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COMPLAINT – 1 

Robert Ukeiley (CO Bar #26747)

CENTER FOR BIOLOGICAL DIVERSITY

1536 Wynkoop Street, Ste. 421

Denver, CO 80202

Phone: 720-496-8568

email: rukeiley@biologicaldiversity.org

Counsel for Plaintiff

Additional Counsel Listed in Signature Block

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

TUCSON DIVISION

Center for Biological Diversity, 

Plaintiff,

vs.

E. Scott Pruitt, in his official capacity as 

Administrator of the U.S. Environmental 

Protection Agency, and U.S. Environmental 

Protection Agency,

Defendants.

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Case No:

COMPLAINT FOR DECLARATORY 

AND INJUNCTIVE RELIEF

(Environmental Matter—Endangered 

Species Act and National Environmental 

Policy Act)

I. INTRODUCTION

1. Plaintiff the Center for Biological Diversity (Center) brings this Endangered 

Species Act (ESA) citizen suit to compel the United States Environmental Protection 

Agency (EPA) to consult with the United States Fish and Wildlife Service (FWS) and the 

National Marine Fisheries Service (NMFS) [collectively, the Services] over its delay of 

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COMPLAINT – 2

the effluent limitation guidelines for toxic discharges into water from coal-burning power 

plants (Delay Rule1). The Center also seeks to compel EPA to conduct a review of the 

Delay Rule pursuant to the National Environmental Policy Act (NEPA). 

II. JURISDICTION

2. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 16 U.S.C. § 

1540(g)(1)(A). The Court has jurisdiction to review EPA’s failure to consult with the 

Services under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1), and 

pursuant to 28 U.S.C. § 1331, which provides that the “district courts shall have 

jurisdiction . . . to enforce any such provision or regulation” of the ESA.

3. An actual controversy exists between the parties. This case does not concern 

federal taxes, is not a proceeding under 11 U.S.C. §§ 505 or 1146, and does not involve 

the Tariff Act of 1930. Thus, this Court has authority to order the declaratory relief 

requested under 28 U.S.C. § 2201. If the Court orders declaratory relief, 28 U.S.C. § 

2202 authorizes this Court to issue injunctive relief.

III. NOTICE

4. As required by the ESA, the Center provided 60 days notice of its intent to sue by 

letter sent to EPA and the Services on October 12, 2017. More than 60 days have passed 

since EPA received this “notice of intent to sue” letter. EPA has not remedied the 

violations alleged in this Complaint. Therefore, a present and actual controversy exists.

 

1

Postponement of Certain Compliance Dates for the ELGs and Standards For Steam 

Electric Power Generating Point Source Category, 82 Fed. Reg. 43,494 (Sept. 18, 2017) 

(codified at 40 C.F.R. §§ 423.11(t); 423.13(g)(1)(i), (k)(1)(i); 423.15(e), (g)).

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IV. VENUE

5. The Center resides in this judicial district and in Pima County, which is in the 

Tucson Division. Defendant EPA resides in this judicial district. This is a civil action in 

which a defendant is an agency of the United States. No real property is involved in this 

action. Therefore, venue is proper in this Court pursuant to 28 U.S.C. § 1391(e).

V. PARTIES

6. Plaintiff the CENTER FOR BIOLOGICAL DIVERSITY (Center) is a non-profit 

501(c)(3) corporation with its principle place of business in Tucson, Arizona. The Center 

has approximately 63,000 members throughout the United States and the world. 

7. The Center’s mission is to ensure the preservation, protection, and restoration of 

biodiversity, native species, ecosystems, public lands and waters, and public health 

through science, policy, and environmental law. Based on the understanding that the 

health and vigor of human societies and the integrity and wildness of the natural 

environment are closely linked, the Center is working to secure a future for animals and 

plants hovering on the brink of extinction, for the ecosystems they need to survive, and

for a healthy, livable future for all of us. 

8. The Center’s members live, work, recreate, travel and engage in other activities 

throughout the areas at issue in this complaint and will continue to do so on a regular 

basis. Toxic discharges from coal-burning power plants allowed under the Delay Rule in 

the affected areas threatens and damages, and will continue to threaten and damage, the 

health and welfare of Center’s members as well as their ability to engage in and enjoy 

their other activities. Toxic discharges from coal-burning power plants allowed under the 

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Delay Rule diminish the Center’s members’ ability to enjoy the aesthetic qualities and 

recreational opportunities of the affected area. 

