------------------

Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 1 of 7 

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF COLUMBIA 

SIERRA CLUB, 

Plaintiff, 

v. 

BOB PERCIASEPE, in his official capacity 

as Acting Administrator of the United States 

Environmental Protection Agency, 

Defendant. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

------------------------ ) 

Civil Action No. 1:12-cv-01917 

Hon. Rosemary M. Collyer 

CONSENT DECREE 

WHEREAS, on }.lovcmbcr 28, 2012, Plaintiff Sierra Club filed a Complaint in this matter 

against Defendant Lisa P. Jackson, in her official capacity as Administrator of the United States 

Environmental Protection Agency (hereinafter, "EPA"), alleging that EPA failed to fulfill a 

nondiscretionary duty under Clean Air Act ("CAA'') sections ll0(k)(2) and (k)(3), 42 U.S.C. §§ 

741 O(k)(2), (k)(3), to take final action on a State Implementation Plan ("SIP") submittal for the 

State of Wyoming regarding the infrastructure SIP requirements ofCAA sections 110(a)(2)(A)-

(C), (E)-(H) and (J)-(M), 42 U.S.C §§ 741 O(a)(2)(A)-(C), (E)-(Il) and (J)-(M), with respect to the 

1997 fine particulate matter National Ambient Air Quality Standard ("Wyoming SIP 

Submittal"), and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 

U.S.C. § 7604(a)(2); 

WHEREAS, Sierra Club's Complaint further alleges that EPA failed to fulfill a 

nondiscretionary duty under CAA sections 110(k)(2) and (k)(3), 42 U.S.C. §§ 7410(k)(2), (k.)(3), 

to take final action on a SIP submittal for the State of Connecticut regarding the attainment 

demonstration requirements of the nonattainment SIP for the Greater Connecticut 1997 ozone 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 2 of 7 

National Ambient Air Quality Standard nonattainment area ("Connecticut SIP Submittal"), and 

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

7604(a)(2); 

WHEREAS, the Parties wish to effectuate a complete and final settlement of Sierra Club 

v. Jachon, Case No. 1 :12-cv-01917 (D.D.C.), without expensive and protracted litigation and 

without the admission of any issue of fact or Ia w; 

WHEREAS, on August 21, 2012, the United States Court of appeals for the District of 

Columbia Circuit issued an opinion in EME Homer City Generation v. EPA, No. 11-1302 (D.C. 

Cir. 2012), vacating a final rule issued by EPA, and that opinion concerns state and EPA 

obligations with respect to 42 U.S.C. § 7410(a)(2)(D)(i)(I); 

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

resolution of all of the claims in the above-captioned case; 

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, 42 U.S.C. §§ 7401-767lq; 

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

any issue of law or fact, and upon the consent ofthe 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. Venue is proper in the 

United States District Court for the District of Columbia. 

2 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 3 of 7 

2. The appropriate EPA official shall, no later than October 15, 2013, sign for 

publication in the Federal Register a notice of final rulcmaking taking action on the Wyoming 

SIP Submittal. 

3. The appropriate EPA official shall no later than December 16, 2013, sign for 

publication in the Federal Register a notice of final rulemaking taking action on the Connecticut 

SIP Submittal. 

4. After signing each of the notices described in Paragraphs 2 and 3 of this Consent 

Decree, EP J\ shall deliver, within fifteen ( 15) business days, notice of such actions to the Office 

of Federal Register for review and publication. 

5. The deadlines in Paragraphs 2, 3 and 11 may be extended by (a) \\Titten 

stipulation executed by counsel for Sierra Club and EPA with notice to the Court, or (b) by the 

Court on a motion of EPA for 'good cause shown pursuant to the Federal Rules of Civil 

Procedure, and upon consideration of any response by Sierra Club and any reply by EPA. Any 

other provision of this Consent Decree may be modified by the Court following motion of Sierra 

Club or EPA tor good cause shown pursuant to the Federal Rules of Civil Procedure and upon 

consideration of any opposition by the non-moving party and any reply. 

6. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this 

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

7. Sierra Club and EPA agree that this Consent Decree shall constitute a complete 

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

including EPA, under any provision of law in connection with Sierra Club v. Jackson, Case No. 

I: 12-cv-01917 (D.D.C.). Sierra Club therefore discharges and covenants not to sue the United 

States, including EPA, for any such claims. 

