IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 1:11-cv-001-CMA-MEH

(Consolidated with 11-cv-00743-CMA-MEH

WILDEARTH GUARDIANS,

NATIONAL PARKS CONSERVATION ASSOCIATION

Plaintiffs,

vs.

LISA JACKSON, in her official capacity as Administrator,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendant,

STATE OF NORTH DAKOTA and the NORTH DAKOTA DEPARTMENT

of HEALTH, a state agency,

Intervenors.

________________________________________________________________

RESPONSE IN OPPOSITION TO PLAINTIFFS’ AND

DEFENDANT’S MOTION TO ENTER CONSENT DECREE

________________________________________________________________

Intervenors, State of North Dakota (“State”) and the North Dakota Department of

Health (“NDDH”, collectively “North Dakota”), through their undersigned counsel,

respectfully submit this Response in Opposition to Plaintiffs’ and Defendant’s Motion to

Enter Consent Decree. North Dakota states:

INTRODUCTION

On August 12, 2011, Plaintiffs WildEarth Guardians (“WEG”), National Parks

Conservation Association (“NPCA”) and Environmental Defense Fund (collectively

“Plaintiffs”) and Defendant Lisa Jackson, in her official capacity as Administrator of the

U.S. Environmental Protection Agency (“EPA”) filed a Motion to Enter Consent Decree,

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which Decree was originally lodged with this Court on June 6, 2011 (Dkt. No. 35-1).

(“Proposed CD”). As detailed in North Dakota’s Motion to Intervene (Dkt. No. 38),

Motion to Dismiss (Dkt. No. 40)1, and herein, the Proposed CD cannot be entered

because this Court lacks subject matter jurisdiction and because the actions EPA is

authorized to take under it with respect to North Dakota are moot since EPA took action

on September 1, 2011 to promulgate a partial RH FIP for the State. Moreover, the

Proposed CD cannot be entered because it violates the Clean Air Act (“CAA”); it

substantively and procedurally prejudices North Dakota; and there is an inadequate

record before the Court upon which it can assess the adequacy and reasonableness of

the Proposed CD.

The Proposed CD authorizes EPA to proceed with the promulgation of a full or

partial regional haze (“RH”) federal implantation plan (“FIP”) for North Dakota before

EPA takes final agency action on North Dakota’s RH state implementation plan (“SIP”).

Under the CAA, EPA may not proceed to promulgate a FIP for North Dakota until and

unless it has taken a final agency action on the RH SIP already submitted by North

Dakota. Further, though required under the CAA, Plaintiffs failed to serve North Dakota

notice of their intent to sue EPA over the pendency of North Dakota’s SIP. It was not

until Plaintiffs and Defendant had negotiated and agreed to the terms of the Proposed

CD that North Dakota was advised by EPA, not Plaintiffs, of the Proposed CD and this

litigation.

1 Plaintiffs’ filed a Response in Opposition to North Dakota’s Motion to Dismiss On

August 15, 2011, (Dkt. No. 52). Pursuant to the Court’s August 30, 2011, Order (Dkt. No. 55),

North Dakota’s Reply to Plaintiffs’ Response is due September 2, 2011.

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Despite being indispensible, North Dakota, only recently a party to this case, was

never afforded the opportunity to participate in negotiations with the parties on the terms

of the Proposed CD. Had North Dakota been a party to these negotiations it would at

least have been able to advocate that the timing proposed for action on its SIP be

reasonable and take into account the pending federal court action in North Dakota that

directly relates to the RH SIP. Instead, the Proposed CD establishes arbitrary dates by

which EPA must act to implement a RH plan for North Dakota, dates that North Dakota

was never consulted on; dates that fail to take into account North Dakota’s RH SIP

submissions to EPA; dates that are more stringent than those proposed for Colorado,

Wyoming or Montana; and dates that fail to acknowledge the pending federal court

action regarding a critical component of North Dakota’s RH SIP.

Further, the record before the Court upon which it may determine the adequacy

and reasonableness of the Proposed CD is wholly deficient. Prior to lodging the

Proposed CD, Plaintiffs and Defendant failed to apprise this Court that a critical element

of the State’s RH SIP has recently been challenged by EPA in the U.S. District Court for

the District of North Dakota. This is an important development that impacts how and

whether resolution of North Dakota’s RH SIP should be addressed in the Proposed CD.

Accordingly the record is insufficient to allow the Court to determine that the Consent

Decree meets the adequacy and reasonableness standards required for approval.

The terms of the Proposed CD directly and negatively impact North Dakota and

its citizens. Permitting EPA to proceed with a FIP of North Dakota prior to it making a

determination on the State’s RH SIP violates North Dakota’s fundamental authority

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under the CAA to design and implement plans to control air pollution within their

borders.

For all these reasons, the Court should decline to enter the Proposed CD as

lodged.

