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IN	THE	UNITED	STATES	DISTRICT	COURT	

FOR	THE	DISTRICT	OF	COLORADO	

No.	1:15‐cv‐00630‐MSK‐KLM	

WILDEARTH	GUARDIANS;	 	 	 )	

HEAL	Utah;	 	 	 	 	 )	

NATIONAL	PARKS	CONSERVATION	 )	

ASSOCIATION;	and	 	 	 	 )	

SIERRA	CLUB,	 	 	 	 )	

	 	 	 	 	 	 )	 	 	 	 	 	 	

	 	 Plaintiffs,	 	 	 )	

	 	 	 	 	 	 )	

	 v.	 	 	 	 	 )	 	

	 	 	 	 	 	 )	

UNITED	STATES	ENVIRONMENTAL	 )	

PROTECTION	AGENCY;	 	 	 )	

GINA	McCARTHY,	in	her	official	capacity	 )	 	

as	Administrator	of	the	United	States	 )	

Environmental	Protection	Agency;	and	 )	

SHAUN	McGRATH,	in	his	official	capacity	 )	

As	Regional	Administrator,	United	States	 )	

Environmental	Protection	Agency,	 	 )	 	

	 	 	 	 	 	 )	

	 	 Defendants,		 	 	 )	 	 	 	

	 	 	 	 	 	 )	

	 and	 	 	 	 	 )	

	 	 	 	 	 	 )	

STATE	OF	UTAH,	on	behalf	of	the	Utah	 )	

Department	of	Environmental	Quality,	 )	

Division	of	Air	Quality,	and	 	 	 )	

PACIFICORP,	 	 	 	 	 )	

	 	 	 	 	 	 )	

	 	 Intervenor‐Defendants.	 )	

________________________________________________	)	

UNOPPOSED MOTION FOR ENTRY OF CONSENT DECREE

INTRODUCTION

Plaintiffs	WildEarth	Guardians,	HEAL	Utah,	National	Parks	Conservation	

Association,	and	Sierra	Club	and	Defendants	U.S.	Environmental	Protection	Agency,	

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Administrator	Gina	McCarthy,	and	Regional	Administrator	Shaun	McGrath	

(collectively	referred	to	herein	as	the	“Parties”)	jointly	move	the	Court	to	enter	the	

Consent	Decree,	attached	hereto	as	Attachment	A.		The	positions	of	Intervenor‐

Defendants	State	of	Utah	and	PacifiCorp	are	stated	herein,	but	neither	objects	to	

entry	of	the	Consent	Decree.	

In	its	notice	of	lodging	the	proposed	Consent	Decree	(August	25,	2015,	Dkt.	

#51),	EPA	explained	that	the	Parties	could	not	move	for	entry	of	the	proposed	

Consent	Decree	until	the	public	participation	process,	required	by	Section	113(g)	of	

the	Clean	Air	Act	(“CAA”	or	“Act”),	42	U.S.C.	§	7413(g),	was	completed.		Notice	of	

availability	of	the	lodged	Consent	Decree	for	public	comment	was	published	in	the	

Federal	Register,	80	Fed.	Reg.	57,178	(Sept.	22,	2015).		The	only	two	substantive	

comments	received	were	from	the	Intervenors	in	this	case,	PacifiCorp	and	the	State	

of	Utah.		However,	these	comments	do	not	oppose	the	establishment	of	deadlines	for	

EPA	to	issue	proposed	and	final	rules	governing	the	Utah	regional	haze	state	

implementation	plan,	which	is	the	main	subject	of	the	Consent	Decree,	and	the	

gravamen	of	the	Complaint.			The	comments	suggested	certain	revisions	to	the	

Consent	Decree	and	stated	that	the	Intervenors	should	be	made	parties	to	the	

Consent	Decree	with	respect	to	approving	proposed	revisions	to	the	deadlines	set	

forth	in	the	Decree,	receiving	notices,	and	participating	in	dispute	resolution	

processes.		EPA	made	several	changes	to	the	proposed	Consent	Decree	to	address	

certain	factual	issues	raised	in	the	comments,	but	has	determined	that	the	

comments	do	not	disclose	facts	or	considerations	indicating	that	EPA’s	entry	into	

the	Consent	Decree	is	inappropriate,	improper,	inadequate,	or	inconsistent	with	the	

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requirements	of	the	Act.		EPA	and	the	Department	of	Justice	have	therefore	elected	

not	to	withhold	or	withdraw	consent	to	entry	of	the	Consent	Decree	submitted	here.		

Accordingly,	the	Court	should	enter	the	Consent	Decree	attached	hereto.		

BACKGROUND

A. Statutory Background

Pursuant	to	the	Clean	Air	Act,	each	State	must	adopt	a	“State	Implementation	

Plan”	(“SIP”)	that	includes	enforceable	emission	limitations	necessary	to	attain	the	

National	Ambient	Air	Quality	Standards	(“NAAQS”)	and	to	meet	all	applicable	

requirements	of	the	Clean	Air	Act.		42	U.S.C.	§	7410(a)(1).		The	primary	purpose	of	a	

SIP	is	to	explain	what	regulations,	control	measures,	and	programs	the	State	will	use	

to	ensure	that	air	quality	standards	are	attained	and	maintained.		SIPs	must	be	

submitted	to	and	approved	by	EPA.		42	U.S.C.	§	7410(a)(1),	(k).				

