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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 1:13-cv-02748-RBJ 

WILDEARTH GUARDIANS, 

 Plaintiff, 

 v. 

GINA McCARTHY, in her official capacity as Administrator 

of the United States Environmental Protection Agency, 

 Defendant, 

 and 

STATE OF OKLAHOMA, 

OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, and 

STATE OF WYOMING, 

 Defendant-Intervenors. 

NOTICE OF LODGING 

Plaintiff WildEarth Guardians and Defendant Gina McCarthy, in her 

official capacity as Administrator of the United States Environmental Protection 

Agency (“EPA”), hereby give notice of the lodging of a proposed Consent Decree 

to resolve all claims in this litigation. The proposed Consent Decree 

accompanies this Notice. For the reasons explained below, the parties 

respectfully request that the Court not sign or enter the proposed Consent 

Decree at this time. 

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Clean Air Act section 113(g) requires that notice of this proposed Consent 

Decree be given to the public through publication in the Federal Register, and 

that the public shall have a reasonable opportunity to comment on the 

proposed Consent Decree. 42 U.S.C. § 7413(g). Congress specifically required 

that EPA provide at least 30 days for public comment. Id. If any comments are 

received on the proposed Consent Decree, then the Administrator of EPA or the 

Attorney General, as appropriate, must consider those comments and 

determine whether they should withdraw their consent to the proposed 

Consent Decree. Id. The parties acknowledge this requirement in Paragraph 

12 of the proposed Consent Decree. EPA is preparing the notice, which will be 

promptly transmitted to the Office of the Federal Register for publication. 

Once the notice-and-comment period is completed, EPA will inform the 

Court, Plaintiff, and Intervenors as to whether the Administrator and/or the 

Attorney General has determined to withdraw consent to the proposed Consent 

Decree or to proceed with entry of the proposed Consent Decree. If not, the 

parties will proceed to move for entry of the proposed Consent Decree. 

 The Court should not sign or enter the proposed Consent Decree at this 

time. 

 Respectfully submitted, 

 COUNSEL FOR PLAINTIFF: 

Dated: August 25, 2014 /s/ Roberta Traverso-Estes 

CO Bar. No. 43906 

3356 Stuart St 

Denver, CO 80212 

(503) 453-3360 

Rtraversoestes@gmail.com 

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/s/ Samantha Ruscavage-Barz 

NM Bar. No. 23276 

WildEarth Guardians 

516 Alto Street 

Santa Fe, NM 87501 

(505) 401-4180 

sruscavagebarz@wildearthguardians.org

COUNSEL FOR DEFENDANT EPA: 

SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources 

Division 

Dated: August 25, 2014 By: /s/ Daniel Pinkston

DANIEL PINKSTON 

Environmental Defense Section 

Environment and Natural Resources 

Division 

U.S. Department of Justice 

999 18th Street, South Terrace, Suite 370 

Denver, CO 80202 

(303) 844-1804 

daniel.pinkston@usdoj.gov 

CERTIFICATE OF SERVICE 

 I hereby certify that a copy of the foregoing NOTICE OF LODGING was 

served on all counsel of record through the Court’s ECF system on this 25th 

day of August 2014. 

 /s/ Daniel Pinkston

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PROPOSED 

CONSENT DECREE 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 1:13-cv-02748-RBJ 

WILDEARTH GUARDIANS, 

 Plaintiff, 

 v. 

GINA McCARTHY, in her official capacity as Administrator 

of the United States Environmental Protection Agency, 

 Defendant. 

CONSENT DECREE 

This Consent Decree (“Consent Decree”) is entered into by Plaintiff WildEarth Guardians 

(“Guardians”) and by Defendant Gina McCarthy, in her official capacity as Administrator of the 

United States Environmental Protection Agency (“EPA”). 

RECITALS

 A. Plaintiff Guardians filed its Complaint in this matter on October 8, 2013. In the 

Complaint, brought as a citizens’ suit under the Clean Air Act, 42 U.S.C. § 7604, Plaintiff alleged 

that Defendant EPA failed to perform nondiscretionary duties to make findings that the States of 

Colorado, Idaho, New Mexico, Oklahoma, Oregon, South Dakota, Utah, Washington, and 

Wyoming had failed to submit required “State Implementation Plans” (“SIPs”) regarding the 

“National Ambient Air Quality Standard” (“NAAQS”) adopted by EPA for 1-hour NO2 in 2010. 

