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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and LISA P. 

JACKSON, Administrator of the United States 

Environmental Protection Agency,

Defendant.

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Case No. 10-cv-1541 (CKK)

PARTIAL CONSENT DECREE

WHEREAS, Plaintiff Sierra Club filed this action pursuant to section 304(a)(2) of the 

Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendants United States 

Environmental Protection Agency and Lisa P. Jackson, Administrator of the United States 

Environmental Protection Agency (collectively “EPA”), failed to perform duties mandated by 

CAA section 110(c)(1) and (k)(2), 42 U.S.C. § 7410(c)(1), (k)(2), to: (1) promulgate a federal 

implementation plan (“FIP”) for the State of Texas that meets the requirements of CAA section 

110(a)(2)(D)(i) for the 1997 fine particulate matter (“PM2.5”) and ozone national ambient air 

quality standards (“NAAQS”); (2) promulgate a FIP for the State of Texas that meets the 

requirements of CAA Section 110(a)(2) for the 1997 ozone NAAQS; and (3) take final approval/ 

disapproval action pursuant to CAA section 110(k)(3) on the state implementation plan (“SIP”) 

that Texas submitted for implementation of the 1997 PM2.5 NAAQS;
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WHEREAS, Plaintiff and EPA (collectively the “Parties”) wish to effectuate a settlement 

of the above-captioned case without expensive and protracted litigation and without the 

admission of any issue of fact or law;

WHEREAS, the Parties have jointly moved to stay Plaintiff’s claim with respect to 

EPA’s obligation to promulgate a FIP for the State of Texas that satisfies the requirements of 

CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS and the 1997 PM2.5 NAAQS;

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

equitable resolution of the remaining claims in the above-captioned case;

WHEREAS, the Parties, by entering into this Partial Consent Decree, do not waive or 

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

WHEREAS, the Court, by entering this Partial 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 Partial Consent Decree. Venue is proper in 

the United States District Court for the District of Columbia.

2. (a) Pursuant to CAA section 110(c)(1), EPA shall, by December 16, 2011, sign for 

publication in the Federal Register a notice or notices promulgating a FIP for the State of Texas 
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that satisfies the requirements of CAA section 110(a)(2)(A), (B), (C) (except to the extent 

subsection (a)(2)(C) refers to a permit program as required in part D Title I of the CAA), (D)(ii), 

(E)-(H), (J)-(M), and the requirement in section 110(a)(2)(D)(i)(II) that implementation plans 

contain adequate provisions prohibiting emissions that will interfere with measures in other 

states related to prevention of significant deterioration of air quality for the 1997 ozone NAAQS.

If, by December 16, 2011, EPA signs a notice or notices unconditionally approving a SIP or 

promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the 

requirements of CAA section 110(a)(2)(A), (B), (C) (except to the extent subsection (a)(2)(C) 

refers to a permit program as required in part D Title I of the CAA), (D)(ii), (E)-(H), (J)-(M), and 

the requirement in section 110(a)(2)(D)(i)(II) that implementation plans contain adequate 

provisions prohibiting emissions that will interfere with measures in other states related to 

prevention of significant deterioration of air quality for the 1997 ozone NAAQS, EPA shall have 

complied with the obligations of this paragraph.

(b) Pursuant to CAA section 110(c)(1), EPA shall, by December 16, 2011, sign for 

publication in the Federal Register a notice or notices promulgating a FIP for the State of Texas 

that satisfies the requirement in CAA section 110(a)(2)(D)(i)(II) that implementation plans 

contain adequate provisions prohibiting emissions that will interfere with measures in other 

States related to prevention of significant deterioration of air quality for the 1997 PM2.5 

NAAQS. If, by December 16, 2011, EPA signs a notice or notices unconditionally approving a 

SIP or promulgating a partial FIP and unconditional approval of a partial SIP, collectively 

satisfying the requirement in CAA section 110(a)(2)(D)(i)(II) that implementation plans contain 

adequate provisions prohibiting emissions that will interfere with measures in other states related 
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to prevention of significant deterioration of air quality for the 1997 PM2.5 NAAQS, EPA shall 

have complied with the obligations of this paragraph.

(c) EPA shall, by December 16, 2011, sign for publication in the Federal Register a 

notice or notices of the Agency’s final action approving or disapproving, in accordance with 

CAA section 110(k), the State of Texas’ April 4, 2008 SIP submittals for implementation of the 

1997 PM2.5 NAAQS regarding the requirements of CAA section 110(a)(2)(A), (B), (C) (except 

to the extent subsection (a)(2)(C) refers to a permit program as required in part D Title I of the 

CAA), (D)(ii), (E)-(H), (J)-(M).

(d) Pursuant to CAA section 110(c)(1), EPA shall, by November 15, 2012, sign for 

publication in the Federal Register a notice or notices promulgating a FIP, for the State of Texas 

that satisfies the CAA requirement in section 110(a)(2)(D)(i)(II) that implementation plans 

contain adequate provisions prohibiting emissions that will interfere with measures in other 

States related to the protection of visibility for the 1997 ozone and 1997 PM2.5 NAAQS. If, by 

November 15, 2012, EPA signs a notice or notices unconditionally approving a SIP or 

promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the 

requirements of CAA section 110(a)(2)(D)(i)(II) that implementation plans contain adequate 

provisions prohibiting emissions that will interfere with measures in other States related to the 

protection of visibility for the 1997 ozone and 1997 PM2.5 NAAQS, EPA shall have complied 

with the obligations of this paragraph. 

