UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

SIERRA CLUB, )

)

Plaintiff, )

) Civil Case No. 1:14-cv-00222

v. )

)

GINA McCARTHY, in her official )

capacity as Administrator, UNITED )

STATES ENVIRONMENTAL )

PROTECTION AGENCY, )

)

Defendant. )

____________________________________)

CONSENT DECREE

WHEREAS, on February 17, 2014, Plaintiff Sierra Club filed a Complaint in this matter 

against Defendant Gina McCarthy, in her official capacity as Administrator of the United States 

Environmental Protection Agency (hereinafter, “EPA” or “the Agency”), alleging that EPA has 

failed to undertake a certain mandatory duty under the Clean Air Act (“CAA”), 42 U.S.C. §§ 

7401-7671q, and that such alleged failure is actionable under section 304(a)(2) of the CAA, 42 

U.S.C. § 7604(a)(2);

WHEREAS, Sierra Club’s Complaint alleges that EPA has failed to perform a duty 

mandated by CAA sections 110(c)(1)(A), 42 U.S.C. §§ 7410(c)(1)(A), to promulgate a Federal 

Implementation Plan (“FIP”) for Montana’s Prevention of Significant Deterioration (“PSD”)

program to properly regulate nitrogen oxides as an ozone precursor; 

WHEREAS, the Parties wish to effectuate a complete and final settlement of Sierra Club

v. McCarthy, Case No. 1:14-cv-00222 (D.D.C.), without expensive and protracted litigation and 

without the admission of any issue of fact or law; 
WHEREAS, the Parties, by entering into this Consent Decree, do not waive or limit any 

claim, remedy, or defense, on any grounds, related to any final EPA action;

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

resolution of all of the claims in the above-captioned case;

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

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401-7671q;

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

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

ADJUDGED and DECREED that:

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

Complaint and to order the relief contained in this Consent Decree. Venue is proper in the 

United States District Court for the District of Columbia. 

2. Pursuant to CAA section 110(c)(1), EPA shall, by November 7, 2014, sign for 

publication in the Federal Register a notice or notices promulgating a FIP for the State of 

Montana’s PSD program that addresses nitrogen oxide as a precursor to ozone, thereby satisfying 

the PSD requirements in CAA section 110(a)(2)(C) and (J) for the 1997 ozone NAAQS. If, by 

November 7, 2014, EPA signs a notice or notices unconditionally approving a SIP or 

promulgating a partial FIP and unconditional approval of a partial SIP, collectively satisfying the 

PSD requirements in CAA section 110(a)(2)(C) and (J) for the 1997 ozone NAAQS, EPA shall 

have complied with the obligations of this paragraph.

3. After signing a final rule as described in Paragraph 2 of this Consent Decree, EPA 

shall deliver, within fifteen (15) business days, notice of such actions to the Office of Federal 

Register for review and publication. 
4. The deadlines in Paragraphs 2, 3 and 11 may be extended by (a) written 

stipulation executed by counsel for Sierra Club and EPA with notice to the Court, or (b) by the 

Court on a motion of EPA for good cause shown pursuant to the Federal Rules of Civil 

Procedure, and upon consideration of any response by Sierra Club and any reply by EPA. Any 

other provision of this Consent Decree may be modified by the Court following stipulation of the 

parties or motion of Sierra Club or EPA for good cause shown pursuant to the Federal Rules of 

Civil Procedure and upon consideration of any opposition by the non-moving party and any 

reply. 

5. If a lapse in appropriations occurs within one hundred and twenty (120) days prior 

to the deadline in Paragraph 2 in this Decree, that deadline shall be extended automatically one 

day for each day of the lapse in appropriations. Nothing in this paragraph shall preclude EPA 

from seeking an additional extension, either by stipulation or court order, pursuant to the 

procedures of Paragraph 4.

6. Sierra Club and EPA shall not challenge the terms of this Consent Decree or this 

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

7. Sierra Club and EPA agree that this Consent Decree shall constitute a complete 

and final settlement of all claims that Sierra Club has asserted against the United States, 

including EPA, under any provision of law in connection with Sierra Club v. McCarthy, Case 

No. 1:14-cv-00222 (D.D.C.). Sierra Club therefore discharges and covenants not to sue the 

United States, including EPA, for any such claims. 