75 Fed. Reg. 6474 (Feb. 9, 2010). 

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 B. On January 24, 2014, Plaintiff filed its “Amended Complaint for Declaratory and 

Injunctive Relief” (“Amended Complaint”). The Amended Complaint added the States of Alaska 

and Hawaii to the list of States that had not timely submitted NO2 NAAQS SIPs. In its prayer for 

relief, Plaintiff sought (i) a declaratory judgment that Defendant EPA failed to perform a 

nondiscretionary duty to make findings that the States listed above had not timely submitted SIPs 

regarding the 1-hour NO2 NAAQS issued by EPA in 2010; (ii) an order requiring EPA to make 

such findings by a date certain; (iii) Plaintiff’s reasonable costs of litigation pursuant to 42 

U.S.C. § 7604(d); and (iv) a determination that the Court will retain jurisdiction over this matter 

to ensure compliance with the Court’s orders. 

 C. The State of Oklahoma, the Oklahoma Department of Environmental Quality, and the 

State of Wyoming moved to intervene, and their intervention was granted by the Court on 

February 11, 2014, and February 26, 2014, respectively. 

 D. Intervenor State of Wyoming submitted a 1-hour NO2 NAAQS SIP to EPA for 

approval on January 24, 2014, and Intervenor State of Oklahoma submitted a 1-hour NO2

NAAQS SIP to EPA for approval on March 10, 2014. In addition, New Mexico submitted a 1-

hour NO2 NAAQS SIP to EPA for approval on March 27, 2014; Idaho made such a SIP 

submission to EPA on September 16, 2013; Oregon on December 27, 2013; South Dakota on 

October 29, 2013; Utah on December 12, 2012; Colorado on March 7, 2013; and Hawaii made 

such a submission on April 4, 2014. 

 E. As of the date of lodging of this Consent Decree with the Court, EPA has not yet made 

a finding of failure to submit for any State regarding infrastructure SIPs for the 2010 1-hour NO2 

NAAQS. 

 F. Guardians and EPA have agreed to settlement of this case without any admission of 

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any issue of fact or law, which settlement they consider to be a just, fair, adequate, and equitable 

resolution of the claims raised in this action. 

 G. It is in the interest of the public, the parties, and judicial economy to resolve the 

issues in this action without protracted litigation. 

 H. 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, 42 U.S.C. §§ 7401 et 

seq. 

AGREEMENT AND ORDER

 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 as follows: 

 1. The Court has subject matter jurisdiction over the claims set forth in the Amended 

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 Colorado. 

 3. Guardians and EPA shall not challenge 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 that have been asserted or that could have been 

asserted in the Amended Complaint regarding any alleged EPA failure to perform a 

nondiscretionary duty to make findings that a State has failed to submit a 1-hour NO2 NAAQS 

SIP, except as set forth in the second clause of the first sentence of Paragraph 5 below. 

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

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

Decree are null and void. 

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 5. On or before November 15, 2014, EPA shall sign for publication in the Federal 

Register a finding of failure to submit all or portions of the SIP revisions required under CAA 

Sections 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), and (M) with regard to 

the 2010 NO2 NAAQS with regard to the States of Alaska and Washington; however, in light of 

the decision by the United States Supreme Court in Environmental Protection Agency v. EME 

Homer City Generation, L.P., 134 S.Ct. 1584 (2014), the parties agree that this Consent Decree 

does not address any claim by Guardians that States are required to submit SIPs relating to the 

2010 1-hour NO2 NAAQS that include provisions relating to 42 U.S.C. § 7410(a)(2)(D)(i)(I). 

Within ten business days following signature of the finding, EPA will send the notice to the 

Federal Register for review and publication. 

 6. The deadline in Paragraph 5 may be extended by written stipulation executed by 

counsel for EPA and Guardians and filed with the Court. Any other extension of the deadline in 

Paragraph 5 or modification of this Consent Decree may be approved by the Court upon motion 

and pursuant to the Federal Rules of Civil Procedure by any party to the Consent Decree and 

upon consideration of any response by the non-moving party to the Consent Decree and reply by 

the moving party. 

 7. If a lapse in appropriations occurs within 60 days prior to the deadline set forth in 

Paragraph 5, that deadline shall be extended automatically one day for each day of the 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 6. 

 8. The parties agree that the State of Wyoming submitted the required infrastructure SIP 

on January 24, 2014, and therefore EPA shall not include Wyoming in any finding of failure to 

submit required by Paragraph 5 of this Consent Decree. The parties agree that the State of 

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Oklahoma submitted the required infrastructure SIP provisions on March 10, 2014, and therefore 

EPA shall not include Oklahoma in the finding of failure to submit required by Paragraph 5 of 

this Consent Decree. 

