UNITED STATES DISTRICT COURT 

DISTRICT OF MINNESOTA 

______________________________________ 

 ) 

National Parks Conservation Association, ) 

Minnesota Center for Environmental ) 

Advocacy, Friends of the Boundary Waters, ) 

Voyageurs National Park Association, ) Civil No.: 12-3043 (RHK/JSM) 

Fresh Energy, and Sierra Club, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) 

 ) 

United States Environmental Protection )

Agency, and Gina McCarthy in her official ) 

capacity as EPA Administrator, ) 

 ) 

 Defendants. ) 

______________________________________ ) 

CONSENT DECREE 

 This Consent Decree is entered into by Plaintiffs National Parks Conservation 

Association, (“Plaintiffs”), and by Defendant United States Environmental Protection Agency 

and Gina McCarthy, in her official capacity as Administrator of EPA (collectively “EPA” or “the 

Administrator”). 

 WHEREAS, on October 21, 2009, the Department of Interior certified to EPA that air 

pollutant emissions from Xcel Energy’s coal-fired Sherburne County Generating Station 

(“Sherco”) were reasonably attributable to visibility impairment in Minnesota’s Voyageurs 

National Park, and Michigan’s Isle Royale National Park; 

 WHEREAS, on December 5, 2012, Plaintiffs filed their complaint in this action alleging 

that the Administrator had failed to perform her mandatory duty to promulgate a federal 

reasonably attributable visibility impairment best available retrofit technology (“RAVI BART”) 
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determination for Sherco without unreasonable delay since the Department of the Interior’s 

October 21, 2009 certification; 

WHEREAS, on February 1, 2013, Defendants filed their answer in this action denying 

that the Administrator has a mandatory duty to promulgate RAVI BART for Sherco in response 

to the Department of the Interior’s October 21, 2009 certification because EPA has not 

determined that visibility impairment at one or more Class I areas is reasonably attributable to 

emissions from Sherco. 

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

settlement of the above-captioned case without expensive and protracted litigation, and without a 

litigated resolution of any issue of law or fact; 

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

resolution of the claims in the above-captioned case and consent to entry of this Consent Decree; 

and 

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

fair, reasonable, in the public interest, and consistent with the Clean Air Act (“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 Consent Decree. 

2. Venue is proper in the United States District Court for the District of Minnesota. 
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3. Plaintiffs and Defendants shall not challenge in Court the terms of this Consent 

Decree or the Court’s jurisdiction to enter and enforce this Consent Decree. This 

Consent Decree constitutes a complete and final resolution of all claims asserted in 

the Complaint. 

4. This Consent Decree shall become effective upon the date of its entry by the Court. 

If for any reason the Court does not enter this Consent Decree, the obligations set 

forth in this Consent Decree are null and void. 

5. EPA agrees that source-specific emission limitations representing Best Available 

Retrofit Technology (“BART”) for the Sherco facility will satisfy the requirements of 

40 C.F.R. § 51.302(c)(4)(iii) and (iv) (“BART for Sherco”). 

6. EPA shall sign a notice of final rulemaking action on or before August 31, 2015, in 

which it determines under 40 C.F.R. § 51.302(c)(4)(i) whether visibility impairment 

in Voyageurs National Park and Isle Royale National Park is reasonably attributable 

to Sherco. If EPA determines that visibility impairment in Voyageurs National Park 

or Isle Royale National Park is reasonably attributable to Sherco, then EPA’s final 

rulemaking shall also include EPA’s final determination of BART for Sherco. If, 

however, EPA determines that visibility impairment in neither Voyageurs National 

Park or Isle Royale National Park is reasonably attributable to Sherco, then BART for 

Sherco is not required. 

7. The Parties agree that if, on or before August 31, 2015, EPA signs a notice of final 

rulemaking action in which it either approves a State Implementation Plan (“SIP”) or 

promulgates a Federal Implementation Plan (“FIP”) under 40 C.F.R. § 51.308 

(“Regional Haze Rule”) that includes a final determination of BART for Sherco, then 
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EPA’s obligation to sign a notice of final rulemaking action as described under 

Paragraph 6 shall be null and void. 

8. EPA shall sign a notice of proposed rulemaking action on or before February 27, 

2015, for the final actions(s) described in Paragraph 6 (and 7) above. 

9. The Parties agree that, if EPA signs a notice of final rulemaking action in either the 

manner described in Paragraph 6 or Paragraph 7, then any duty EPA may have under 

42 U.S.C. § 7491 to act in response to the Department of Interior’s October 21, 2009 

certification letter will be satisfied. 

10. The deadline in Paragraphs 6, 7 and 8 may be extended for a period of 60 days or less 

by written stipulation executed by counsel for EPA and Plaintiffs and filed with the 

Court. Any other extension of a deadline in Paragraphs 6, 7 and 8 may be approved 

by the Court upon motion made pursuant to the Federal Rules of Civil Procedure by 

EPA and upon consideration of any response by Plaintiffs and reply by EPA. 

11. If this Consent Decree is not entered until after any specific deadline for EPA action 

set forth herein, then the deadline for EPA action shall be 30 days after entry of this 

Consent Decree with respect to such deadline. 

