IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 1:11-cv-0001-CJA-MEH 

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

WILDEARTH GUARDIANS, 

 Plaintiffs, 

 v. 

LISA JACKSON, in her official capacity as 

Administrator, United States Environmental 

Protection Agency, 

 

 Defendant. 

____________________________________________________________________________ 

CONSENT DECREE 

_________________________________________________________________________ 

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

National Parks Conservation Association (“NPCA”), and the Environmental Defense Fund 

(“EDF”), and by Defendant Lisa Jackson, in her official capacity as Administrator of the United 

States Environmental Protection Agency (“EPA”). 

 WHEREAS, Guardians filed this action pursuant to section 304(a)(2) of the Clean Air 

Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that EPA failed to perform a duty mandated by 

CAA section 110(k)(2) and (3), 42 U.S.C. § 7410(k)(2) and (3), by not acting on two State 

Implementation Plan (“SIP”) submissions, one addressing Colorado regional haze and the other 

addressing North Dakota excess emissions during startup, shutdown, malfunction and 

maintenance. The complaint further sought to compel EPA to take final action on these 

submissions by a date certain; 

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WHEREAS, Guardians and NPCA filed an amended complaint pursuant to CAA section 

304(a)(2), 42 U.S.C. § 7604(a)(2), alleging additional claims that EPA failed to perform a duty 

mandated by CAA section 110(k)(2) and (3), 42 U.S.C. § 7410(k)(2) and (3), by not acting on a 

Wyoming SIP submission addressing Wyoming regional haze, and duties mandated by CAA 

section 110(c), 42 U.S.C. § 7410(c), to promulgate regional haze Federal Implementation Plans 

(“FIPs”) for Montana, North Dakota, Colorado and Wyoming. The amended complaint further 

sought to compel EPA to take final action on these regional haze matters by a date certain; 

 WHEREAS, the Environmental Defense Fund (“EDF”) filed a complaint pursuant to 

CAA section 304(a)(2), 42 U.S.C. § 7604(a)(2), alleging that EPA failed to perform a duty 

mandated by CAA section 110(c), 42 U.S.C. § 7410(c), to promulgate a regional haze FIP for the 

State of Colorado or, alternatively, to finally approve a regional haze SIP for the State of 

Colorado; 

 WHEREAS, Guardians, NPCA, EDF and EPA (collectively, the “Parties”) wish to 

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

and without a litigated resolution of any issue of law or fact; 

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

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

and 

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

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq. 

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

any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED, 

ADJUDGED, and DECREED that: 

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

Complaint and the EDF Complaint and to order the relief contained in this Consent 

Decree. 

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

Resolution of Claim Asserted Solely by Guardians

3. By October 27, 2011, or within 20 days after the entry date of this Consent Decree, 

whichever date is later, EPA shall sign a notice of final rulemaking in which it takes 

final action on the State of North Dakota’s revisions to Chapters 33-15-01 and 33-15-

05, N.D.A.C., that North Dakota submitted to EPA on April 6, 2009. Such final 

action may consist of an approval, disapproval, limited approval/limited disapproval, 

partial approval/partial disapproval, or any combination thereof, as long as EPA takes 

final action on the entirety of the specified rule revisions. 

Resolution of Claims Asserted by Guardians and NPCA 

4. By July 21, 2011, or within 20 days after the entry date of this Consent Decree, 

whichever date is later, EPA shall sign a notice of proposed rulemaking in which it 

proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the 

alternative, for the State of North Dakota, to meet the regional haze implementation 

plan requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

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

for the State of North Dakota, to meet the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

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regulations, unless, by January 26, 2012, EPA has signed a notice of final rulemaking 

unconditionally approving a SIP, or promulgating a partial FIP and partial 

unconditional approval of a SIP, for the State of North Dakota that meets the regional 

haze implementation plan requirements that were due by December 17, 2007 under 

EPA’s regional haze regulations. 

6. By April 15, 2012, EPA shall sign a notice of proposed rulemaking in which it 

proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the 

alternative, for the State of Wyoming, to meet the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

7. EPA shall by October 15, 2012, sign a notice of final rulemaking promulgating a FIP

for the State of Wyoming, to meet the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations, unless, by October 15, 2012, EPA has signed a notice of final rulemaking 

unconditionally approving a SIP, or promulgating a partial FIP and partial 

unconditional approval of a SIP, for the State of Wyoming that meets the regional 

haze implementation plan requirements that were due by December 17, 2007 under 

EPA’s regional haze regulations. 