BACKGROUND

I. THE CLEAN AIR ACT, THE RH PROGRAM AND NORTH DAKOTA’S RH

SIP

A. The CAA

The CAA establishes “a comprehensive national program that makes the States

and the Federal Government partners in the struggle against air pollution.” General

Motors Corp. v. United States, 496 U.S. 530, 532 (1990). The CAA seeks to "protect

and enhance the quality of the Nation's air resources so as to promote the public health

and welfare and the productive capacity of its population." CAA § 101(b)(1); 42 U.S.C. §

7401(b)(1). To further this purpose, the CAA mandates a broad range of programs for

the prevention of air pollution from sources, and provides the States with primary

responsibility for many of its programs. See CAA § 101(a)(3); 42 U.S.C. § 7401(A)(3).

One of these programs, EPA’s Regional Haze Rule (“RH Rule”) “calls for states to play

the lead role in designing and implementing regional haze programs.” American Corn

Growers v. EPA, 291 F.3d 1, 2 (D.C. Cir. 2002).

B. RH Program

In 1977 Congress amended the CAA and enacted a program for protecting visual

air quality in the nation’s national parks and wilderness areas (“Class I” areas).

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Specifically, CAA section 169A established visibility protection goals for Class I areas

and directed States to develop SIPs to ensure reasonable progress (“RP”) is made

toward these goals, including requirements for Best Available Retrofit Technology

(“BART”). See 42 U.S.C. §§ 7490-7492.

EPA promulgated regulations addressing RH in 1999, codified at 40 C.F.R. part

51, subpart P (“RH Regulations”). Several key aspects of EPA’s RH Regulations were

invalidated by the U.S. Court of Appeals for the D.C. Circuit. 2 The D.C. Circuit decisions

make clear that States have great discretion in setting RP goals and determining BART

for sources. EPA revised its RH Regulations in 2005 and 2006. The revised RH

Regulations require, in part, that a State balance five factors and make a BART

determination appropriate for each qualifying facility regulated by the State and submit

those determinations, along with other required elements, as RH SIP revisions to EPA.

In connection with revisions to its RH Regulations in 2005, EPA extended the deadline

for States to submit their RH SIPs to December 17, 2007, 70 Fed. Reg. 39104 (July 6,

2005).

On January 15, 2009, EPA published in the Federal Register, a rule finding that

37 States (including North Dakota), the District of Columbia, and the U.S. Virgin Islands

had failed to submit SIPs for EPA review and approval by the December 17, 2007

deadline. See 74 Fed. Reg. 2392 (January 15, 2009). In the rule, EPA acknowledged

that pursuant to the requirements of 42 U.S.C. § 7410(c), its finding “starts a ‘clock’ for

EPA to promulgate a [F]IP within two years.” Id. EPA further acknowledged that “[i]f the

2 American Corn Growers v. EPA, 291 F.3d 1 (D.C. Cir. 2002); Center for Energy and

Economic Development v. EPA, 398 F.3d 653 (D.C. Cir. 2005); and Utility Air Regulatory Group

v. EPA, 471 F. 3d 1333 (D.C. Cir. 2006).

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state fails to submit the required SIPs [within two years] or if they submit SIPs that EPA

cannot approve, then EPA will be required to develop the plans in lieu of the states.” Id.

42 C.F.R. § 7410(c) provides that the Administrator “shall promulgate a [FIP] at any time

within 2 years after the Administrator” finds a State to have failed to submit a SIP or

“disapproves a [SIP] submission in whole or in part.” As of the date of this Response

EPA has failed to take any final action to approve or disapprove North Dakota’s RH SIP.

C. North Dakota’s RH SIP

North Dakota submitted its RH SIP to EPA on March 3, 2010. EPA determined

that the North Dakota RH SIP submittal was complete on April 30, 2010. See North

Dakota’s Motion to Intervene, Exhibit C, Affidavit of Terry O’Clair at ¶7. On August 3,

2010, North Dakota submitted to EPA SIP Supplement No. 1 to its RH SIP, which

further supplemented the RP provisions of the RH SIP. On July 28, 2011, North Dakota

submitted to EPA its Amendment No. 1 to its RH SIP. See Exhibit A. Amendment No. 1

supplements the RH SIP by adding information obtained and produced as part of the

Best Available Control Technology (“BACT”) determination for the determination for the

Milton R. Young Station (“MRYS”) Units 1 and 2 and amends the SIP to include

additional and more stringent emission reduction levels for the Coyote Station. It is the

BACT determination for the MRYS Units that EPA is challenging before the U.S. District

Court for the District of North Dakota. See North Dakota’s Motion to Intervene, Exhibit

K.

North Dakota’s MRYS BACT determination was issued in accordance with a

Consent Decree entered by the U.S. District Court for the District of North Dakota on

July 27, 2006. (“2006 CD”). See North Dakota’s Motion to Intervene, Exhibit I. In 2006,

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EPA and North Dakota filed a joint complaint against Minnkota Power Cooperative, Inc.

and Square Butte Power Cooperative (collectively “Minnkota”) which alleged Minnkota

violated provisions of the CAA and the North Dakota SIP as a result of unauthorized

major modifications at the MRYS, including failing to install BACT.3 The 2006 CD

resolved the claims brought by North Dakota and EPA. Pursuant to the 2006 CD, and

after four years of analysis (which included working extensively with EPA), North Dakota

made a final BACT determination in November, 2010, selecting Selective Non-Catalytic

Reduction as BACT for MRYS, and rejecting Selective Catalytic Reduction (“SCR”) -

after determining that SCR is not technically feasible at MRYS. North Dakota’s BACT is

included in the State’s Amendment No. 1 to the RH SIP. As permitted under the terms

of the 2006 CD, EPA filed a challenge of North Dakota’s determination with the U.S.