3. Within ten (10) business days of signing a final rule or determination as described 

in paragraph 2 of this Partial Consent Decree, EPA shall deliver notice of such actions to the 

Office of the Federal Register for review and publication. Following such delivery to the Office 
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of the Federal Register, EPA shall not take any action (other than is necessary to correct 

typographical errors or other errors in form) to delay or otherwise interfere with the publication 

of such notices in the Federal Register. In addition, EPA shall provide notice and make available 

to Plaintiff a copy of each such rule or determination within five (5) business days of delivery to 

the Office of the Federal Register. 

4. The deadlines in paragraph 2 of this Partial Consent Decree may be extended by 

(a) written stipulation of the Plaintiff 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 the Plaintiff. Any other provision of this Partial Consent 

Decree may be modified by the Court following motion of Plaintiff or EPA for good cause 

shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any opposition 

by the non-moving party.

5. Plaintiff and EPA shall not challenge the terms of this Decree or this Court’s 

jurisdiction to enter and enforce this Decree. 

6. Nothing in this Partial 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 Partial Consent Decree, including the discretion to alter, 

amend or revise any responses or final actions contemplated by this Decree. EPA’s obligation to 

perform the actions specified in this Partial Consent Decree by the times specified herein does 

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

paragraph.
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7. Nothing in this Partial 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 may take with respect to the actions addressed in this Partial Consent 

Decree.

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

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

Decree; (b) 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)(1) and 505, 

42 U.S.C. §§ 7607(b)(1), 7661d; or (c) waive any claims, remedies, or defenses the Parties may 

have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

9. The deadline for filing a motion for costs of litigation, including attorneys’ fees, 

incurred prior to entry of this Partial Consent Decree is hereby extended until sixty (60) days 

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

seek to resolve informally any claim for costs of litigation, including attorneys’ fees, and if they 

cannot, will submit that issue to this Court for resolution. The United States does not waive or 

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

requests for costs of litigation, including attorneys’ fees. 

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

attorneys’ fees, incurred subsequent to entry of this Partial Consent Decree and arising from 

Plaintiff’s need to enforce or defend against efforts to modify its terms of the underlying schedule 

outlined herein, or for any other unforeseen continuation of this action. The United States 

reserves the right to challenge any such claim. 
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11. The Parties recognize and acknowledge that the obligations imposed upon EPA 

under this Partial Consent Decree can only be undertaken using appropriated funds legally 

available for such purpose. No provision of this 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. 

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

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

For Plaintiff:

KHUSHI K. DESAI

DAVID S. BARON

EARTHJUSTICE

1625 Massachusetts Ave., NW, Suite 702

Washington, DC 20036

Tel: (202) 667-4500

Fax: (202) 667-2356

kdesai@earthjustice.org

dbaron@earthjustice.org

For Defendant:

STEPHANIE J. TALBERT

Environmental Defense Section

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-2617

Fax: (202) 514-8865

Stephanie.talbert@usdoj.gov

GEOFFREY WILCOX

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-5601

Wilcox.geoffrey@epa.gov
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ABIRAMI VIJAYAN

U.S. Environmental Protection Agency

Office of Regional Counsel 

1445 Ross. Ave. (6 RC-M)

Dallas, TX 75202

Tel: (214) 665-7303

Fax: (214) 665-2182

Vijayan.abi@epa.gov

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

implementation of any aspect of this 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, either Party may move the Court to resolve the dispute.

14. No motion or other proceeding seeking to enforce this Decree or for contempt of 

Court shall be properly filed unless Plaintiff has followed the procedure set forth in paragraph 13, 

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

such motion or proceeding.

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

this Partial Consent Decree. When EPA’s obligations under paragraph 2 have been completed, 

EPA may move to have this Decree terminated. Plaintiff shall have fourteen (14) days in which 

to respond to such motion.

16. The Parties agree and acknowledge that before this Partial 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 113(g), 42 U.S.C. § 7413(g). EPA will 

deliver a public notice of this Partial Consent Decree to the Federal Register for publication and 
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public comment within ten (10) business days after lodging this Partial Consent Decree with the 

Court. After this Partial 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 Partial 

Consent Decree, in accordance with section 113(g) of the CAA. If the Administrator or the 

Attorney General elects not to withdraw or withhold consent to this Partial Consent Decree, the 

Parties will promptly file a motion that requests the Court to enter this Partial Consent Decree.

17. 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 Partial Consent Decree.

SO ORDERED on this day of 2011.

___________________________________

JUDGE COLLEEN KOLLAR-KOTELLY

SO AGREED:

FOR PLAINTIFF

/s/ Khushi K. Desai

KHUSHI K. DESAI

EARTHJUSTICE

1625 Massachusetts Ave., NW, Suite 702

Washington, DC 20036

Tel: (202) 667-4500

Fax: (202) 667-2356

kdesai@earthjustice.org

DATED: August 26, 2011 
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FOR DEFENDANT IGNACIA S. MORENO

 Assistant Attorney General

Environment & Natural Resources Division

/s/ Stephanie J. Talbert

STEPHANIE J. TALBERT

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

Phone (202) 514-2617

Fax (202) 514-8865

Stephanie.talbert@usdoj.gov

DATED: September 12, 2011 

 

Of Counsel for Defendant:

GEOFFREY WILCOX

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Tel: (202) 564-5601

Wilcox.geoffrey@epa.gov