Case No. 3:15-CV-00396-HDM-WGC

NOTICE OF LODGING OF PROPOSED CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DANIEL G. BOGDEN

United States Attorney

HOLLY A. VANCE

Assistant United States Attorney

100 West Liberty Street, Suite 600

Reno, Nevada 89501

Tel: (775) 784-5438

Fax: (775) 784-5181

JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

United States Department of Justice

LESLIE M. HILL (D.C. Bar No. 476008)

Leslie.Hill@usdoj.gov

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Fax (202) 514-8865

Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STATE OF NEVADA, et al.,

Plaintiffs,

v.

REGINA McCARTHY, in her official 

capacity as Administrator of the United 

States Environmental Protection Agency,

Defendant.

Case No. 3:15-CV-00396-HDM-WGC

NOTICE OF LODGING OF 

PROPOSED CONSENT DECREE

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

United States Environmental Protection Agency (“EPA”), hereby lodges with the Court a 

proposed Consent Decree that contains the terms of a proposed settlement of this action. 

See Exhibit A, Proposed Consent Decree. 

Case 3:15-cv-00396-HDM-WGC Document 20 Filed 02/26/16 Page 1 of 2
Case No. 3:15-CV-00396-HDM-WGC

NOTICE OF LODGING OF PROPOSED CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The proposed consent decree should not be signed or entered by the Court at 

this time. Pursuant to section 113(g) of the Clean Air Act, 42 U.S.C. § 7413(g), the 

Consent Decree is not final and cannot be entered by the Court until the EPA 

Administrator provides “a reasonable opportunity by notice in the Federal Register to 

persons who are not named as parties or intervenors to the action” to comment in writing 

upon the proposed Decree. Accordingly, EPA will publish in the Federal Register a 

notice of the proposed Consent Decree and request comments. After the public comment 

period ends, the EPA Administrator and the Attorney General, as appropriate, will 

promptly consider any written comments received and, if none of the comments disclose 

facts or considerations which indicate that the proposed Consent Decree is inappropriate, 

improper, inadequate, or inconsistent with the requirements of the Clean Air Act, EPA 

will move for entry of the Decree.

Respectfully submitted,

Date: February 26, 2016 JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

/s/ Leslie M. Hill

LESLIE M. HILL (D.C. Bar No. 476008)

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

Attorneys for Defendant 

Of counsel:

Zach Pilchen

Office of General Counsel

U.S. Environmental Protection Agency

Case 3:15-cv-00396-HDM-WGC Document 20 Filed 02/26/16 Page 2 of 2
1

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DANIEL G. BOGDEN

United States Attorney

HOLLY A. VANCE

Assistant United States Attorney

100 West Liberty Street, Suite 600

Reno, Nevada 89501

Tel: (775) 784-5438

Fax: (775) 784-5181

JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

United States Department of Justice

LESLIE M. HILL (D.C. Bar No. 476008)

Leslie.Hill@usdoj.gov

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Fax (202) 514-8865

Attorneys for Defendant

[additional counsel listed on signature page]

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STATE OF NEVADA, et al.,

Plaintiffs,

v.

REGINA McCARTHY, in her official 

capacity as Administrator of the United 

States Environmental Protection Agency,

Defendant.

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 1 of 8
2

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WHEREAS, on July 31, 2015, Plaintiffs State of Nevada and the Nevada 

Department of Conservation and Natural Resources, Division of Environmental 

Protection (“Plaintiffs”) filed the above-captioned matter against Gina McCarthy, in her 

official capacity as Administrator of the United States Environmental Protection Agency 

(hereinafter “EPA” or “Defendant”);

WHEREAS, Plaintiffs allege that EPA has failed to undertake certain nondiscretionary duties 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, Plaintiffs allege that EPA has failed to perform a duty mandated by 

CAA section 110(k)(2)-(4), 42 U.S.C. § 7410(k)(2)-(4), to take final action to approve or 

disapprove, in whole or in part, the State of Nevada’s April 10, 2013 State 

implementation plan (“SIP”) submittal (“April 2013 SIP submission”) addressing the 

requirements of 42 U.S.C. § 7410(a)(2)(D)(i)(I) for the 2008 National Ambient Air 

Quality Standards for ozone (hereinafter, the “2008 ozone NAAQS”), see Compl. ¶¶ 18, 

21 (Dkt. No. 1);

