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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

EL COMITE PARA EL BIENESTAR DE

EARLIMART, an unincorporated

association; ASSOCIATION OF

IRRITATE RESIDENTS, an NO. CIV. S-04-882 LKK/KJM

unincorporated association;

COMMUNITY AND CHILDREN’S

ADVOCATES AGAINST PESTICIDE 

POISONING, a California non-profit

corporation; WISHTOYO FOUNDATION,

a California non-profit corporation;

and VENTURA COASTKEEPER, a California

non-profit corporation,

Plaintiffs,

v.

PAUL HELLIKER, in his official O R D E R

capacity as Director, Department

of Pesticide Regulation; TERRY

TAMMINEN, in his official capacity

as Secretary, California Environmental

Protection Agency; CATHERINE 

WITHERSPOON, in her official capacity

as Executive Officer, Air Resources

Board; ALAN LLOYD, in his official

capacity as Chairman, Air Resources

Board; and WILLIAM BURKE, JOSEPH CALHOUN,

DORENE D’ADAMO, MARK DESAULNIER, C. HUGH

FRIEDMAN, WILLIAM F. FRIEDMAN, MATTHEW

McKINNON, BARBARA PATRICK, BARBARA RIORDAN

and RON ROBERTS, in their official 

capacities as members, Air Resources Board,

Defendants.

 /

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1 Identifying the content of any given SIP is made

complicated because, as the California Air Resources Board (CARB)

explains on its website,

2

Pending before the court in the above-captioned matter is the

motion of the defendants for judgment on the pleadings. Resolution

of the motion turns upon whether a final regulation published in

the Federal Register by the U.S. Environmental Protection Agency

(“EPA”), contains a requirement that the State of California adopt

certain regulations under specified conditions. One would think

that the manner of answering that question was simplicity itself,

look at the final regulation and see if it contained the

requirement. As will become clear in the course of this opinion,

the method of adopting regulations implemented by the EPA

frustrates such a commonsense approach.

Before addressing the issue tendered by the motion, I examine

the statutory and regulatory background, and then turn to the

allegations of the complaint. 

 I. 

THE STATUTE AND REGULATORY PROCESS

The Clean Air Act, 42 U.S.C. §§ 7401 et seq., (“The Act”),

requires the EPA to promulgate health-based standards for certain

pollutants, including hydrocarbons and nitrogen oxides which

produce ground level ozone. These standards are called the

National Ambient Air Quality Standards (NAAQS). 42 U.S.C. 

§ 7409(a),(b). Each state is required under the Act to adopt a

State Implementation Plan (SIP) to satisfy the NAAQS requirements.1

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SIPs are not single documents, rather they are a

compilation of new and previously submitted plans,

programs (such as monitoring, modeling, permitting,

etc.), district rules, state regulations, and federal

controls . . . ARB forwards SIP revisions to U.S. EPA

for approval and publication in the Federal Register.

The Code of Federal Regulations Title 40, Chapter I,

Part 52, Subpart F, Section 52.220 lists all of the

items which are included in the California SIP. There

could be hundreds, perhaps thousands of documents which

could make up the entire SI P .

http://www.arb.ca.gov/planning/sip/sip.htm.

See also "State Implementation Plans for Air Quality: A

Primer," Prepared by the National Association of State Energy

Officials (July 1998), pg. 9 ("The SIP includes all elements of a

state's air quality management program: plans, commitments,

enforceable rules, requirements for new emission sources,

monitoring plans, modeling of demonstration and background

documentation, letters and attestations, administrative

documentation, resources and authority to implement and enforce

rules, permit fee requirements and interstate transport

requirements."), available at www.naseo.org/committees/energy/

documents/sips_for_air_quality_primer.PDF. 

Furthermore, SIPs can be revised when the agencies involved

submit new documents for the EPA to approve or disapprove of and

may or may not become enforceable federal law. In essence, a SIP

is a collection of hundreds, if not thousands of documents, that

are constantly changing.

3

42 U.S.C. § 7410(a)(1). Specifically, each state is mandated under

the Act, to adopt a "plan which provides for implementation,

maintenance, and enforcement" of the national ambient air quality

standards (NAAQS) and to submit its SIP to the EPA for approval.

