UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

AMERICAN LUNG ASSOCIATION and ) 

NATIONAL PARKS CONSERVATION ) 

ASSOCIATION, ) 

 ) 

 Plaintiffs, ) 

 ) Civil Action No. 1:12-cv-00243-RLW 

 v. ) (Judge Robert L. Wilkins) 

 ) 

UNITED STATES ENVIRONMENTAL ) 

PROTECTION AGENCY, and LISA ) 

JACKSON, Administrator, United States ) 

Environmental Protection Agency, ) 

 ) 

 Defendants. ) 

__________________________________________) 

 ) 

STATE OF NEW YORK, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 1:12-cv-00531-RLW 

 ) (Judge Robert L. Wilkins) 

LISA P. JACKSON, as Administrator of the ) 

Environmental Protection Agency, and the ) 

UNITED STATES ENVIRONMENTAL ) 

PROTECTION AGENCY, ) 

 ) 

 Defendants. ) 

__________________________________________) 

CONSENT DECREE 

 WHEREAS, Plaintiffs American Lung Association and National Parks Conservation 

Association (“ALA” and “NPCA”) initiated this action against the United States Environmental 

Protection Agency and Lisa Jackson, Administrator (collectively, “EPA” or the “Agency”), with 

a complaint filed on February 14, 2012, alleging that EPA has violated a nondiscretionary duty 

under the Clean Air Act, 42 U.S.C. § 7409(d)(1), to complete a five-year review of the national 

ambient air quality standards (“NAAQS”) for particulate matter, and seeking declaratory and 
2 

injunctive relief as well as attorney’s fees and other costs of litigation pursuant to 42 U.S.C. 

§ 7604(a); 

 WHEREAS, Plaintiffs the States of New York, California, Connecticut, Delaware, 

Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont and Washington 

(collectively, the “States”) filed a complaint in the United States District Court for the Southern 

District of New York on February 10, 2012, alleging the same statutory violation and seeking 

similar relief. The States’ complaint was subsequently transferred to this Court by a joint 

stipulation and order, and was then consolidated with the instant action by Order of this Court on 

April 13, 2012; 

WHEREAS, both complaints were filed pursuant to 42 U.S.C. § 7604(a)(2), which 

authorizes suits against EPA alleging that the Agency has failed to perform a nondiscretionary 

duty required by the Clean Air Act; 

 WHEREAS, ALA and NPCA filed an application for preliminary and permanent 

injunction, and both the States and EPA filed cross-motions for summary judgment as to remedy, 

all of which were argued at a motions hearing on May 31, 2012; 

 WHEREAS, the Court issued an Order on June 2, 2012, granting in part the application 

for preliminary injunction, and subsequently modified that Order on June 6, 2012. The modified 

Order requires that EPA sign a notice of proposed rulemaking no later than June 14, 2012, seek 

expedited publication of that notice in the Federal Register, and schedule and hold public 

hearing/s and hold a public comment period on the proposed rulemaking such that the comment 

period shall close no later than nine weeks following the date of publication of the notice in the 

Federal Register. The Order reserves judgment on all other relief sought by the application for 

injunction and the cross-motions for summary judgment as to remedy; 
3 

 WHEREAS, the Parties wish to effectuate a settlement of the remaining aspects of the 

instant action not resolved by the Court’s June 2 order (as modified in part on June 6), and the 

terms of that settlement are set forth in this Consent Decree; 

 WHEREAS, the Parties agree that this Consent Decree represents a good-faith 

compromise of disputed claims; and 

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

reasonable, in the public interest, and consistent with the Clean Air Act, 42 U.S.C. §§ 7401 et 

seq.; 

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

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

ADJUDGED and DECREED as follows: 

JURISDICTION, VENUE AND PARTIES 

1. This Court has subject-matter jurisdiction over the claims set forth in the abovereferenced complaints 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. The Parties to this Consent Decree are ALA, NPCA, the States (collectively, 

“Plaintiffs”) and EPA. There are no third-party beneficiaries of this Consent Decree. 

EPA OBLIGATIONS 

3. No later than December 14, 2012, EPA shall sign a notice of final rulemaking setting 

forth its final decision pursuant to 42 U.S.C. § 7409(d)(1) concerning its review of the NAAQS 

for particulate matter and promulgating such revisions to the NAAQS and/or promulgating such 

new NAAQS as may be appropriate in accordance with 42 U.S.C. §§ 7408 and 7409(b). 
4 

4. EPA shall seek expedited publication in the Federal Register of the notice of final 

rulemaking signed pursuant to Paragraph 3 above, and shall deliver said notice to the Office of 

the Federal Register for publication no later than three business days following signature of the 

notice. Following such delivery to the Office of Federal Register, EPA shall not take any action 

(other than is necessary to correct typographical errors or other errors in form) to delay or 

otherwise interfere with publication of the notice in the Federal Register. EPA shall also make 

available to Plaintiffs a signed copy of the notice of final rulemaking no later than three business 

days following signature of the notice. 