WHEREAS, the relief requested in the Complaint includes, among other things, 

an order from this Court to establish a date certain by which EPA must fulfill its 

obligation;

WHEREAS, Plaintiffs and EPA, 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, Plaintiffs and EPA consider this Consent Decree to be an adequate 

and equitable resolution of all the claims in this matter and therefore wish to effectuate a 

settlement;

WHEREAS, it is in the interest of the public, Plaintiffs, EPA, and judicial 

economy to resolve this matter without protracted litigation;

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 2 of 8
3

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WHEREAS, Plaintiffs and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision in CAA section 304(a)(2), 42 U.S.C. § 

7604(a)(2), and that venue is proper in the District of Nevada pursuant to 28 U.S.C. § 

1391(e);

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

Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act;

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

determination of any issues of fact or law, and upon the consent of Plaintiffs State of 

Nevada and the Nevada Department of Conservation and Natural Resources, Division of 

Environmental Protection and Defendant EPA, it is hereby ordered, adjudged and 

decreed that:

1. The appropriate EPA official shall sign a notice of final rulemaking to 

approve, conditionally approve, disapprove, or approve in part and disapprove in part, an 

infrastructure SIP pursuant to section 110(k)(2)-(4) of the CAA, 42 U.S.C. § 7410(k)(2)-

(4), no later than February 13, 2017 for Nevada addressing the requirements of section 

110(a)(2)(D)(i)(I), 42 U.S.C. § 7410(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

2. If Nevada withdraws its above-listed submittal or any portion thereof, then 

EPA’s obligation to take the action required by Paragraph 1 is automatically terminated 

with respect to such withdrawn portions. Supplementation of Nevada’s April 2013 SIP 

submission shall not be construed as withdrawal pursuant to this paragraph.

3. EPA shall, within 15 days of signature, deliver notice of action taken pursuant 

to Paragraph 1 of this Consent Decree to the Office of the Federal Register for review and 

publication.

4. After EPA has completed the action set forth in Paragraph 1 of this Consent 

Decree and after notice of such final action has been published in the Federal Register 

and the issue of costs of litigation (including reasonable attorney fees) has been resolved, 

EPA may move to have this Decree terminated and the action dismissed. Plaintiffs shall 

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 3 of 8
4

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

have fourteen (14) days in which to respond to such a motion, unless the parties stipulate 

to a longer time for Plaintiffs to respond.

5. The deadline established by this Consent Decree may be extended (a) by 

written stipulation of Plaintiffs and EPA with notice to the Court, or (b) by the Court 

upon motion of EPA for good cause shown pursuant to the Federal Rules of Civil 

Procedure and upon consideration of any response by Plaintiffs and any reply by EPA. 

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

prior to the deadline in Paragraph 1 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 additional time pursuant to Paragraph 5.

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

and final settlement of all claims that Plaintiffs have asserted against EPA in this matter. 

The State of Nevada and the Nevada Department of Conservation and Natural Resources, 

Division of Environmental Protection therefore discharge and covenant not to sue the 

United States, including EPA, for any such claims.

8. In the event of a dispute between Plaintiffs and EPA 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. These parties shall meet and confer in order to attempt 

to resolve the dispute. If these parties are unable to resolve the dispute within ten (10) 

business days after receipt of the notice, either party may petition the Court to resolve the 

dispute.

9. No motion seeking to enforce this Consent Decree or for contempt of Court 

shall be properly filed unless the procedure set forth in Paragraph 8 has been followed, 

and the non-moving party has been provided with written notice at least ten (10) business 

days before the filing of such motion.

10. The deadline for filing a motion for costs of litigation (including reasonable 

attorney fees) for activities performed prior to entry of the Consent Decree is hereby 

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 4 of 8
5

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

extended until ninety (90) days after this Consent Decree is entered by the Court. During 

this period, the Parties shall seek to resolve informally any claim for costs of litigation 

(including reasonable attorney fees), and if they cannot, Plaintiffs will file a motion for 

costs of litigation (including reasonable attorney fees) or a stipulation or motion to extend 

the deadline to file such a motion. EPA reserves the right to oppose any such request. 

11. This Court shall retain jurisdiction over this matter to enforce the terms of 

this Consent Decree and to consider any requests for costs of litigation (including 

reasonable attorney fees).

