PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Division 

United States Department of Justice 

LESLIE M. HILL (D.C. Bar No. 476008) 

Leslie.Hill@usdoj.gov 

Environmental Defense Section 

601 D Street N.W., Suite 8000 

Washington D.C. 20004 

Telephone (202) 514-0375 

Facsimile (202) 514-8865 

Attorneys for Defendant 

JAMES N. SAUL 

saul@mwbattorneys.com 

211 S. Paterson Street, Suite 320 

Madison, WI 53703 

Telephone (608) 310-3560 

[additional Attorneys for Plaintiff included in signature block] 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SIERRA CLUB, 

Plaintiff, 

v. 

ROBERT PERCIASEPE, Acting 

Administrator of the United States 

Environmental Protection Agency,1

Defendant. 

Case. No.: 3:12-cv-4078-JST 

PROPOSED CONSENT DECREE 

 

1

 The named defendant, Lisa P. Jackson, no longer holds the designated position. 

Pursuant to Fed. R. Civ. P. 25, the Acting Administrator is substituted for Ms. Jackson. 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page1 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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WHEREAS, on August 2, 2012, Plaintiff Sierra Club filed the above-captioned 

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

States Environmental Protection Agency (hereinafter “EPA” or “Defendant”); 

WHEREAS, Plaintiff alleges that EPA has failed to undertake certain nondiscretionary duties 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 CAA, § 7604(a)(2); 

WHEREAS, Plaintiffs allege that EPA has failed to perform a duty mandated by 

CAA sections 110(k)(2) and (3), 42 U.S.C. §§ 7410(k)(2) and (3), to take timely final 

action to approve, disapprove, or partially approve/disapprove five regulations submitted 

by the State of Nevada for inclusion in the Clark County portion of Nevada’s state 

implementation plan (“SIP”), see Compl. ¶ 1 (Dkt. No. 1); 

WHEREAS, the relief requested in the Complaint includes, among other things, 

an order from this Court to establish a date certain by which EPA must fulfill its 

obligations for each of the regulations (called “Sections”) listed therein; 

WHEREAS, pursuant to CAA sections 110(k)(3) and 301(a), 42 U.S.C. §§ 

7410(k)(3) and 7601(a), EPA took final action on four of these regulations (Sections 0, 

12.2, 12.3, and 12.4) and notice of such final action was published in the Federal Register 

on October 18, 2012, Limited Approval and Disapproval of Air Quality Implementation 

Plans; Nevada; Clark County; Stationary Source Permits, 77 Fed. Reg. 64039 (Oct. 18, 

2012); 

WHEREAS, Sierra Club’s claims related to Sections 0, 12.2, 12.3, and 12.4 of the 

Clark County portion of the Nevada SIP are therefore moot; 

WHEREAS, EPA has not taken final action pursuant to CAA section 110(k) with 

respect to the fifth regulation identified in the Complaint, Section 25 of the Clark County 

Air Quality Regulations, as amended May 18, 2010 and submitted to EPA on September 

1, 2010 (referred to herein as “Section 25”); 

WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without 

admission of any issue of fact or law, except as expressly provided herein; 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page2 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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WHEREAS, Plaintiff and EPA, 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, Plaintiff and EPA consider this Consent Decree to be an adequate 

and equitable resolution of all the claims in this matter and therefore wish to effectuate a 

settlement; 

WHEREAS, it is in the interest of the public, Plaintiff Sierra Club, Defendant 

EPA, and judicial economy to resolve this matter without protracted litigation; 

 WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2), and that venue is proper in the Northern District of California pursuant to 28 

U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3-2(c)-(d); 

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

Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act; 

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

determination of any issues of fact or law, and upon the consent of Plaintiff Sierra Club 

and Defendant EPA, it is hereby ordered, adjudged and decreed that: 

 1. No later than December 2, 2013, EPA shall sign a notice of the Agency’s final 

action on Section 25 pursuant to section 110(k) of the CAA, 42 U.S.C. § 7410(k), and 

thereafter send the notice to the Office of the Federal Register for publication. 

2. After EPA has completed the action set forth in Paragraph 1 of this Consent 

Decree, EPA may move to have this Decree terminated. Plaintiff shall have fourteen (14) 

days in which to respond to such a motion, unless the parties stipulate to a longer time for 

Plaintiff to respond. 

3. The deadline established in Paragraph 1 may be extended (a) by written 

stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon motion 

of EPA for good cause shown and upon consideration of any response by Plaintiff. 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page3 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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 4. 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. 3:12-cv-4078-JST (N.D. Cal.). Sierra Club therefore discharges and 

covenants not to sue the United States, including EPA, for any such claims. 

5. In the event of a dispute between Plaintiff and EPA 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. These parties shall meet and confer in order to attempt 

to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) 

business days after receipt of the notice, either party may petition the Court to resolve the 

dispute. 