8. 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 in this Consent Decree by the times specified herein does not 

constitute a limitation or modification of EPA’s discretion within the meaning of this paragraph.

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

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

action EPA may take with respect to the actions addressed in this Consent Decree.

10. Nothing in this Consent Decree shall be construed to: (a) confer upon this Court 

jurisdiction to review any issues that are within the exclusive jurisdiction of the United States 

Courts of Appeals pursuant to CAA sections 307(b)(1), 42 U.S.C. §§ 7607(b)(1), including final 

action taken pursuant to section 110(c) or (k) of the CAA, 42 U.S.C. § 7410(c) or (k); or (b) 

waive any claims, remedies, or defenses the Parties may have under CAA section 307(b)(1), 42 

U.S.C. § 7607(b)(1).

11. The deadline for filing a motion for costs of litigation, including reasonable 

attorney’s fees, incurred prior to entry of this Consent Decree is hereby extended until sixty (60) 

days after the entry of this Consent Decree by this Court. During this time, the Parties shall seek 

to resolve informally any claim for costs of litigation, including reasonable attorney’s fees, and if 

they cannot, will submit that issue to the Court for resolution. The United States does not waive 

or limit any defenses it may have to such claim. The Court shall retain jurisdiction to resolve 

any requests for costs of litigation, including reasonable attorney’s fees.

12. 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 the United States obligate or pay funds in contravention of the 
Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

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

writing, by email, and sent to the following:

For Plaintiff Sierra Club:

KIMBERLY ANN STURM

Stack & Associates, P.C.

260 Peachtree Street, Suite 1200

Atlanta, GA 30303

Phone: (404) 525-9204

ksturm@stack-envirolaw.com

Sierra Club 

Coordinating Attorney

85 Second Street, 2nd Floor, 

San Francisco, CA 94105

Aaron.isherwood@sierraclub.org

For Defendant EPA:

STEPHANIE J. TALBERT

Trial Attorney

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Phone: (202) 514-2617

Stephanie.talbert@usdoj.gov

STEPHANIE L. HOGAN

Office of the General Counsel 

U.S. Environmental Protection Agency

Ariel Rios Bldg., MC 2344A

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Phone: (202) 564-3244

hogan.stephanie@epa.gov

14. 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 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 (10) business days 

after receipt of the notice, either Party may move the Court to resolve the dispute.

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

contempt of Court shall be properly filed unless Sierra Club has followed the procedure set forth 

in Paragraph 14, and provided EPA with written notice received at least ten (10) business days 

before the filing of such motion or proceeding.

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

this Consent Decree. When EPA’s obligations under Paragraph 2 and 3 have been completed, 

any relevant notices have been published in the Federal Register, and any claim for costs of 

litigation, including reasonable attorney’s fees, has been resolved pursuant to the process 

described in Paragraph 11, the above-captioned matter shall be dismissed with prejudice. EPA 

shall file an appropriate notice with the Court so that the Clerk may close the file.

17. 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). After this 

Consent Decree has undergone an opportunity for notice and comment, the 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 CAA, 42 U.S.C. § 7413(g). 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.

18. 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 on this day of 2014.

________________________________________

THE HONORABLE AMY BERMAN JACKSON

UNITED STATES DISTRICT JUDGE 

SO AGREED:

FOR PLAINTIFF Sierra Club /s/ Kimberly Ann Sturm

KIMBERLY ANN STURM

Stack & Associates, P.C.

260 Peachtree Street, Suite 1200

Atlanta, GA 30303

Phone: (404) 525-9204

ksturm@stack-Envirolaw.com

DATED: August 11, 2014

FOR DEFENDANT EPA SAM HIRSCH

 Acting Assistant Attorney General

 Environment & Natural Resources Division

/s/ Stephanie J. Talbert

STEPHANIE J. TALBERT

Trial Attorney

United States Department of Justice 

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Phone: (202) 514-2617

talbert.stephanie@usdoj.gov

DATED: August 12, 2014