UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

SIERRA CLUB and WILDEARTH 

GUARDIANS,

 Plaintiffs 

v.

LISA JACKSON, in her official capacity as 

Administrator, U.S. Environmental Protection 

Agency,

 Defendant.

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Civil Action No. 1:10-cv-133(PLF)

CONSENT DECREE

WHEREAS, plaintiffs Sierra Club and WildEarth Guardians (“Plaintiffs”) filed a First 

Amended Complaint in this action in the United States District Court for the District of 

Columbia on January 27, 2010;

WHEREAS, Plaintiffs’ complaint alleged that defendant Lisa Jackson, Administrator of 

the U.S. Environmental Protection Agency (“EPA”), has failed to perform a duty mandated by 

section 110(k)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7410(k)(2), to take final action on 

the State Implementation Plan (“SIP”) infrastructure submittals for Maine, Rhode Island, 

Connecticut, New Hampshire, Alabama, Kentucky, Mississippi, South Carolina, Wisconsin, 

Indiana, Michigan, Ohio, Louisiana, Kansas, Nebraska, Missouri, Colorado, Montana, South 

Dakota, Utah, and Wyoming with regard to the 1997 8-hour ozone National Ambient Air Quality 

Standards;

WHEREAS, it is in the interest of the public, the parties and judicial economy to resolve 

this matter without protracted litigation;

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WHEREAS, the Court finds and determines that the settlement represents a just, fair, 

adequate and equitable resolution of all claims raised in this action.

NOW THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that:

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

complaint and to order the relief contained in this Consent Decree.

2. Venue lies in the United States District Court for the District of Columbia.

3. Plaintiff and EPA shall not challenge the terms of this Consent Decree or this 

Court’s jurisdiction to enter and enforce this Consent Decree. Upon entry, no party shall 

challenge the terms of this Consent Decree. 

4. No later than April 29, 2011, the Administrator or her authorized delegatee shall 

sign a notice or notices, pursuant to section 110(k)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 

7410(k)(2), either approving, disapproving, or approving in part and disapproving in part, the 

1997 8-hour ozone NAAQS Infrastructure SIPs for Maine, Rhode Island, Connecticut, New 

Hampshire, Alabama, Kentucky, Mississippi, South Carolina, Wisconsin, Indiana, Michigan, 

Ohio, Louisiana, Kansas, Nebraska, Missouri, Colorado, Montana, South Dakota, Utah, and 

Wyoming.

5. Within 15 business days following signature of such action required by paragraph 

4, EPA shall deliver notice of such action to the Office of the Federal Register for publication. 

Following such delivery to the Office of the Federal Register, EPA shall not take any step (other 

than as necessary to correct within 10 business days after submittal any typographical or other 

errors in form) to delay or otherwise interfere with publication of such notice in the Federal 

Register.

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6. Any dates set forth in this Consent Decree may be extended by written agreement 

of the parties and notice to the Court. To the extent the parties are not able to agree to an 

extension, either party may move the Court to resolve the dispute.

7. The deadline for filing a motion for costs of litigation (including attorneys’ fees) 

for activities performed prior to execution of this Decree is hereby extended until 60 days after 

this Decree is entered by the Court. During this 60-day period, the Parties shall seek to resolve 

informally any claim for costs of litigation (including attorneys’ fees), and if they cannot, will 

submit that issue to the Court for resolution. Nothing in this paragraph shall be construed as an 

admission or concession by EPA that Plaintiffs are entitled to or eligible for recovery of any 

costs or attorneys' fees.

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

this Consent Decree. Upon EPA’s demonstration that it has satisfied all of the obligations of this 

Consent Decree it may move to have this decree terminated. Plaintiffs shall have twenty days in 

which to respond to such motion.

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

discretion accorded EPA by the Clean Air Act or by general principles of administrative law in 

taking the actions which are the subject of this Consent Decree.

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

Consent Decree are subject to the requirements of Clean Air Act § 113(g), 42 U.S.C. § 7413(g). 

That subsection provides that notice of this proposed Decree be given to the public, that the 

public shall have a reasonable opportunity to make any comments, and that the Administrator or 

the Attorney General, as appropriate, must consider those comments in deciding whether to 

consent to this Consent Decree.

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

remedies Plaintiffs may have under section 307(b)(1) of the Clean Air Act, 42 U.S.C. 

§ 7607(b)(1). 

12. In the event of a dispute between the parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disputing party shall contact the other 

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

reach an agreed-upon resolution, then either party may move the Court to resolve the dispute. 

13. EPA’s commitments in this Decree are subject to the availability of appropriated 

funds. No provision of this Decree shall be interpreted as or constitute a commitment or 

requirement that EPA obligate funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 

§ 1341 or any other applicable law or regulation.

14. The undersigned representatives of each party certify that they are fully 

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

Respectfully submitted,

Dated: ____________ 

ROBERT UKEILEY

Law Office of Robert Ukeiley

435R Chestnut Street, Suite 1

Berea, KY 40403

Tel: (859) 986-5402

Fax: (859) 618-1017

Counsel for Plaintiffs

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IGNACIA MORENO

Assistant Attorney General

Dated:_______________ __________________________________ 

CHRISTINA L. RICHMOND

Trial Attorney

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-3376

Fax: (202) 514-8865

Counsel for Defendant

IT IS SO ORDERED.

Dated: _________________ __________________________________

PAUL L. FRIEDMAN

United States District Judge

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