9. EPA’s failure to timely consult with the Services and conduct an analysis under 

NEPA also adversely affects the Center, as well as its members, by depriving them of 

procedural protection and opportunities, as well as information that they are entitled to 

under NEPA and the ESA. The failure of EPA to timely consult with the Services and 

conduct an analysis under NEPA also creates uncertainty for the Center’s members as to 

whether they and the water bodies they enjoy are exposed to excess toxic discharges and 

indirect impacts.

10. The above injuries will continue until the Court grants the relief requested herein.

11. Defendant Scott Pruitt is the Administrator of the EPA. Defendant EPA is an 

agency of the United States. EPA has authority to limit toxic effluent discharged from 

coal-burning power plants. Under the ESA, EPA is responsible, in consultation with the 

Service, for ensuring that its authorization of toxic effluent discharges from coal-burning 

power plants do not jeopardize the survival and recovery of listed species or adversely 

affect their critical habitat. See 16 U.S.C. § 1536(a)(2).

VI. LEGAL BACKGROUND

A. The Endangered Species Act

12. Congress enacted the ESA, in part, to provide a “means whereby the ecosystems 

upon which endangered species and threatened species depend may be conserved . . . 

[and] a program for the conservation of such endangered species and threatened 

species . . . .” Id. § 1531(b). 

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13. The ESA vests primary responsibility for administering and enforcing the statute 

with the Secretaries of Commerce and Interior. The Secretaries of Commerce and 

Interior have delegated this responsibility to the National Marine Fisheries Service 

(NMFS) and the Fish and Wildlife Service (FWS) respectively. 

14. When a species has been listed as threatened or endangered under the ESA, all 

federal agencies—including the EPA—must ensure that their programs and activities are 

in compliance with the ESA. 

15. To this end, Section 7(a)(2) of the ESA requires that all federal agencies “insure” 

that their actions “are not likely to jeopardize the continued existence of any endangered 

species or threatened species or result in the destruction or adverse modification of” their 

critical habitat. Id. § 1536(a)(2). The “institutionalized caution” embodied in the ESA 

requires federal agencies to give the benefit of the doubt to listed species and places the 

burden of risk and uncertainty on the proposed action. See Sierra Club v. Marsh, 816 

F.2d 1376, 1386 (9th Cir. 1987); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

16. The ESA establishes an interagency consultation process to assist federal agencies 

in complying with their substantive section 7(a)(2) duty to guard against jeopardy to 

listed species or destruction or adverse modification of critical habitat. Under section 

7(a)(2), federal agencies must consult with the appropriate expert fish and wildlife 

agency to determine whether their actions will jeopardize any listed species’ survival or 

adversely modify designated critical habitat and, if so, to identify ways to modify the 

action to avoid that result. See 50 C.F.R. § 402.14. 

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17. The National Marine Fisheries Service (NMFS) is the expert fish and wildlife

agency with respect to anadromous and marine species and the U.S. Fish and Wildlife 

Service (FWS) is the expert agency with respect to terrestrial and freshwater species.

18. The Services have adopted joint regulations governing the section 7(a)(2)

consultation process. Under the joint regulations, a federal agency must initiate a section 

7(a)(2) consultation with NMFS or FWS whenever it undertakes an “action” that “may 

affect” a listed species or critical habitat. 50 C.F.R. § 402.14(a). The threshold for a 

“may affect” determination and the required ESA section 7(a)(2) consultation is low. See

51 Fed. Reg. 19,926, 19,949 (June 3, 1986) (“Any possible effect, whether beneficial, 

benign, adverse or of an undetermined character, triggers the formal consultation 

requirement . . . .”). See also U.S. FISH & WILDLIFE SERV. & NAT’L MARINE FISHERIES 

SERV., ENDANGERED SPECIES CONSULTATION HANDBOOK 3-13, 4-26 (1998). An agency 

is relieved of the obligation to consult only if the action will have “no effect” on listed 

species or designated critical habitat.

19. The joint regulations broadly define the scope of agency actions subject to ESA

section 7(a)(2) mandates to encompass “all activities or programs of any kind authorized,

funded, or carried out, in whole or in part, by [f]ederal agencies,” including the 

promulgation of regulations and the granting of licenses. See 50 C.F.R. § 402.02 

(definition of “action”).

20. If an agency determines that its action “may affect” but is “not likely to adversely

affect” a listed species or its critical habitat, ESA regulations permit “informal 

consultation,” in which there is no requirement for a biological opinion so long as NMFS 

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or FWS concurs in writing with the “not likely to adversely affect” determination. Id. § 

402.13. If the Service(s) do not concur with the “not likely to adversely affect” 

determination or if the action agency determines that the action is “likely to adversely 

affect” the listed species, the agencies must engage in “formal consultation.” Id. §§ 

402.02, 402.14(a).

