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SAMANTHA RUSCAVAGE-BARZ 

NM State Bar No. 23276 

WildEarth Guardians 

516 Alto Street 

Santa Fe, NM 87501 

Tel: (505) 988-9126 ext. 1158 

Fax: (505) 213-1895 

sruscavagebarz@wildearthguardians.org 

Attorney for Plaintiff 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Division 

MICHELLE R. LAMBERT 

Trial Attorneys 

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 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

WILDEARTH GUARDIANS,

Plaintiff, 

v. 

LISA JACKSON, Administrator of the 

U.S. Environmental Protection Agency, 

sued in her official capacity, 

Defendant. 

No. 2:11-cv-01661-ROS 

CONSENT DECREE 

WHEREAS, on August 24, 2011, Plaintiff WildEarth Guardians filed the 

complaint (“Complaint”) in the above-captioned matter against Defendant Lisa 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 

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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, within one year after promulgation of the revised National Ambient 

Air Quality Standards (“NAAQS”), section 107(d)(1)(A) of the CAA, 42 U.S.C. § 

7407(d)(1)(A) requires States to submit a list of initial designations of all areas, or 

portions thereof, as attainment, nonattainment, or unclassifiable for the revised NAAQS; 

WHEREAS, EPA is required to promulgate the designation for all of the country 

within two years of the date of the promulgation of the revised NAAQS, or within three 

years if EPA has insufficient information to promulgate the designation within two years, 

pursuant to section 107(d)(1)(B) of the CAA, 42 U.S.C. § 7407(d)(1)(B); 

WHEREAS, EPA revised the NAAQS for ground-level ozone on March 12, 2008; 

WHEREAS, the States were required to submit their area designations for the 2008 

ground-level ozone NAAQS by March 12, 2009; 

WHEREAS, on January 19, 2010, EPA determined that it had insufficient 

information to promulgate the designations and invoked the additional year to issue 

designations, see 75 Fed. Reg. 2,936 (Jan. 19, 2010); 

WHEREAS, the Complaint alleges that EPA has a nondiscretionary duty to 

promulgate the area designations for the 2008 ground-level ozone NAAQS within the 

time lines set forth in section 107(d)(1)(B) of the CAA, 42 U.S.C. § 7407(d)(1)(B); 

WHEREAS, the Complaint seeks an order from this Court directing EPA to 

promulgate area designations for the 2008 ground-level ozone NAAQS pursuant to 

section 107(d)(1)(B) of the CAA; 

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WHEREAS, the parties have agreed to a settlement of 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 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; 

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; 

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. EPA shall sign for publication in the Federal Register no later than May 31, 

2012 a notice of the Agency’s promulgation of area designations for the 2008 groundlevel ozone NAAQS pursuant to section 107(d) of the CAA, and within 10 business days 

following signature of the notice, EPA will send the notice to the Federal Register for 

review and publication. 

2. When EPA’s obligations under Paragraph 1 have been completed, the 

parties will file a joint request to the Court to terminate the Consent Decree. 

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3. The parties may extend the deadline established in Paragraph 1 by written 

stipulation executed by counsel for the parties and filed with the Court. In addition, the 

deadline established in Paragraph 1 may be extended by the Court upon motion by any 

party to this Consent Decree for good cause shown, after consideration of any response by 

the non-moving party. 

4. 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 

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

EPA’s discretion within the meaning of this paragraph. 

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

court jurisdiction to review any final decision made by EPA pursuant to this Consent 

Decree. Nothing in this Consent 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 Courts of Appeals pursuant to section 307(b)(1) of the CAA, 42 U.S.C. § 

7607(b)(1). Nothing in the terms of this Consent 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). 

6. This Court shall retain jurisdiction to enforce the terms of this Consent 

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

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

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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 notice, any party may move the Court to resolve the 

dispute. 

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

be considered properly filed, unless Plaintiff has followed the procedure set forth in 

Paragraph 7 and provided EPA with written notice received at least ten (10) business days 

before the filing of such motion or proceeding. 

9. The United States, on behalf of EPA, agrees to pay Plaintiff in full 

settlement of all claims for attorneys’ fees, costs, and expenses incurred as of the date of 

entry of this Consent Decree the sum of $3,600, as soon as reasonably practicable, by 

electronic funds transfer in accordance with instructions provided to the undersigned 

defense counsel by counsel for Plaintiff. Nothing in this paragraph shall be construed as 

an admission or concession by EPA that Plaintiff is entitled to or eligible for recovery of 

any costs or attorneys’ fees. 

10. The obligations imposed upon 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. 

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

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this Court’s jurisdiction to enter this Consent Decree. 

12. 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 and withhold their consent, EPA 

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

14. 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 Plaintiff: 

Samantha Ruscavage-Barz 

NM State Bar No. 23276 

WildEarth Guardians 

516 Alto Street 

Santa Fe, NM 87501 

Tel: (505) 988-9126 ext. 1158 

Fax: (505) 213-1895 

sruscavagebarz@wildearthguardians.org 

 For Defendant: 

Michelle R. Lambert 

United States 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 

Jan Tierney 

Office of the General Counsel 

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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 

tierney.jan@epa.gov 

15. 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 PLAINTIFF: 

 

Dated: December 12, 2011 /s/ Samantha Ruscavage-Barz (with permission) Samantha Ruscavage-Barz 

NM State Bar No. 23276 

WildEarth Guardians 

516 Alto Street 

Santa Fe, NM 87501 

Tel: (505) 988-9126 ext. 1158 

Fax: (505) 213-1895 

sruscavagebarz@wildearthguardians.org 

COUNSEL FOR DEFENDANT: 

Dated: December 12, 2011 IGNACIA S. MORENO 

Assistant Attorney General 

Environment and Natural Resources Division 

/s/ Michelle R. Lambert 

Michelle R. Lambert 

United States Department of Justice 

Environmental Defense Section 

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P.O. Box 23986 

Washington, D.C. 20026-3986 

Tel: (202) 616-7501 

Fax: (202) 514-8865 

michelle.lambert@usdoj.gov 

Case 2:11-cv-01661-ROS Document 17-1 Filed 12/12/11 Page 8 of 8