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IN	THE	UNITED	STATES	DISTRICT	COURT

FOR	THE	DISTRICT	OF	COLORADO

No.	1:15-cv-00630-MSK-KLM

WILDEARTH	GUARDIANS; )

HEAL	Utah; )

NATIONAL	PARKS	CONSERVATION )

ASSOCIATION;	and )

SIERRA	CLUB, )

)

Plaintiffs, )

)

v. )

)

UNITED	STATES	ENVIRONMENTAL )

PROTECTION	AGENCY; )

GINA	McCARTHY,	in	her	official	capacity )

as	Administrator	of	the	United	States )

Environmental	Protection	Agency; and )

SEAN	McGRATH,	in	his	official	capacity	as )

Regional	Administrator,	United	States )

Environmental	Protection	Agency, )

)

Defendants. )

________________________________________________ )

CONSENT	DECREE

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

Guardians (“Guardians”),	HEAL	Utah,	National	Parks	Conservation	Association

(“NPCA”),	and	Sierra	Club and	Defendants	U.S.	Environmental	Protection	Agency,	

Administrator	Gina	McCarthy,	and	Regional	Administrator	Shaun	McGrath

(collectively	“EPA”).		Guardians,	HEAL	Utah,	NPCA,	Sierra	Club,	EPA,	Administrator	

McCarthy,	and	Regional	Administrator	McGrath	are	described	herein	as	the	

“Parties.”
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RECITALS

A. Pursuant	to	the	Clean	Air	Act	(“Act”),	each	State must	adopt a “State	

Implementation	Plan”	(“SIP”)	that	includes enforceable	emission	limitations	

necessary	to	attain	the	National	Ambient	Air	Quality	Standards	(“NAAQS”)	and	to	

meet	all	applicable	requirements	of	the	Clean Air	Act	(“CAA”	or	“Act”).		42	U.S.C.	§	

7410(a)(1).		The	primary	goal	of	a	SIP	is	to	explain	what regulations,	control	

measures,	and	programs	the	State	will	use	to	ensure	that	air	quality	standards	are	

attained	and	maintained. SIPs	must	be	submitted	to	and	approved	by	EPA.		32	U.S.C.	

§	7410(a)(1),	(k).			

B. In	1977,	Congress	enacted	42	U.S.C.	§	7491,	entitled “Visibility	

protection	for	Federal	Class	I	areas.”		Congress	declared	as	a	national	goal	“the	

prevention	of	any	future,	and	the	remedying	of	any	existing,	impairment	of	visibility	

in	mandatory	Class	I	Federal	areas	which	impairment	results	from man-made	air	

pollution.”		42	U.S.C.	§	7491(a)(1).		Congress	required	EPA	to	promulgate	

regulations	by	1979	to	assure	“reasonable	progress”	toward	meeting	the	national	

goal	identified	above	and	compliance	with	the	requirements	of	42	U.S.C.	§	7491.		42	

U.S.C.	§	7491(a)(1).		The	regulations	require	implementation	plans	for	States	in	

which	a	Class	I	area	exists	(and	for	States	“the	emissions	from	which	may	

reasonably	be	anticipated	to	cause	or	contribute	to	any	impairment	of	visibility”	in	

such	Class	I	area)	to	include	emission	limits,	compliance	schedules,	and	“other	

measures	as	may	be	necessary	to	make	reasonable	progress	toward	meeting	the	

national	goal.”		42	U.S.C.	§	7491(b)(2).		Pursuant	to	EPA’s regional	haze regulations,	
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States	were	required	to	submit	regional	haze	SIPs	to	EPA	for	approval	by	December	

17,	2007.		40	C.F.R.	§	51.308(b).		

C. On	May	26,	2011,	Utah	submitted	a	SIP	revision	to	EPA	that	addressed	

regional	haze	SIP	requirements.		On	October	30,	2012,	EPA	disapproved	portions	of	

Utah’s	SIP	revision	regarding	the	State’s	“best	available	retrofit	technology”	

(“BART”)	determination	for	Units	1	and	2	of	the	Hunter	power	plant	and	Units	1	and	

2	of	the	Huntingdon	power	plant.	77	Fed.	Reg.	74,355	(Dec. 14,	2012).		

