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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

____________________________________

WILDEARTH GUARDIANS, )

)

Plaintiff, )

) Case No. 1:11-cv-00461-JCH

v. )

)

LISA JACKSON, in her official capacity )

as Administrator, United States )

Environmental Protection Agency, )

)

Defendant. )

____________________________________)

CONSENT DECREE

WHEREAS, Plaintiff WildEarth Guardians filed this action pursuant to section 304(a)(2) 

of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa Jackson, in 

her official capacity as Administrator, United States Environmental Protection Agency (“EPA”), 

failed to perform a non-discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to 

grant or deny a petition submitted by WildEarth Guardians requesting that EPA object to a CAA 

permit issued by the New Mexico Environmental Department, Air Quality Bureau (“NMED”) to 

Public Service Company of New Mexico to operate the San Juan Generating Station, a coal-fired 

power plant located in San Juan County, New Mexico;

WHEREAS, Plaintiff and EPA (collectively “the Parties”) wish to effect a settlement of 

the above-captioned matter without expensive and protracted litigation;

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

of the claims in the above-captioned matter;

WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable, 

in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq.;
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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. No later than February 15, 2012, or within 30 days of the entry of this Consent

Decree, whichever is later, EPA shall sign a decision or decisions, pursuant to 42 U.S.C.

§ 7661d(b)(2), taking final action on Plaintiff’s CAA Title V petition on the San Juan Generating 

Station Title V Permit (“Permit”).

2. Following signature of such response to Plaintiff’s petition, EPA shall

expeditiously deliver notice of such action on the Permit to the Office of the Federal Register for 

publication.

3. The United States, on behalf of EPA, agrees to pay Plaintiff in full settlement of 

all claims for attorneys’ fees, costs, and expenses incurred as of the date this Consent Decree 

becomes final under Paragraph 14 the sum of $1,000.00, as soon as reasonably practicable, by 

electronic funds transfer in accordance with instructions provided to the undersigned defense 

counsel by counsel for the Plaintiff. Nothing in this paragraph shall be construed as an 

admission or concession by EPA that Plaintiff is entitled to or eligible for recovery of any costs 

or attorneys’ fees.

4. Any provision of this Decree may be modified by (a) written stipulation of the 

Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, 

pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the 

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

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree.

6. Nothing in this 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 Decree, including discretion to alter, amend, or revise any responses 

or final actions contemplated by this Decree. EPA’s obligation to perform the actions specified 

in Paragraph 1 by the time specified therein does not constitute a limitation or modification of 

EPA’s discretion within the meaning of this paragraph.

7. Nothing in this Decree shall be construed as an admission of any issue of fact or 

law nor to waive or limit any claim or defense, on any grounds, related to any final action EPA 

may take with respect to the Permit.

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

jurisdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this 

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 CAA 

section 307(b)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of this Decree shall be 

construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 

42 U.S.C. § 7607(b)(1).

9. The obligations imposed upon EPA under this Decree can only be undertaken 

using appropriated funds. No provision of this Decree shall be interpreted as or constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
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10. Any notices required or provided for by this Decree shall be made in writing, via 

facsimile or other means and sent to the following:

For Plaintiffs:

Samantha Ruscavage-Barz

WildEarth Guardians

312 Montezuma Avenue

Santa Fe, NM 87501

Tel: (505) 988-9126 x1158

Fax: (505) 989-8623

sruscavagebarz@wildearthguardians.org

For Defendants:

Stephanie Talbert

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3896

Tel: (202) 514-514-2617

Fax: (202) 514-8865

stephanie.talbert@usdoj.gov

Susan Stahle

U.S. Environmental Protection Agency

Office of General Counsel (2344A)

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-1272

Fax: (202) 564-5603

stahle.susan@epa.gov

11. 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, any party may move the Court to resolve the dispute.
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12. No motion or other proceeding seeking to enforce this Decree or for contempt of 

Court shall be filed unless the Plaintiff has followed the procedure set forth in Paragraph 11.

13. The Court shall retain jurisdiction to determine and effect compliance with this 

Decree. When EPA’s obligations under this Decree have been completed, the above-captioned 

matter shall be dismissed with prejudice. The Parties shall file the appropriate notice with the 

Court so that the Clerk may close the file.

14. 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 113(g), 42 U.S.C. § 7413(g). EPA shall 

promptly submit a public notice of this Consent Decree to the Federal Register for publication 

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

Decree has undergone an opportunity for 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 consent to this Consent Decree, in accordance with 

section 113(g) of the CAA. If the federal government elects not to withdraw or withhold consent 

to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter 

this Consent Decree.

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

drafted by WildEarth and EPA 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.

16. 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 Decree.
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SO ORDERED on this ___ day of _________________, 2011.

_______________________________

THE HON. JUDITH C. HERRERA

UNITED STATES DISTRICT JUDGE

SO AGREED: 

FOR PLAINTIFFS

/s/_Samantha Ruscavage-Barz______

SAMANTHA RUSCAVAGE-BARZ

WildEarth Guardians

312 Montezuma Avenue

Santa Fe, NM 87501

Tel: (505) 988-9126 x1158

Fax: (505) 989-8623

sruscavagebarz@wildearthguardians.org

FOR DEFENDANTS

IGNACIA C. MORENO

Assistant Attorney General

Environment & Natural Resources Division

/s/ Stephanie J. Talbert____________

STEPHANIE J. TALBERT

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-2617

Fax: (202) 514-8865

stephanie.talbert@usdoj.gov

Date: August 28, 2011