8. By January 20, 2012, EPA shall sign a notice of proposed rulemaking in which it 

proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the 

alternative, for the State of Montana, to meet the regional haze implementation plan 

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requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

9. EPA shall by June 29, 2012, sign a notice of final rulemaking promulgating a FIP for 

the State of Montana, to meet the regional haze implementation plan requirements 

that were due by December 17, 2007 under EPA’s regional haze regulations, unless, 

by June 29, 2012, EPA has signed a notice of final rulemaking unconditionally 

approving a SIP, or promulgating a partial FIP and partial unconditional approval of a 

SIP, for the State of Montana that meets the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

Resolution of Claims Asserted by Guardians, NPCA and EDF 

10. By March 8, 2012, EPA shall sign a notice of proposed rulemaking in which it 

proposes approval of a SIP, promulgation of a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of a SIP or promulgation of a FIP in the 

alternative, for the State of Colorado, to meet the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations. 

11. EPA shall by September 10, 2012, sign a notice of final rulemaking promulgating a 

FIP for the State of Colorado, to meet the regional haze implementation plan 

requirements that were due by December 17, 2007 under EPA’s regional haze 

regulations, unless, by September 10, 2012, EPA has signed a notice of final 

rulemaking unconditionally approving a SIP, or promulgating a partial FIP and partial 

unconditional approval of a SIP, for the State of Colorado that meets the regional 

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haze implementation plan requirements that were due by December 17, 2007 under 

EPA’s regional haze regulations. 

General Provisions 

12. The deadline in Paragraph 3 may be extended for a period of 60 days or less by 

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

Court. Any other extension of a deadline in paragraph 3 may be approved by the 

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

and upon consideration of any response by Guardians and reply by EPA. The 

deadlines in Paragraphs 4 through 9 may be extended for a period of 60 days or less 

by written stipulation executed by counsel for EPA, Guardians and NPCA and filed 

with the Court. Any other extension of a deadline in paragraphs 4 through 9 may be 

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

Procedure by EPA and upon consideration of any response by Guardians and NPCA, 

and reply by EPA. The deadlines in Paragraphs 10 and 11 may be extended for a 

period of 60 days or less by written stipulation executed by counsel for EPA, 

Guardians, NPCA, and EDF and filed with the Court. Any other extension of a 

deadline in paragraphs 10 and 11 may be approved by the Court upon motion made 

pursuant to the Federal Rules of Civil Procedure by EPA and upon consideration of 

any response by Guardians, NPCA and EDF, and reply by EPA. Any other 

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

made pursuant to the Federal Rules of Civil Procedure by any Party to this Consent 

Decree and upon consideration of any response by the non-moving Parties and reply 

by the moving party. 

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13. The United States agrees to pay Guardians as full settlement of all claims by 

Guardians for attorneys’ fees, costs, and expenses (“costs of litigation”) incurred in 

this consolidated litigation through the date of lodging this consent decree, under any 

authority, the sum of $23,545 as soon as reasonably practicable following entry of 

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

Guardians. Guardians agrees that the United States’ payment to Guardians of 

$23,545 fully satisfies any and all claims for costs of litigation Guardians may have 

with respect to these consolidated cases, except that Guardians reserves the right to 

seek costs of litigation pursuant to 42 U.S.C. §7604(d) for any additional work 

performed after the lodging of this Consent Decree. The costs of litigation paid under 

this Paragraph shall have no precedential value in any future claim. Guardians will 

not seek costs of litigation incurred between February 22, 2011 and the date of 

lodging this consent decree in Case No. 09-cv-02148-REB-MJW (D. Colo.). NPCA 

does not seek costs of litigation related to its claims in these consolidated cases for 

work performed through the date of lodging this Consent Decree. NPCA reserves its 

right to seek costs of litigation pursuant to 42 U.S.C. §7604(d) for any work 

performed after the lodging of this Consent Decree. EDF, which filed a separate 

complaint in this matter, does not seek costs of litigation related to its claims in these 

consolidated cases for work performed before or after the lodging of this Consent 

Decree. EPA does not concede that Guardians or NPCA will be entitled to fees for 

any work performed by Guardians or NPCA after the lodging of the Consent Decree, 

and EPA reserves all defenses with respect to any future costs of litigation claim. 

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14. No later than ten business days following signature of the notice of any proposed or 

final rulemaking referenced above, EPA shall submit the notice for review and 

publication to the Office of the Federal Register. Following such delivery to the 

Office of the Federal Register, EPA shall not take any step to delay or otherwise 

interfere with publication of such notice in the Federal Register. 

15. Guardians, NPCA, EDF and EPA shall not challenge the terms of this Consent 

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

16. Nothing in this Consent Decree shall be construed to limit or modify any discretion 

accorded EPA by the CAA or by general principles of administrative law in taking 

the actions which are the subject of this Consent Decree, including the discretion to 

alter, amend, or revise any responses or final actions contemplated by this Consent 

Decree. EPA’s obligation to perform the actions specified by Paragraphs 3 through 

11 by the times specified does not constitute a limitation or modification of EPA’s 

discretion within the meaning of this paragraph. 