	 In	1977,	Congress	enacted	42	U.S.C.	§	7491,	entitled	“Visibility	protection	for	

Federal	class	I	areas.”1		Congress	declared	as	a	national	goal	“the	prevention	of	any	

future,	and	the	remedying	of	any	existing,	impairment	of	visibility	in	mandatory	

class	I	Federal	areas	which	impairment	results	from	man‐made	air	pollution.”		42	

U.S.C.	§	7491(a)(1).		Congress	required	EPA	to	promulgate	regulations	by	1979	to	

assure	“reasonable	progress”	toward	meeting	the	national	goal	identified	above	and	

compliance	with	the	requirements	of	42	U.S.C.	§	7491.		42	U.S.C.	§	7491(a)(4).		The	

regulations	require	implementation	plans	for	States	in	which	a	Class	I	area	exists	

(and	for	States	“the	emissions	from	which	may	reasonably	be	anticipated	to	cause	or	

																																																								

1		“Federal	class	I	areas”	are	international	parks,	wilderness	areas	and	national	memorial	parks	over	

5,000	acres	in	size,	and	national	parks	over	6,000	acres.		42	U.S.C.	§	7472(a).	

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contribute	to	any	impairment	of	visibility”	in	such	Class	I	area)	to	include	emission	

limits,	compliance	schedules,	and	“other	measures	as	may	be	necessary	to	make	

reasonable	progress	toward	meeting	the	national	goal.”		42	U.S.C.	§	7491(b)(2).											

Pursuant	to	EPA’s	regional	haze	regulations,	States	were	required	to	submit	

regional	haze	SIPs	to	EPA	for	approval	by	December	17,	2007.		40	C.F.R.	§	51.308(b).			

EPA	must	then	act	on	the	State’s	submission.		Within	two	years	after	the	EPA	

Administrator	(a)	finds	that	a	State	failed	to	make	a	required	submission,	(b)	finds	

that	a	SIP	or	SIP	revision	submission	does	not	satisfy	statutory	minimum	criteria,	or	

(c)	disapproves	a	SIP	in	whole	or	in	part,	the	Administrator	is	to	promulgate	a	

“Federal	Implementation	Plan”	(“FIP”),	unless	the	State	corrects	the	deficiency,	and	

the	Administrator	approves	the	plan	or	plan	revision	before	the	Administrator	

promulgates	the	FIP.		42	U.S.C.	§	7410(c)(1).	

B.		 Factual background

	 On	September	9,	2008,	and	May	26,	2011,	Utah	submitted	SIP	revisions	to	

EPA	that	addressed	regional	haze	SIP	requirements.		These	SIP	revisions	

superseded	and	replaced	earlier	regional	haze	SIP	submittals.		On	October	30,	2012,	

EPA	disapproved	portions	of	Utah’s	SIP	revision	regarding	the	State’s	“best	available	

retrofit	technology”	(“BART”)	determination	for	Units	1	and	2	of	the	Hunter	power	

plant	and	Units	1	and	2	of	the	Huntingdon	power	plant.		77	Fed.	Reg.	74,355	(Dec.	

14,	2012).				

	 To	date,	EPA	has	not	promulgated	a	regional	haze	FIP	addressing	those	

portions	of	Utah’s	SIP	disapproved	by	EPA	in	2012.		On	or	about	January	21,	2015,	

Guardians	provided	EPA	with	written	notice	of	a	claim	that	EPA	had	failed	to	

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promulgate	a	regional	haze	FIP	for	Utah;	HEAL	Utah	submitted	a	similar	claim	on	or	

about	January	29,	2015.		On	March	27,	2015,	Guardians	filed	a	“Complaint	for	

Declaratory	and	Injunctive	Relief”	in	the	United	States	District	Court	for	the	District	

of	Colorado.	Plaintiff	Guardians’	Complaint	alleges	a	Clean	Air	Act	citizen	suit	claim,	

42	U.S.C.	§	7604(a)(2),	arguing	that	the	Administrator	has	not	performed	a	non‐

discretionary	duty	to	promulgate	a	regional	haze	FIP	for	Utah	within	the	statutory	

time	frame.		Guardians	seeks	a	declaratory	judgment	that	EPA	has	violated	the	Act	

by	failing	to	promulgate	a	regional	haze	FIP	for	Utah;	an	injunction	compelling	EPA	

to	promulgate	a	FIP	by	a	time	certain;;	and	an	award	of	Guardians’	costs	of	litigation.		

Complaint	at	9.	

	 On	March	31,	2015,	Plaintiffs	HEAL	Utah,	National	Parks	Conservation	

Association,	and	Sierra	Club	(the	“HEAL	Utah	plaintiffs”)	filed	a	similar	complaint.		

The	Court	consolidated	the	cases	on	July	9,	2015.		The	Court	then	ordered	that	HEAL

Utah v. EPA	be	dismissed	and	that	all	subsequent	pleadings	and	other	documents	be	

filed	under	the	1:15‐cv‐00630‐MSK‐KLM	case	number.			

	 The	State	of	Utah	and	PacifiCorp	were	granted	leave	to	intervene	on	July	29,	

2015.		On	June	11,	2015,	the	State	of	Utah	submitted	a	proposed	revised	regional	

haze	SIP	to	EPA	for	approval,	which	EPA	is	currently	reviewing	

	 On	July	22,	2015,	pursuant	to	the	Court’s	order,	Guardians,	HEAL	Utah,	NPCA,	

and	Sierra	Club	filed	a	“Consolidated	Amended	Complaint	for	Declaratory	and	

Injunctive	Relief”	(“Consolidated	Complaint”)	in	the	consolidated	cases.		The	

Consolidated	Complaint	included	the	same	claim	for	relief	and	prayer	for	relief	as	

set	forth	in	the	Guardians v. McCarthy	and	HEAL Utah v. EPA	complaints.	