21. Formal consultation “is a process between the Service and the [f]ederal agency

that commences with the [f]ederal agency’s written request for consultation under section 

7(a)(2) of the Act and concludes with the Service’s issuance of the biological opinion 

under section 7(b)(3) of the Act.” Id. § 402.02.

22. In a biological opinion, the Services must determine whether the federal action

subject to the consultation will jeopardize the survival and recovery of listed species or 

will destroy or adversely modify critical habitat. 16 U.S.C. § 1536(b)(4). If the Services 

determine that the action will jeopardize the species or destroy or adversely modify its 

critical habitat, the biological opinion must specify any reasonable and prudent 

alternative the action agency could take to avoid jeopardy or specify that there is no 

reasonable and prudent alternative. Id. § 1536(b)(4)(A); 50 C.F.R. § 402.14(h)(3). The 

Services and the action agencies must use the best available science in consultations, 

biological opinions, and jeopardy and adverse modification determinations. 16 U.S.C. § 

1536(a)(2); 50 C.F.R. § 402.14(g)(8).

23. Compliance with the procedural provisions of the ESA—identifying the likely

effects of the action through the consultation process—is integral to compliance with the

substantive requirements of the Act. Under the statutory framework, federal actions that 

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“may affect” a listed species or critical habitat may not proceed unless and until the 

federal agency ensures, through completion of the consultation process, that the action is 

not likely to cause jeopardy or adverse modification of critical habitat. 16 U.S.C. § 

1536(a); 50 C.F.R. §§ 402.13, 402.14; see also 16 U.S.C. § 1536(d).

24. Even after the procedural requirements of a consultation are complete, the ultimate 

duty to ensure that an action will not likely jeopardize a listed species or adversely

modify its critical habitat lies with the action agency. If the Services find that a proposed 

action avoids jeopardy and adverse modification of critical habitat, this substantive duty 

is fulfilled by implementing that action in accordance with any conditions or 

requirements established during the consultation process, including any measures 

necessary to minimize take. If the Services develop a reasonable and prudent alternative 

necessary to avoid jeopardy and/or adverse modification of critical habitat, the action 

agency can most easily fulfill its substantive duty by implementing the reasonable and 

prudent alternative and any other measures developed during the consultation process. 

25. However, an action agency is technically free to choose another alternative course 

of action if it can independently ensure that the alternative will avoid jeopardy and 

adverse modification.

B. National Environmental Policy Act

26. The National Environmental Policy Act is “our basic national charter for 

protection of the environment.” 40 C.F.R. § 1500.1(a). Its twin aims are to facilitate 

informed agency decision-making and public access to information. By focusing both 

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agency and public attention on the environmental effects of proposed actions, NEPA 

facilitates informed decision-making by agencies and fosters public participation.

27. To accomplish these objectives, NEPA requires “responsible [federal] officials” to 

prepare an environmental impact statement (EIS) to consider the effects of each “major 

Federal action[ ] significantly affecting the quality of the human environment.” 42 U.S.C. 

§ 4332(2)(C). To determine whether the impacts of a proposed action are significant 

enough to warrant preparation of an EIS, the agency may prepare an Environmental 

Assessment or “EA.”

28. Under NEPA’s implementing regulations, an agency’s EA must include “brief 

discussions of the need for the proposal, of alternatives . . . , [and] of the environmental 

impacts of the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). The EA must 

take a “hard look” at the impacts, and if the agency decides the impacts are not 

significant, it must supply a convincing statement of reasons why. 

29. The EA must analyze not only the direct impacts of a proposed action, but also the 

indirect and cumulative impacts. Id. §§ 1508.7, 1508.8. Such analysis must include all 

reasonably foreseeable impacts of the proposed action. Id.

30. NEPA’s implementing regulations require that the agency “shall identify any

methodologies used and shall make explicit reference by footnote to the scientific and 

other sources relied upon for conclusions,” and shall ensure the scientific accuracy and 

integrity of its environmental analysis. Id. § 1502.24. The agency must disclose if 

information is incomplete or unavailable and explain “the relevance of the incomplete or 

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unavailable information to evaluating reasonably foreseeable significant adverse 

impacts.” Id. § 1502.22(b)(1). 