42 U.S.C. § 7410(a), 

The EPA is required to determine whether a SIP meets the

criteria specified in § 7410 of the Act. A SIP, "once adopted by

a state and approved by the EPA, becomes controlling and must be

carried out by the state." See Bayview Hunters Point Comty.

Advocates, 366 F.3d 692, 695 (9th Cir. 2004)(citing Friends of the

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2 Plaintiffs allege that all five air basins or "ozone

nonattainment areas" at issue in this case have been designated

“severe” or “extreme” for the one-hour and eight-hour ozone NAAQS,

except the Southeast Desert and Ventura nonattainment areas which

have been designated “moderate” for the eight-hour ozone NAAQS.

Compl. at 6.

4

Earth v. Carey, 535 F.2d 165, 169 (2nd Cir.1976), cert. denied, 434

U.S. 902). Approved SIPs are enforceable by either the State, the

EPA, or via citizen suits brought under Section 304(a) of the Act.

Id. (citing Baughman v. Bradford Coal Co., 592 F.2d 215, 217 n. 1

(3d Cir. 1979)); 42 U.S.C. § 7604(a).

The EPA classifies geographic areas in terms of “attainment”

or “nonattainment” based on whether they meet the NAAQS for a

particular pollutant, such as ozone. 42 U.S.C. § 7407(d). Ozone

nonattainment areas are further classified as Marginal, Moderate,

Serious, Severe or Extreme, depending on the intensity of the ozone

pollution problem.2 42 U.S.C. § 7511(a).

A. ESTABLISHING THE 1990 BASE YEAR INVENTORY AND TRACKING

One requirement for all nonattainment areas is the

establishment of an emissions inventory. The Clean Air Act

requires that each state submit a comprehensive inventory of all

sources of the relevant pollutant in the nonattainment area. 42

U.S.C. § 7502(c)(3). The inventory sets out the classes and

categories of emission sources so that control strategies can be

used to address emissions from those sources. In the case of

ozone, which is the product of a chemical reaction, the inventory

focuses on those sources that emit the ozone-forming pollutants.

Nitrogen oxides (“NOx”) is such a precursor. Volatile organic

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3 In the case of the pesticide element of the Ozone SIP,

because volatile organic compounds (VOCs) react with oxides of

nitrogen (Nox) in the presence of heat and sunlight to form ozone,

the state must monitor the VOCs emitted by each pestice product to

determine the inventory, or the catalog of emission sources. 

5

compounds (“VOCs”) are another ozone precursor. VOCs are found in

many products, including pesticides. Since ozone is not a directly

emitted pollutant, the inventory for ozone requires the cataloguing

of the total amount of actual VOC and NOx emissions.3 

B. ENFORCEABLE CONTROL MEASURES

Each SIP must include enforceable emission limitations and

other control measures necessary to attain the NAAQS, as well as

timetables for compliance. 42 U.S.C. § 7410(a)(2)(A). These

control measures are “strategies” that the court may enforce.

Bayview, 366 F.3d at 701. 

C. “ATTAINMENT DEMONSTRATION” AND “REASONABLE FURTHER PROGRESS

DEMONSTRATION”

States with serious, severe, and extreme ozone nonattainment

areas must also demonstrate through an analytical method determined

by the EPA, or through another method left to the Administrator’s

discretion, that these areas will “attain” the NAAQS standard by

the applicable date, a requirement called the “attainment

demonstration.” 42 U.S.C. §§ 7511a(c)(2)(A),(d),(e). The

“attainment demonstration” provides the technical verification that

all the measures and strategies identified in the inventory are met

in order to attain the NAAQS by the applicable date.

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4 Plaintiffs bring suit against the following in their

official capacities: Paul Helliker, Director, Department of

Pesticide Regulation; Terry Tamminem, Secretary, California

Environmental Protection Agency; Catherine Witherspoon, Executive

Officer, Air Resources board; Allan Loyd, Chairman, Air Resources

Board; and William Burke, Joseph Calhoun, Dorene D’Adama, Mark

Desaulnier, C. Hugh Friedman, William F. Friedman, Matthew

McKinnon, Barbara Patrick, Barbara Riordan, Ron Roberts, members,

6

Moreover, states with serious, severe, and extreme ozone

nonattainment areas must demonstrate “reasonable further progress”

(RFP) or “rate of progress” (ROP) toward attainment by showing, on

average, a 3% cut in ozone-forming emissions each year after 1996.