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

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

final action EPA may take with respect to the SIPs or FIPs identified in paragraphs 3 

through 11 of this Consent Decree. 

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

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

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

court jurisdiction to review any issues that are within the exclusive jurisdiction of the 

United States Court of Appeals pursuant to CAA section 307(b)(1) and 505, 42 

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U.S.C. §§ 7607(b)(1), 7661d. Nothing in this Consent Decree shall be construed to 

waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 

42 U.S.C. § 7607(b)(1). 

19. The Parties recognize and acknowledge that the obligations imposed upon EPA under 

this Consent Decree can only be undertaken using appropriated funds legally 

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

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

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

provision of law. 

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

and sent via e-mail to the following: 

For Guardians: 

Ashley Wilmes 

awilmes@wildearthguardians.org

James Tutchton

jtutchton@wildearthguardians.org

For NPCA: 

Reed Zars 

rzars@lariat.org

For EDF: 

Pamela Campos 

pcampos@edf.org

For EPA: 

Alan Greenberg 

alan.greenberg@usdoj.gov

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Lea Anderson 

anderson.lea@epa.gov

Jonah Staller 

staller.jonah@epa.gov

21. In the event of a dispute among the Parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disputing Party shall 

provide the other Party with a written notice outlining the nature of the dispute and 

requesting informal negotiations. If the Parties cannot reach an agreed-upon 

resolution within ten business days after receipt of the notice, any Party may move 

the Court to resolve the dispute. 

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

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

Consent Decree has followed the procedure set forth in Paragraph 21. 

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

Consent Decree, to resolve any disputes thereunder, and to consider any requests for 

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

under Paragraphs 3 through 14 have been completed, this consent decree may be 

terminated. EPA shall notify the Court by motion of the completion of its obligations 

under Paragraphs 3 through 14, and Plaintiffs shall have 14 days in which to respond 

to such motion. 

24. The Parties agree and acknowledge that before this Consent Decree can be finalized 

and entered by the Court, EPA must provide notice in the Federal Register and an 

opportunity for comment pursuant to CAA section 113(g), 42 U.S.C. § 7413(g). EPA 

will deliver a public notice of this Consent Decree to the Federal Register for 

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publication and public comment within 10 business days after lodging this Consent 

Decree with the Court. After this Consent Decree has undergone an opportunity for 

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

will promptly consider any such written comments in determining whether to 

withdraw or withhold consent to this Consent Decree, in accordance with section 

113(g) of the Clean Air Act. If the Administrator or the Attorney General elects not 

to withdraw or withhold consent to this Consent Decree, the Parties will promptly file 

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

Consent Decree is not filed within 90 days after the notice is published in the Federal 

Register, any party may file dispositive motions in this matter. 

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

drafted by the Parties and that any and all rules of construction to the effect that 

ambiguity is construed against the drafting party shall be inapplicable in any dispute 

concerning the terms, meaning, or interpretation of this Consent Decree. 

26. 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 Consent Decree. 

 SO ORDERED this day of 2011. 

 

 

United States District Judge 

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 SO AGREED: 

FOR PLAINTIFF WILDEARTH GUARDIANS 

 s/Ashley D. Wilmes 

Dated: June 6, 2011 __________________________ 

 Ashley D. Wilmes 

 WildEarth Guardians 

 827 Maxwell Ave., Suite L 

 Boulder, CO 80304 

 (859) 312-4162 

awilmes@wildearthguardians.org 

 

FOR PLAINTIFF NATIONAL PARKS 

CONSERVATION ASSOCIATION: 

s/ Reed Zars 

Dated: June 6, 2011 ________________________ 

Reed Zars 

Attorney at Law 

910 Kearney Street 

Laramie, WY 82070 

307-745-7979 

rzars@lariat.org

FOR ENVIRONMENTAL DEFENSE FUND: 

s/ Pamela Campos 

Dated: June 6, 2011 __________________________ 

Pamela Campos 

Environmental Defense Fund 

2060 Broadway, Suite 300 

Boulder, CO 80302 

720-205-2366 

pcampos@edf.org

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 FOR DEFENDANT LISA JACKSON: 

 IGNACIA S. MORENO 

 Assistant Attorney General 

 Environment and Natural Resources Division 

 By: s/Alan D. Greenberg 

Dated: June 6, 2011 ______________________ 

 ALAN D. GREENBERG 

 Environmental Defense Section 

 Environment and Natural Resources Division 

 U.S. Department of Justice 

 999 18th Street 

 South Terrace, Suite 370 

 Denver, CO 80202 

 (303) 844-1366 

alan.greenberg@usdoj.gov 

 

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