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Case No. 4:13-cv-5142-SBA

[Proposed] Consent Decree

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SAM HIRSCH

Acting 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

Telephone (202) 514-0375

Facsimile (202) 514-8865

Attorneys for Defendant

ROBERT UKEILEY, Admitted Pro Hac Vice

Law Office of Robert Ukeiley

507 Center St.

Berea, KY 40403

Telephone (859) 986-5402

rukeiley@igc.org

[additional attorney for Plaintiff included in signature block]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

CENTER FOR BIOLOGICAL 

DIVERSITY,

Plaintiff,

v.

GINA McCARTHY, in her official capacity 

as the Administrator of the United States 

Environmental Protection Agency,

Defendant.

Case No. 4:13-cv-5142-SBA

[PROPOSED] CONSENT DECREE
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[Proposed] Consent Decree

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WHEREAS, on November 5, 2013, Plaintiff Center for Biological Diversity

(“Plaintiff” or “CBD”) 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, Plaintiff filed its first amended complaint (Dkt. No. 20) on January 

28, 2014, and its second amended complaint (Dkt. No.22) on January 30, 2014;

WHEREAS, Plaintiff alleges 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, in Claim 1, Plaintiff alleges that EPA has failed to perform a duty 

mandated by CAA section 110(k)(1)(B), 42 U.S.C. § 7410(k)(1)(B), to find that certain 

states failed to submit nonattainment state implementation plans (“SIPs”) for the 

following areas designated nonattainment for the 2006 fine particulate matter, or PM2.5, 

National Ambient Air Quality Standard (“NAAQS”), see 2nd Am. Compl. ¶ 1 (Dkt. No. 

22):

AREA STATE 

Imperial County California 

Pittsburgh-Beaver Valley except nonattainment New 

Source Review element 

Pennsylvania 

Milwaukee-Racine except nonattainment New Source 

Review and emission inventories elements 

Wisconsin 

Tacoma Nonattainment New Source Review element Washington 

WHEREAS, EPA finalized a rule, Identification of Nonattainment Classification 

and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 

Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5

NAAQS, 79 Fed. Reg. 31,566 (June 2, 2014), which establishes a deadline of December 
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31, 2014 by which states must submit SIPs complying with Subpart 4 of Part D, title I of 

the CAA requirements;

WHEREAS, EPA believes issuance of the above-mentioned final rule renders 

Claim 1 therefore moot; 

WHEREAS, EPA also promulgated a final rule redesignating the MilwaukeeRacine nonattainment area to attainment for the 2006 PM2.5 NAAQS, rendering Claim 1 

moot as to the Milwaukee-Racine area, Redesignation of the Milwaukee-Racine 2006 24-

Hour Fine Particle Nonattainment Area to Attainment, 79 Fed. Reg. 22,415 (Apr. 22, 

2014);

WHEREAS, in Claim 2, Plaintiff alleges that EPA has failed to perform a duty 

mandated by CAA sections 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, certain 2006 PM2.5 NAAQS 

nonattainment SIP submissions addressing nonattainment new source review from states

for the five areas listed below, see 2nd Am. Compl. ¶ 1 (Dkt. No. 22):

AREA/STATE ELEMENT 

Los Angeles – South Coast, California Non-Attainment 

New Source Review 

Charleston, West Virginia Non-Attainment 

New Source Review 

Stuebenville, Ohio-Weirton, West Virginia Non-Attainment 

New Source Review 

San Joaquin Valley, California Non-Attainment 

New Source Review 

Fairbanks, Alaska Non-Attainment 

New Source Review;

WHEREAS, EPA took final action to redesignate two of the five nonattainment 

areas to attainment, Approval of the Redesignation Requests and the Associated 
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Maintenance Plans of the Charleston Nonattainment Area for the 1997 Annual and the 

2006 24-Hour Fine Particulate Matter Standards, 79 Fed. Reg. 17,884 (Mar. 31, 2014)

(Charleston, West Virginia); Approval of Redesignation Requests of the West Virginia 

Portion of the Steubenville-Weirton, OH-WV Nonattainment Area for the 1997 Annual 

and 2006 24-Hour Fine Particulate Matter Standards, 79 Fed. Reg. 15,019 (Mar. 18, 

2014) (Stuebenville, Ohio-Weirton, West Virginia);

WHERAS, as a result of the redesignation of the Charleston, West Virginia area 

and the Steubenville, Ohio-Weirton, West Virginia area, West Virginia is no longer 

required to submit nonattainment SIPs addressing nonattainment new source review with 

respect to these areas;