31. If, after preparing an EA, the agency determines an EIS is not required, the agency 

must provide a “convincing statement of reasons” why the project’s impacts are

insignificant and issue a Finding of No Significant Impact or “FONSI.” 40 C.F.R. §§ 

1501.4, 1508.9 & 1508.13.

VII. FACTS

A. EPA’s 2015 Effluent Limitations Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category

32. EPA proposed the Effluent Limitations Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category (ELG Rule) in June 2013, explaining 

that steam electric power plants “contribute 50-60 percent of all toxic pollutant 

discharged into surface waters by all industrial categories,” and that these level of 

pollution will only further increase “as pollutants are increasingly captured by air 

pollution controls and transferred to wastewater discharges.” Effluent Limitations 

Guidelines and Standards for the Steam Electric Power Generating Point Source 

Category, Proposed Rule, 78 Fed. Reg. 34,432 (June 7, 2013). As detailed by EPA in its

Environmental Assessment (EA) on the ELG Rule and elsewhere, these pollutants, such 

as mercury and selenium, are damaging a variety of wildlife species inhabiting a wide 

range of water-based ecosystems across the United States, and pose concrete risks to 

human health. EPA found that the proposed ELG Rule would reduce pollutant loadings 

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from existing sources by more than 95 percent for copper, lead, mercury, nickel, 

selenium, thallium, and zinc, and more than 90 percent for arsenic and cadmium. 

33. Similarly, in issuing the Final 2015 ELGs, EPA found that the requirements would 

reduce the amount of pollutants that steam electric power plants are discharging by 1.4 

billion pounds. 80 Fed. Reg. 67,838, 67,841 (Nov. 3, 2015). EPA found that these 

concrete environmental improvements would reduce harm to human health and wildlife, 

explaining the Rule would provide a “significant number of environmental and ecological 

improvements and reduced impacts to wildlife and humans from reductions in pollutant 

loadings . . . .” Id. at 67,873; see also id. at 67,874.

B. Administrator Pruitt’s Proposed Delay Rule To Roll Back the Final ELG 

Rule

34. On April 12, 2017, in purported response to requests for “reconsideration” 

Administrator Pruitt announced he would “reconsider” the ELG Rule and immediately 

purported to “stay” the rule pending reconsideration. 82 Fed. Reg. 19,005 (April 25, 

2017). On June 6, 2017, Administrator Pruitt proposed the ELG Delay Rule, claiming 

compliance dates should be extended because he is reconsidering the Final ELG Rule and 

has decided polluting companies should not have to start working toward compliance 

until that reconsideration process is completed. 82 Fed. Reg. 26,017 (June 6, 2017).

35. In public comments on that proposal, the Center explained EPA could not finalize 

the ELG Delay Rule without first complying with the ESA and NEPA, 42 U.S.C. § 4321,

et seq. With respect to the ESA in particular, the Center explained that EPA must obtain 

a Biological Opinion from the Services addressing whether the Delay Rule may 

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jeopardize the continued existence of listed species or adversely modify critical habitat; 

the extent to which the Delay Rule will incidentally take listed species; and the specific 

measures EPA must carry out to minimize and mitigate those adverse effects. See 16 

U.S.C. § 1536.

36. On September 18, 2017, EPA issued its final ELG Delay Rule, delaying the 

compliance dates for major portions of the 2015 ELGs by two years. 82 Fed. Reg. 43,494

(Sept. 18, 2017) (codified at 40 C.F.R. §§ 423.11(t); 423.13(g)(1)(i), (k)(1)(i); 423.15(e), 

(g)). 

37. Parroting the insufficient rationale put forward in support of the Proposed Rule, 

EPA stated that it is delaying the compliance dates for best available technology 

economically achievable (BACT) effluent limitations and pretreatment standards (PSES) 

for flue gas desulfurization (FGD) wastewater and bottom ash transport water for two 

years. Id. In particular, while making no substantive findings about changes needed to the 

2015 ELGs, EPA decided it was appropriate to delay compliance simply to relieve certain 

coal-burning power plants of complying with the 2015 ELGs while EPA reconsiders 

them. Id.

38. Moreover, EPA made it clear that the two-year delay in the ELG Delay Rule was 

only an initial delay, stating that it intends to “further postpone the compliance dates” if 

necessary to make sure certain coal-burning power plants need not comply until EPA has 

completed its process of reconsidering – and presumably eliminating or at least 

significantly weakening – the 2015 ELGs. Id. at 43,498 n.6.

