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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WILDEARTH GUARDIANS AND 

ELIZABETH CROWE, 

 

 Plaintiffs, 

 v. 

 

LISA P. JACKSON, in her official capacity 

as Administrator of the United States 

Environmental Protection Agency, 

 

Defendant.

 Case No. 4:11-cv-02205-SI 

 CONSENT DECREE 

 WHEREAS, on May 5, 2011, Plaintiffs WildEarth Guardians and Elizabeth Crowe filed 

the complaint in the above-captioned matter against Lisa P. Jackson, in her official capacity as 

Administrator of the United States Environmental Protection Agency (“EPA”), alleging that EPA 

has failed to undertake a certain nondiscretionary 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, section 172(c) of the CAA, 42 U.S.C. § 7502(c), requires States to adopt 

and submit to EPA for review state implementation plans (“SIPs”), which establish specific 

control measures and other requirements that apply to particular sources of air pollution within a 

State and are designed to attain the National Ambient Air Quality Standards (“NAAQS”) 

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established by EPA that specify the maximum permissible concentrations for those pollutants in 

the ambient air, see 42 U.S.C. §§ 7408, 7409; 

 WHEREAS, section 110(k) of the CAA, 42 U.S.C. § 7410(k), sets the process by which 

EPA is to review SIP submissions, including SIP revisions; 

 WHEREAS, Plaintiffs’ complaint alleges that EPA has a nondiscretionary duty to act on 

SIP submissions and revisions submitted to EPA within the time lines set forth in section 

110(k)(2) of the CAA, 42 U.S.C. § 7410(k)(2);

 WHEREAS, Plaintiffs’ complaint alleges that EPA has failed to take timely final action 

to approve, disapprove, or partially approve/disapprove Arizona’s SIP for the 1997 8-hour ozone 

nonattainment area of Phoenix-Mesa, Arizona, which was submitted to EPA on or about June 13, 

2007 (hereinafter, “Phoenix-Mesa SIP”);

 WHEREAS, Plaintiffs’ complaint seeks an order from this Court directing EPA to take 

final action on the Phoenix-Mesa SIP pursuant to section 110(k) of the CAA; 

 WHEREAS, the parties have agreed to settle this action without admission of any issue 

of fact or law;

 WHEREAS, the parties, by entering into this Consent Decree, do not waive or limit any 

claim 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 this matter; 

 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 parties agree that this Court has jurisdiction over this matter pursuant to 

the citizen suit provision in section 304(a)(2) of the CAA and that venue lies in the Northern 

District of California;

 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;

 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. Pursuant to section 110(k) of the CAA, and except as provided in Paragraphs 5 

and 6 below, EPA shall sign for publication in the Federal Register no later than May 31, 2012 a 

notice of the Agency’s final action on the portions of the Phoenix-Mesa SIP that do not pertain to 

New Source Review (“NSR”) and within 15 business days of signature deliver the notice to the 

Office of the Federal Register for review and publication.

 2. Pursuant to section 110(k) of the CAA, and except as provided in Paragraphs 5 

and 6 below, EPA shall sign for publication in the Federal Register no later than October 31, 

2012 a notice of the Agency’s final action on the portions of the Phoenix-Mesa SIP that pertain 

to NSR and within 15 business days of signature deliver the notice to the Office of the Federal 

Register for review and publication.

 3. When EPA’s obligations under Paragraphs 1 and 2 have been completed, the 

parties will file a joint request to the Court to dismiss this matter with prejudice. 

 4. The parties may extend the deadlines established in Paragraphs 1, 2, and 12 by 

written stipulation executed by counsel and filed with the Court. In addition, the deadlines 

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established in Paragraphs 1, 2, and 12 may be extended by the Court upon motion by any party to 

this Consent Decree. 

 5. If EPA takes final action on its proposed rule to classify the Phoenix-Mesa, 

Arizona nonattainment area under Title I, part D, subpart 2 of the Act, 42 U.S.C. §§ 7511-7511f, 

before May 31, 2012, 74 Fed. Reg. 2396 (Jan. 16, 2009), then EPA’s obligations under 

Paragraphs 1 and 2 shall be voided. If EPA takes this final action, the parties will file a joint 

request to the Court to dismiss this matter with prejudice. If EPA takes final action on its 

proposed rule to classify the Phoenix-Mesa, Arizona nonattainment area under Title I, part D, 

subpart 2 of the Act, 42 U.S.C. §§ 7511-7511f, before October 31, 2012, 74 Fed. Reg. 2396 (Jan. 

16, 2009), then EPA’s obligation under Paragraph 2 shall be voided. If EPA takes this final 

action, the parties will file a joint request to the Court to dismiss this matter with prejudice. 