12. Plaintiffs and EPA have resolved any claim Plaintiffs have for their costs of litigation 

(including attorneys’ fees) incurred in this matter up to and including the date this 

Consent Decree is lodged with the Court. Plaintiffs reserve their right to enforce such 

agreement, and to seek litigation costs for any work performed after the lodging of 

this Consent Decree. EPA does not concede that Plaintiffs will be entitled to fees for 

any work performed after the lodging of the Consent Decree, and the parties reserve 

all claims and defenses with respect to any future costs of litigation claim. 
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13. No later than fifteen (15) business days following signature by the Administrator or 

his delegatee of the notice of any final rulemaking referenced above, EPA shall 

deliver the notice to the Office of the Federal Register for review and publication. 

Following such delivery to the Office of the Federal Register, EPA shall not take any 

action (other than is necessary to correct any typographical errors or other errors in 

form) to delay or otherwise interfere with publication of such notice in the Federal 

Register. EPA shall make available to Plaintiffs copies of the notices referenced 

herein within five business days following signature by the Administrator or his 

delegatee. 

14. 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 by Paragraphs 6 and 7 

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

meaning of this Paragraph. 

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

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

final action EPA may take pursuant to this Consent Decree. 

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

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

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

court jurisdiction to review any issues that are within the exclusive jurisdiction of the 
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United States Court of Appeals pursuant to 42 U.S.C. §§ 7607(b)(1) and 7661d. 

Nothing in this Consent Decree shall be construed to waive any remedies or defenses 

the Parties may have under 42 U.S.C. § 7607(b)(1). 

17. 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 such purpose. No provision of this Consent Decree shall be interpreted 

as or constitute a commitment or requirement that EPA obligate or pay funds in 

contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable 

provision of law. 

18. If a lapse in EPA’s appropriations occurs within one hundred and twenty (120) days 

prior to the deadline in Paragraphs 6, 7 or 8 in this Decree, that deadline shall be 

extended automatically one day for each day of delay caused by the lapse in 

appropriations. If EPA determines that additional time is needed due to a lapse in 

appropriations, nothing in this paragraph shall preclude EPA from seeking an 

additional extension, either by stipulation or court order, pursuant to the procedures of 

Paragraph 10. 

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

and sent via e-mail to the following: 

For Plaintiffs: 

Kevin Reuther 

kreuther@mncenter.org 

Reed Zars 

rzars@lariat.org
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For EPA: 

Matthew Marks David A. Carson 

marks.matthew@epa.gov david.a.carson@usdoj.gov

20. In the event of a dispute among the Parties 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. If the Parties cannot reach an agreed-upon 

resolution, any Party may move the Court to resolve the dispute. 

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

contempt of court shall be properly filed unless the Party seeking to enforce this 

Consent Decree has followed the procedure set forth in Paragraph 20. 

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

Consent Decree, to resolve any disputes thereunder, and to consider any future 

requests for costs of litigation (including reasonable attorneys’ fees). After EPA’s 

obligations under this Consent Decree have been completed, EPA may move to have 

this Consent Decree terminated. Plaintiffs shall have 14 days in which to respond to 

such motion. 

23. 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 42 U.S.C. § 7413(g). EPA will deliver a public 

notice of this Consent Decree to the Federal Register for publication and public 

comment within fifteen (15) business days after lodging this Consent Decree with the 

Court. After this Consent Decree has undergone an opportunity for notice and 

comment, EPA’s Administrator and the Attorney General, as appropriate, will 
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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 

Clean Air Act. If the Administrator or the Attorney General elects not to withdraw or 

withhold consent to this Consent Decree, EPA will promptly file a motion that 

requests the Court to enter this Consent Decree and Plaintiffs will not oppose the 

motion. If EPA has not moved for entry of this Consent Decree within 120 days after 

the notice is published in the Federal Register, the Parties shall confer as to EPA’s 

anticipated timeframe for moving to enter the Decree. If the parties are unable to 

agree as to the reasonableness of EPA’s anticipated timeframe for moving to enter the 

Decree after such consultation, or if EPA or the Attorney General withdraw or 

withhold consent to this Consent Decree, any party may file dispositive motions in 

this matter. In the event the Plaintiff(s) file a dispositive motion referred to in this 

Paragraph, the Plaintiff(s) shall withdraw such filed motion promptly after EPA files 

a motion to enter this Consent Decree. 

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

drafted by the Parties 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. 

25. The undersigned certify that they are fully authorized by the Party or Parties they 
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represent to bind that Party or those Parties to the terms of this Consent Decree. 

 SO ORDERED this day of 20____. 

 

 

 HON. RICHARD H. KYLE 

 United States District Judge 

 SO AGREED: 

 For Plaintiffs National Parks Conservation 

 Association and Sierra Club 

 /s/ REED ZARS

 Attorney at Law 

 910 Kearney Street 

 Laramie, WY 82070 

 (307) 745-7979 

 rzars@lariat.org

 Dated: 6/24/2014

 For Plaintiffs Minnesota Center for 

 Environmental Advocacy, Friends of the 

 Boundary Waters, Voyagers National Park 

 Association, and Fresh Energy 

 /s/ KEVIN REUTHER

 Minnesota Center for Environmental 

 Advocacy 

 26 E. Exchange St., Suite 206 

 St. Paul, MN. 55101-1667 

 (651) 287-4861 

 kreuther@mncenter.org

 Dated: 6/24/2014

 
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FOR DEFENDANTS 

SAM HIRSCH 

 Acting Assistant Attorney General 

 David A. Carson

 United States Department of Justice 

 Environment and Natural Resources 

 Division 

 999 18th Street 

 South Terrace - Suite 370 

 Denver, CO 80202 

 (303) 844-1349 

 david.a.carson@usdoj.gov

 Dated: 6/24/2014