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C. The Consent Decree

	 The	parties	to	the	Consent	Decree	are	WildEarth	Guardians,	the	HEAL	Utah	

plaintiffs,	and	the	federal	defendants.		Pursuant	to	the	proposed	Consent	Decree,	

EPA	agrees	that	on	or	before	December	16,	2015,	it	will	sign	a	notice	proposing	

issuance	of	a	FIP	regarding	those	portions	of	the	Utah	SIP	revision	EPA	previously	

disapproved,	proposing	approval	of	a	new	regional	haze	SIP	revision	submitted	to	

EPA	by	the	State	of	Utah	before	that	date,	or	proposing	conditional	approval	of	a	

new	regional	haze	SIP	revision	submitted	to	EPA	by	the	State	of	Utah	before	that	

date.		Decree,	Att.	A,	Paragraph	4.			EPA	also	agrees	to	sign	a	notice	of	final	action	on	

the	proposal	referenced	in	Paragraph	4	of	the	proposed	Decree,	on	or	before	June	1,	

2016.		Id.,	Paragraph	5.	

The	rulemaking	deadlines	set	forth	above	may	be	extended	by	written	

stipulation	between	the	Parties	to	the	Decree	and	filed	with	the	Court.		Id.,	

Paragraph	9.				However,	if	the	Parties	cannot	agree	on	an	extension	or	any	other	

modification	of	the	Decree,	a	Party	to	the	Decree	may	file	a	motion	to	amend	the	

Decree.		Id.		Dispute	resolution	provisions	are	included	at	Paragraph	16.		No	motion	

to	enforce	the	Decree	or	for	contempt	may	be	filed	by	a	Party	unless	it	has	complied	

with	the	dispute	resolution	provisions	of	Paragraph	17.		Intervenor‐Defendants	are	

not	identified	as	Parties	to	the	Decree.

The	Decree	settles	Plaintiff	Guardians’	claims	for	attorneys’	fees	and	costs	

pursuant	to	42	U.S.C.	§	7604(d).		EPA	agrees	to	pay	$4,000	in	attorneys’	fees	and	

costs	to	Guardians	as	“full	settlement	of	all	claims	for	attorneys’	fees,	costs,	and	

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expenses	incurred	in	this	litigation	through	the	date	the	Parties	file	a	joint	motion	to	

enter	this	Consent	Decree	.	.	.	.”	Decree,	Att.	A,	Paragraph	7.		

Similarly,	the	Decree	also	settles	the	HEAL	Utah	plaintiffs’	claims	for	

attorneys’	fees	and	costs	pursuant	to	42	U.S.C.	§	7604(d).		EPA	agrees	to	pay	$27,795	

in	attorneys’	fees	and	costs	to	the	HEAL	Utah	plaintiffs	as	“full	settlement	of	all	

claims	for	attorneys’	fees,	costs,	and	expenses	incurred	in	this	litigation	through	the	

date	the	Parties	file	a	joint	motion	to	enter	this	Consent	Decree	.	.	.	.”		Id.,	Paragraph	

8.		

ARGUMENT

A.		 Standard of Review

“The	initial	decision	to	approve	or	reject	a	settlement	proposal	is	committed	

to	the	sound	discretion	of	the	trial	judge.”	SEC v. Randolph, 736	F.2d	525,	529	(9th	

Cir.	1984),	quoting Officers for Justice v. Civil Serv. Comm’n, 688	F.2d	615,	625	(9th	

Cir.	1982);	accord, Jones v. Nuclear Pharmacy, Inc., 741	F.2d	322,	324	(10th	Cir.	

1984).		Courts	generally	accord	substantial	deference	to	settlements	because	“[t]he	

inveterate	policy	of	the	law	is	to	encourage,	promote,	and	sustain	the	compromise	

and	settlement	of	disputed	claims.”		Am. Home Assur. Co. v. Cessna Aircraft Co., 551	

F.2d	804,	808	(10th	Cir.	1977),	quoting Tulsa City Lines v. Mains, 107	F.2d	377,	380	

(10th	Cir.	1939).		“In	exercising	its	discretion,	the	trial	court	must	approve	a	

settlement	if	it	is	fair,	reasonable	and	adequate.”		Nuclear Pharmacy, Inc., 741	F.2d	at	

324.		In	reviewing	a	consent	decree,	a	district	court	must	determine	whether	the	

proposed	settlement	fairly	and	reasonably	resolves	the	controversy	in	a	manner	

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consistent	with	the	public	interest	and	the	applicable	law.		United States v. Jones &

Laughlin Steel Corp., 804	F.2d	348,	351	(6th	Cir.	1986).	

B.		 The Terms of the Proposed Consent Decree are Fair, Reasonable,

Adequate, and in the Public Interest		

The	terms	of	the	Consent	Decree	were	extensively	negotiated	at	arm’s	length	

by	the	Plaintiffs	and	Defendants.		Intervenor‐Defendants	did	not	participate.		

Counsel	for	the	Parties	are	experienced	in	litigating	Clean	Air	Act	citizens’	suit	

claims	such	as	those	set	forth	in	the	amended	complaint.		The	ultimate	terms	of	the	

Consent	Decree	are	the	product	of	numerous	offers	and	proposals	back	and	forth	

and	EPA’s	explanation	of	its	resource	constraints	and	competing	statutory	priorities.		