 6. If EPA takes final action redesignating the Phoenix-Mesa, Arizona nonattainment 

area to attainment or unclassifiable before May 31, 2012, then EPA’s obligation under Paragraph 

1 shall be voided. If EPA takes this final action, the parties will file a joint request to the Court 

to dismiss this matter with prejudice. If EPA takes final action redesignating the Phoenix-Mesa, 

Arizona nonattainment area to attainment or unclassifiable before October 31, 2012, then EPA’s 

obligation under Paragraph 2 shall be voided. If EPA takes this final action, the parties will file a 

joint request to the Court to dismiss this matter with prejudice. 

 7. Nothing in this Consent Decree shall be construed to limit or modify the 

discretion accorded EPA by the CAA and by general principles of administrative law, including 

the discretion to alter, amend or revise any response and/or final action contemplated by this 

Consent Decree. EPA’s obligation to take the action set forth in Paragraphs 1 and 2 by the time 

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specified therein does not constitute a limitation or modification of EPA’s discretion within the 

meaning of this paragraph. 

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

jurisdiction to review any decision made in the final action identified in Paragraphs 1 or 2.

 9. The Court shall retain jurisdiction to enforce the terms of this Consent Decree and 

to consider any requests for costs of litigation, including attorneys’ fees.

 10. 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 via e-mail or otherwise 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 notice, any party may move the Court to resolve the 

dispute.

 11. No motion or other proceeding seeking to enforce this Consent Decree shall be 

considered properly filed, unless Plaintiffs have followed the procedure set forth in Paragraph 10 

and provided EPA with written notice received at least ten (10) business days before the filing of 

such motion or proceeding. 

 12. EPA agrees that, pursuant to section 304(d) of the CAA, 42 U.S.C. § 7604(d), 

Plaintiffs are both eligible and entitled to recover its costs of litigation in this action, including 

reasonable attorneys’ fees, incurred prior to entry of this Consent Decree. The deadline for filing 

a bill of costs pursuant to Local Rule 54-1 and a motion for costs of litigation, including 

reasonable attorneys’ fees, pursuant to Local Rule 54-6 for activities performed in this case prior 

to entry of this Consent Decree, is hereby extended until 90 days after the date on which the 

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Court enters this Consent Decree. During this time the parties shall seek to resolve informally 

any claim for costs of litigation, including reasonable attorneys’ fees.

 13. The obligations imposed by EPA under this Consent Decree may only be 

undertaken using appropriated funds. No provisions 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 federal law.

 14. Plaintiffs and EPA shall not challenge the terms of this Consent Decree or this 

Court’s jurisdiction to enter this Consent Decree. 

 15. The parties agree and acknowledge that before this Consent Decree is entered by 

the Court, EPA must provide notice of this Consent Decree in the Federal Register and an 

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

After this Consent Decree has undergone 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 their consent to the Consent Decree, in accordance 

with section 113(g) of the CAA. If the Administrator and/or the Attorney General do not elect to 

withdraw or withhold their consent, EPA shall promptly file a motion that requests the Court to 

enter this Consent Decree. 

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

writing, via facsimile, e-mail or other means, and sent to the following:

 For Plaintiffs:

Robert Ukeiley 

Law Office of Robert Ukeiley 

435R Chestnut Street, Suite 1 

Berea, Kentucky 40403 

Tel: (859) 986-5402 

Fax: (866) 618-1017 

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Email: rukeiley@igc.org 

 For Defendant: 

Michelle R. Lambert 

Trial Attorney 

U.S. Department of Justice 

 Environment and Natural Resources Division 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Tel: (202) 616-7501 

Fax: (202) 514-8865 

Email: michelle.lambert@usdoj.gov 

Jan Tierney 

Office of the General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Bldg. MC 2344A 

1200 Pennsylvania Ave., NW 

Washington, D.C. 20460 

Phone: (202) 564-5598 

Fax: (202) 564-5603 

Email: tierney.jan@epa.gov 

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

authorized by the party that they represent to bind that party to the terms of this Consent Decree. 

IT IS SO ORDERED. 

Dated: ________________ _____________________________________ 

 UNITED STATES DISTRICT JUDGE 

COUNSEL FOR PLAINTIFFS: 

Dated: 6/7/2011 /s James J. Tutchton (with permission) 

__________________________

James J. Tutchton (CA Bar No. 150908) 

WildEarth Guardians 

6439 E Maplewood Ave 

Centennial, CO 80110 

Phone: (303) 993-6744 

8/10/11

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 Email: jtutchton@wildearthguardians.org 

Attorney for Plaintiffs WildEarth Guardians and 

 Elizabeth Crowe 

COUNSEL FOR DEFENDANT: 

 IGNACIA S. MORENO 

 Assistant Attorney General 

 Environment & Natural Resources Division 

Dated: 6/7/2011 /s/ Michelle R. Lambert

 Michelle R. Lambert 

Trial Attorney 

U.S. Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Tel: (202) 616-7501 

Fax: (202) 514-8865 

michelle.lambert@usdoj.gov 

 

Attorneys for Defendant 

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