UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS,

and

AMERICAN PETROLEUM INSTITUTE

Plaintiffs,

V.

GINA MCCARTHY, in her official capacity as

Administrator, U.S. Environmental Protection

Agency,

and

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendants.

Civil Action No. l:15-cv-394

(Judge Christopher R. Cooper)

[PROPOSED] CONSENT DECREE

WHEREAS, American Fuel & Petrochemical Manufacturers and American Petroleum

Institute (collectively "Plaintiffs") initiated this action against Gina McCarthy, Administrator of

the United States Environmental Protection Agency, and the United States Environmental

Protection Agency (collectively "EPA" or the "Agency"), with a complaint filed March 18, 2015

("Complaint"), alleging that EPA has violated a nondiscretionary duty under the Clean Air Act,

42 U.S.C. § 7545(o)(3)(B), to establish renewable fuel obligations applicable to the calendar

years 2014 and 2015 and to approve or disapprove Plaintiffs' petition to waive in part for

calendar year 2014 the renewable fuel volumes established by 42 U.S.C. § 7545(o)(2);
WHEREAS, Plaintiffs filed their complaint pursuant to 42 U.S.C. § 7604(a)(2), which

authorizes suits against EPA for failure to perform a nondiscretionary duty required by the Clean

Air Act;

WHEREAS, 42 U.S.C. § 7545(o)(3)(B) requires that EPA determine and publish in the

Federal Register by November 30 of each calendar year the renewable fuel obligations for the

following year;

WHEREAS, to date, EPA has not taken final action with respect to renewable fuel

obligations for 2014 and 2015;

WHEREAS, Plaintiffs' complaint alleges that EPA's failure to publishfinal 2014and

2015 renewable fuel obligations has caused their membercompanies irreparable harm;

WHEREAS, Plaintiffs' complaint seeks declaratory and injunctive relief, as well as

attorney'sfees and othercostsof litigation pursuant to 42 U.S.C. § 7604(d);

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

settlement resolving Plaintiffs' claims without further litigation, and the terms of thatsettlement

are set forth in this Consent Decree;

WHEREAS, it is EPA's intention to take proposed and final action with respect to

renewable fuel obligations for 2016 on or before the same dates required by thisConsent Decree

for the renewable fuel obligations for 2015;

WHEREAS, Plaintiffs understand that the terms of thisConsent Decree, if approved by

the Court, will fully resolve the claims in Plaintiffs Complaint;

WHEREAS,under the terms of this Consent Decree, the Parties acknowledge and agree

that Plaintiffs have notwaived any rightsto seekjudicialreview of any final actionEPAtakes

with respect torenewable fuel obligations, or tofile additional petitions pursuant to42U.S.C.
§ 7545(o), and that EPA has notwaived any rights in response to any such claims forjudicial

review or petitions;

WHEREAS, the Parties agree that this ConsentDecreeshould not be construed as

representing any concession by Plaintiffs regarding EPA's statutory obligation under 42U.S.C.

§ 7545(o)(3)(B) to promulgate renewable fuel obligations for 2016 and beyond;

WHEREAS, theParties agree thatthisConsent Decree represents a good-faith

compromiseof disputed claims; and

WHEREAS, the Court, byentering this Consent Decree, finds that theDecree isfair,

reasonable, inthe public interest, and consistent with the Clean Air Act, 42U.S.C. §§ 7401 et

seq.\

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

any undecided issue offact orlaw, and upon the consent ofthe Parties, itis hereby ORDERED,

ADJUDGED and DECREED as follows:

JURISDICTION, VENUE AND PARTIES

1. This Court has subject-matterjurisdiction over the claims setforth in the abovereferenced complaint and to order the relief contained in this Consent Decree. Venue isproper

in the United States District Court for the District of Columbia.

2. The Parties to this Consent Decree are Plaintiffs and EPA.

EPA OBLIGATIONS

3. EPA shall sign byJune 1,2015, and submit to the Office ofthe Federal Register as

expeditiously as reasonably possible and in any event no later than ten (10) business days after

such signature for publication in the Federal Register, a notice ofproposed rulemaking to

determine in accordance with 42 U.S.C. § 7545(o)(3)(B) the renewable fuel obligations for
calendar year 2015. Following its submission, EPA shall not take any action to delay or

otherwise interfere with immediate publication of the notice in the Federal Register.

