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VERA P. PARDEE (State Bar No. 106146)

Center for Biological Diversity

351 California Street, Suite 600

San Francisco, CA 94104

Telephone: 415.436.9682 ext. 317

Facsimile: 415.436.9683

Email: vpardee@biologicaldiversity.org

Attorneys for Plaintiff

CENTER FOR BIOLOGICAL DIVERSITY

HELEN H. KANG (State Bar No. 124730)

Environmental Law and Justice Clinic

Golden Gate University School of Law

536 Mission Street

San Francisco, CA 94105

Telephone: 415.442.6647

Facsimile: 415.896.2450

Email: hkang@ggu.edu

Attorneys for Plaintiffs

GREENPEACE, INC. and

PORT TOWNSEND AIRWATCHERS

[Counsel for Defendants listed on page 2]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

CENTER FOR BIOLOGICAL DIVERSITY, 

GREENPEACE, INC., and PORT 

TOWNSEND AIRWATCHERS,

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY and LISA P. 

JACKSON, Administrator, United States 

Environmental Protection Agency,

Defendants.

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Case No.: C-11-06059 YGR

[PROPOSED] CONSENT DECREE 

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IGNACIA S. MORENO

Assistant Attorney General

Environment & Natural Resources Division

NORMAN L. RAVE, JR. (D.C. 431602)

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Telephone: 202.616.7568

Facsimile: 202.514.8865

Email: norman.rave@usdoj.gov

Attorneys for Defendants

CONSENT DECREE

WHEREAS, Plaintiffs Center for Biological Diversity, Greenpeace, Inc., and Port 

Townsend Airwatchers (collectively, “Plaintiffs”) filed their Complaint on December 6, 

2011, against Defendants the United States Environmental Protection Agency and EPA 

Administrator Lisa Jackson (collectively “EPA”), pursuant to section 304(a)(2) of the Clean Air 

Act ("CAA"), 42 U.S.C. § 7604(a)(2), to compel EPA to review the existing New Source 

Performance Standards governing kraft pulp mills (“kraft pulp NSPS”) under Clean Air Act 

(“the Act”) Section 111, 42 U.S.C. § 7411;

WHEREAS, EPA last issued kraft pulp NSPS, set forth in 40 C.F.R. Part 60, Subpart

BB (“NSPS”), in 1978; 

WHEREAS, plaintiffs allege that EPA has failed to perform a non-discretionary 

duty to review, and if appropriate revise, the NSPS for kraft pulp mills at least every 8 

years pursuant to 42 U.S.C. § 7411 (b)(1)(B);
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WHEREAS, EPA will be providing Plaintiffs with status reports every 90 days to inform 

Plaintiffs whether the Agency continues to make reasonable progress towards meeting the 

deadlines provided in this consent decree, or if it anticipates any difficulties in meeting those 

dates, in which case the EPA will provide an explanation of the difficulty or difficulties;

WHEREAS, Plaintiffs and EPA (collectively "the Parties") wish to effectuate a 

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

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

of the claims in the above-captioned matter; and

WHEREAS, the Court, by entering this Decree, finds that the Decree represents a fair, 

equitable, and adequate resolution of the claims resolved herein; NOW THEREFORE, it is 

hereby ORDERED, ADJUDGED AND DECREED as follows: 

1. This Court has jurisdiction over the claims set forth in the Complaint, and to order 

the relief contained in this Decree, pursuant to section 304 of the Act, 42 U.S.C. § 7604. Venue

is proper in the United States District Court for the Northern District of California pursuant to 

section 304 of the Act, 42 § U.S.C. 7604, and 28 U.S.C. § 1391(e). 

2. For the kraft pulp mills source category:

a. No later than May 15, 2013, EPA shall: (i) review the kraft pulp NSPS and sign 

for publication one or a combination of the following: (A) a proposed rule 

containing revisions to the kraft pulp NSPS, 40 C.F.R. Part 60, Subpart BB 

(“NSPS Subpart BB”), under section 111(b)(1)(B) of the Act, 42 U.S.C. § 

7411(b)(1)(B); or (B) a proposed determination under section 111(b)(1)(B) not to 

revise NSPS Subpart BB; or (ii) sign for publication a determination that “review 
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is not appropriate in light of readily available information on the efficacy of [the] 

standard,” i.e., NSPS Subpart BB.

b. If EPA signs a proposed rule or a proposed determination pursuant to paragraph 

2.a(i) above, then no later than March 14, 2014, EPA shall sign one or a 

combination of the following: (i) a final rule containing revisions to NSPS 

Subpart BB under section 111(b)(1)(B) of the Act, 42 U.S.C. § 7411(b)(1)(B); or 

(ii) a final determination under section 111(b)(1)(B) not to revise Subpart BB.

c. The Parties do not agree on the legal question of whether notice and comment is 

required in the event that EPA takes action only pursuant to paragraph 2.a(ii). In 

view of this, the Parties agree that nothing in this Consent Decree precludes 

Plaintiffs from challenging any such action on the basis that notice and comment 

was not provided, or on any other grounds, or as stated generally in Paragraph 9; 

and nothing prevents EPA from raising any defenses in response to such a 

challenge.

3. Within 10 business days of signing any of the documents described in Paragraph 

2, the appropriate EPA official shall forward it or them to the Office of the Federal Register for 

publication. EPA shall request in writing that the Office of Federal Register take all necessary 

steps to publish the notice expeditiously.

4. Within five (5) business days after forwarding the materials described in 

Paragraph 2 to the Federal Register, EPA shall send copies of such materials to Plaintiffs.

