1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

__________________________________________ 

 ) 

CENTER FOR BIOLOGICAL DIVERSITY ) 

et al., ) Civ. No. 05-1814 (LFO) 

) 

 Plaintiffs, ) 

) 

v. ) 

) 

STEPHEN L. JOHNSON ) 

Administrator ) 

United States Environmental Protection Agency ) 

) 

Defendant. ) 

__________________________________________) 

CONSENT DECREE

WHEREAS, on February 3, 2006, Plaintiffs Center for Biological Diversity, Valley 

Watch, Inc., Preston Forsythe, Tina Johnson and Jeremy Nichols filed their first amended 

complaint in this action pursuant to section 304(a)(2) of the Clean Air Act (ACAA@), 42 U.S.C. '

7604(a)(2), alleging that Defendant, Stephen L. Johnson, Administrator of the United States 

Environmental Protection Agency (hereinafter AEPA@) failed to perform mandatory duties 

pursuant to CAA ' 109(d)(1) to complete another cycle of review, revision, and promulgation 

actions for nitrogen dioxide (ANO2@) and oxides of nitrogen (ANOx@). Specifically, Plaintiffs 

alleged Defendant has failed to complete a thorough review of the air quality criteria for NOx 

and the primary and secondary National Ambient Air Quality Standards (ANAAQS@) for NO2. 

Plaintiffs further alleged that the deadline under CAA ' 109(d)(1) for Defendant to complete 

another cycle of review, revision, and promulgation actions with respect to sulfur oxides (SOx) 

expired several years ago. 

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WHEREAS, Plaintiffs and EPA (collectively Athe Parties@) wish to effectuate a 

settlement of the above-captioned matter without expensive and protracted litigation; 

WHEREAS, starting sixty days after entry of this Decree by the Court, and then every 

sixty days thereafter until EPA has completed all the tasks in paragraph 2, EPA shall provide to 

Plaintiffs a report on the progress of EPA=s review and revision, as appropriate, of the NOx and 

SOx criteria and the NO2 and SO2 NAAQS. EPA=s reports shall provide: (a) where a document 

listed in the schedule attached as exhibit A to this Consent Decree has been completed, the date 

of its completion and if posted on the internet by EPA, its web address; (b) the date on which 

each CASAC/public review meeting was held; (c) for the final ISA, the notice of proposed 

rulemaking, and the notice of final rulemaking, the dates on which EPA forwarded notice of the 

availability of such document or notice of such action to the Office of the Federal Register; and 

(d) whether EPA anticipates any difficulties in meeting the date(s) provided in the schedule 

attached as exhibit A for completing any future task(s). 

WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution 

of the claims in the above-captioned matter; 

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

in the public interest, and consistent with the CAA, 42 U.S.C. '' 7401 et seq.; 

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. This Court has subject matter jurisdiction over the claims set forth in the First 

Amended Complaint and to order the relief contained in this Decree. Venue is proper in the 

United States District Court for the District of Columbia. 

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2. EPA shall take the following actions by the following dates: 

a) No later than July 11, 2008, EPA shall issue a final Integrated Science 

Assessment, a document containing air quality criteria, addressing human health affects of NOx

pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). 

b) No later than May 28, 2009, EPA shall sign a notice of proposed 

rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its 

review of the primary NO2 NAAQS promulgated under 42 U.S.C. ' 7409, and proposing such 

new primary NAAQS and/or revisions of standards for NOx as may be appropriate pursuant to 

42 U.S.C. ' 7408 and 7409(b)(1). 

c) No later than December 18, 2009, EPA shall sign a notice of final 

rulemaking setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of 

the primary NAAQS for NO2 and making such revisions in the primary NO2 NAAQS and/or 

promulgating such new primary NAAQS for NOx as may be appropriate pursuant to 42 U.S.C. '

7408 and 7409(b)(1). 

d) No later than September 12, 2008, EPA shall issue a final Integrated 

Science Assessment, a document containing air quality criteria, addressing human health affects 

of SOx pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). 

e) No later than July 30, 2009, EPA shall sign a notice of proposed 

rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its 

review of the primary SO2 NAAQS promulgated under 42 U.S.C. ' 7409, and proposing such 

new primary NAAQS and/or revisions of standards for SOx as may be appropriate pursuant to 42 

U.S.C. ' 7408 and 7409(b)(1). 

f) No later than March 2, 2010, EPA shall sign a notice of final rulemaking 

setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of the primary 

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NAAQS for SO2 and making such revisions in the primary SO2 NAAQS and/or promulgating 

such new primary NAAQS for SOx as may be appropriate pursuant to 42 U.S.C. ' 7408 and 