3 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 4 of 7 

8. 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 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 in this Consent Decree by the times specified herein does not 

constitute a limitation or modification of EPA's discretion within the meaning of this paragraph. 

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

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

action EPA may take with respect to the actions addressed in this Consent Decree. 

10. Nothing in this Consent Decree shall be construed to: (a) confer upon this Court 

jurisdiction to review any issues that are within the exclusive jurisdiction of the United States 

Courts of Appeals pursuant to CAA sections 307(b)(l), 42 L'.S.C. §§ 7607(b)(l); or (b) waive 

any claims, remedies, or defenses the Parties may have under CAA section 307(b )( 1 ), 42 U .S.C. 

§ 7607(b)(l). 

11. The deadline for filing a motion for costs of litigation, including reasonable 

attorney's fees, incurred prior to entry of this Consent Decree is hereby extended until sixty (60) 

days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek 

to resolve informally any claim for costs of litigation, including reasonable attorney's fees, and if 

they cannot, will submit that issue to the Court for resolution. The Cnited States does not waive 

or limit any defenses it may have to such claim. The Court shall retain jurisdiction to resolve 

any requests for costs of litigation, including reasonable attorney's fees. 

12. 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 

4 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 5 of 7 

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. 

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

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

For Plaintiff Sierra Club: 

KIMBERLY (KASEY) A. STURM 

260 Peachtree Street, NW 

Suite 1200 

Atlanta. Georgia 30312 

Office: 404.525.9205 

Fax: 404.522.0275 

ksturm:§stack-envirolaw.com 

For Defendant EPA: 

SECTION CHIEf 

U.S. Department of Justice 

Environment & Natural Resources Division 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

fax: (202) 514-8865 

MATTHEW MARKS 

Office of the General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Bldg., MC 2344A 

1200 Pennsylvania Ave .. N.W. 

Washington. D.C. 20460 

Phone: (202) 564-3276 

Fax: (202) 564-5603 

Marks.Matthew@epa.gov 

14. In the event of a dispute between the Parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disput~ng party shall provide the other 

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

5 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 6 of 7 

negotiations. If the Parties cannot reach an agreed-upon resolution within fifteen (15) business 

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

15. l\o motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of Court shall be properly tiled unless Sierra Club has followed the procedure set forth 

in Paragraph 14, and provided EPA with written notice received at least fifteen ( 15) business 

days before the filing of such motion or proceeding. 

J 6. The Court shall retain jurisdiction to determine and effectuate compliance with 

this Consent Decree. When EPA's obligations under Paragraphs 2 and 3 have been completed, 

any relevant notices have been published in the Federal Register, and any claim for costs of 

litigation, including reasonable attorney's fees, has been resolved pursuant to the process 

described in Paragraph 11, the above-captioned matter shall be dismissed with prejudice. EPA 

shall file an appropriate notice with the Court so that the Clerk may close the file. 

1 7. 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 CAA section ll3(g). 42 V.S.C. § 7413(g). EPA will 

deliver a public notice of this Consent Decree to the Federal Register for review, publication, and 

public comment promptly after lodging this Consent Decree with the Court. After this Consent 

Decree has undergone an opportunity for notice and comment, the 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 CAA, 42 U.S.C. § 7413(g). If the Administrator and the Attorney General 

elect 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. 

6 
Case 1:12-cv-01917-RMC Document 13 Filed 09/24/13 Page 7 of 7 

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

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

Dated: J V~ l.io, 2013 

Dated: April 18, 2013 

SO ORDERED: • 2013 

Respectfully submitted, 

Robert G. Dreher 

Acting Assistant Attorney General 

United States Department of Justice 

Environment and Natural Resources Division 

By: ~ ::2:--C::...··--

Heather E. Gange 

Environmental Defense Section 

D.C. BarNo. 452619 

U.S. Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

Phone: (202) 514-4206 

Fax: (202) 514-8865 

Email: Heather.Gange@usdoj.gov 

Counselfor EPA 

By: s.· Ka.\'t'\' S'turm 

KIMBERLY [KASEY] A. STURM 

260 Peachtree Street, NW 

Suite 1200 

Atlanta, Georgia 30312 

Office: 404.525.9205 

Fax: 404.522.0275 

ksturm@stack-envirolaw.com 

Counsel for Plaintiff 

aft/It/#/ 111 a4 ~ ~~· RosemAry M. Collyer 1 

United States District Judge 

7