42 U.S.C. § 7511a(c)(2)(B)(3% per year VOC reductions each year

until attainment); 42 U.S.C. § 7511a(c)(2(C)(NOx reductions allowed

in 3% reasonable further progress demonstration); 42 U.S.C. 

§§ 7511a(c),(d),(e) (reasonable further progress demonstration

required in Serious, Severe, and Extreme nonattainment areas). In

short, the RFP is the showing that a state will incrementally

reduce emissions during the interim period prior to attainment. 

Despite these relatively rigid requirements of the Act, states

have considerable leeway in selecting the particular methods and

programs they will use to achieve compliance with the national

standards. See Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976)

("So long as the national standards are met, the State may select

whatever mix of control devices it desires . . . .").

II.

THE COMPLAINT 

The suit at bar involves a claim in essence brought against

various state agencies.4 Plaintiffs, unincorporated associations

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Air Resources Board. 

5 Plaintiffs include El Comite para El Bienestar de

Earlimart, Association of Irritated Residents, Community and

Children’s Advocates Against Pesticide Poisoning, Wishtoyo

Foundation, and Ventura CoastKeeper. Pl.’s Compl. at 1.

6 Chemical products such as pesticides used to treat

agricultural land, agricultural crops, and structures for

protection from insects, fungus, rodents, and other pests emit VOC.

VOCs react with oxides of nitrogen in the presence of heat and

sunlight to form ground-level ozone. 

Each State SIP contains various elements. California’s 1994 Ozone

SIP contains four elements - mobile source, consumer products,

enhanced motor vehicle inspection, and pesticides. Each of these

elements affects the emission rates of ozone. 

7 Plaintiffs allege that the DPR is the state agency obliged

to adopt, implement, and enforce the SIP for agricultural and

commercial structural pesticides. The Secretary of the California

EPA (“CEPA”) supervises both the DPR and the CARB. Pl.’s Compl.

at 4-5.

7

and non-profit organizations,5 bring a citizen suit under 

§ 304(a)(1) of the Act to compel defendants to adopt regulations

designed to reduce VOC emissions from pesticide use. They allege

such reduction is required by the 1994 California Ozone

Implementation Plan propounded by the California Department of

Pesticide Regulation (“DPR”) and adopted by the EPA.6 Compl. at

6.

The complaint alleges that on November 15, 1994, the

California Air Resources Board (“CARB”) submitted an Ozone SIP on

behalf of DPR.7 Compl. at 6. Under the pesticide element of the

SIP, plaintiffs allege that California is committed to reducing

pesticide-related Volatile Organic Compound emissions, through

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8 The five air basins or “ozone nonattainment areas” at issue

in this case are: Sacramento Metro, San Joaquin Valley, South

Coast, Southeast Desert, and Ventura. Compl. at 7. 

8

voluntary means in five air basins8 by 20% between 1990 and 2005.

Id. at 5-7. They also allege that the DPR has failed to adopt

regulations by June 15, 1997 as required by the “control measure”

of the SIP. They assert that once the U.S. EPA approved the SIP,

effective February 7, 1997, the pesticide commitment became an

enforceable strategy and the DPR and the CARB were obligated to

comply with that strategy. Id. at 1. 

It is undisputed that CARB sent EPA a letter dated May 9, 1995

signed by the DPR director which addressed the Pesticide Element

(James W. Wells wrote the letter to James Boyd, the head of CARB).

Compl. at 7. The letter stated that “[t]he Department of Pesticide

Regulation commits to adopt and submit to U.S. EPA by June 15,

1997, any regulations necessary to reduce volatile organic compound

emissions from agricultural and commercial structural pesticides

by specific percentages of the 1990 base year emissions, by

specific years, and in specific non attainment areas as listed in

the following table.” Id. at 7. 

REDUCTIONS FROM 1990 BASELINE

Ozone

Nonattainment

Area

1996 1999 2002 2005

Sacramento

Metro

8 % 12% 16% 20%

San Joaquin

Valley

8 12 16 20

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9

South Coast 8 12 16 20

Southeast

Desert

8 12 16 20

Ventura 8 12 16 20

Plaintiffs allege that EPA included the May 9, 1995 commitment

in the SIP, approving it as of February 7, 1997. Compl. at 7.

