IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNITIES FOR A BETTER

ENVIRONMENT, et al.

Petitioners,

v. No. 12-71340

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT and

SOUTHERN CALIFORNIA

ASSOCIATION OF GOVERNMENTS,

Intervenors.

SETTLEMENT AGREEMENT

WHEREAS Communities for a Better Environment, California

Communities Against Toxics, Desert Citizens Against Pollution, Natural

Resources Defense Council, Inc., and Physicians for Social Responsibility-Los

Angeles (referred to as "Petitioners") filed in the United States Court of Appeals

for the Ninth Circuit a petition for review captioned above that challenges the final

action by the United States Environmental Protection Agency ("EPA") titled "Air
Quality Implementation Plans; California; South Coast; Attainment Plan for 1997

8-Hour Ozone Standards," 77 Fed. Reg. 12,674 (Mar. 1, 2012), pursuant to 42

U.S.C. § 7607(b)(1) of the Clean Air Act, alleging that EPA's final action violates

the Clean Air Act.

WHEREAS Petitioners Physicians far Social Responsibility-Los Angeles,

Desert Citizens Against Pollution, Communities for a Better Environment, and

Natural Resources Defense Council, Inc. have also noticed an appeal from the

dismissal of Physicians fog Social Responsibility-Los Angeles v. EPA, No. 2:11-cv05885-GW-SS in United States District Court for the Central District of California,

currently docketed in the Ninth Circuit as Case No. 12-56175.

WHEREAS, on February 13, 2013, pursuant to the Clean Air Act, the State

of California submitted to EPA for review and approval a revision to the California

State Implementation Plan ("SIP") to demonstrate attainment with the National

Ambient Air Quality Standard for the one-hour ozone standard in the South Coast

Air Basin (referred to as the "one-hour ozone plan").1

WHEREAS, on February 13, 2013, pursuant to the Clean Air Act, the State

of California submitted to EPA for review and approval revisions to the California

State Implementation Plan to demonstrate compliance with the requirements of

`The one-hour ozone attainment demonstration was included in the February 13, 2013 SIP

revision submittal as Appendix VII ("1-Hour Ozone Attainment Demonstration") to the 2012

South Coast Air Quality Management Plan (December 2012).

~a
Clean Air Act section 182(d)(1)(A), 42 U.S.C. § 751 la(d)(1)(A) as it pertains to

the National Ambient Air Quality Standards for the one-hour ozone standard and

the 1997 eight-hour ozone standard in the South Coast Air Basin (referred to as the

"section 182(d)(1)(A) demonstrations").2

WHEREAS the EPA and the Petitioners (collectively the "Parties") wish to

implement this Settlement Agreement ("Agreement") to avoid protracted and

costly litigation and to preserve judicial resources;

NOW, THEREFORE, the Parties, intending to be bound by this Agreement,

hereby stipulate and agree as follows:

1. Not later than August 13, 2014, EPA shall sign for publication in the

Federal Register notices) of the Agency's final action on the submitted one-hour

ozone plan and section 182(d)(1)(A) demonstrations, and thereafter send the

notices) to the Office of the Federal Register for review and publication.

2. Upon publication of the final notices) in the Federal Register,

Petitioners shall promptly voluntarily dismiss Communities for a Better

Environment, et al. v. EPA, Ninth Circuit Case No. 12-71340, pursuant to Rule 42

of the Federal Rules of Appellate Procedure. Petitioners reserve any rights they

may have to challenge in any court or administrative proceeding such final action.

2 The section 182(d)(1)(A) demonstrations were included in the February 13, 2013 SIP revision

submittal as Appendix VIII ("Demonstration of Offset of Growth in Emissions Associated with

Growth in Vehicle Miles Traveled Under Section 182(d)(1)(A) of the Federal Clean Air Act") to

the 2012 South Coast Air Quality Management Plan (December 2012).

3
3. If EPA does not take action in accordance with the terms of this

agreement then Petitioners' sole remedy under this Agreement regarding the final

action under review in Cofnmunities for a Better Environment et al. v. EPA, Ninth

Circuit Case No. 12-71340 shall be the right to request that the Court lift the stay

of proceedings and establish a schedule for briefing and oral argument.

4. EPA and Petitioners agree and acknowledge that before this

Agreement is final, EPA must provide notice in the Federal Register and an

opportunity for comment pursuant to Clean Air Act section 113(g), 42 U.S.C. §

7413(g). EPA shall submit said notice of this Agreement to the Federal RegisteY

for publication as expeditiously as possible. After this Agreement has undergone

an opportunity for 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 Agreement, in

accordance with section 113(8) of the Clean Air Act. This Agreement shall

become final on the date that EPA provides written notice of such finality to

Petitioner.