D. Within	two years	after	the	EPA	Administrator	(a)	finds	that	a	State	

failed	to	make	a	required	submission,	(b)	finds	that	a	SIP	or	SIP	revision	submission	

does	not	satisfy	statutory	minimum	criteria,	or	(c)	disapproves	a	SIP	in	whole	or	in	

part,	the	Administrator	is	to	promulgate	a	“Federal Implementation	Plan”	(“FIP”),	

unless	the	State	corrects	the	deficiency,	and	the	Administrator	approves	the	plan	or	

plan	revision	before	the	Administrator	promulgates	the	FIP.		42	U.S.C.	§	7410(c)(1).		

E. EPA	has	not	promulgated	a	regional	haze	FIP	for	the	State	of	Utah.

F. On	or	about	January	21,	2015,	Guardians	provided	EPA	with	written	

notice	of	a	claim	that	EPA	had	failed	to	promulgate	a	regional	haze	FIP	for	Utah;	

HEAL	Utah	submitted	a	similar	claim	on	or	about	January	29,	2015.

G. On March	27,	2015,	Guardians	filed	a	“Complaint	for	Declaratory	and	

Injunctive	Relief”	in	the	United	States	District	Court	for	the	District	of	Colorado.	

Plaintiff	Guardians	states that	it	brought	the	Complaint	pursuant	to	the	Clean	Air	

Act’s	citizen	suit	provision,	42	U.S.C.	§	7604(a)(2),	in	that	it	alleges	that	the	

Administrator	has	not	performed	a	non-discretionary	duty	to	promulgate	a	regional	

haze	FIP	for	Utah	within	the	statutory	time	frame.
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H. In	its	prayer	for	relief,	Guardians	requests	(a)	a	declaratory	judgment	

that	EPA	has	violated	the	Act	by	failing	to	promulgate	a	regional	haze	FIP	for	Utah;	

(b)	an	injunction	compelling	EPA	to	promulgate	a	FIP	by	a	time	certain;	(c)	an	order	

that the	court	retain jurisdiction	until	EPA	has	complied;	and	(d)	an	award	of	

Guardians’	costs	of	litigation.		Complaint	at	9.

I. On	March	31,	2015,	Plaintiffs	HEAL	Utah,	National	Parks	Conservation	

Association,	and	Sierra	Club	filed	a	“Complaint	for	Declaratory	and	Injunctive	

Relief,” against	the	United	States	Environmental	Protection	Agency,	EPA	

Administrator	McCarthy,	and	EPA	Region	VIII	Administrator	Shaun	McGrath,	in	

which	they	asserted	the	same	claim	and	prayer	for	relief	as	asserted	by	Guardians	in	

Guardians	v.	McCarthy.		HEAL	Utah	v.	U.S.	Environmental	Protection	Agency,	Case	No.	

1:15-cv-00666	(D.	Colo.)	(“HEAL	v.	EPA”).		The	Guardians	v.	McCarthy and	HEAL	Utah	

v.	EPA cases	were	consolidated	into	Guardians	v.	McCarthy on	July	9,	2015.		The	

Court	ordered	that	the	HEAL	Utah	v.	EPA action	be	dismissed	and	that	all	subsequent	

pleadings and	other	documents	be	filed	under	the	1:15-cv-00630-MSK-KLM case	

number.		

J. The	State	of	Utah	and	PacifiCorp	have	filed	pending	motions	to	

intervene	in	both	Guardians	v.	McCarthy and	HEAL	Utah	v.	EPA.		The	Court	denied	

the	motions	to	intervene	filed	in	the	HEAL	Utah	v.	EPA case	without	prejudice	to	

refiling	in	the	above-captioned	matter.

K. On	June 11,	2015,	the	State	of	Utah	submitted	a	proposed	revised	

regional	haze	SIP	to	EPA	for	approval.
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L. On	July	22,	205,	pursuant	to	the	Court’s	order,	Guardians,	HEAL	Utah,	

NPCA,	and	Sierra	Club	filed	a	“Consolidated	Amended	Complaint	for	Declaratory	and	

Injunctive	Relief”	(“Consolidated	Complaint”)	in	the	consolidated	cases.		The	

Consolidated	Complaint	included	the	same	claim	for	relief	and	prayer	for	relief	as	

set	forth	in	the	Guardians	v.	McCarthy and	HEAL	Utah	v.	EPA complaints.