The	attorneys’	fees	and	costs	settlement	was	based	on	contemporaneous	time	

records	presented	by	Plaintiffs	and	EPA’s	investigation	into	appropriate	attorneys’	

fee	rates	in	the	Denver	area.	

The	deadlines	set	forth	in	the	proposed	Consent	Decree	take	account	of	the	

statutory	mandates	of	the	Clean	Air	Act,	but	also	recognize	the	resource	constraints	

and	competing	statutory	priorities	with	which	EPA	must	contend.		The	Consent	

Decree	includes	provisions	for	modification	of	the	deadline	where	appropriate.		The	

agreement	memorialized	in	the	Consent	Decree	attached	hereto	is	therefore	

reasonable.	

The	terms	of	the	Consent	Decree	submitted	with	this	Joint	Motion	are	

adequate	in	that	they	resolve	claims	made	by	Plaintiffs	in	the	amended	complaint,	

settle	Plaintiffs’	claims	for	litigation	costs	pursuant	to	42	U.S.C.	§	7604(d),	and	

provide	for	a	mechanism	by	which	the	Parties	may	adjust	the	deadlines	in	the	event	

that	currently	unknown	contingencies	occur	or	circumstances	change.	

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The	Consent	Decree	also	serves	the	purposes	of	the	Clean	Air	Act	and	the	

public	interest	because	it	provides	a	reasonable	schedule	for	EPA’s	mandated	action	

by	a	date	certain.		The	Consent	Decree	terms	provide	certainty	and	avoid	additional	

expenditure	of	judicial	resources	and	the	time	and	cost	to	the	Parties.			

As	indicated	above,	substantive	comments	regarding	the	proposed	Consent	

Decree	were	received	during	the	Section	113(g)	public	comment	period	from	

Intervenor‐Defendants	State	of	Utah	and	PacifiCorp.		Neither	Intervenor	challenged	

the	deadlines	set	forth	in	the	Consent	Decree.2		However,	both	Utah	and	PacifiCorp	

commented	that	they	should	be	included	in	Paragraphs	9	(extension	of	deadlines	

and	modifications	to	the	Decree),	15	(notice	requirements),	and	16‐17	(dispute	

resolution).		Intervenors	did	not	object	to	the	litigation	cost	settlement	provisions	of	

Paragraphs	7	and	8.3		

In	general,	intervenors	do	not	have	a	right	to	veto	a	settlement	entered	into	

between	plaintiffs	and	defendants.		San Juan County, Utah v. United States,	503	F.3d	

																																																								

2 The	proposal	and	final	deadlines	set	forth	in	the	version	of	the	Consent	Decree	

lodged	with	the	Court	and	made	available	for	public	comment	were	November	19,	

2015,	and	March	31,	2016,	respectively.		After	the	close	of	the	comment	period,	but	

before	filing	this	Joint	Motion	to	Enter	Consent	Decree,	EPA	determined	that	new	

information	received	and	developed	by	EPA	would	necessitate	an	extension	of	those	

deadlines	to	December	16,	2015,	for	signature	on	a	proposal,	and	to	June	1,	2016,	

for	signature	on	final	action	on	the	proposal.		The	parties	to	the	Decree	agreed	to	

such	extensions,	but	the	HEAL	Utah	plaintiffs’	agreement	was	conditioned	on	EPA’s	

representation	that	it	would	make	a	copy	of	the	proposed	rule	available	to	them	no	

later	than	December	16,	2015.	

3 The	litigation	cost	settlements	in	the	Consent	Decree	attached	to	this	Joint	Motion	

were	modified	from	the	lodged	Consent	Decree	to	reflect	that	the	releases	granted	

pursuant	to	the	Decree	run	through	the	date	of	filing	of	this	Joint	Motion	(as	

opposed	to	the	date	the	original	Consent	Decree	was	lodged)	and	increasing	the	

amount	of	the	settlement	as	to	the	HEAL	Utah	Plaintiffs	from	$22,525.00	to	

$27,795.00.	

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1163,	1189	(10th	Cir.	2007).		Intervenors	here	have	not	objected	to	inclusion	of	

deadlines	for	EPA	action	in	settling	this	consolidated	action.		The	Parties	to	the	

Decree	submit	that	the	time	within	which	EPA	may	discharge	its	discretionary	duty	

is	within	its	own	knowledge,	and	there	is	no	reason	that	participation	by	

Intervenors	in	modification	of	the	deadlines	or	dispute	resolution	should	be	made	

an	order	of	the	Court.		Intervenor‐Defendants	believe	that	it	would	be	best	if	they	

were	included	in	the	provisions	of	the	Consent	Decree.		Moreover,	as	intervenors	in	

this	case,	they	may	attempt	to	be	heard	in	future	Court	proceedings,	if	they	occur.	

The	Parties	therefore	jointly	conclude	that	the	settlement	set	forth	in	the	

Consent	Decree	is	fair,	reasonable,	in	the	public	interest,	and	consistent	with	the	

Clean	Air	Act,	and	should	therefore	be	entered	by	the	Court.	

CONCLUSION

For	the	foregoing	reasons,	the	Court	should	grant	this	unopposed	motion	for	

entry	of	the	Consent	Decree	and	enter	the	Consent	Decree.	 