District Court for the District of North Dakota on May 12, 2011. EPA’s challenge of North

Dakota’s determination has been fully briefed and the parties are awaiting a decision of

the court.

II. THE CASE BEFORE THIS COURT

A. Plaintiffs’ Notices of Intent to Sue

By letter dated October 13, 2010, Plaintiff WEG delivered notice to EPA of its

intent to sue the agency and the Administrator for their alleged failure to finalize a SIP

North Dakota submitted to EPA on April 6, 2009, addressing excess emissions during

startup, shutdown, malfunction and maintenance provisions. North Dakota was not

3 United States of America, State of North Dakota v. Minnkota Power Cooperative, Inc.

and Square Butte Power Cooperative, United States District Court for the District of North

Dakota, 1:06-CV-034.

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copied on, nor ever received a copy of WEG’s October 13 letter. By letter dated January

19, 2011, the NPCA, WEG and eight other noticing parties, advised EPA of its intent to

sue it and the Administrator regarding EPA’s alleged failure to promulgate RH FIPs

within the two year window that EPA had to take action for those States where a SIP

had not been promulgated. North Dakota was not copied on, nor ever received a copy

of NPCA’s January 19 notice of intent to sue EPA. Nor did North Dakota receive notice

of the filing of the Complaint or the subsequent Amended Complaint (Dkt. Nos. 1 and

21). It was not until receipt of an e-mail dated June 21, 2011 from EPA to State air

directors, (which included NDDH), that North Dakota was made aware that a Proposed

CD would govern the resolution of its RH and startup/shutdown/ malfunction SIPs.

B. The Proposed CD

In this case, Plaintiffs and Defendant ask this Court to approve the Proposed CD

which would compel (and materially constrain) how and when EPA would take any

further action in response to North Dakota’s RH SIP. Specifically, the Proposed CD

would require EPA to sign a notice of proposed rulemaking that either proposes

approval of the SIP in whole or in part, or proposes a FIP in whole or in part for North

Dakota, by the later of July 21, 2011, or within 20-days after the entry of the Proposed

CD. See Proposed CD at ¶4. If no SIP is approved, EPA shall by January 26, 2012,

sign a notice of final rulemaking promulgating a FIP for North Dakota. See id at ¶5. The

Proposed CD also requires that by October 27, 2011, or within 20-days after the entry of

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the Proposed CD (whichever is later), EPA shall sign a notice of final rulemaking in

which it takes final action on North Dakota's April 6, 2009 submission.4 See id at ¶3.

III. STANDARD FOR ENTRY OF CONSENT DECREE

Before approving a consent decree, the Court must determine that the decree is

fair, adequate, and reasonable, and must ensure that the agreement is not illegal, a

product of collusion, or against the public interest. United States v. State of Colorado,

937 F.2d 505, 509 (10th Cir. 1991); United States v. Telluride Co., 849 F. Supp. 1400,

1402 (D. Colo. 1994).

In suits affecting the public interest, the Court's evaluation of the parties'

settlement is more searching than where only private interests are at stake. United

States v. Telluride, 849 F. Supp. at 1402 (citing Janus Films, Inc. v. Miller, 801 F.2d

578, 582 (2d Cir. 1986); and Friends of the Earth v. Archer Daniels Midland Co., 780 F.

Supp. 95, 99 (N.D.N.Y. 1992). The Court's role is not to merely "rubber stamp" a lodged

consent decree. Id. Rather, the Court should independently evaluate whether a decree

meets the standard for entry based on the factual record presented to the Court. See

U.S. v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 280 (1st Cir.

2000) (record must contain adequate facts to support district court's decision to approve

decree); U.S. v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981) (a determination that a

proposed decree represents a reasonable factual and legal determination based on the

facts of record, whether established by evidence, affidavit or stipulation is required);

4. EPA submitted a portion of this SIP for public comment on May 5, 2011, which closed

on June 6, 2011. 76 Fed. Reg. 25654 (May 5, 2011).

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U.S. v. BP Exploration & Oil Co., 167 F. Supp. 2d 1045, 1049-50 (N.D. Ind. 2001) (“it is

ordinarily sufficient if [a] court to determines whether the consent decree is appropriate

under the particular facts of the case”). The burden is on the government to proffer

sufficient facts and reasons to establish that the standard for entry is met and approval

of the decree is warranted. United States v. Davis, 11 F. Supp. 2d 183, 189 (2d Cir.

1998) (citing United States v. Pesses, 1994 WL 741277, at * 5 (W.D. Pa. Nov. 7, 1994)).

