UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

ENVIRONMENTAL INTEGRITY ) 

PROJECT, et al., ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) 1:12-cv-00867-RMC 

 ) 

LISA P. JACKSON, Administrator, ) 

Environmental Protection Agency, ) 

 ) 

Defendant. ) 

____________________________________) 

CONSENT DECREE 

 WHEREAS, Plaintiffs Environmental Integrity Project, Sierra Club, and Texas Campaign 

for the Environment (collectively, “Plaintiffs”) filed this action pursuant to section 304(a)(2) of 

the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Lisa Jackson, in her 

official capacity as Administrator, United States Environmental Protection Agency (“EPA”), 

failed to perform a non-discretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to 

grant or deny a petition submitted by Plaintiffs requesting that EPA object to a CAA permit 

issued by the Texas Commission on Environmental Quality to the Luminant Generation 

Company to operate the Sandow 5 Generating Plant (“Sandow 5”), a power plant located in 

Milam County, Texas; 

 WHEREAS, Plaintiffs and EPA (collectively, “the Parties”) wish to effect a settlement of 

the above-captioned matter without expensive and protracted litigation; 

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

of the claims in the above-captioned matter; 

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 WHEREAS, the Court, by entering this Decree, finds that the 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: 

 1. On or before January 15, 2013, EPA shall sign a response to Plaintiffs’ CAA 

Title V petition on the Sandow 5 Title V Permit (“Permit”), pursuant to 42 U.S.C. § 7661d(b)(2). 

 2. Following signature of such response to Plaintiffs’ petition, EPA shall 

expeditiously deliver notice of EPA’s response to the Office of the Federal Register for 

publication. Following such transmission, EPA shall not take any step (other than as necessary 

to correct any typographical error or other errors in form) to delay or otherwise interfere with 

publication of such notice in the Federal Register. 

 3. If EPA’s response to Plaintiffs’ petition includes the granting of any portion of the 

petition in whole or in part, EPA shall also promptly transmit the response to the Texas 

Commission on Environmental Quality. 

4. The deadline for filing a motion for costs of litigation, including attorneys’ fees, 

incurred prior to entry of this Consent Decree is hereby extended until ninety (90) 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 attorneys’ fees, and if they cannot, will 

submit that issue to this Court for resolution. The United States does not waive or limit any 

defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests 

for costs of litigation, including attorneys’ fees. 

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 5. Any provision of this Decree may be modified by (a) written stipulation of the 

Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, 

pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the 

non-moving party. 

 6. Plaintiffs and EPA shall not challenge the terms of this Decree or this Court’s 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

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

final settlement of all claims that Plaintiffs have asserted against the United States, including 

EPA, under any provision of law in connection with Environmental Integrity Project, et al. v. 

Jackson, Case No. 12-cv-00867 (D.D.C.), except as provided in Paragraph 4 of this Decree. 

Plaintiffs therefore discharge and covenant not to sue the United States, including EPA, for any 

such claims. 

 8. Nothing in this 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 Decree, including discretion to alter, amend, or revise any responses 

or final actions contemplated by this Decree. EPA’s obligation to perform the actions specified 

in Paragraph 1 by the time specified therein does not constitute a limitation or modification of 

EPA’s discretion within the meaning of this paragraph. 

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

law nor to waive or limit any claim or defense, on any grounds, related to any final action EPA 

may take with respect to the Permit. 

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

jurisdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this 

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), 42 U.S.C. § 7607(b)(1). Nothing in the terms of this 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). 

 11. The obligations imposed upon EPA under this Decree can only be undertaken 

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

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 

 12. Any notices required or provided for by this Decree shall be made in writing and 

sent to the following: 

For Plaintiffs: 

Gabriel Clark-Leach 

Environmental Integrity Project - Texas Office 

1303 San Antonio Street, Suite 200 

Austin, TX 78701 

Tel: (512) 637-9478 

Fax: (512) 584-8019 

gclark-leach@environmentalintegrity.org 

For Defendants: 

Stephanie Talbert 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2617 

Fax: (202) 514-8865 

stephanie.talbert@usdoj.gov 

Case 1:12-cv-00867-RMC Document 11-1 Filed 10/18/12 Page 4 of 7
David Coursen 

U.S. Environmental Protection Agency 

Office of General Counsel 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

Tel: (202) 564-0781 

Fax: (202) 564-5603 

Coursen.david@usepa.gov 

Abirami Vijayan 

U.S. Environmental Protection Agency 

Office of Regional Counsel 

1445 Ross. Ave. (6 RC-M) 

Dallas, TX 75202 

Tel: (214) 665-7303 

Fax: (214) 665-2182 

Vijayan.abi@epa.gov 

 13. In the event of a dispute between the Parties concerning the interpretation or 

implementation of any aspect of this 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, any party may move the Court to resolve the dispute. 

 14. No motion or other proceeding seeking to enforce this Decree or for contempt of 

Court shall be filed unless the Plaintiff has followed the procedure set forth in Paragraph 13. 

 15. The Court shall retain jurisdiction to determine and effect compliance with this 

Decree. When EPA’s obligations under Paragraphs 1 through 3 of this Decree have been 

completed, and Plaintiffs’ claim for costs of litigation has been resolved pursuant to Paragraph 4, 

the above-captioned matter shall be dismissed with prejudice. The Parties shall file the 

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

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

Case 1:12-cv-00867-RMC Document 11-1 Filed 10/18/12 Page 5 of 7
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 shall 

promptly submit a public notice of this Consent Decree to the Federal Register for publication 

and public comment after lodging this Consent Decree with the Court. After this Consent 

Decree has undergone an opportunity for notice and comment, the Administrator and/or the 

Attorney General, as appropriate, shall 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. If the federal government elects not to withdraw or withhold consent 

to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter 

this Consent Decree. 

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

drafted by Plaintiffs and EPA 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. 

 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 Decree. 

 SO ORDERED on this ___ day of _________________, 2012. 

 _________________________________ 

 THE HON. ROSEMARY M. COLLYER 

 UNITED STATES DISTRICT JUDGE 

Case 1:12-cv-00867-RMC Document 11-1 Filed 10/18/12 Page 6 of 7
SO AGREED: 

FOR PLAINTIFFS 

 

GABRIEL CLARK-LEACH 

Environmental Integrity Project - Texas Office 

1303 San Antonio Street, Suite 200 

Austin, TX 78701 

Tel: (512) 637-9478 

Fax: (512) 584-8019 

gclark-leach@environmentalintegrity.org 

FOR DEFENDANTS 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Division 

 

STEPHANIE J. TALBERT 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2617 

Fax: (202) 514-8865 

stephanie.talbert@usdoj.gov 

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