They allege that this commitment was incorporated into the final

rule adopted by the EPA as a part of California’s SIP. Thus,

plaintiffs allege, that under the SIP if voluntary controls fail

to yield targeted percentage reductions of emissions in 1996, 1999,

and 2002, then the DPR must adopt and implement regulations that

will achieve the 20% goal by 2005 as described in the table labeled

“Reductions from 1990 Pesticide Emissions Baselines.” They rely

on 61 Fed. Reg. 10920, 10935-10936 (March 18, 1996)(May 9, 1995

letter “is considered part of the SIP”). Compl. at 7.

The Sacramento, San Joaquin Valley, Ventura, and Southeast

Desert Nonattainment Area failed to reduce VOC emissions from

pesticide use as indicated in the “Reductions from 1990 Pesticide

Emissions Baselines” table. Compl. at 8. In 2002, defendants

released the California Clean Air Plan, a document that contained

control measures designed to reduce pesticide VOC emissions, but

these proposed measures were withdrawn from consideration without

adoption. Id. Defendants failed to adopt and implement

regulations that would achieve the committed control measure

reductions in pesticide-related VOC emissions.

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9 Defendants cast this argument as one attacking the court’s

jurisdiction. It is really beyond cavil that the court has subject

matter jurisdiction under the citizen suit provisions of the Clean

Air Act. What defendants should be claiming is that because the

SIP did not contain the disputed commitment there is no enforceable

obligation on the part of the State, and thus plaintiffs fail to

state a cause of action. For purposes of this motion, the

defendants’ mischaracterization of their claim appears to be

without significance.

10

III.

DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

Defendants’ motion is premised on a contention that the

alleged commitment relied upon by the plaintiffs was contained in

the proposed regulation but was omitted from the "final rule"

approving revisions to the California SIP adopted on January 8,

1997. Accordingly, they maintain that it cannot constitute an

"emission standard or limitation" within the meaning of the Clean

Air Act.9.

Defendants assert that the EPA deleted the table in the

proposed rule establishing interim reductions from the 1990

pesticide emissions baseline, and substituted a new table entitled

"Reductions From Pesticides Measure" which did not include such

interim requirements.

The parties’ briefs advance convoluted and abstruse arguments,

which, in candor, the court has not always felt confident it

understood. The fault, however, may not lie so much with the

parties, as with method by which the EPA promulgated its final

rule.

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11

IV.

STANDARDS ON A MOTION FOR JUDGMENT ON THE PLEADINGS

A motion for judgment on the pleadings may be brought "[a]fter

the pleadings are closed but within such time as to not delay the

trial." Fed. R. Civ. P. 12(c). All allegations of fact by the

party opposing a motion for judgment on the pleadings are accepted

as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482

(9th Cir. 1984). A "dismissal on the pleadings for failure to

state a claim is proper only if 'the movant clearly establishes

that no material issue of fact remains to be resolved and that he

is entitled to judgment as a matter of law.'" Id. (quoting 5 C.

Wright & A. Miller, Federal Practice and Procedure: Civil § 1368,

at 690 (1969)); see also McGlinchy v. Shell Chemical Co., 845 F.2d

802, 810 (9th Cir. 1988). 

When a Rule 12(c) motion is used to raise the defense of

failure to state a claim, the motion is subject to the same test

as a motion under Rule 12(b)(6). McGlinchy, 845 F.2d at 810;

Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1989). Thus, the

motion will be granted only if the movant establishes that "no

relief could be granted under any set of facts that could be proven

consistent with the allegations." Hishon v. King & Spalding, 467

U.S. 69, 73 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46

(1957); Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th

Cir. 1987). The court must accept all material allegations of the

complaint as true and all doubts must be resolved in the light most

favorable to the plaintiff. N.L. Indus., Inc. v. Kaplan, 792 F.2d

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10 The idiosyncratic patios adopted by the various agencies,

their excessive use of acronyms, and the parties’ adoption of that

process of articulation doesn’t help. The parties do not appear

to be the real culprits. Given the method of articulation used by

the agency (notice the court does not use the term communication),

the parties’ adoption of the regulatory agencies’ words and

acronyms appears inevitable. Indeed, the court finds itself doing

the same thing.

12

896, 898 (9th Cir. 1986). 