Further, in evaluating a consent decree, courts also employ heightened scrutiny

where a decree affects the interests of third persons who did not participate in

negotiating the compromise. United States v. State of Oregon, 913 F.2d 576, 581 (9th

Cir. 1990); see United States v. Miami, 664 F.2d at 441 (if a decree affects third parties,

"the court must be satisfied that the effect on them is neither unreasonable nor

prescribed.") A court should also insist on the correction of defects in a consent decree

that render it inadequate, unfair, unreasonable or unlawful. It is appropriate for the Court

to advise parties of deficiencies that it identifies, and to insist on their correction before

approving a decree. United States v. State of Colorado, 937 F.2d at 509 ("[i]f the court

discerns a problem with a stipulated agreement, it should advise the parties of its

concern and allow them an opportunity to revise the agreement."). In Environmental

Technology Council v. Browner, 1995 WL 238328 (D.D.C. 1995), the court found that

the proposed decree at issue was generally fair, reasonable, consistent with the public

interest, and in furtherance of statutory objectives. However, the court declined to

approve the decree, granting the parties an opportunity to submit a revised decree that

addressed its concerns regarding one provision of the decree that it determined may not

be consistent with the public interest.

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IV. ENTRY OF THE PROPOSED CD IS MOOT SINCE EPA HAS JUST

PROPOSED TO PROMULGATE A RH FIP FOR NORTH DAKOTA

Yesterday, September 1, 2011, EPA notified North Dakota that it had proposed

the Approval and Promulgation of Implementation Plans; North Dakota; Regional Haze

State Implementation Plan; Federal Implementation Plan for Interstate Transport of

Pollution Affecting Visibility and Regional Haze for North Dakota (“North Dakota FIP”).

See Exhibit B. EPA’s promulgation of the North Dakota FIP is the very same remedy it

negotiated with Plaintiffs to be included in the Proposed CD: promulgation of a partial

RH FIP and a partial RH SIP for North Dakota.

Remarkably, EPA relies on a consent decree entered by the U.S. District Court

for the Northern District of California in WildEarth Guardians v. Lisa Jackson, 4:09-CV02453 (“Interstate Transport SIP Consent Decree”), as its basis for now proposing

(as of September 1, 2011), the North Dakota FIP. See Exhibit C at 28-29. As EPA

states in the North Dakota FIP, because of the September 1, 2011 deadline under the

Interstate Transport SIP Consent Decree it “lack[ed] sufficient time to act on or

consider” North Dakota’s Amendment No. 1 to the RH SIP and had to proceed with the

North Dakota FIP. See Exhibit C at 40. And to meet its “FIP obligation, [EPA is]

proposing to find that [its] proposed partial approval of portions of North Dakota’s

regional haze State Implementation Plan (Regional Haze SIP), combined with [its]

proposed FIP for regional haze for North Dakota, will together satisfy the interstate

transport requirements of section 110(a)(2)(D)(i)(II) regarding visibility.” Id. at 2.

The Interstate Transport SIP Consent Decree stems out of the alleged failure of

the EPA Administrator to take certain nondiscretionary acts regarding the proposal and

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promulgation of a FIP for the prevention of the interstate transport of certain emissions,

specifically ozone and particulate matter 2.5 within two years from EPA’s April 25, 2005

finding that the States of California, Colorado, Idaho, New Mexico, North Dakota,

Oklahoma and Oregon failed to submit an Interstate Transport SIP.5 On June 3, 2009,

almost two years before initiating this action, WEG filed the Interstate Transport SIP

action. On February 23, 2010, the U.S. District Court for the Northern District of

California entered the Interstate Transport SIP Consent Decree, which established

dates certain that EPA must propose to act with respect to North Dakota’s Interstate

Transport SIP. See Exhibit D. North Dakota was not a party to the Interstate Transport

SIP Consent Decree. And as with the Proposed CD before this Court, EPA and WEG

negotiated the terms of the Interstate Transport SIP Consent Decree without North

Dakota.

Under the terms of the Interstate Transport SIP Consent Decree, EPA was

required by no later than May 10, 2010, to sign a notice “either approving a SIP,

promulgating a FIP, or approving a SIP in part with promulgation of a partial FIP”

regarding whether North Dakota contributes significantly to nonattainment of the

national air attainment quality standards (“NAAQS”) in any other State, or interferes with

any other State’s required measures to prevent significant deterioration of air quality.

See Exhibit D at ¶4. Further, no later than November 10, 2010, EPA was required to

sign a notice “either approving a SIP, promulgating a FIP, or approving a SIP in part

5 On April 6, 2009, the Governor of North Dakota submitted to EPA North Dakota’s

Interstate Transport SIP. See Exhibit B at p. 215. EPA has proposed approval of all but one

portion of North Dakota’s Interstate Transport SIP, the visibility portion. See 75 Fed. Reg. 16026

(March 31, 2010); 75 Fed. Reg. 31291 (June 3, 2010); 75 Fed. Reg. 71023 (November 22,

2010); 76 Fed. Reg. 25656 (May 5, 2011).

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with promulgation of a partial FIP” regarding whether North Dakota interferes with any

other State’s required maintenance for the 1997 NAAQS for 8-hour ozone and PM 2.5.