	 	 	 	 	 	 Respectfully	submitted,	

							

	 	 	 	 	 	 FOR	WILDEARTH	GUARDIANS:	

Dated:	Dec.	8,	2015	 	 	 	 /s/ Samantha Ruscavage‐Barz

	 	 	 	 	 	 WildEarth	Guardians	

						 516	Alto	Street	

	 	 	 	 	 	 Santa	Fe,	NM		87501	

						(505)	401‐4180	

						 sruscavagebarz@wildearthguardians.org			

	 	 	 	 	 	 FOR	HEAL	UTAH,	NATIONAL	PARKS		

	 	 	 	 	 	 CONSERVATION	ASSOCIATION,	AND		

	 	 	 	 	 	 SIERRA	CLUB:	

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 10 of 27
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Dated:	Dec.	8,	2015	 	 	 	 /s/ Jenny Harbine

	 	 	 	 	 	 EARTHJUSTICE	

						 313	East	Main	Street	

	 	 	 	 	 	 Bozeman,	MT		59715	

						(406)	586‐9699	

						 jharbine@earthjustice.org

Dated:	Dec.	8,	2015	 	 	 	 /s/ John Barth

	 	 	 	 	 	 Attorney	at	Law	

	 	 	 	 	 	 P.O.	Box	409	

	 	 	 	 	 	 Hygiene,	CO		80533	

						(303)	774‐8868	

						 barthlawoffice@gmail.com

	 	 	 	 	 	 FOR	UNITED	STATES	ENVIRONMENTAL		

	 	 	 	 	 	 PROTECTION	AGENCY,	ADMINISTRATOR		

	 	 	 	 	 	 GINA	McCARTHY,	AND	REGIONAL			

	 	 	 	 	 	 ADMINISTRATOR	SHAUN	McGRATH:	

	 	 	 	 	 	 JOHN	C.	CRUDEN	

	 	 	 	 	 	 Assistant	Attorney	General	

	 	 	 	 	 	 Environment	and	Natural	Resources		

	 	 	 	 	 	 	 Division	

Dated:	Dec.	8,	2015	 	 	 By:	 /s/ Daniel Pinkston

	 	 	 	 	 	 DANIEL	PINKSTON	

	 	 	 	 	 	 Environmental	Defense	Section	

	 	 	 	 	 	 Environment	and	Natural	Resources	

	 	 	 	 	 	 	 Division	

	 	 	 	 	 	 U.S.	Dept.	of	Justice	

						 999	18th	Street	

	 	 	 	 	 	 South	Terrace,	Suite	370	

	 	 	 	 	 	 Denver,	Colorado		80202	

						(303)	844‐1804	

						 daniel.pinkston@usdoj.gov			 	

			

							

	 	

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 11 of 27
12

CERTIFICATE	OF	SERVICE	

	 I	hereby	certify	that	I	served	a	copy	of	the	foregoing	UNOPPOSED	MOTION	

FOR	ENTRY	OF	CONSENT	DECREE	by	Notice	of	Electronic	Filing	using	the	Court’s	

CM/ECF	system,	which	will	send	notice	of	such	filing	via	email	to	all	counsel	of	

record.	

	 Said	filing	was	made	one	or	before	December	8,	2015.	

	 	 	 	 	 	 By:	 /s/	Daniel	Pinkston	

	 	 	 	 	 	 	 Environmental	Defense	Section	

	 	 	 	 	 	 	 U.S.	Department	of	Justice	

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 12 of 27
ATTACHMENT A

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 13 of 27
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

No. 1:15-cv-OOb30-MSK-KLM

WILDEARTH GUARDIANS;

HEAL Utah;

NATIONAL PARKS CONSERVATION

ASSOCIATION; and

SIERRA CLUB,

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY;

GINA McCARTHY, in her official capacity

as Administrator of the United States

Environmental Protection Agency; and

SEAN McGRATH, in his official capacity as

Regional Administrator, United States

Environmental Protection Agency,

Defendants,

and

STATE OF UTAH, on behalf of the Utah

Department of Environmental Quality,

Division of Air Quality, and )

PACIFICORP,

Intervenor-Defendants.

CONSENT DECREE

This Consent Decree ("Decree") is entered into by Plaintiffs WildEarth

Guardians ("Guardians"), HEAL Utah, National Parks Canservarion Association

("NPCA"), and Sierra Club and Defendants U.S. Environmental Protection Agency,

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Administrator Gina McCarthy, and Regional Administrator Shaun McGrath

(collectively "EPA"). Guardians, HEAL Utah, NPCA, Sierra Club, EPA, Administrator

McCarthy, and Regional Administrator McGrath are described herein as the

"Parties."

• ~ .

A. Pursuant to the Clean Air Act ("Act"), each State must adopt a "State

Implementation Plan" ("SIP") that includes enforceable emission limitations

necessary to attain the National Ambient Air Quality Standards ("NAAQS") and to

meet all applicable requirements of the Clean Air Act ("CAA" or "Act"). 42 U.S.C. §

7410(a)(1). The primary goal of a SIP is to explain what regulations, control

measures, and programs the State will use to ensure that air quality standards are

attained and maintained. SIPS must be submitted to and approved by EPA. 32 U.S.C.

B. In 1977, Congress enacted 42 U.S.C. § 7491, entitled "Visibility

protection for Federal Class I areas." Congress declared as a national goal "the

prevention of any future, and the remedying of any existing, impairment of visibility

in mandatory Class I Federal areas which impairment results from man-made air

pollution." 42 U.S.C. § 7491(a)(1). Congress required EPA to promulgate

regulations by 1979 to assure "reasonable progress" toward meeting the national

goal identified above and compliance with the requirements of 42 U.S.C. § 7491. 42

U.S.C. § 7491(a)(1). The regulations require implementation plans for States in

which a Class I area exists (and far States "the emissions from which may

reasonably be anticipated to cause or contribute to any impairment of visibility" in

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Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 15 of 27
such Class I area) to include emission limits, compliance schedules, and "other

measures as maybe necessary to make reasonable progress toward meeting the

national goal." 42 U.S.C. § 7491(b)(2). Pursuant to EPA's regional haze regulations,

States were required to submit regional haze SIPS to EPA for approval by December

17, 2007. 40 C.F.R. § 51.308(b).