5. The deadlines set forth in Paragraphs 2 and 3 hereof may be modified only by:

(a) written stipulation of the Parties with notice to the Court; or (b) the Court following motion

of any party to this Decree, pursuant to the Federal Rules of Civil Procedure, and upon 
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consideration of any response by the non-moving party.

6. Pursuant to section 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d), Plaintiffs 

are eligible and entitled to recover their costs of litigation in this action, including reasonable 

attorney’s fees. The deadline for filing a bill of costs pursuant to Local Rule 54-1 and a motion 

for costs of litigation, including reasonable attorney’s fees pursuant to Local Rule 54-5, is 

extended until 90 days after the date on which the Court enters this Consent Decree. EPA 

reserves the right to object to the reasonableness of any such fees and costs. 

7. The Parties 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. 

8. Except as provided herein, nothing in this Decree shall be construed to limit or 

modify any discretion accorded to EPA by the CAA or by general principles of administrative 

law in taking the actions that are the subject of this Decree. 

9. Nothing in this Decree shall be construed to confer upon this Court jurisdiction to 

review any issues that 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, limit or modify any remedies, rights to seek judicial 

review, or defenses the Parties may have under CAA Section 307(b)(1), 42 U.S.C. § 7607(b)(1).

10. The obligations imposed on 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 AntiDeficiency 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 

email or other means, and sent to the following:
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For Plaintiff Center for Biological Diversity: 

Vera P. Pardee

Center for Biological Diversity

351 California Street, Suite 600

San Francisco, CA 94104

Telephone: 415.436.9682 ext. 317

Facsimile: 415.436.9683

Email: vpardee@biologicaldiversity.org

For Plantiffs Greenpeace, Inc, and Port Townsend Airwatchers:

Helen H. Kang

Environmental Law and Justice Clinic

Golden Gate University School of Law

536 Mission Street

San Francisco, CA 94105

Telephone: 415.442.6647

Facsimile: 415.896.2450

Email: hkang@ggu.edu

Attorneys for Plaintiffs

GREENPEACE, INC. and

PORT TOWNSEND AIRWATCHERS

For EPA :

Norman L. Rave, Jr. 

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Telephone: 202.616.7568

Facsimile: 202.514.8865

Email: norman.rave@usdoj.gov
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Scott Jordan

U.S. Environmental Protection Agency

Office of General Counsel 

ARN: MC-2344A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Telephone: 202-564-7508

Fax: (202) 564-5603

Email: jordan.scott@epa.gov

12. In the event of a dispute between the Parties concerning the interpretation or 

implementation of any aspect of this Decree, the disputing party shall provide the other party 

with a written notice outlining the nature of the dispute and requesting informal negotiations. 

The parties shall meet and confer to attempt to resolve the dispute. If the Parties cannot reach an 

agreed-upon resolution within ten (10) business days after receipt of the notice, any party may 

move the Court to resolve the dispute.

13. No motion or other proceeding seeking to enforce this Consent Decree or for 

contempt of court shall be filed unless the procedure set forth in Paragraph 12 has been followed.

14. The Parties agree and acknowledge that, before this Decree can be finalized and 

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

opportunity for public comment pursuant to the Clean Air Act, 42 U.S.C. § 7413(g). EPA will 

prepare such notice and forward it to the Office of Federal Register no later than ten (10) 

business days after the parties have signed this Consent Decree and request in writing that the 

Office of Federal Register take all necessary steps to publish the notice expeditiously. After this 

Decree has undergone notice and comment, EPA 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 Decree. In accordance with 42 U.S.C. § 7413(g), EPA may 

withdraw or withhold its consent to the decree if the comments disclose facts or considerations 
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which indicate such consent is inappropriate, improper, inadequate, or inconsistent with the 

requirements of the Clean Air Act. Once EPA and/or the Attorney General elect whether or not 

to withdraw or withhold their consent to this Decree, EPA shall provide written notice of that 

election to Plaintiffs as expeditiously as possible. If EPA and/or the Attorney General do not 

elect to withdraw or withhold their consent, EPA shall promptly file a motion that requests that 

the Court enter this Decree. 

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

this Decree. When EPA’s obligations under Paragraph 2 and 3 have been completed, and the 

Plaintiffs’ claims for costs of litigation have been resolved pursuant to the process described in 

Paragraph 6, the above-captioned matter shall be dismissed with prejudice. EPA shall file the 

appropriate notice with the Court so that the Clerk may close the file.

16. The Parties treat this Consent Decree as jointly drafted, and any rules of 

construction that construe any ambiguities in this document against the drafting party shall be 

inapplicable in any dispute concerning the interpretation of this Consent Decree.

17. The undersigned representatives of each party certify that they are fully 

authorized by the party or parties they represent to bind that Party to the terms of this Decree. 

IT IS SO ORDERED this ____ day of _____, 2012.

______________________________

Yvonne Gonzalez Rogers

United States District Judge
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FOR PLAINTIFFS: 

 

Dated: August 24, 2012 CENTER FOR BIOLOGICAL DIVERSITY

/s/Vera Pardee

Vera Pardee

Attorneys for Plaintiffs

Center for Biological Diversity

Dated: August 24, 2012 ENVIRONMENTAL LAW AND JUSTICE

CLINIC

/s/ Helen H. Kang

Helen H. Kang

Attorneys for Plaintiffs

 Greenpeace, Inc. and Port Townsend

 Airwatchers

FOR DEFENDANTS:

Dated: August 24, 2012 IGNACIA S. MORENO

Assistant Attorney General

Environmental & Natural Resources Division

/s/Norman L. Rave, Jr.

Norman L. Rave, Jr.

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

TEL: (202) 616-7568

FAX: (202) 514-8865

Attorneys for Defendants

United States Environmental Protection Agency and 

Lisa P. Jackson, Administrator, United States 

Environmental Protection Agency