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

contempt of Court shall be filed unless the procedure set forth in Paragraph 5 has been 

followed. 

7. This Court shall retain jurisdiction over this matter to enforce the terms of this 

Consent Decree and to consider any requests for costs of litigation, including attorney 

fees. 

8. Nothing in the terms of this Consent Decree shall be construed (a) to confer 

upon this Court jurisdiction to review any final rule or determination issued by EPA 

pursuant to this Consent Decree, (b) to confer upon this Court jurisdiction to review any 

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

under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1), or (c) to waive any claims, 

remedies, or defenses that the parties may have under CAA section 307(b)(1), 

42 U.S.C. § 7607(b)(1). 

9. 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, including the 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page4 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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discretion to alter, amend, or revise any final actions promulgated pursuant to this 

Consent Decree. EPA’s obligation to perform each action specified in this Consent 

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

meaning of this paragraph. 

10. Except as expressly provided herein, nothing in this Consent Decree shall be 

construed as an admission of any issue of fact or law nor to waive or limit any claim, 

remedy, or defense, on any grounds, related to any final action EPA takes with respect to 

the actions addressed in this Consent Decree. 

 11. EPA shall pay, as soon as reasonably practicable, $10,880 to Plaintiff’s 

counsel, McGillivray Westerberg & Bender LLC, by electronic funds transfer (“EFT”) in 

accordance with EFT instructions provided to EPA’s Counsel by Plaintiff’s Counsel 

within ten (10) calendar days after entry of the Consent Decree by the Court. Such 

payment represents full and final payment to all counsel for Plaintiff in connection with 

any request for fees and costs which could be brought by Plaintiffs up to and including 

entry of the Consent Decree. 

 12. Plaintiff reserves the right to seek additional costs of litigation, including 

reasonable attorney fees, incurred subsequent to entry of this Consent Decree and arising 

from Plaintiff’s need to enforce or defend against efforts to modify its terms or the 

underlying schedule outlined herein, or for any other unforeseen continuation of this 

action. EPA reserves the right to oppose any such request for additional costs of 

litigation, including reasonable attorney fees. 

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

jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree 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. 

14. 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 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page5 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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an opportunity for public comment pursuant to CAA section 113(g), 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 CAA section 113(g). If the Administrator and/or the Attorney General 

do not elect to withdraw or withhold consent, EPA shall promptly file a motion that 

requests that the Court enter this Consent Decree. 

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

writing, via electronic mail or other means, and sent to the following (or to any new 

address of counsel as filed and listed in the docket of the above-captioned matter, at a 

future date): 

For Plaintiff Sierra Club: James N. Saul 

McGillivray Westerberg & Bender LLC 

211 S. Paterson Street, Suite 320 

Madison, WI 53703 

Tel. (608) 310-3560 

saul@mwbattorneys.com 

Kristin Henry 

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Telephone (415) 977-5716 

Email: Kristin.Henry@sierraclub.org 

For Defendant EPA: Leslie M. Hill 

U.S. Department of Justice 

Environment & Natural Resources Division 

Environmental Defense Section 

601 D Street N.W., Suite 8000 

Washington D.C. 20004 

Tel. (202) 514-0375 

Email: Leslie.Hill@usdoj.gov 

16. EPA and Plaintiff 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 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page6 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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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. 

17. If for any reason the Court should decline to approve this Consent Decree in 

the form presented, this agreement is voidable at the sole discretion of either party and 

the terms of the proposed Consent Decree may not be used as evidence in any litigation 

between the parties. 

18. The undersigned representatives of Plaintiff Sierra Club and Defendant EPA 

certify that they are fully authorized by the party they represent to consent to the Court’s 

entry of the terms and conditions of this Decree. 

SO ORDERED on this _____ day of _____________________, 2013. 

 

 

 _______________________________________________ 

JON S. TIGAR 

United States District Judge 

COUNSEL FOR PLAINTIFF: 

___________________________________ 

JAMES N. SAUL 

McGillivray Westerberg & Bender LLC 

211 S. Paterson Street, Suite 320 

Madison, WI 53703 

Tel. (608) 310-3560 

Email: saul@mwbattorneys.com 

KRISTIN HENRY 

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Tel. (415) 977-5716 

Email: Kristin.Henry@sierraclub.org 

Attorneys for Plaintiff Sierra Club 

Case3:12-cv-04078-JST Document27-1 Filed03/27/13 Page7 of 8
PROPOSED CONSENT DECREE

CASE NO. 3:12-cv-4078-JST 

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COUNSEL FOR DEFENDANT: 

 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Division 

___________________________________ 

LESLIE M. HILL (D.C. Bar No. 476008) 

Environmental Defense Section 

601 D Street N.W., Suite 8000 

Washington D.C. 20004 

Tel. (202) 514-0375 

Email: Leslie.Hill@usdoj.gov 

Attorneys for Defendant EPA 

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