                                       
                                       
                      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	)
SEAN McGRATH, in his official capacity as	)
Regional Administrator, United States	)
Environmental Protection Agency,		)	
						)
		Defendants.			)
________________________________________________	)

                                CONSENT DECREE
                                       
	This Consent Decree ("Decree") is entered into by Plaintiffs WildEarth Guardians ("Guardians"), HEAL Utah, National Parks Conservation Association ("NPCA"), and Sierra Club and Defendants U.S. Environmental Protection Agency, 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."
                                       
                                   RECITALS
	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. § 7410(a)(1), (k).   
	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 for States "the emissions from which may reasonably be anticipated to cause or 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).  
	C.	On May 26, 2011, Utah submitted a SIP revision to EPA that addressed regional haze SIP requirements.  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; HEAL Utah submitted a similar claim on or about January 29, 2015.
	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 a non-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 Club 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. U.S. Environmental Protection Agency, Case No. 1:15-cv-00666 (D. Colo.) ("HEAL v. EPA").  The Guardians v. McCarthy and HEAL Utah v. EPA cases were consolidated into Guardians v. 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.  
	J.	The State of Utah and PacifiCorp have filed pending motions to intervene in both Guardians v. McCarthy and HEAL Utah v. EPA.  The Court denied the motions to intervene filed in the HEAL Utah v. EPA case without prejudice to refiling in the above-captioned matter.
	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 litigation, 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.
	O.	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 ORDERED, 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.
	2.	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.
	3.	This Decree shall become effective upon the date of its 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 November 19, 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 March 31, 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 of lodging this Consent Decree, under any authority, the sum of $4,000.00, as soon as reasonably practicable following entry of this Consent Decree, by electronic funds transfer to a bank account identified by Guardians.  Guardians agrees to accept $4,000.00 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 lodging of 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 of lodging this Consent Decree, under any authority, the sum of $22,525.00, 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 Club agree to accept $22,525.00 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(d) for any additional work performed after the lodging of 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 no 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 may be extended, 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 good cause shown and upon consideration of any response by a non-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.
	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.  Nothing in this Decree shall be construed to waive any claims, remedies, or 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 contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.
	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@wildearthguardians.org 

		
		For HEAL Utah, National Parks Conservation Association and Sierra 				Club:

		Jenny K. Harbine
		EARTHJUSTICE
		jharbine@earthjustice.org

		John Barth
		Attorney at Law
		barthlawoffice@gmail.com

		For EPA:

		Daniel Pinkston
		Environmental Defense Section
		U.S. Dept. of Justice
		Daniel.pinkston@usdoj.gov
		Elyana Sutin
		Office of Regional Counsel
		EPA Region 8
		Sutin.elyana@epa.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 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 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 comment.  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, EPA's Administrator and/or the United States 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(g).    If the Administrator and/or the Attorney 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.
	20.	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 shall 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 ______________________ 2015.


						________________________________________________
						United States District Judge

						SO AGREED:
						
						FOR WILDEARTH GUARDIANS:

Dated:________, 2015				_______________________________________________
						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:

Dated:_______, 2015				_______________________________________________
						EARTHJUSTICE
						315 East Main Street
						Bozeman, MT  59715
						(406) 586-9699
						jharbine@earthjustice.org

Dated:_______, 2015				______________________________________________
						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:	_______, 2015			By:	_______________________________________________
						DANIEL PINKSTON
						Environmental Defense Section
						Environment and Natural Resources
							Division
						U.S. Dept. of Justice
						999 18[th] Street
						South Terrace, Suite 370
						Denver, Colorado  80202
						(303) 844-1804
						daniel.pinkston@usdoj.gov 					
						
						
						




	

                                       
                                       