C. On September 9, 200$, and May 26, 2011, Utah submitted SIP

revisions to BPA that addressed regional haze SIP requirements. These SIP

revisions superseded and replaced earlier regional haze SIP submitCals. On October

30, 2012, EPA disapproved portions of Utah's SIP revision regarding the State's

"best available retrofit technology" ("BART") determination for Units 1 and 2 of the

Hunter power plant and Units 1 and 2 of the Huntingdon power plant. 77 Fed. Reg.

74,355 (Dec. 14, 2012).

D. Within two years after the EPA Administrator (a) finds that a State

failed to make a required submission, (b) finds that a SIP or SIP revision submission

does not satisfy statutory minimum criteria, or (c) disapproves a SIP in whole or in

part, the Administrator is to promulgate a "Federal Implementation Plan" ("FIP"),

unless the State corrects the deficiency, and the Administrator approves the plan or

plan revision before the Administrator promulgates the FIP. 42 U.S.C. § 7410(c)(1).

E. EPA has not promulgated a regional haze FIP for the State of Utah.

F. On or about January 21, 2015, Guardians provided EPA with written

notice of a claim that EPA had failed to promulgate a regional haze FIP for Utah;

HEAI. Utah submitted a similar claim on or about January 29, 2015.

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G. On March 27, 2015, Guardians filed a "Complaint for Declaratory and

Injunctive Relief' in the United States District Court for the District of Colorado.

Plaintiff Guardians states that it brought the Complaint pursuant to the Clean Air

Act's citizen suit provision, 42 U.S.C. § 7604(a)(2), in that it alleges that the

Administrator has not performed anon-discretionary duty to promulgate a regional

haze FIP for Utah within the statutory time frame.

H. In its prayer for relief, Guardians requests (a) a declaratory judgment

that EPA has violated the Act by failing to promulgate a regional haze FIP for Utah;

(b) an injunction compelling EPA to promulgate a FIP by a time certain; (c) an order

that the court retain jurisdiction until EPA has complied; and (d~ an award of

Guardians' costs of litigation. Complaint at 9,

I. On March 31, 2015, Plaintiffs HEAL Utah, National Parks Conservation

Association, and Sierra Ciub filed a "Complaint for Declaratory and Injunctive

Relief," against the United States Environmental Protection Agency, EPA

Administrator McCarthy, and EPA Region VIII Administrator Shaun McGrath, in

which they asserted the same claim and prayer for relief as asserted by Guardians in

Guardians v. McCarthy. HEAL Utah v. II.S. Environmental Protection Agency, Case No.

1:15-cv-Q0666 (D. Colo.) ("HEAL v EPA"). The Guardians v. McCarthy and HEAL Utah

v. EPA cases were consolidated into Guardians a McCarthy on July 9, 2015. The

Court ordered that the HEAL Utah v EPA action be dismissed and that all subsequent

pleadings and other documents be filed under the 1:15-cv-00630-MSK-KLM case

number.

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J. The State of Utah and PacifiCorp were granted leave to intervene on

July 29, 2015.

K. On June 11, 2015, the State of Utah submitted a proposed revised

regional haze SIP to EPA for approval.

L. On July 22, 205, pursuant to the Court's order, Guardians, HEAL Utah,

NPCA, and Sierra Club filed a "Consolidated Amended Complaint for Declaratory and

Injunctive Relief' ("Consolidated Complaint") in the consolidated cases. The

Consolidated Complaint included the same claim for relief and prayer for relief as

set forth in the Guardians v. McCarthy and HEAL Utah v EPA complaints.

M. The Parties wish to effectuate a settlement of this case without

expensive and protracted Iitigation, and without a litigated resolution of any issue of

law or fact.

N. The Parties consider this Decree to be an adequate and equitable

resolution of the claims of this case and consent to entry of this Decree.

Q. The Court, by entering this Decree, finds that this Decree is fair,

reasonable, in the public interest, and consistent with the Clean Air Act.

GENERAL PROVISIONS

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

determination of any issue of law or fact, and upon the consent of the Parties, it is

hereby fJRDERED, ADJUDGED, and DECREED that:

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

the Consolidated Complaint and to order the relief contained in this Decree. Venue

is proper in the United States District Court for the District of Colorado.

S

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The Parties shall not challenge the terms of this Decree or this Court's

jurisdiction to enter and enforce this Decree in any formal administrative or judicial

forum. This Decree constitutes a complete and final resolution of all claims that

have been asserted in the Guardians Complaint and in the HEAL Utah Complaint,

and in the Consolidated Complaint

This Decree shall become effective upon the date of iCs entry by the

Court. If for any reason the Court does not enter this Decree, the obligations set

forth in this Decree are null and void.

4. On or before December 16, 2015, the appropriate EPA official will sign

a notice proposing issuance of a FIP regarding those portions of the Utah SIP

revision EPA previously disapproved, proposing approval of a new regional haze SIP

revision submitted to EPA by the State of Utah before that date, or proposing

conditional approval of a new regional haze SIP revision submitted to EPA by the

State of Utah before that date.