5. Upon receipt by the undersigned counsel for Petitioners of written

notice from EPA that this Agreement is final, Petitioners Physicians for Social

Responsibility-Los Angeles, Desert Citizens Against Pollution, Communities for a

Better Environment, and Natural Resources Defense Council, Inc. shall promptly
voluntarily dismiss Physicians for Social Responsibility-Los Angeles v. EPA, Ninth

Circuit Case No. 12-56175, pursuant to Rule 42 of the Federal Rules of Appellate

Procedure, with each party to bear its own costs and attorneys' fees incurred in

connection with the appeal, Ninth Circuit Case No. 12-56175.

6. The Parties acknowledge that if EPA elects to finalize this Agreement,

EPA will undertake notice and comment rulemaking proceedings during which it

will consider the one-hour ozone plan and section 182(d)(1)(A) demonstrations,

and that EPA's final actions) on the one-hour ozone plan and section 182(d)(1)(A)

demonstrations will be based upon its consideration of the administrative record

before the Agency, including public comments. Nothing in the terms of this

Agreement shall be construed to limit or modify the discretion accorded EPA by

the Clean Air Act or by general principles of administrative law. Nothing in the

terms of this Agreement sha11 be construed to limit EPA's authority to alter,

amend, or revise any final rule, interpretation or guidance EPA issues in

accordance with this Agreement. Nothing in the terms of this Agreement shall be

construed to limit or modify the rights Petitioners may have under the Clean Air

Act or general principles of administrative law.

7. Any obligations of EPA to obligate or expend funds under this

Agreement are subject to the availability of appropriations in accordance with the

Anti-Deficiency Act, 31 U.S.C. § 1341. This Settlement Agreement shall not be

5
construed to require the United States to obligate or pay funds in contravention of

the Anti-Deficiency Act, 31 U.S.C. § 1341.

8. The undersigned representatives of each party certify that they are

fully authorized by the party that they represent to bind that respective party to the

terms of this Agreement.

FOR PETITIONERS:

ADRIANO MARTINEZ

Natural Resources Defense Council

1314 Second Street

Santa Monica, CA 90401

Tel: (310) 434-2300

Fax: (310) 434-2399

amartinez @ nrdc.org

Counsel for Petitioner Natural Resources Defense Council

Dated:

ANGELA JOHNSON MESZAROS

Law Offices of Angela Johnson Meszaros

1107 Fair Oakes Avenue #246

South Pasadena, CA 91030

Tel: (323) 341-5868

Fax: (323) 872-5212

angela @ cleanairmatters.net

Counsel for Petitioners California Communities Against Toxics, Desert Citizens

Against Pollution, and Physicians for Social Responsibility-Los Angeles

Dated:
construed to require the United States to obligate or pay funds in contravention of

the Anti-Deficiency Act, 31 U.S.C. § 1341.

8. The undersigned representatives of each party certify that they are

fully authorized by the party that they represent to bind that respective party to the

terms of this Agreement.

FOR PETITIONERS:

ADRIANO MARTINEZ

Natural Resources Defense Council

1314 Second Street

Santa Monica, CA 90401

Tel: (310) 434-2300

Fax: (310) 434-2399

amartinez@nrdc.org

Counsel for Petitioner Natural Resources Defense Council

Dated:

JOI~NSON

I a Offi es o~Angela~ Jo s Meszaros

110 F ' Oak s Avenue #2

South Pasadena, CA 91

Tel: (323) 341-5868

Fax: (323) 872-5212

angela@cleanairmatters.net

Counsel for Petitioners California Communities Against Toxics, Desert Citizens

Against Pollution, and Physicians for Social Responsibility-Los Angeles

Dated:

D
MAYA GOLDEN-KRASNER

Communities for a Better Environment

6325 Pacific Boulevard, Suite 300

Huntington Park, CA 90255

Tel: (323) 826-9771

Fax: (323) 588-7079

maya@cbecal.org

Counsel for Petitioner Communities for a Better Environment

Dated: _ _~ f (I J 13

FOR RESPONDENT:

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

DUSTIN J. HA A

United States Depart Justice

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 514-1806

Fax: (202) 514-8865

dustin.maghamfar@usdoj .gov

Counsel for United States Environmental Protection Agency

Dated: `~ ~~~~ ~ 3

7