12. Nothing in the terms of this Consent Decree shall be construed (a) to confer 

upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction 

of the United States Courts of Appeals under CAA section 307(b)(1), 42 U.S.C. § 

7607(b)(1), including final action pursuant to section 110(k) of the CAA, 42 U.S.C. §

7410(k), approving, disapproving, or approving in part and disapproving in part a SIP 

submittal or (b) to waive any claims, remedies, or defenses that the parties may have 

under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1).

13. Nothing in this Consent Decree shall be construed to limit or modify any 

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

law in taking the action that is the subject of this Consent Decree, including the discretion 

to alter, amend, or revise that action. EPA’s obligation to perform each action specified 

in this Consent Decree does not constitute a limitation or modification of EPA’s 

discretion within the meaning of this paragraph.

14. Except as expressly provided herein, nothing in this Consent Decree shall be 

construed as an admission of any issue of fact or law nor to waive or limit any claim, 

remedy, or defense, on any grounds, related to the action EPA addressed in this Consent 

Decree.

15. Plaintiffs reserve the right to seek additional costs of litigation (including 

reasonable attorney fees) incurred subsequent to entry of this Consent Decree and arising 

from Plaintiffs’ need to enforce or defend against efforts to modify its terms or the 

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 5 of 8
6

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

underlying schedule outlined herein, or for any other unforeseen continuation of this 

action. EPA reserves the right to oppose any such request for additional costs of 

litigation (including reasonable attorney fees).

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

jointly drafted by Plaintiffs and EPA. Accordingly, the parties hereby agree 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.

17. The parties agree and acknowledge that before this Consent Decree can be 

finalized and entered by the Court, EPA must provide notice of this Consent Decree in 

the Federal Register and an opportunity for public comment pursuant to CAA section 

113(g), 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 written comments in determining whether to withdraw or withhold their 

consent to the Consent Decree, in accordance with CAA section 113(g). If the 

Administrator and/or the Attorney General do not elect to withdraw or withhold consent, 

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

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

writing, via electronic mail or other means, and sent to the following (or to any new 

address of counsel as filed and listed in the docket of the above-captioned matter, at a 

future date):

For Plaintiffs State of Nevada and the Nevada Department of Conservation and 

Natural Resources, Division of Environmental Protection:

Belinda A. Suwe

Deputy Attorney General

100 North Carson St.

Carson City, Nevada 89701

Tel. (775) 684-1163

Fax. (775) 684-1103

Email: bsuwe@ag.nv.gov

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 6 of 8
7

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

For Defendant EPA: Leslie M. Hill

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington, D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

19. EPA and Plaintiffs 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. 

20. If for any reason the Court should decline to approve this Consent Decree in 

the form presented, this agreement is voidable at the sole discretion of either party and 

the terms of the proposed Consent Decree may not be used as evidence in any litigation 

between the parties.

21. The undersigned representatives of Plaintiffs State of Nevada and the Nevada 

Department of Conservation and Natural Resources, Division of Environmental 

Protection and Defendant EPA certify that they are fully authorized by the party they 

represent to consent to the Court’s entry of the terms and conditions of this Decree.

IT IS SO ORDERED:

HOWARD D. MCKIBBEN

UNITED STATES DISTRICT JUDGE

DATED: ___________________

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 7 of 8
8

Case No. 3:15-CV-00396-HDM-WGC

[PROPOSED] CONSENT DECREE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Date: February 19, 2016 ADAM PAUL LAXALT

Attorney General

/s/ Belinda A. Suwe email authorization (2/19/16)

Belinda A. Suwe

Deputy Attorney General

100 North Carson St.

Carson City, Nevada 89701

Tel. (775) 684-1163

Fax. (775) 684-1103

Attorneys for Plaintiffs

Date: February 26, 2016 JOHN C. CRUDEN

Assistant Attorney General

Environment & Natural Resources Division

/s/ Leslie M. Hill

LESLIE M. HILL (D.C. Bar No. 476008)

Environmental Defense Section

601 D Street N.W., Suite 8000

Washington D.C. 20004

Tel. (202) 514-0375

Email: Leslie.Hill@usdoj.gov

Attorneys for Defendant 

Of counsel:

Zach Pilchen

Office of General Counsel

U.S. Environmental Protection Agency

Case 3:15-cv-00396-HDM-WGC Document 20-1 Filed 02/26/16 Page 8 of 8