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39. In a separate “Response to Comments” document accompanying the ELG Delay 

Rule, EPA rejected the argument that it had any obligation to engage in ESA Section 7 

consultation before issuing the Final Rule. According to EPA, it was “not required to 

consult on this action because the Agency lacks discretion to account for effects on 

species.”

40. EPA does not appear to dispute that the ELG Delay Rule will have adverse 

impacts on protected species that should trigger the Section 7 consultation process. 

Indeed, such an argument would be impossible to reconcile with the myriad findings in 

the record concerning these impacts. To provide just a few examples:

EPA’s own Environmental Assessment for the Final ELG Rule explained that, 

as a result of the pollutants discharged from these power plants, aquatic species 

experience “acute effects (e.g., fish kills) and chronic effects (e.g., malformations, 

and metabolic, hormonal, and behavioral disorders),” as well as “reduced growth 

and reduced survival [and] changes to the local habitat.” EPA, ENVIRONMENTAL 

ASSESSMENT FOR EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR 

STEAM ELECTRIC POWER 3-20 (2015).

The same EA identified “138 threatened and endangered species whose

habitats overlap with, or are located within, surface waters that exceeded” water 

quality standards, and explained that, “[b]ased on evidence in the literature, 

damage cases, other documented impacts, and modeled receiving water pollutant 

concentrations, it is clear that current wastewater discharge practices at steam 

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electric power plants are impacting the surrounding aquatic and terrestrial 

environments . . . .” Id. at 9-1.

In issuing the 2015 ELGs EPA explained that the agency “expects that once the 

rule is implemented the number of immediate receiving waterbodies with potential 

impacts to wildlife will begin to be reduced by more than half compared to 

baseline conditions . . . .” 80 Fed. Reg. at 67,874.

41. EPA also explained that the ELGs “will improve aquatic and wildlife habitats in 

the immediate and downstream receiving waters from steam electric power plant 

discharges,” and that “these water quality and habitat improvements will enhance efforts 

to protect threatened and endangered species.” Id..

42. The cost-benefit analysis that accompanied the Final Rule also explained that 

“[f]or threatened and endangered (T&E) species vulnerable to future extinction, 

[because] even minor changes to reproductive rates and small levels of mortality may 

represent a substantial portion of annual population growth,” “steam electric power plant 

discharges may either lengthen recovery time, or hasten the demise of these species,” 

and, consequently, the ELGS would positively affect the “recovery trajectory for 15 T&E

species.” EPA, BENEFIT AND COST ANALYSIS FOR EFFLUENT LIMITATIONS GUIDELINES 

2-7, 5-4 (2015). Given that the record overwhelmingly shows implementation of the 

Final ELG Rule would reduce take and other adverse impacts on protected species from 

power plants discharges, it is clear that EPA may affect such species by delaying those 

increased protections through the ELG Delay Rule,—thereby requiring Section 7 

consultation. 

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43. The fact that, as of today, the coal-burning power plants covered by the Delay 

Rule are not yet required to reduce these discharges under the ELG Rule does not impact 

EPA’s obligation to consult on the adverse impacts of the Delay Rule. In considering the 

effects of an action, the ESA’s implementing regulations require an agency to consider 

those effects in the context of the “environmental baseline,” which includes “the past and 

present impacts of all Federal, State or private actions and other human activities in the

action area . . . .” 50 C.F.R. § 402.02; Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 

126-27 (D.D.C. 2001). The Final ELG Rule was thus an existing action that EPA was 

required to make part of the baseline for its analysis. See, e.g., Nat’l Wildlife Fed’n v. 

Nat’l Marine Fisheries Serv., 524 F.3d 917, 929-931 (9th Cir. 2007) (requiring agency 

evaluate the impacts of proposed dam management actions in light of the most 

environmentally protective status quo); Am. Rivers, Inc. v. U.S. Army Corps of Eng’rs, 

421 F.3d 618 (8th Cir. 2005) (same); see also Ctr. for Biological Diversity v. EPA, 

861F.3d 174 (D.C. Cir. 2017) (finding consultation required for pesticide registration).

VIII. CLAIM FOR RELIEF

CLAIM ONE

(ESA Failure to Consult)

44. Plaintiff incorporates by reference paragraphs 1 through 43.

45. Section 7 of the ESA mandates that:

Each Federal agency shall, in consultation with and with the assistance of 

the Secretary, insure that any action authorized, funded, or carried out by 

such agency . . . is not likely to jeopardize the continued existence of any 

endangered species or threatened species or result in the destruction or 

adverse modification of habitat of such species which is determined by the 

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Secretary, after consultation as appropriate with affected States, to be 

critical . . . .