WHEREAS, EPA has not taken final action pursuant to CAA sections 110(k)(2)-

(4), 42 U.S.C. §§ 7410(k)(2)-(4), to approve or disapprove, in whole or in part, certain 

plan submissions, with respect to the remaining three nonattainment areas;

WHEREAS, the relief requested in the Second Amended Complaint includes, 

among other things, an order from this Court to establish a date certain by which EPA 

must fulfill its obligations for both Claims 1 and 2;

WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without 

admission of any issue of fact or law, except as expressly provided herein;

WHEREAS, Plaintiff 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, Plaintiff 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, Plaintiff Center for Biological 

Diversity, Defendant EPA, and judicial economy to resolve this matter without protracted 

litigation;
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WHEREAS, Plaintiff 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 Northern District of California pursuant to 28 

U.S.C. § 1391(e) and N.D. Cal. Civ. Local Rule 3-2(c)-(d);

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 Plaintiff Center for 

Biological Diversity 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, disapprove, or approve in part and disapprove in part, certain plans pursuant to 

sections 110(k)(2)-(4) of the CAA, 42 U.S.C. §§ 7410(k)(2)-(4), no later than the date 

indicated below for the following areas designated nonattainment for the 2006 PM2.5

NAAQS:

a. Los Angeles – South Coast, California area by April 15, 2015;

b. San Joaquin Valley, California area by September 1, 2014; and

c. Fairbanks, Alaska area by December 31, 2014.

2. If either California or Alaska withdraws its above-listed submittal, then EPA’s 

obligation to take the action required by Paragraph 1 is automatically terminated.

3. EPA shall, within 15 days of signature, deliver notice of each 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 actions set forth in Paragraph 1 of this Consent 

Decree and after notice of each final action required by paragraph 1 has been published in 

the Federal Register and the issue of costs of litigation, including attorneys fees has been 

resolved, EPA may move to have this Decree terminated and the action dismissed. 

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

parties stipulate to a longer time for Plaintiff to respond.
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5. The deadlines established by this Consent Decree may be extended (a) by 

written stipulation of Plaintiff 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 Plaintiff 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.

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

and final settlement of all claims that Plaintiff has asserted against the United States, 

including EPA, under any provision of law in connection with Center for Biological 

Diversity v. McCarthy, Case No. 4:13-cv-5142-SBA (N.D. Cal.). The Center for 

Biological Diversity therefore discharges and covenants not to sue the United States, 

including EPA, for any such claims.

8. In the event of a dispute between Plaintiff 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 attorney 

fees) for activities performed prior to entry of the Consent Decree is hereby 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 
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(including attorney fees), and if they cannot, the Center for Biological Diversity will file 

a motion for costs of litigation (including 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 

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 take 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 actions which are the subject of this Consent Decree, including the 

discretion to alter, amend, or revise any final actions promulgated pursuant to this 

Consent Decree. 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 any final action EPA takes with respect to 

the actions addressed in this Consent Decree.

15. Plaintiff reserves the right to seek additional costs of litigation, including 

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

from Plaintiff’s need to enforce or defend against efforts to modify its terms or the 
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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 Plaintiff 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):

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For Plaintiff Center for Biological Diversity:

Robert Ukeiley

Law Office of Robert Ukeiley

255 Mountain Meadow Road

Boulder, CO 80302

Tel. 720-232-7247

Email: rukeiley@igc.org

Jonathan Evans (Cal. Bar #247376)

Center for Biological Diversity

351 California St., Suite 600

San Francisco, CA 94104

Tel. 415-436-9682 x318

Email: jevans@biologicaldiversity.org

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 Plaintiff 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.
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21. The undersigned representatives of Plaintiff Center for Biological Diversity

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.

SO ORDERED on this _____ day of _____________________, 2014. 

 

 

________________________________

SAUNDRA BROWN ARMSTRONG

UNITED STATES DISTRICT JUDGE

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COUNSEL FOR PLAINTIFF:

 

Robert Ukeiley, Admitted Pro Hac Vice

Law Office of Robert Ukeiley

507 Center Street

Berea, KY 40403

Tel: (859) 986-5402

Email: rukeiley@igc.org

Jonathan Evans (Cal. Bar #247376)

Center for Biological Diversity

351 California St., Suite 600

San Francisco, CA 94104

Phone: 415-436-9682 x318

Fax: 415-436-9683

email: jevans@biologicaldiversity.org

Attorneys for Plaintiff Center for Biological 

Diversity

COUNSEL FOR DEFENDANT: SAM HIRSCH

Acting Assistant Attorney General

Environment & Natural Resources Division

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 EPA

Of counsel:

Stephanie Hogan

Karen Bennett Bianco

Office of General Counsel

U.S. Environmental Protection Agency