7409(b)(1). 

g) No later than December 12, 2008, EPA shall issue a final Integrated 

Science Assessment, a document containing air quality criteria, addressing the public welfare 

effects of NOx and SOx pursuant to 42 U.S.C. '' 7408 and 7409(d)(1). 

h) No later than February 12, 2010, EPA shall sign a notice of proposed 

rulemaking setting forth its proposed decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its 

review of the secondary NO2 and SO2 NAAQS promulgated under 42 U.S.C. ' 7409 and 

proposing such new secondary NAAQS and/or revisions of standards for NOx and/or SOx as may 

be appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(2). 

i) No later than October 19, 2010, EPA shall sign a notice of final 

rulemaking setting forth its decision pursuant to 42 U.S.C. ' 7409(d)(1) concerning its review of 

the secondary NAAQS for NO2 and SO2 and making such revisions in the secondary NO2 and 

SOx NAAQS and/or promulgating such new secondary standards for NOx and SOx as may be 

appropriate pursuant to 42 U.S.C. ' 7408 and 7409(b)(2). 

 3. Within 10 business days following issuance or signature of such actions as set out 

in paragraph 2 above, EPA shall deliver notice of such action to the Office of the Federal 

Register for prompt publication. Following such delivery to the Office of the Federal Register, 

EPA shall not take any step (other than as necessary to correct within 10 business days after 

submittal any typographical or other errors in form) to delay or otherwise interfere with 

publication of such notice in the Federal Register. 

4. Any provision of this Decree may be modified by (a) written stipulation of the 

Parties with notice to the Court, or (b) by the Court following motion of any party to this Decree, 

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pursuant to the Federal Rules of Civil Procedure, and upon consideration of any response by the 

non-moving party. 

5. Plaintiffs and EPA shall not challenge the terms of this Decree or this Court=s 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

6. The deadline for filing a motion for costs of litigation (including attorneys= fees) 

for activities performed prior to execution of this Decree is hereby extended until 60 days after 

this Decree is entered by the Court. During this 60-day period, the Parties shall seek to resolve 

informally any claim for costs of litigation (including attorneys' fees), and if they cannot, will 

submit that issue to the Court for resolution. Nothing in this paragraph shall be construed as an 

admission or concession by EPA that Plaintiffs are entitled to or eligible for recovery of any 

costs or attorneys' fees. 

7. Nothing in this 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 Decree, including the discretion to alter, amend or revise 

any responses or final actions contemplated by this Decree. EPA's obligation to perform the 

actions specified in Paragraph 2 and 3 by the time specified therein does not constitute a 

limitation or modification of EPA's discretion within the meaning of this paragraph. 

 8. Nothing in this Decree shall be construed as an admission of any issue of fact or 

law nor to waive or limit any claim or defense, on any grounds, related to any final EPA action 

may take pursuant to Paragraph 2 above. 

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

jurisdiction to review any final decision made by EPA pursuant to this Decree. Nothing in this 

Decree shall be construed to confer upon the district court jurisdiction to review any issues that 

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are within the exclusive jurisdiction of the United States Courts of Appeals pursuant to CAA 

section 307(b)(1), 42 U.S.C. ' 7607(b)(1). Nothing in the terms of this 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). 

10. The obligations imposed upon EPA under this Decree can only be undertaken 

using appropriated funds. No provision of this 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 Any notices required or provided for by this Decree shall be made in writing, via 

facsimile or other means, and sent to the following: 

For Plaintiffs: 

ROBERT UKEILEY 

Law Office of Robert Ukeiley 

435R Chestnut Street, Suite 1 

Berea, KY 40403 

Fax: (866) 618-1017 

For Defendant: 

EILEEN T. MCDONOUGH 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Fax (202) 514-8865 

M. LEA ANDERSON 

U.S. Environmental Protection Agency 

Office of General Counsel 

ARN: MC-2344A 

1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

Fax (202) 564-5571 

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FOR DEFENDANT RONALD J. TENPAS 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

/s/ EILEEN T. MCDONOUGH 

 United States Department of Justice 

 Environmental Defense Section 

 P.O. Box 23986 

 Washington, D.C. 20026-3986 

 Phone (202) 514-3126 

 Fax (202) 514-8865 

 eileen.mcdonough@usdoj.gov 

 DATED: November 13, 2007 

 Of Counsel for Defendant: 

 M. LEA ANDERSON 

 U.S. Environmental Protection Agency 

 Office of General Counsel 

 ARN: MC-2344A 

 1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

 

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