5. EPA shall establish the effective date of the final decision described in 

Paragraph 3 above such that any final rule shall become effective, barring intervening 

congressional or judicial action, on the earliest date that complies with the Congressional Review 

Act, 5 U.S.C. § 801 et seq. 

MODIFICATION OF THIS CONSENT DECREE AND DISPUTE RESOLUTION 

6. The Parties may extend the deadline established in Paragraph 3 by written stipulation 

executed by counsel for all Parties and filed with the Court on or before the date of that deadline; 

such extension shall take effect immediately upon filing the stipulation. In addition, EPA 

reserves the right to file with the Court a motion seeking to modify any deadline or other 

obligation imposed on EPA by Paragraphs 3, 4, 5 or 14. EPA shall give Plaintiffs at least five 

business days’ written notice before filing such a motion. Plaintiffs reserve their rights to oppose 

any such motion on any applicable grounds. 

7. Any other provision of this Consent Decree may be modified by mutual written 

agreement of the Parties and order of the Court. 
5 

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

implementation of, or compliance with, any provision of this Consent Decree, the disputing Party 

shall give the other Parties a written notice explaining the nature of the dispute and requesting 

informal negotiations. If the Parties cannot in good faith reach an agreed-upon resolution within 

ten business days after receipt of the notice, any Party may move the Court to resolve the 

dispute. 

CONTINUING JURISDICTION AND TERMINATION 

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

Consent Decree. When EPA’s obligations under Paragraphs 3 through 5 above have been 

completed, and the Plaintiffs’ claims for costs of litigation have been resolved as provided in 

Paragraph 16, the Parties shall file a joint motion to terminate this Consent Decree, except that if 

there is a dispute regarding whether EPA has completed its obligations, the Parties shall follow 

the procedures set forth in Paragraph 8. 

SAVINGS PROVISIONS 

10. The obligations imposed on EPA under this Consent Decree may only be undertaken 

using appropriated funds. 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 federal statute. 

11. Nothing in this Consent Decree shall be construed as an admission by any Party with 

respect to any issue of fact or law, or to waive or limit any claim or defense on any grounds 

except as expressly provided in this Consent Decree. 
6 

12. Nothing in this Consent Decree shall be construed to limit, expand, or otherwise 

modify the discretion accorded to EPA by the Clean Air Act or by general principles of 

administrative law, including the discretion to alter, amend or revise any final action EPA takes 

pursuant to Paragraph 3, except the deadline specified therein. EPA’s obligation to perform the 

actions described in Paragraphs 3 through 5 by the times specified therein does not constitute a 

limitation, expansion or other modification of EPA’s discretion within the meaning of this 

paragraph. 

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

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

States Court of Appeals pursuant to 42 U.S.C. § 7607(b)(1), including but not limited to judicial 

review of any final action taken by EPA pursuant to Paragraph 3 or 5 above. Nothing in this 

Consent Decree shall be construed to waive any remedies or defenses the Parties may have under 

42 U.S.C. § 7607(b)(1) with respect to such final action. 

NOTICE AND COMMENT UNDER 42 U.S.C. § 7413(g) 

14. The Parties agree and acknowledge that before this Consent Decree may be finalized 

and entered by the Court, EPA must provide notice of the Consent Decree in the Federal Register 

and an opportunity for comment pursuant to 42 U.S.C. § 7413(g). EPA shall expeditiously 

prepare such notice and, within 7 days of lodging this Consent Decree with the Court, submit it 

to the Office of Federal Register for publication. After the Consent Decree has undergone the 

statutorily-required notice and comment opportunity, the Administrator of EPA 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 

42 U.S.C. § 7413(g). The Parties shall have until August 31, 2012, to file a motion to enter this 
7 

Consent Decree. In the event the Administrator and/or the Attorney General has not determined 

by that date whether to withdraw or withhold consent to this Consent Decree, Parties shall file 

such other motion/s as may be appropriate in accordance with Paragraph 6 of this Consent 

Decree. 

15. No Party shall challenge any term of this Consent Decree or this Court’s jurisdiction 

to enter and enforce the Consent Decree. This paragraph shall not be construed to limit or 

modify the discretion of the Administrator and/or the Attorney General pursuant to 42 U.S.C. 

§ 7413(g). 

COSTS OF LITIGATION 

16. No later than 180 days after EPA completes its obligation under paragraph 3 of this 

Consent Decree, Plaintiffs may apply to the Court for an award of costs of litigation, including 

attorneys’ fees, pursuant to 42 U.S.C. § 7604(d). EPA reserves any and all defenses or responses 

to any such application. 