M. The	Parties	wish	to	effectuate	a	settlement	of	this	case	without	

expensive	and	protracted	litigation,	and	without	a	litigated	resolution	of	any	issue	of	

law	or	fact.

N. The	Parties	consider	this	Decree	to be	an	adequate	and	equitable	

resolution	of	the	claims	of	this	case	and	consent	to	entry	of	this	Decree.

O. The	Court,	by	entering	this	Decree,	finds	that	this	Decree	is	fair,	

reasonable,	in	the	public	interest,	and	consistent	with	the	Clean	Air	Act.

GENERAL	PROVISIONS

NOW	THEREFORE,	before	the	taking	of	testimony,	without	trial	or	

determination	of	any	issue	of	law	or	fact,	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	Consolidated	Complaint and	to	order	the	relief	contained	in	this	Decree.		Venue	

is	proper	in	the	United	States	District	Court	for	the	District	of	Colorado.

2. The	Parties shall	not	challenge	the	terms	of	this	Decree	or	this	Court’s	

jurisdiction	to	enter	and	enforce	this	Decree in	any	formal	administrative	or	judicial	

forum.		This	Decree	constitutes	a	complete	and	final	resolution	of	all	claims	that	
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have	been	asserted	in	the	Guardians	Complaint and	in	the	HEAL	Utah	Complaint,	

and	in	the	Consolidated	Complaint.

3. This	Decree	shall	become	effective	upon	the	date	of	its	entry	by	the	

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

forth	in	this	Decree	are	null	and	void.

4. On	or	before	November	19,	2015,	the	appropriate	EPA	official	will	

sign	a	notice	proposing	issuance	of	a	FIP	regarding	those	portions	of	the	Utah	SIP	

revision	EPA	previously	disapproved, proposing	approval	of	a	new	regional haze	SIP	

revision	submitted	to	EPA	by	the	State	of	Utah	before	that	date,	or	proposing	

conditional	approval of	a	new	regional	haze	SIP	revision	submitted	to	EPA	by	the	

State	of	Utah	before	that	date.

5. On	or	before	March	31,	2016,	the	appropriate	EPA	official	will	sign	a	

notice	of	final	action	regarding	the	proposal	referenced	in	Paragraph	4.

6. Within	fifteen	business	days	following	the	signature	of	the	notice	of	a	

proposed	and	final	rulemaking	pursuant	to	Paragraphs	4	and	5 above,	EPA	shall	

submit	the notice	for	review	and	publication	by	the	Office	of	the	Federal	Register.		

7. The	United	States	agrees	to	pay	Guardians	as	full	settlement	for	all	

claims	for	attorneys’	fees,	costs,	and	expenses	incurred	in	Guardians	v.	McCarthy and	

the	consolidated	case,	through	the	date	of	lodging	this	Consent	Decree,	under	any	

authority,	the	sum	of	$4,000.00,	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	$4,000.00	in	full	satisfaction	of	any	and	all	

claims	for	costs	and	attorneys’	fees	with	respect	to	Guardians	v.	McCarthy and	the	
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consolidated	case,	except	that	Guardians	reserves	the	right	to	seek	costs	and	fees	

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

of	this	Consent	Decree,	including	costs	and	attorneys’	fees	for	any	extensions	of	the	

deadline	set	forth	in	Paragraphs	4	or	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	cost	or	fee	claim.		The	amount	of	attorneys’	fees	

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

claim.	

8. The	United	States	agrees	to	pay	HEAL	Utah,	NPCA,	and	Sierra	Club,	as	

full	settlement	for	all	claims	for	attorneys’	fees,	costs,	and	expenses	incurred	in	

HEAL	UTAH	v.	EPA and	the	consolidated	case,	through	the	date	of	lodging	this	

Consent	Decree,	under	any	authority,	the	sum	of $22,525.00,	as	soon	as	reasonably	

practicable	following	entry	of	this	Consent	Decree,	by	electronic	funds	transfer	to	a	

bank	account	identified	by	HEAL	Utah,	NPCA,	and	Sierra	Club.		HEAL	Utah,	NPCA,	

and	Sierra	Club	agree	to	accept	$22,525.00 in	full	satisfaction	of	any	and	all	claims	

for	costs	and	attorneys’	fees	with	respect	to	HEAL	Utah	v.	EPA and	the	consolidated	

case,	except	that	HEAL	Utah,	NPCA,	and	Sierra	Club	reserve the	right	to	seek	costs	