See Exhibit D at ¶5(b). And no later than May 10, 2011, the Administrator was required

to “either approve[e] a SIP, promulgat[e] a FIP, or approve[e] a SIP in part with

promulgation of a partial FIP” for North Dakota “regarding interfering with measures in

other states related to protection of visibility.” See Exhibit D at ¶7(a). Most recently, EPA

and WEG stipulated to extend the date by which EPA had to promulgate a FIP for North

Dakota “related to protection of visibility” under the Interstate Transport SIP Consent

Decree to September 1, 2011. See Exhibit E. EPA issued its proposal to promulgate the

North Dakota FIP on September 1.

WEG, a plaintiff in this case, is the sole plaintiff in the Interstate Transport SIP

action. Remarkably, neither WEG nor EPA ever advised this Court of the Interstate

Transport SIP Consent Decree. Nor did EPA ever advise this Court that it intended to

rely on the Interstate Transport SIP Consent Decree to proceed with promulgating a

partial RH FIP for North Dakota. By now proceeding under the Interstate Transport SIP

Consent Decree to propose the North Dakota FIP EPA is “getting its cake and eating it

too.” Rather than having to wait for this Court to proceed to address the important

issues and concerns raised by North Dakota in its Motion to Dismiss and risk this Court

granting the Motion to Dismiss, or at the very least ordering North Dakota be included in

renegotiating certain terms of the Proposed CD, EPA proceeded to promulgate a FIP for

North Dakota under the auspices of the Interstate Transport SIP Consent Decree.

From EPA’s proposed promulgation of the North Dakota FIP, it is apparent the

Agency believes the issues WEG brought against it in this action have already been

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settled by the U.S. District Court for the District of Northern California. However, EPA

never advised this Court or North Dakota of that. Instead, EPA has wasted this Court’s

limited judicial resources to address claims that it now apparently purports are already

resolved under a consent decree issued by another federal court in a case brought by

the identical plaintiff in this case - WEG. Respectfully, this Court should not tolerate

such a manipulation of the Court’s resources.

In any event, the proposed North Dakota FIP eliminates any alleged claim or

controversy Plaintiffs asserted against EPA with respect to North Dakota in this case.

Specifically, there is no longer any dispute between EPA and WEG as to when and

whether EPA should act on North Dakota’s RH SIP. Because there is no longer any

alleged claim or controversy with respect to North Dakota, Plaintiffs’ claims with respect

to the State are moot and must be dismissed. “[T[hroughout the litigation, the plaintiff

must have suffered, or be threatened with, an actual injury traceable to the defendant

and likely to be redressed by a favorable judicial decision," for their to be a claim or

controversy. Tarrant Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906, 910 (10th Cir. Okla.

2008) quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 140 L. Ed. 2d 43

(1998). Because Plaintiffs can no longer cite to any claim or controversy with respect to

North Dakota and EPA’s alleged failure to act on North Dakota’s RH SIP, all claims

brought by Plaintiffs against EPA concerning North Dakota must be dismissed.

V. THE COURT CANNOT APPROVE THE PROPOSED CD BECAUSE IT

LACKS SUBJECT MATTER JURISDICTION

The resolution of a claim though a consent decree must "spring from and serve

to resolve a dispute within the court's subject matter jurisdiction," "com[e] within the

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general scope of the case made by the pleadings," and "further the objectives of the law

upon which the complaint was based." See Local No. 93, International Ass'n of

Firefighters v. Cleveland, 478 U.S. 501, 525 (1986) see United States v. Davis, 11 F.

Supp. 2d 183, 187-88 (1998). None of these requirements are met here.

A. Plaintiffs Failed to Provide North Dakota With Notice of Their Intent

to Sue EPA, as Required Under the CAA.

This Court respectfully lacks subject matter jurisdiction to enter the Proposed CD

because Plaintiffs failed to provide North Dakota with requisite notice of its intent to sue

EPA, as required under 42 U.S.C. § 7604(a). The WEG and NPCA notices of intent to

sue EPA state that notice is being provided to EPA 60-days prior to the commencement

of any proceeding in district court, in accordance with 42 U.S.C. §7604. However,

because the alleged failures set forth in the WEG and NPCA letters are of the

Administrator’s unreasonable delay, WEG and NPCA were required to provide 180-

days notice (to North Dakota and EPA), not a mere 60-days notice solely to EPA, prior

to the commencement of a suit in federal district court. See 42 U.S.C. § 7604(a).