NOTICE TO PARTIES 

17. Any notice required by or given in connection with this Consent Decree shall be 

made in writing, via facsimile, electronic mail or overnight delivery, and shall be sent to the 

following: 

For ALA:

Paul R. Cort 

Earthjustice 

50 California Street, Suite 500 

San Francisco, CA 94111 

Phone: (415) 217-2077 

Fax: (415) 271-2040 

Email: pcort@earthjustice.org
8 

David S. Baron 

Earthjustice 

1625 Massachusetts Avenue, NW, Suite 702 

Washington, DC 20036-2212 

Phone: (202) 667-4500 

Fax: (202) 667-2356 

Email: dbaron@earthjustice.org

For the State Plaintiffs:

Michael J. Myers 

Jane C. Cameron 

Assistant Attorneys General 

Environmental Protection Bureau 

New York State Attorney General 

The Capitol 

Albany, NY 12224 

Phone: (518) 402-2594 

Fax: (518) 473-2534 

Email: michael.myers@ag.ny.gov

jane.cameron@ag.ny.gov

For EPA: 

BRIAN H. LYNK 

United States Department of Justice 

Environmental Defense Section 

601 D Street, NW, Suite 8000 

Washington, DC 20004 

Phone: 202-514-2219 

Fax: 202-514-8865 

Email: brian.lynk@usdoj.gov

For U.S. Postal Service Overnight Mail Only: 

P.O. Box 7611 

Washington, DC 20044 

EFFECT OF SIGNATURE 

18. This Consent Decree may signed in any number of separate counterparts. Once all 

Parties have signed, each separate counterpart shall be deemed to constitute an agreement among 

all Parties, subject to Paragraph 19. 
9 

19. This Consent Decree shall become effective upon entry by the Court following the 

process described in Paragraph 14. If the Administrator and/or the Attorney General elects to 

withdraw or withhold consent at the conclusion of that process, then this Consent Decree shall 

not take effect and the Parties reserve any and all rights. 

20. The undersigned representatives of each Party hereby certify that they are fully 

authorized by the Party or Parties they represent to bind that Party to the terms of this Decree, 

subject to Paragraph 19. 

 SO ORDERED on this ________ day of _______________________, 2012. 

 __________________________________ 

 ROBERT L. WILKINS 

 United States District Judge 





1300 I Street, P.O. Box 944255

Sacramento, CA 94244

916 324-5475

By:

FOR THE STATE OF

MARYLAND

DOUGLAS F. GANSLER

Attorney General

MARY E. RAIVEL

Assistant Attorney General

Office of the Attorney General

Maryland Dept. of the Environment

1800 Washington Blvd.,S. 6048

Baltimore, MD 21230

410 537-3035

FOR THE COMMONWEALTH

OF MASSACHUSETTS

MARTHA COAKLEY

Attorney General

FOR THE STATE OF

NEW MEXICO

GARY KING

Attorney General

By:

________ __

TANNIS FOX

Assistant Attorney General

Office of the Attorney General

Water, Environ., and Util. Div.

P.O. Box Drawer 1508

Santa Fe, NM 87504-1508

505 827-6695

FOR THE STATE OF

OREGON

JOHN KROGER

Attorney General

I. ANDREW GOLDBERG

Assistant Attorney General

Environmental Protection Div.

1 Ashburton Place, Rm. 1813

Boston, MA 02108

617 963-2429

PAUL S. LOGAN

Assistant Attorney-in-Charge

Natural Resources Section

1515 SW Fifth Ave., S.410

Portland, OR 97201

971 673-1880

By: By:

11
1300 I Street, P.O. Box 944255 

Sacramento, CA 94244 

(916) 324-5475 

FOR THE STATE OF FOR THE STATE OF 

MARYLAND NEW MEXICO 

DOUGLAS F. GANSLER GARY KING 

Attorney General Attorney General 

By: By: 

MARY E. RAIVEL 

Assistant Attorney General 

Office of the Attorney General 

Maryland Dept. of the Environment 

1800 Washington Blvd.,S. 6048 

Baltimore, MD 21230 

(410) 537-3035 

FOR THE COMMONWEALTH 

OF MASSACHUSETTS 

TANNIS FOX 

Assistant Attorney General 

Office of the Attorney General 

Water, Environ., and Util. Div. 

P.O. Box Drawer 1508 

Santa Fe, NM 87504-1508 

(505) 827-6695 

FOR THE STATE OF 

OREGON 

JOHN KROGER 

Attorney General 

MA A COAKLEY 

Attorney eneral 

By: 

I ANDREWGI DBERG 

Assistant Attorney General 

Environmental Protection Div. 

1 Ashburtcm Place, Rm. 1813 

Boston, MA 02108 

(617) 963-2429 

PAUL S. LOGAN 

Assistant Attorney-in-Charge 

Natural Resources Section 

1515 SW Fifth Ave., S. 410 

Portland, OR 97201 

(971) 673-1880 

11