16 U.S.C. § 1536(a)(2). 

46. Under the ESA’s joint implementing regulations from the FWS and NMFS, 

whenever a proposed action “may affect” listed species, the agency must initiate this 

consultation process, 50 C.F.R. § 402.14(a), which generally culminates in one or more 

Biological Opinions that evaluate the impacts of the action on protected species, 

including both the “incidental take” of species that will occur, and the steps that must be 

taken to minimize and mitigate those adverse impacts. 16 U.S.C. § 1536(b); 50 C.F.R. § 

402.14(g).

47. The Delay Rule is an agency action.

48. The Delay Rule may affect ESA-listed species or designated critical habitat.

49. EPA has discretion regarding the promulgation of the Delay Rule. EPA justified

the Delay Rule precisely on its “inherent discretion . . . to reconsider past policy decisions

consistent with the CWA and other applicable law.” 82 Fed. Reg. at 43,496 (emphasis 

added); see also id. (claiming EPA is “afforded considerable discretion in deciding” 

whether to delay compliance dates); (“EPA has discretion in determining technological

availability and economic achievability and is not constrained by the CWA to make the 

same policy decision as the former Administration, so long as its decision is reasonable”) 

(emphasis added).

CLAIM TWO

(Failure to Conduct NEPA Analysis)

50. Plaintiff incorporates by reference paragraphs 1 through 49.

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51. Pursuant to NEPA, EPA must take a “hard look” at the consequences, 

environmental impacts, and adverse effects of its proposed actions. 42 U.S.C. § 

4332(2)(C); 40 C.F.R. § 1508.9. NEPA requires “responsible [federal] officials” to 

prepare an environmental impact statement (EIS) to consider the effects of each “major 

Federal action[ ] significantly affecting the quality of the human environment.” 42 U.S.C. 

§ 4332(2)(C). The effects analysis must analyze not only the direct impacts of a 

proposed action, but also the indirect and cumulative impacts. 40 C.F.R. §§ 1508.7, 

1508.8, 1508.9. Such analysis must include all reasonably foreseeable impacts of the 

proposed action.

52. The Delay Rule is a Federal action.

53. EPA has discretionary regarding the promulgation of the Delay Rule. 

54. EPA did not prepare an EIS for the Delay Rule.

55. EPA did not prepare an EA for the Delay Rule.

56. EPA did not make a finding of no significant impacts for the Delay Rule.

57. By failing to prepare an EA and finding of no significant impacts or an EIS for the 

Delay Rule, EPA violated NEPA. This made the Delay Rule otherwise contrary to law.

REQUEST FOR RELIEF

WHEREFORE, the Center respectfully requests that the Court:

A. Declare that EPA is in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 

1536(a)(2), by failing to complete consultation necessary to ensure that the Delay 

Rule is not likely to jeopardize the continued existence of listed species or destroy 

or adversely modify their critical habitat and Delay Rule is otherwise contrary to 

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COMPLAINT – 18

law because EPA failed to comply with NEPA prior to promulgating the Delay 

Rule;

B. Enjoin, vacate and remand the Delay Rule for EPA to complete ESA consultation 

and a NEPA Analysis;

C. Retain jurisdiction of this matter for purposes of enforcing the Court’s order;

D. Grant Plaintiff their reasonable costs of litigation, including attorneys’ and 

experts’ fees; and;

E. Grant such further relief as the Court deems just and proper.

Dated: January 30, 2018 Respectfully submitted,

/s/ Jennifer L. Loda

Jennifer L. Loda (CA Bar No. 284889)*

CENTER FOR BIOLOGICAL DIVERSITY

1212 Broadway, Ste 800

Oakland, CA 94612

Phone: 510-844-7100 x336

Email: jloda@biologicaldiversity.org

Robert Ukeiley (CO Bar No. 26747)*

CENTER FOR BIOLOGICAL DIVERSITY

1536 Wynkoop St., Ste. 421

Denver, CO 80202

Phone: (720) 496-8568

email: rukeiley@biologicaldiversity.org

Hannah M.M. Connor (FL Bar No. 125378)*

CENTER FOR BIOLOGICAL DIVERSITY

P.O. Box 2155

St. Petersburg, FL 33731

Phone: (202) 681-1676

email: hconnor@biologicaldiversity.org

Counsel for Plaintiff 

* Seeking Admission pro hac vice

Case 4:18-cv-00050-JAS Document 1 Filed 01/30/18 Page 18 of 18