Plaintiffs assert that the Administrator’s decision to not proceed timely in

proposing a FIP is a non-discretionary duty. However, EPA and the Administrator’s

actions clearly demonstrate that they possess discretion as to when and how they act to

promulgate a FIP, and are exercising that discretion when determining when and how to

proceed with respect to North Dakota’s RH SIP. The very negotiation process that EPA

has engaged in with Plaintiffs over the Proposed CD and the timing therein that EPA

must act by, clearly demonstrates an exercise of discretion on the part of EPA. For

instance, EPA elects in the Proposed CD to take action on North Dakota’s RH SIP

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within 20-days of the entry of the Proposed CD. See Proposed CD at ¶4. However, EPA

elects in the Proposed CD not to take any action on Colorado’s RH SIP until March 8,

2012.6 See id. at ¶10. If EPA had no discretion and was required to promulgate a FIP

for those States identified in its January 15, 2009 rule by January 2011, EPA should

then have no discretion in selecting when it may act by to approve a State’s SIP or

promulgate a FIP. Further, the Proposed CD further permits EPA and Plaintiffs to agree

to extend the dates established in the Proposed CD. See id. at ¶12. If EPA had no

discretion in the promulgation of a FIP, this Court should be limited to only entering an

order directing EPA to act by a date certain for all States. Moreover, EPA states in the

North Dakota FIP that combining the Interstate Transport FIP and RH FIP for North

Dakota in one rulemaking is being done for efficiency purposes. “Acting on both the

section 110(a)(2)(D)(i)(II) requirement and the Regional Haze SIP requirement

simultaneously will ensure the most efficient use of resources by the affected sources

and EPA.” Exhibit B at p. 29. When and how EPA proposes to promulgate a RH FIP

must be done in accordance with the CAA, and not merely because to act now allows

for an “efficient use of resources.”

The advance written notice provision of citizen suits for unreasonable delay

under the CAA is a mandatory precondition that determines the court's jurisdiction, and

prospective plaintiffs must strictly adhere to its requirements. See National Parks

Conservation Association Inc. v. Tennessee Valley Authority, 175 F.Supp. 2d 1071,

1076 (E.D. Tenn. 2001). The reason for the notice requirement prior to filing a citizen

6 EPA negotiated that it may act no later than April 15, 2012 on Wyoming's RH SIP, and

by January 20, 2012 on Montana's RH FIP See Proposed CD at ¶¶6, 8.

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suit “is to allow [] parties time to "resolve their conflicts in a nonadversarial time period."

[] In addition, the notice alerts the appropriate agency so that "administrative action may

initially provide" relief before a court becomes involved.” New Mexico Citizens for Clean

Air and Water v. Espanola Mercantile Company, Inc., 72 F.3d 830, 833 (10th Cir. 1996)

(quoting Washington Trout v. McCain Foods, 45 F.3d 1351, 1354 (9th Cir 1995))

(internal citations omitted). Effective negotiation is not possible when there are critical

parties absent from the negotiations. See Id.

In the case before this Court, North Dakota, an indispensible party to this case,

was never included in the Proposed CD negotiations. No effective negotiation of a

resolution to Plaintiffs allegations with respect to ND’s RH SIP can be reached if North

Dakota is not included in the negotiation of the Proposed CD. But because Plaintiffs

failed to provide North Dakota with notice of their intent to sue EPA, the State was

deprived of any ability to participate in the negotiation of the Proposed CD.

B. The Proposed CD Is Inconsistent With The CAA Since It Permits EPA

To Proceed With A FIP Before Taking Final Agency Action On North

Dakota’s RH SIP

Additionally, the Proposed CD is contrary to the CAA because it would authorize

EPA to propose a FIP for North Dakota concurrent with a proposed partial or complete

denial of North Dakota’s pending RH SIP. See Proposed CD at ¶4. Until EPA proceeds

to undertake a rulemaking to consider North Dakota’s RH SIP, and until EPA issues a

final determination on North Dakota’s RH SIP it cannot proceed to promulgate a RH FIP

for the State.

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The CAA defines a “Federal Implementation Plan” as “a plan (or portion thereof)

promulgated by the [EPA] Administrator to fill all or a portion of a gap or otherwise

correct all or a portion of an inadequacy in a State implementation plan.” 42 U.S.C. §

7602(y). North Dakota submitted to EPA its RH SIP on March 3, 2010, and most

recently an Amendment to its RH SIP on July 28, 2011, to address its RH obligations

under the CAA. Until EPA assesses the submitted RH SIP and Amendment, develops a

proposed rule to approve or disapprove the RH SIP and Amendment, solicits and

receives public comment on that proposed rule, and takes final action on whether (and

to what extent) to approve the RH SIP and Amendment, EPA cannot know whether

there is a “gap” in North Dakota’s RH SIP that needs to be filled or whether (and to what

extent) there is an “inadequacy” in North Dakota’s RH SIP that needs to be corrected.

Id. Moreover, until EPA acts to propose the North Dakota SIP for public review and

comment, it is depriving North Dakota from correcting any “deficiencies” identified by

EPA.

To permit EPA to act prematurely and promulgate a FIP before it takes final

action on North Dakota’s SIP, is inconsistent with EPA’s obligations under § 307(d)(3) of

the CAA, 42 U.S.C. § 7607(d)(3). Permitting EPA to propose a FIP without acting first

on North Dakota’s RH SIP ignores the critical fact that, because “promulgation or

revision of an implementation plan by the Administrator” under CAA § 110(c)(1) is

among the actions specifically listed in CAA § 307(d)7, certain fundamental rulemaking

requirements established by that procedural provision of the Act must be met by EPA

before it may propose and promulgate a FIP. Section 307(d)(3) requires the “statement

7 see 42 U.S.C. § 7607(d)(1)(B)

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of basis and purpose” that must accompany each proposed FIP rule to include a

summary of “the factual data on which the proposed rule is based” and “the major legal

interpretations and policy considerations underlying the proposed rule.” 42 U.S.C. §

7607(d)(3)(A), (C). At this time EPA cannot satisfy the requirements of 42 U.S.C. §

7607(d)(3)(A), (C) since it has yet to conduct a rulemaking on North Dakota’s RH SIP.