 9. The United States agrees to pay Guardians as full settlement of all claims for 

attorneys’ fees, costs, and expenses incurred in this litigation through the date of lodging this 

Consent Decree, under any authority, the sum of $10,905.00, as soon as reasonably practicable 

following entry of this Consent Decree, by electronic funds transfer to a bank account identified 

by Guardians. Guardians agrees to accept $10,905.00 in full satisfaction of any and all claims for 

costs and attorneys’ fees with respect to this case, except that Guardians reserves the right to seek 

fees pursuant to 42 U.S.C. § 7604(d) for any additional work performed after the lodging of this 

Consent Decree, including attorneys’ fees for any extensions of the deadline set forth in 

Paragraph 5 requested by EPA and costs and attorneys’ fees for enforcement of the Consent 

Decree in the future. Nothing in this Paragraph shall be construed as an admission or concession 

by EPA that Guardians is entitled to or eligible for recovery of any costs or attorneys’ fees, and 

EPA reserves all defenses with respect to any future fee claim. The amount of attorneys’ fees or 

rates under this Paragraph shall have no precedential value in any future fee claim. 

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

Consent Decree and to resolve any disputes in accordance with Paragraph 14 of this Consent 

Decree. Once EPA has taken the actions called for in Paragraphs 5 and 8 of this Consent Decree, 

this Decree shall be terminated and the case dismissed with prejudice, except that the portion of 

Plaintiff’s claim related to EPA’s failure to make a finding of failure to submit with regards to 

section 110(a)(2)(D)(i)(I) of the CAA shall be dismissed without prejudice. The Parties may 

either jointly notify the Court that the Decree should be terminated and the case dismissed, or 

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EPA may so notify the Court by motion. If EPA notifies the Court by motion, then Guardians 

shall have twenty (20) days in which to respond. 

 11. Except as provided herein, 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 Paragraph 5 by the time specified therein 

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

Paragraph. 

 12. The parties agree and acknowledge that final approval and entry of this proposed 

Consent Decree are subject to the requirements of 42 U.S.C. § 7413(g). That subsection 

provides that notice of this proposed Decree be given to the public and that the public shall have 

a reasonable opportunity to comment. EPA will promptly deliver 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, EPA’s Administrator and the Attorney General shall promptly consider any such 

written comments in determining whether to withdraw or withhold consent to this Consent 

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

elects not to withdraw or withhold consent to this Consent Decree, the Parties shall promptly file 

a motion that requests the Court to enter this Consent Decree. If the Administrator or Attorney 

General elects to withdraw or withhold consent to this Consent Decree pursuant to 42 U.S.C. § 

7413(g), EPA shall promptly advise Plaintiff. 

 13. Nothing in the terms of this Consent Decree shall be construed to waive any 

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remedies Guardians may have under CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), with respect to 

any future challenges to the final action called for in Paragraph 5, and nothing in this Consent 

Decree shall be construed to create any such remedy. 

 14. Nothing in this Consent Decree shall be construed to provide the Court with 

jurisdiction over any challenges by Guardians, or any other person or entity not a party to this 

litigation, with respect to the final action called for in Paragraph 5. 

 15. In the event of a dispute between 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 the other party to 

confer and attempt to reach an agreement on the disputed issue. If the Parties cannot reach an 

agreed-upon resolution, then either Party may move the Court to resolve the dispute. No motion 

or other proceeding seeking to enforce this Consent Decree or for contempt of court shall be filed 

unless the Party seeking to enforce this Consent Decree has followed the procedure set forth in 

this Paragraph. 

 16. It is hereby expressly understood and agreed that this Consent Decree was drafted by 

Guardians and EPA jointly, 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. This Consent Decree shall be governed and 

construed under the laws of the United States. 

 17. The obligations imposed upon EPA under this Consent Decree may only be 

undertaken using appropriated funds. No provision of this Decree shall be interpreted as, or 

constitute a commitment or requirement that, EPA will obligate funds in contravention of the 

Anti-deficiency Act, 31 U.S.C. § 1341, or any other applicable law or regulation. 

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 18. The undersigned representative of each Party certifies that she or he is fully 

authorized to consent to the Court’s entry of the terms and conditions of this Consent Decree. 

 19. Any written notice or other written communication between the parties contemplated 

under this Consent Decree shall be sent to the undersigned counsel at the email addresses listed 

in the signature blocks below unless written notice of a change in counsel and/or address is 

provided. 

SO ORDERED this ___ day of ______ 2014. 

 BY THE COURT: 

 _______________________________ 

 United States District Judge 

FOR PLAINTIFF: 

Dated: August 25, 2014 /s/ Roberta Traverso-Estes

Roberta Traverso-Estes 

3356 Stuart St 

Denver, Colorado 80212 

Tel: (503) 453-3360 

RTraversoEstes@gmail.com

FOR DEFENDANT: 

SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

Dated: August 25, 2014 By: /s/ Daniel Pinkston

DANIEL PINKSTON 

Environmental Defense Section 

Environment and Natural Resources Division 

United States Department of Justice 

999 18th Street, South Terrace, Suite 370 

Denver, Colorado 80202 

Tel: (303) 844-1804 

Daniel.Pinkston@usdoj.gov

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