4. EPA shall sign by November 30,2015, and submit to the Officeof the Federal

Register as expeditiously asreasonably possible and in any event no later than ten (10) business

days after such signature for publication in the Federal Register, a final rule orrules determining

in accordance with42 U.S.C. § 7545(o)(3)(B) the renewable fuel obligations for calendar years

2014 and 2015. Following itssubmission, EPA shall not take any action todelay orotherwise

interfere with immediate publication ofthe final rule orrules in the Federal Register.

5. No laterthan November 30,2015, EPAshall approve or disapprove in accordance

with 42 U.S.C. §7545(o)(7) the waiver petition submitted to EPA by Plaintiffs on August 13,

2013.

MODIFICATION OF THIS CONSENT DECREEAND DISPUTERESOLUTION

6. Any provision ofthis Consent Decree may be modified by written agreement

of all Parties, which must be approved by the Court.

7. The Parties may extend a deadline established in Paragraphs 3,4, or 5 above by

written stipulation executed by counsel for all Parties and filed with the Court on or before the

date ofthat deadline; such extension shall take effect immediately upon filing the stipulation. In

addition, EPA reserves the right to file with the Court amotion seeking to modify any deadline

or other obligation imposed on EPA by Paragraphs 3,4 or 5 above. EPA shall give both

Plaintiffs atleast five (5) business days' written notice before filing such amotion with respect to

any deadline or other obligation imposed by Paragraph 3, and at least ten (10) business days

written notice before filing such amotion with respect to any deadline or obligation imposed by
Paragraph 4 or 5. Each Plaintiff reserves itsright to oppose anysuchmotion on any applicable

grounds.

8. In the event of a dispute among the Parties concerning the interpretation or

implementation of,or compliance with, any provision ofthis Consent Decree, thedisputing Party

shall give the other Parties a written notice explaining the nature ofthe dispute and requesting

informal negotiations. Ifthe Parties cannot ingood faith reach an agreed upon resolution within

five (5) business days after receipt ofthe notice, any Party may move the Court toresolve the

dispute.

CONTINUING JURISDICTION AND TERMINATION

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

Consent Decree. When EPA'sobligations under Paragraphs 3, 4, and 5 above have been

completed, the above captioned matter shall be dismissed with prejudice and this Consent Decree

shall terminate. The Parties shall file the appropriate notice ormotion with the Court so that the

Clerk may close the file, except that ifthere is adispute regarding whether EPA has completed

its obligations, the Parties shall follow the procedures set forth inParagraph 8 above.

SAVING PROVISIONS

10. The obligations imposed onEPA under this Consent Decree may only be

undertaken using appropriated funds. No provision ofthis Consent Decree shall be interpreted

as orconstitute a commitment orrequirement that EPA obligate orpay funds incontravention of

the Anti-Deficiency Act, 31 U.S.C. § 1341, orany other applicable federal statute. Ifa lapse in

appropriations occurs within ninety (90) days prior to any deadline in this Consent Decree, such

deadline shall be extended automatically one day for each day ofthe lapse in appropriations.
Nothing in this Paragraph 10shall preclude EPA from seeking an additional extension, either by

stipulation or court order, pursuant to the procedures of Paragraphs 6 through 8 above.

11. Nothing inthis Consent Decree shall be construed as an admission by any Party with

respect to any issue offact orlaw, ortowaive orlimit any claim ordefense onany grounds

except as expressly provided in this Consent Decree.

12. Nothing inthis Consent Decree shall be construed to limit, expand, orotherwise

modify the discretion accorded to EPA by the Clean Air Act orby general principles of

administrative law, except the deadlines specified therein. EPA's obligation toperform the

actions described inParagraphs 3,4, and 5 above bythe times specified therein does not

constitute a limitation, expansion orother modification ofEPA's discretion within the meaning

of this Paragraph 12.

13. Nothing inthis Consent Decree shall be construed to confer upon this

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

States Court ofAppeals pursuant to 42 U.S.C. §7607(b)(1), including but not limited to judicial

review ofthe final rules issued byEPA pursuant to Paragraph 4 above. Nothing inthis Consent

Decree shall be construed towaive any remedies or defenses the Parties may have under 42

U.S.C. § 7607(b)(1) with respect to such final action.