"If, on a motion for judgment on the pleadings, matters

outside the pleadings are presented to and not excluded by the

court, the motion shall be treated as one for summary judgment and

disposed of as provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material made pertinent to

such a motion by Rule 56." Fed. R. Civ. P. 12(c). 

V.

ANALYSIS

 This case is less than pellucid both because the regulatory

scheme is complex, and because of the nature of SIPs and the

process used by the EPA in adopting them.10 

Cutting through the unnecessarily abstruse verbiage of the

defendants’ brief, in essence they contend that plaintiffs’ suit

cannot lie because the complaint attempts to enforce Rate of

Progress (ROP) and Rate of Further Progress (RFP) standards which

were not required under the pesticide element of the SIP.

Defendants’ contention is at least in part based on the final

rule’s acknowledgment that the table in the final rule entitled

“Reduction From Pesticides Measure” “shows reductions counted

towards attainment in each area. EPA has revised the table to

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11 It may be worth noting that plaintiffs’ complaint does not

mention RFP or ROP. Instead, plaintiffs crafted their complaint

as one which “has nothing to do with how California decided to take

credit for the reductions from the pesticide measure or whether

defendants violated a ‘reasonable further progress’ demonstration.”

Pl.’s Opp’n Brief at 11-13 (citing and quoting Compl. at ¶¶ 2-4,

24-39).

12 As noted above, SIPS are composed of a compilation of new

and previously submitted plans, programs (such as monitoring,

13

reflect CEPA’s request that emission reductions for interim years

be excluded from the SIP, since CARB elects not to assign credit

to the pesticide measures except for purposes of attainment.” 62

Fed.Reg. 1160 (Jan. 8, 1997). What these mysterious words portend

underlies the disagreement between the parties. 

It is established that “[c]itizen suits may be brought only

to enforce specific measures, strategies or commitments designed

to ensure compliance with the NAAQS.” Bayview, 366 F.3d at 703

(quoting Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,

12582 (1st Cir. 1996)). Because, in their view, the suit seeks to

enforce RFP and ROP, means of testing success, defendants insist

that the court is without jurisdiction.11 What they fail to

recognize is that plaintiffs claim the chart specifying a rate of

reduction was included in the final SIP and, thus, from plaintiffs’

point of view, this is a suit designed to ensure compliance with

the NAAQS.

Plaintiffs maintain that the State’s commitment or enforceable

“control measure,” which is to adopt regulations, derives from the

May 1995 clarification letter signed by DPR Director James Wells

which CARB forwarded to the EPA.12 As noted, the proposed rule

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modeling, permitting, etc.), district rules, state regulations, and

federal controls. Apparently, it is not unusual for a revision or

letter of clarification to be written by an agency official and

forwarded EPA to become part of the SIP. These letters often

clarify the agencies’ intent with regard to SIPs. See, e.g., 40

C.F.R. § 52.200(2004)(letter of clarification was submitted by the

Arkansas governor regarding Arkansas’ pollution control); 40 C.F.R.

§ 52.780 (2004)(Attorney General of the State of Indiana sent a

letter to USEPA clarifying Indiana’s interpretation of the

definition of “federally enforceable” under the Act). 

14

states that this letter was made part of the SIP. 61 Fed.Reg.

10935 (March 18, 1996). Plaintiffs cite to the proposed regulation

which discusses this rulemaking history as the source of the

defendants’ commitment to adopt regulations. Id. Because

plaintiffs cite to the proposed regulation, rather than the final

regulation, as the source of the enforceable measure, defendants

assert that the suit is based on an unenforceable commitment. 

Defendants note that the table entitled “Reductions from 1990

Pesticide Emissions Baselines,” found in the proposed rule, is not

republished in the final rule. They contend that because the table

was not in the Final Rule, "the concomitant to adopt regulations"

was also "deleted from the final U.S. EPA-approved California SIP."

Mot. at 10-11. They argue that the Reduction From Pesticides

Measure” table was “substituted” in the final regulations for the

table plaintiffs rely on.

The table allegedly substituted is defined by the EPA as

showing “reductions counted towards attainment in each area.” The

comment in the final rule then continues to state that “EPA has

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13 Whether the agency means the table in the proposed rule or

the table in the final rule cannot be determined from the comment.