Fundamentally, permitting EPA to proceed with a FIP of North Dakota prior to it

making a determination on the State’s RH SIP violates North Dakota’s authority under

the CAA (including the regulatory programs implicated by CAA §169A) to design and

implement plans to control air pollution control within its borders. See 42 U.S.C. §

7401(a)(3).

VI. NORTH DAKOTA IS SUBSTANTIVELY AND PROCEDURALLY

PREJUDICED BY THE PROPOSED CD

Even if the Court concludes that it has subject matter jurisdiction and can

proceed with entering the Proposed CD, under Firefighters, those provisions specific to

North Dakota should be removed from the Proposed CD or modified prior to entry

because their inclusion is substantively and procedurally prejudicial to North Dakota.

See Firefighters v. Cleveland, 478 U.S. 525.

The Courts' assessment of the fairness of a consent decree involves assessment

of both the decree's substantive fairness and its procedural fairness. See Telluride, 849

F. Supp. 1402. In assessing a decree's fairness, the court should consider the fairness

of the decree to third parties who are not parties to the decree. See United States v.

Davis, 11 F. Supp.2d 183, 189 (D.R.I. 1998) (substantive fairness focuses on fairness to

nonsettling parties); United States v. Miami, at 441 (court must be satisfied that effects

on third parties are neither unreasonable nor prescribed); United States v. BP, 167 F.

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Supp.2d 1052 (fairness should be evaluated from the standpoint of signatories and

nonparties to the decree).

In assessing procedural fairness, "a court should ordinarily look to the negotiation

process and attempt to gauge its candor, openness, and bargaining balance." Telluride

at 1402 (quoting United States v. Cannons Engineering Corp., 899 F.2d 79, 86 (1st Cir.

1990). The exclusion of a third party from consent decree negotiations is a relevant

factor that supports a claim of procedural unfairness. As the court stated in U.S. v.

Davis, 11 F. Supp. 2d 189, "[g]enerally the requirement of procedural fairness is

satisfied if the proposed settlement is reached through arms-length negotiations in

which all parties, including non-settlors, are afforded an opportunity to participate and

the United States acts in good faith." See United States v. Cannons, 899 F. 2d 87 & n.3

(noting that district court's finding of procedural fairness was supported by fact that all

parties, with the exception of one ineligible party, had an opportunity to participate in the

negotiations).

The interests of North Dakota are directly at issue in this case and in the

Proposed CD, yet North Dakota has had no opportunity to participate in any of the

negotiations regarding the Proposed CD. North Dakota only learned of the Proposed

CD and this case on June 21, 2011, in an e-mail sent from EPA to the NDDH. North

Dakota immediately proceeded to file a Motion to Intervene in this case, which the Court

granted on August 9 (Dkt. No. 47). Plaintiffs and Defendant’s filed the Motion to Enter

Consent Decree three days later on August 12. At no time, either prior to the Court

granting North Dakota’s Motion to Intervene or after, did Plaintiffs or Defendant seek to

include the State in any of the negotiations regarding the Proposed CD and specifically

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the dates provided therein with respect to North Dakota. Now as a party to this case,

North Dakota must be included in any proposed resolution to Plaintiffs allegations,

including negotiations of the Proposed CD.

The Proposed CD will impact North Dakota’s ability to implement and enforce its

RH SIP because the Proposed CD would unnecessarily constrain the timing and scope

of any EPA response to the North Dakota RH SIP. Under the Proposed CD, EPA must

act within 20-days of this Court’s entry of the CD to propose a rulemaking that either

proposes approval of North Dakota’s RH SIP in whole or in part, or proposes a FIP in

whole or in part. See Proposed CD at ¶4. If no RH SIP for North Dakota is approved,

EPA shall by January 26, 2012, sign a notice of final rulemaking promulgating a FIP for

North Dakota. See id at ¶5.

It is striking to compare the aggressive timetable established for North Dakota

under the Proposed CD to that for the other States covered under the Proposed CD.

Under the Proposed CD, EPA would be required to sign no later than April 15, 2012 a

notice of proposed rulemaking to propose a FIP for Wyoming concurrent with a

proposed partial or complete denial of Wyoming’s RH SIP. See Proposed CD at ¶6.

Similarly, for Montana EPA must sign a notice of proposed rulemaking no later than

January 20, 2012. See id. at ¶8. And for Colorado, EPA must take action no later than

March 8, 2012. See id. at ¶10. Yet, for North Dakota the proposed CD requires action

by EPA to promulgate a partial or complete denial of North Dakota’s RH SIP concurrent

with a proposed FIP rulemaking in just 20-days from the entry of the Proposed CD. See

id. at ¶4.