14. Nothing inthis Consent Decree shall be construed as an agreement, admission, or

acknowledgement by Plaintiffs that EPA has discretion to disregard the statutory deadlines set

forth in 42 U.S.C. § 7545(o).
NOTICE AND COMMENT UNDER 42 U.S.C. § 7413(g)

15. The Parties agree and acknowledge that before this Consent Decree may be

finalized and entered by the Court, EPA must provide notice of the Consent Decree in the

Federal Register and an opportunity for comment pursuant to 42 U.S.C. § 7413(g). EPAshall

expeditiously prepare such notice and, within five (5) business days of lodging thisConsent

Decree with the Court, submit it to the Office of Federal Register for publication. After the

Consent Decree has undergone the statutorily-required notice and comment opportunity, the

Administrator of EPA and/ortheAttorney General, as appropriate, shall promptly consider any

suchwritten comments in determining whether to withdraw or withhold consent to thisConsent

Decree in accordance with 42 U.S.C. § 7413(g). If the Administrator and/or the Attorney

General do not elect to withdrawand withhold their consent, EPA shall promptlyfile a motion

that requests the Court to enter this Consent Decree.

16. No Party shall challenge any term ofthis Consent Decree orthis Court's jurisdiction

to enterandenforce theConsent Decree. This paragraph shall notbe construed to limitor

modify the discretion ofthe Administrator and/or the Attorney General pursuant to 42 U.S.C.

§ 7413(g).

COSTS OF LITIGATION

17. Each Party shall bear its own costs of litigation.

NOTICE TO PARTIES

18. Any notice required by orgiven inconnection with this Consent Decree shall be

made inwriting, viafacsimile, electronic mail or overnight delivery, and shall besent to the

following:
For American Fuel & Petrochemical Manufacturers:

RICHARD S. MOSKOWITZ

American Fuel & Petrochemical Manufacturers

1667 K Street, NW

Washington, DC 20006

Phone: 202-552-8474

Email: rmoskowitz@afpm.org

CHET M. THOMPSON

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-624-2500

Email: cthompson@crowell.com

For American Petroleum Institute:

ROBERT A. LONG, JR.

Covington & Burling LLP

One CityCenter

850 Tenth Street NW

Washington, D.C. 20001

Phone: 202-662-6000

Fax: 202-778-5612

Email: rlong@cov.com

For EPA:

BRL\N H. LYNK

United States Department of Justice

Environmental Defense Section

601 D Street, NW, Suite 8000

Washington, DC 20004

Phone: 202-514-6187

Fax: 202-514-8865

Email: brian.lynk@usdoj.gov

For U.S. Postal Service Overnight Mail Only:

P.O. Box 7611

Washington, DC 20044
EFFECT OF SIGNATURE

19.This Consent Decree may be signed in any number ofseparate counterparts. Once all

Parties have signed, each separate counterpart shall be deemed to constitute an agreement among

all Parties, subject to Paragraph 20.

20.ThisConsent Decree shallbecome effective upon entry by theCourt following

completion ofthe process described in Paragraph 15 above. Ifthe Administrator and/or the

Attorney General elects to withdraw orwithhold consent atthe conclusion ofthat process, then

EPA will promptly notify Plaintiffs, this Consent Decree shall not take effect and the Parties

reserve any and all rights.

21. The undersigned representatives ofeach Party hereby certify that they are fully

authorized by the Party orParties they represent to bind that Party to the terms ofthis Decree.

SO ORDERED onthis day of ^2015.

Christopher R. Cooper

United States District Judge
FOR EPA

JOHN C. CRUDEN

Assistant Attorney General

Environment and Natural Resources Division

By: DATED:

BRIAN H. LYNK

Trial Attorney

U.S. Department ofJustice

Environmental Defense Section

P.O. Box 7611

Washington, DC 20044

(202)514-6187

FOR AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS

CHET M. THOMPSON ' '

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Phone; 202-624-2500

Email: cthompson@crowell.com

FOR AMERICAN PETROLEUM INSTITUTE

10

^ DATED:

ROBERT A. LOl' ^" Covington & Burling LLP

One CityCenter

850 Tenth Street NW

Washington, D.C. 20001

Phone: 202-662-6000

Fax: 202-778-5612