15

revised the table13 to reflect CEPA’s request that emission

reductions for interim years be excluded from the SIP, since CARB

elects not to assign credit to the pesticides measures except for

purposes of attainment.” The statement, while classical

bureaucrateze, may be read to suggest that interim reductions

premised on the pesticides element has been eliminated from the

final rule. It may, however, also be read as no more than an

accounting provision, having nothing to do with the need for

reductions being satisfied, in part, by the pesticide element.

This confusion is compounded by other provisions of the final rule.

The language contained in the final rule is similar to that in the

1995 CARB clarification letter. It states,

As described in the SIP, California has committed to

adopt and submit to U.S. EPA by June 15, 1997 any

regulations necessary to reduce VOC emissions from

agricultural and commercial structural pesticides by 20

percent of the 1990 base year emissions in the

attainment years for Sacramento, Ventura, Southeast

Desert, and the South Coast, and by 12 percent in 1999

for the San Joaquin Valley. 

In the absence of the language noted above, this language seems

plain enough to dispose of the issue. It is, of course, true that

the final rule does not again set out the relevant table, and does

set out a different table. Nonetheless, the final rule does

specifically incorporate California’s commitment to adopt

regulations under the specified circumstances. While hardly plain,

it seems more likely than not that this language constitutes the

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14 Although the defendants in oral argument contended that

other elements of the SIP would assure attainment, they point to

nothing that changed between the publishing of the proposed and

final rules pertaining to more stringent standards for other

elements of the SIP sufficient to make reductions of pesticides

VOCs irrelevant. 

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EPA’s approval and promulgation of the strategy to implement the

regulations committed to by DPR in the 1995 letter. Even if this

were not the best reading of the final rule, canons of regulatory

construction strongly suggest the court adopt such a conclusion.

As noted above, the Clean Air Act requires that the EPA assure

that the SIPs include “enforceable emission limitations, and such

other control measures, means or techniques . . . as may be

necessary or appropriate to meet the applicable requirements of

[the Act]”); 42 U.S.C. § 7502(6), and that a SIP for nonattainment

areas include enforceable emission limitations and control measures

“as may be necessary or appropriate to provide for attainment of

the NAAQS by the applicable attainment date.” Id. at § 7506(4).

In the absence of the asserted state commitment at issue here, the

SIP appears to fail to meet either statutory requirement.14 The

court, however, is obligated to presume that the EPA complied with

its statutory duty. “Absent a demonstration to the contrary, we

presume [that an administrative agency] follows its statutory

commands and internal policies in fulfilling its obligations”.

Garner v. Jones, 529 U.S. 244, 256 (2000). Put somewhat

differently, if the proposed rule required interim reductions from

the pesticide emission baselines to achieve attainment in the

specified year, and nothing changed as to the need between the time

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15 Finally, I note that the defendants’ contention that

adopting the construction that the final rule contained the

commitment would not be proper because the SIP would then violate

state law is not persuasive. The argument is premised on the

notion that only control strategies whose purpose is to meet the

requirements of the Clean Air Act may be included in California’s

SIP. But that argument begs the question. If plaintiffs are

right, the regulatory commitment of the pesticide element was

included for the purpose of achieving attainment; if, on the other

hand, defendants are right, the issue never arises, since the

commitment to adopt regulations was never made. 

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of the publication of the proposed rule and the time of the

adoption of the final rule, the court must presume the EPA did its

duty and included that element in the final rule. I thus must

assume that the SIP met the EPA’s statutory duty, and the

commitment to adopt regulations should attainment not be achieved

in the interim years, is an enforceable strategy. 

At oral argument, the defendants maintained that if a failure

to attain occurred by the statutory year, the State would then

adopt regulations. The self-evident problem with that contention

is the statute requires enforceable strategies to ensure attainment

by the specified years, not a strategy that will come into play

only after voluntary means fail to achieve the statutory goal.15

To say that the court is less then fully convinced is an

understatement. Nonetheless, given the rigorous standards

applicable to defendants’ motion, I conclude that defendants’

contention that plaintiffs have not pled a cognizable cause of

action under the Act is unavailing.

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VI.

ORDER

For the foregoing reasons, defendant’s motion for judgment on

the pleadings is DENIED.

IT IS SO ORDERED.

DATED: April 25, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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