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

lodging	of	this	Consent	Decree,	including	costs	and	attorneys’	fees	for	any	

extensions	of	the	deadline	set	forth	in	Paragraphs	4	or	5	requested	by	EPA	and	costs	

and	attorneys’	fees	for	enforcement	of	the	Consent	Decree	in	the	future.		Nothing	in	
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this	Paragraph	shall	be	construed	as	an	admission	or	concession	by	EPA	that	HEAL	

Utah,	NPCA,	or	Sierra	Club is	entitled	to	or	eligible	for	recovery	of	any	costs	or	

attorneys’	fees,	and	EPA	reserves	all	defenses	with	respect to	any	future	cost	or	fee	

claim.		The	amount	of	attorneys’	fees	or	rates	under	this	Paragraph	shall	have	no	

precedential	value	in	any	future	fee	claim.

9. The	Parties	do	not	anticipate	any need	to	extend the	deadlines	set	

forth	in	Paragraphs	4	and	5.			Such	deadlines may	be	extended,	however, by	written	

stipulation	executed	by	the	Parties and	filed	with	the	Court.		Any	other	request	for	

an	extension	of	the	deadline	in	Paragraphs 4 or	5 may	be	approved	by	the	Court	

upon	motion	made	by	any	Party	to	this	Decree for	good	cause	shown and	upon	

consideration	of	any	response	and	any	reply.		Any	other	provision	of	this	Decree	

may	also	be	modified	by	the	Court	for	good	cause	shown	and	upon	consideration	of	

any	response	by	a	non-moving	Party	and	any	reply.

10. If	an EPA lapse	in	appropriations	occurs	within	120	days	prior	to	the	

deadline	set	forth	in	Paragraph	4 or	in	Paragraph	5, or	after	the	deadline	set	forth	in	

Paragraph	4	or	Paragraph	5	but	before	the	deadline	in	Paragraph	6,	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	by	Court	order,	pursuant	to	the	procedures	of	Paragraph	7.

11. Nothing	in	this	Consent	Decree	shall	be	construed	to	limit	or	modify	

any	discretion	accorded	EPA	by	the	Act or	by	general	principles	of	administrative	

law	in	taking	the	action	that is	the	subject	of	this	Decree,	including	the	discretion	to	

alter,	amend,	or	revise	any	responses	or	final	actions	contemplated	by	this	Decree.		
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EPA’s	obligation	to	perform	the	actions	specified	by	Paragraphs 4	and	5	by	the	time	

specified	therein	does	not	constitute	a	limitation	or	modification	of	EPA’s	discretion	

within	the	meaning	of	this	Paragraph.

12. Nothing	in	this	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	EPA	actions identified	in	

Paragraphs 4 or	5.

13. 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	the	Act,	42 U.S.C.	§§ 7607(b)(1),	7661d.	

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

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

14. The	Parties	recognize	and	acknowledge	that	the	obligations	imposed	

upon	EPA	under	this	Decree	can	only	be	undertaken	using	appropriated	funds	

legally	available	for	such	purpose.		No	provision	of	this	Decree	shall	be	interpreted	

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.

15. Any	notices	required	or	provided for	by	this	Decree	shall	be	made	in	

writing	and	sent	via	email	to	the	following:
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For	Guardians:		

Samantha	Ruscavage-Barz

WildEarth	Guardians

sruscavagebarz@wildearthguardians.org

For	HEAL	Utah,	National	Parks	Conservation	Association	and	Sierra	

Club:

Jenny	K.	Harbine

EARTHJUSTICE

jharbine@earthjustice.org

John	Barth

Attorney	at	Law

barthlawoffice@gmail.com

For	EPA:

Daniel	Pinkston

Environmental	Defense	Section

U.S.	Dept.	of	Justice

Daniel.pinkston@usdoj.gov

Elyana	Sutin

Office	of	Regional	Counsel

EPA	Region	8

Sutin.elyana@epa.gov

16. In	the	event	of	a	dispute	among	the	Parties	concerning	the	

interpretation, implementation,	or	enforcement 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.		The	Parties	shall	meet	

and	confer	in	order	to	attempt	to	resolve	the	dispute.		If	the	Parties	cannot	reach	an	

agreed-upon	resolution	within	ten	business	days	after	receipt	of	the	notice,	any	

Party	may	move	the	Court	to	resolve	the	dispute.
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17. No	motion	or	other	proceeding	seeking	to	enforce	this	Decree	shall	be	

properly	filed	unless	the	Party	seeking	to	enforce	this	Decree	has	first	exhausted the	

procedure set	forth	in	Paragraph	16.		

18. The	Court	shall	retain	jurisdiction	to	determine	and	effectuate	

compliance	with	this	Decree	and	to	resolve	any	disputes	thereunder.		After	EPA’s	

obligations	under	Paragraphs 4 and	5 have	been	completed,	this	Decree	shall	be	

terminated.		The	Parties	may	either	jointly	notify	the	Court	that	the	Decree	should	

be	terminated	and	the	case	dismissed,	or	EPA	may	notify	the	Court	by	motion,	and	

Guardians and/or	the	HEAL	Plaintiffs shall	have	twenty	days	to	respond	to	such	

motion.

19. The	Parties	agree	and	acknowledge	that	final	approval	and	entry	of	

this	proposed	Decree	are	subject	to	the	requirements	of	42	U.S.C.	§	7413(g),	which

provides	that	notice	of	this	proposed	Decree	shall 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	Decree	to	the	Office	of	the	Federal	Register	for	publication	and	

public	comment	after	lodging	this	Decree	with	the	Court.		After	this	Decree	has	

undergone	an	opportunity	for	notice	and	comment,	EPA’s	Administrator	and/or the	

United	States	Attorney	General,	as	appropriate, shall	promptly	consider	any	written	

comments	in	determining	whether	to	withdraw	or	withhold	consent	to	this	Decree,	

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

General	elects	not	to	withdraw	or	withhold	consent	to	this	Decree,	the	Parties	shall	

promptly	file	a	motion	that	requests	the	Court	to	enter	this	Decree.	If	the	
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Administrator	and/or	Attorney	General	elects	to	withdraw	or	withhold	consent	to	

this	Decree	pursuant	to	42	U.S.C.	§	7613(g),	EPA	shall	promptly	advise Plaintiffs.

20. It	is	hereby	expressly	understood	and	agreed	that	this	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	Decree.

21. 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.

SO	ORDERED	this	___	day	of	______________________ 2015.

________________________________________________

United	States	District	Judge

SO	AGREED:

FOR	WILDEARTH	GUARDIANS:

Dated:________,	2015 _______________________________________________

WildEarth	Guardians

516	Alto	Street

Santa	Fe,	NM		87501

(505)	401-4180

sruscavagebarz@wildearthguardians.org

FOR	HEAL	UTAH,	NATIONAL	PARKS	

CONSERVATION	ASSOCIATION,	AND	

SIERRA	CLUB:

Dated:_______,	2015 _______________________________________________

EARTHJUSTICE

315	East	Main	Street

Bozeman,	MT		59715

(406)	586-9699

jharbine@earthjustice.org
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Dated:_______,	2015 ______________________________________________

Attorney	at	Law

P.O.	Box	409

Hygiene,	CO		80533

(303)	774-8868

barthlawoffice@gmail.com

FOR	UNITED	STATES	ENVIRONMENTAL	

PROTECTION	AGENCY,	ADMINISTRATOR	

GINA	McCARTHY,	AND	REGIONAL	

ADMINISTRATOR	SHAUN	McGRATH:

JOHN	C.	CRUDEN

Assistant	Attorney	General

Environment	and	Natural	Resources	

Division

Dated: _______, 2015 By: _______________________________________________

DANIEL	PINKSTON

Environmental	Defense	Section

Environment	and	Natural	Resources

Division

U.S.	Dept.	of	Justice

999	18th Street

South	Terrace,	Suite	370

Denver,	Colorado		80202

(303)	844-1804

daniel.pinkston@usdoj.gov