5. On or before June 1, 2016, the appropriate EPA official will sign a

notice of final action regarding the proposal referenced in Paragraph 4.

6. Within fifteen business days following the signature of the notice of a

proposed and final rulemaking pursuant to Paragraphs 4 and 5 above, EPA shall

submit the notice for review and publication by the Office of the Federal Register.

7. The United States agrees to pay Guardians as full settlement for all

claims for attorneys' fees, costs, and expenses incurred in Guardians v. McCarthy and

the consolidated case, through the date the Parties file a joint motion to enter this

Consent Decree, under any authority, the sum of $4,000.00, as soon as reasonably

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practicable following entry of this Consent Decree, by electronic funds transfer to a

bank account identified by Guardians. Guardians agrees to accept $4,Q00.00 in full

satisfaction of any and all claims for costs and attorneys' fees with respect to

Guardians v. McCarthy and the consolidated case, except that Guardians reserves the

right to seek costs and fees pursuant to 42 U.S.C. § 7604(d) for any additional work

performed after the date the Parties file a joint motion to enter this Consent Decree,

including costs and attorneys' fees for any extensions of the deadline set forth in

Paragraphs 4 or 5 requested by EPA and costs and attorneys' fees for enforcement

of the Consent Decree in the future. Nothing in this Paragraph shall be construed as

an admission or concession by EPA that Guardians is entitled to or eligible for

recovery of any costs or attorneys' fees, and EPA reserves all defenses with respect

to any future cost or fee claim. The amount of attorneys' fees or rates under this

Paragraph shall have no precedential value in any future fee claim.

8. The United States agrees to pay HEAL Utah, NPCA, and Sierra Club, as

full settlement for all claims for attorneys' fees, costs, and expenses incurred in

HEAL UTAH v. EPA and the consolidated case, through the date the Parties file a joint

motion to enter this Consent Decree, under any authority, the sum of $27,795.00, as

soon as reasonably practicable following entry of this Consent Decree, by electronic

funds transfer to a bank account identified by HEAL Utah, NPCA, and Sierra Club.

HEAL Utah, NPCA, and Sierra CIub agree to accept $27,795.00 in full satisfaction of

any and all claims for costs and attorneys' fees with respect to HEAL Utah v. EPA and

the consolidated case, except that HEAL Utah, NPCA, and Sierra Club reserve the

right to seek costs and fees pursuant to 42 U.S.C. § 7604~dj for any additional work

7

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 20 of 27
performed after the date tl~.e Parties file a joint motion to enter this Consent Decree,

including costs and attorneys' fees for any extensions of the deadline set forth in

Paragraphs 4 or 5 requested by EPA and costs and attorneys' fees for enforcement

of the Consent Decree in the future. Nothing in this Paragraph shall be construed as

an admission or concession by EPA that HEAL Utah, NPCA, or Sierra Club is entitled

to or eligible for recovery of any costs or attorneys' fees, and EPA reserves all

defenses with respect to any future cost or fee claim. The amount of attorneys' fees

or rates under this Paragraph shall have nfl precedential value in any future fee

claim.

9. The Parties do not anticipate any need to extend the deadlines set

forth in Paragraphs 4 and 5. Such deadlines maybe emended, however, by written

stipulation executed by the Parties and filed with the Court. Any other request for

an extension of the deadline in Paragraphs 4 or 5 may be approved by the Court

upon motion made by any Party to this Decree for good cause shown and upon

consideration of any response and any reply. Any other provision of this Decree

may also be modified by the Court for goad cause shown and upon consideration of

any response by anon-moving Party and any reply.

10. If an EPA lapse in appropriations occurs within 120 days prior to the

deadline set forth in Paragraph 4 or in Paragraph 5, or after the deadline set forth in

Paragraph 4 or Paragraph 5 but before the deadline in Paragraph 6, 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 an additional extension,

either by stipulation or by Court order, pursuant to the procedures of Paragraph 7.

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 21 of 27
11. Nothing in this Consent Decree shall be construed to limit or modify

any discretion accorded EPA by the Act or by general principles of administrative

law in taking the action that is 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 by Paragraphs 4 and 5 by the time

specified therein does not constitute a limitation or modification of EPA's discretion

within the meaning of this Paragraph.

12. Nothing in this 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 may take with respect to the EPA actions identified in

Paragraphs 4 or 5.

13. 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 are within the exclusive jurisdiction of the

United States Court of Appeals pursuant to the Act, 42 U.S.C. §§ 7607(b)(1), 7661d.

1Vothing in this Decree shall be construed to waive any claims, remedies, ar defenses

the Parties may have under 42 U.S.C. § 7607(b}(1).

14. The Parties recognize and acknowledge that the obligations imposed

upon EPA under this Decree can only be undertaken using appropriated funds

legally available for such purpose. No provision of this Decree shall be interpreted

or constitute a commitment or requirement that EPA obligate or pay funds in

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Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 22 of 27
contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable

provision of Iaw.

15. Any notices required or provided For by this Decree shall be made in

writing and sent via email to the following

For Guardians:

Samantha Ruscavage-Barz

WildEarth Guardians

sruscavagebarz wildeart ua~dians t~

For HEAL Utah, National Parks Conservation Association and Sierra

Club:

jenny K. Harbine

EARTHjUSTICE

~arbineC~earthjustice.or,~

john Barth

Attorney at Law

barthlawoffice@gmail.com

1 •_ ':

Daniel Pinkston

Environmental Defense Section

U.S. Dept. of Justice

Daniel.~ink~ton usc~o.~~ov

Elyana Sutin

Office of Regional Counsel

BPA Region 8

Su~in.elyana(~e~a,.gov

16. In the event of a dispute among the Parties concerning the

interpretation, implementation, or enforcement of any aspect of this Decree, the

disputing Parry shall provide the other Party with a written notice outlining the

nature of the dispute and requesting informal negotiations, The Parties shall meet

10

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 23 of 27
and confer in order to attempt to resolve the dispute. If the Parties cannot reach an

agreed-upon resolution within ten business days after receipt of the notice, any

Party may move the Court to resolve the dispute.