Moreover, the Proposed CD gives special rights to the Plaintiffs in terms of

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advance notification of possible delays and rights to challenge (or not) those delays

before this Court. See Proposed CD at ¶12. And the Proposed CD places the timing

and enforcement of the CD under the judicial supervision of this Court. In short, the

Proposed CD limits EPA’s discretion with respect to the timing and content of the North

Dakota RH SIP.

Though a party to this case, North Dakota is a not a party to the Proposed CD

and never has had a seat at the negotiating table. It is Plaintiffs who had a seat at the

negotiating table with EPA, and its Plaintiffs and EPA that have arbitrarily selected the

timing and scope of EPA’s action with respect to North Dakota’s RH SIP. While North

Dakota commented on the Proposed CD when EPA published it for public review and

comment, submitting public comments to a deal that has already been struck is not the

same as being a party at the negotiating table. EPA had no obligation to accept any of

North Dakota’s comments to the Proposed CD, which it didn’t. It is North Dakota and its

citizens that will be directly harmed by the timetable established and the authority

granted to EPA in the Proposed CD. Accordingly, the Proposed CD cannot be entered

until and unless North Dakota is included in renegotiating those elements of the

Proposed CD that pertain directly to North Dakota.

VII. THE COURT SHOULD DECLINE TO ENTER THE PROPOSED CD

BECAUSE PLAINTIFFS AND DEFENDANT HAVE FAILED TO PRESENT

AN ADEQUATE RECORD UPON WHICH THE COURT MAY ASSESS THE

CD'S ADEQUACY AND REASONABLENESS.

Consideration of the adequacy and reasonableness of a consent decree involves

consideration of a number of factors, including whether the decree is technically

adequate, reflects the relative strengths and weaknesses of the Plaintiffs’ case, is in the

public interest, and advances the objectives of the applicable statute. Telluride at 1402,

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citing United States v. Cannons., 899 F.2d at 89-90. In this case, the Plaintiffs and

Defendant did not advise the Court of significant developments related to North

Dakota’s RH SIP which materially impact the scope of the Proposed CD as it relates to

North Dakota. Plaintiffs and Defendant’s failure to so advise the Court precludes it from

conducting a proper assessment of the reasonableness of the Proposed CD.

Under the terms of the Proposed CD, EPA would be required to proceed with a

rulemaking on North Dakota’s RH SIP before a decision is reached on EPA’s request

for dispute resolution pending before the District Court of North Dakota. The Proposed

CD provides that within 20-days of entry of the Proposed CD, EPA would proceed with

a full or partial SIP for North Dakota. See Proposed CD at ¶4. Under the current terms

of the Proposed CD, If EPA proceeds to propose a full or partial RH FIP for North

Dakota, it will be vetoing North Dakota’s well reasoned and supported BACT

determination prior to there being a decision by the District of North of Dakota of

whether the BACT determination is reasonable. Such an outcome is unacceptable and

certainly not in accordance with the terms of the 2006 CD entered by the District of

North of Dakota. Importantly, until there is a decision by the District of North of Dakota

on North Dakota’s BACT determination, this Court cannot assess whether the Proposed

CD is technically adequate, is in the public interest, or advances the objectives of the

RH program.

CONCLUSION

For these reasons, the Court should decline to enter the Proposed CD.

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DATED: September 2, 2011

Respectfully submitted,

STATE OF NORTH DAKOTA

WAYNE STENEHJEM

ATTORNEY GENERAL

/s/ Paul M. Seby_________________

Paul M. Seby

Special Assistant Attorney General

Moye White LLP

1400 16th Street, Sixth Floor

Denver, CO 80202

Telephone: (303) 292-2900

Facsimile: (303) 292-4510

Email: paul.seby@moyewhite.com

Attorney for the State of North Dakota and

the North Dakota Department of Health

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01160281.DOC:3

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of September, 2011, a true and correct copy of the

above and foregoing RESPONSE IN OPPOSITION TO PLAINTIFFS’ AND

DEFENDANT’S MOTION TO ENTER CONSENT DECREE was filed by CM/ECF and

will be served by the Court’s CM/ECF system as follows:

Ashley D. Wilmes

WildEarth Guardians

827 Maxwell Avenue, Suite L

Boulder, Colorado 80304

Tel. 859-312-4162

awilmes@wildearthguardians.org

NATIONAL PARKS CONSERVATION

ASSOCIATION:

Reed Zars

Attorney at Law

910 Kearney Street

Laramie, WY 82070

307-745-7979

rzars@lariat.org

James J. Tutchton

WildEarth Guardians

6439 E. Maplewood Ave.

Centennial, CO 80111

Tel. 720-301-3843

jtutchton@wildearthguardians.org

Pamela Campos

Environmental Defense Fund

2060 Broadway, Suite 300

Boulder, CO 80302

720-205-2366

pcampos@edf.org

Alan D. Greenberg

Environmental Defense Section

Environment and Natural Resources U.S.

Department of Justice

999 18th Street

South Terrace, Suite 370

Denver, CO 80202

(303) 844-1366

alan.greenberg@usdoj.gov

/s/ Paul M. Seby ________________________

Paul M. Seby

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