17. No motion or other proceeding seeking to enforce this Decree shall be

properly filed unless the Party seeking to enforce this Decree has first exhausted the

procedure set forth in Paragraph 16.

18. The Court shall retain jurisdiction to determine and effectuate

compliance with this Decree and to resolve any disputes thereunder. After EPA's

obligations under Paragraphs 4 and 5 have been completed, this Decree shall be

terminated. The Parties may either jointly notify the Court that the Decree should

be terminated and the case dismissed, or EPA may notify the Court by motion, and

Guardians and/or the HEAL Plaintiffs shall have twenty days to respond to such

motion.

19. The Parties agree and acknowledge that final approval and entry of

this proposed Decree are subject to the requirements of 42 U.S.C. § 7413(g), which

provides that notice of this proposed Decree shall be given to the public and that the

public shall have a reasonable opportunity to commend EPA will promptly deliver a

public notice of this Decree to the Office of the Federal Register for publication and

public comment after lodging this Decree with the Court. After this Decree has

undergone an opportunity for notice and comment, BPA's Administrator and/or the

United Sates Attorney General, as appropriate, shall promptly consider any written

comments in determining whether to withdraw or withhold consent to this Decree,

in accordance with 42 U.S.C. § 7413(8). If the Administrator andJor the Attorney

11

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 24 of 27
General elects not to withdraw or withhold consent to this Decree, the Parties shall

promptly file a motion that requests the Court to enter this Decree. If the

Administrator and/or Attorney General elects to withdraw or withhold consent to

this Decree pursuant to 42 U.S.C. § 7613{g~, EPA shall promptly advise Plaintiffs.

2d. It is hereby expressly understood and agreed that this Decree was

jointly drafted by the Parties and that any and all rules of construction to the effect

that ambiguity is construed against the drafting party shalt be inapplicable in any

dispute concerning the terms, meaning, or interpretation of this Decree.

21. The undersigned representatives of each Party certify that they are

fully authorized by the Party they represent to bind that Party to the terms of this

Decree.

SO ORDERED this ~ day of

F WII.UEATH RDIANS:

DaCed:.~~~ 2015 1~ ~~i' ;t%~~ _ ~ ,~~~~~

ildEarth Guard ans

516 Alta Street

Santa Fe, NM 875U1

(5U5) 401-4180

sruscavagebar~~wildearth~uard ians.or~

FOR HEAL UTAH, NATIONAL PARKS

CONSERVATION ASSQCIATiON, AND

SIERRA CLUB:

Dated:~c~,~ t 2015 ~ _~~~~ "5 t..^-`,~- .~, l ,~,~n~~~iwt..

EARTHJUSTICE

31S East Main 5trest

2015.

United States District Judge

SO AGREED:

~~a

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 25 of 27
General elects nat to withdraw or withhold consent to this Decree, the Parties shall

promptly file a rnotian that requests the Court to enter this Decree. If the

Administrator andJor Attorney General elects to withdraw or withhold consent to

this Decree pursuant to 42 U.S.C. § 7613(8), EPA shall pramptiy advise Plaintiffs.

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

jointly drafted by the Parties and that any and ali 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 Decree.

21. The undersigned representatives ofeach Party certify that they are

Fully authorized by the Party they represent to bind that Party to the terms of this

Decree.

SO ORDERED this.._ day of 2015.

United States District Judge

SO AGREED:

FOR tNILDEARTH GUARDIANS:

Dated: __ __. , 2015

WildEarth Guardians

516 Alto Street

Santa Fe, NM 87501

(5a5) 401-4180

sruscavagebarzC~wild~~~t~i,~uar ~R~,g

FOR HEAL UTAH, NATIt~IVAL PARKS

CONSEI2VATlflN ASSOCIATION, AI~iD

SIERRA CLUB:

r

Bated:~+''~ ~3 2Q15 ~--_...___ `•^~- ` I ~

EARTHJUSTICE

31S East Main Street

1Z

Case 1:15-cv-00630-MSK-KLM Document 60 Filed 12/08/15 USDC Colorado Page 26 of 27
Bozeman, MT 59715

(405 586-9699

iharbineC~%e~r~}~'ustice.or~

~l~- c

Dated• ~~~ `2015 `'~`"•° ~" "".""-

Attorney a[ Law

P,O. Box 409

Hygiene, CO 80533

(303) 774-8868

ba rthla~vofficeta~~►nail.com

FOR UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ADMINISTRATOR

GINA McCARTHY, AND REGIONAL

ADMINISTRATOR SHAUN McGRATH;

JOHN C. CRUDEN

Assistant Attorney General

Environment anc! Natural Resources

Division

Dazed; e~'j ~' .2015 By: ~ ~ ~ ----

D NOEL FINKSTON

Environmental Defense Section

Environment and Natural Resources

Division

U.S. Dept. of Justice

99918th Street

South Terrace, Suite 370

Denver, Colorado 80202

(3d3) 844-1$44

~~.~~~~k~~~taC~us_v

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