north dakota et al. response to 2nd motion for summary judgment 5/22/2014 nd cal

8/12/2019 North Dakota et al. Response to 2nd Motion for Summary Judgment 5/22/2014 ND Cal

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INTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO

PLAINTIFFS AND EPAS NOTICE OF LODGING PROPOSED CONSENT DECREE

AND MOTION TO STAY PROCEEDINGS UNTIL AUGUST 1, 2014

CASE NO.: 3:13-cv-03953 SI

Paul M. Seby (Admitted Pro Hac Vice)[email protected] C. Larsen (Admitted Pro Hac Vice)[email protected] &HARTLLP555 17th Street, Suite 3200

P.O. Box 8749Denver, CO 80201-8749Telephone: (303) 295-8430Facsimile: (303) 291-9177

Attorneys for Intervenor PlaintiffsThe State of North Dakota Attorney GeneralWayne Stenehjem, The State of ArizonaAttorney General Tom Horne, The Commonwealthof Kentucky Energy and Environment Cabinet,The State of Nevada Attorney General Catherine

Cortez Masto, The State of Louisiana Departmentof Environmental Quality, and the State of TexasAttorney General Greg Abbott

[Counsel Listing Continued on Next Page]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB et al.,

Plaintiffs,

v.

REGINA MCCARTHY, in her official capacityas Administrator of the United StatesEnvironmental Protection Agency,

Defendant.

CASE NO.: 3:13-CV-03953 SI

INTERVENOR PLAINTIFFS THE STATEOF NORTH DAKOTA, THE STATE OFARIZONA, THE COMMONWEALTH OFKENTUCKY ENERGY ANDENVIRONMENT CABINET, THE STATEOF LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITY, THESTATE OF NEVADA, AND THE STATE OFTEXASS RESPONSE IN OPPOSITION TOPLAINTIFFS AND EPAS NOTICE OF

LODGING PROPOSED CONSENT DECREEAND MOTION TO STAY PROCEEDINGSUNTIL AUGUST 1, 2014

Date: May 30, 2014Time: 9:00 AMJudge: Hon. Susan IllstonDept: 10Complaint Filed: August 26, 2013

Case3:13-cv-03953-SI Document107 Filed05/22/14 Page1 of 30


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INTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO



CASE NO.: 3:13-cv-03953 SI

THE STATE OF NORTH DAKOTAATTORNEY GENERALWayne Stenehjem, Attorney GeneralMargaret I. Olson (Admitted Pro Hac Vice)[email protected] of Attorney General500 North 9thStreet

Bismarck, ND 58501-4509Telephone: (701) 328-3640Facsimile: (701) 328-4300

HUNTON & WILLIAMS LLPTimothy J. Carlstedt (SBN 168855)[email protected] South Hope Street, Suite 2000Los Angeles, CA 90071-2627Telephone: (213) 532-2000Facsimile: (213) 532-2020

THE COMMONWEALTH OF KENTUCKYENERGY AND ENVIRONMENT CABINETC. MICHAEL HAINES (KY Bar 27872)Executive DirectorJACQUELYN A. QUARLES (KY Bar 90400)

Pro Hac ViceStaff Attorney,

Office of General CounselEnergy and Environment Cabinet200 Fair Oaks Lane, 1st FloorFrankfort, KY 40601Telephone: (502) [email protected]@ky.gov

THOMAS C. HORNEATTORNEY GENERALMONIQUE K. COADY (AZ Bar 025416)Pro Hac Vice

Assistant Attorney General1275 West Washington StreetPhoenix, Arizona 85007-2926

Telephone: (602) 542-8543Facsimile: (602) [email protected]

LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITYSPENCER B. BOWMAN (LA Bar 33515)

Pro Hac ViceLouisiana Department of Environmental Quality,

Legal Division602 N. 5th St.Baton Rouge, LA 70821-4302Telephone: (225) [email protected]

GREG ABBOTT, Attorney GeneralMARK L. WALTERS (CA Bar 160232)Assistant Attorney GeneralEnvironmental Protection Division(MC-066)P.O. Box 12548Austin, Texas 78711-2548

Telephone: (512) 463-2012mark.walters texasattorne eneral. ov

CATHERINE CORTEZ MASTOATTORNEY GENERALBELINDA A. SUWE (NV Bar 12499)

Pro Hac ViceDeputy Attorney General

Nevada Office of Attorney General100 North Carson StreetCarson City, NV 89701Telephone: (775) [email protected]



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iINTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO



CASE NO.: 3:13-cv-03953 SI

TABLE OF CONTENTS

STATEMENT OF THE ISSUES TO BE DECIDED........................................................................... 1

INTRODUCTION AND STATEMENT OF THE FACTS.................................................................. 1

LEGAL STANDARD GOVERNING PROPOSED CONSENT DECREES ...................................... 5

ARGUMENT ........................................................................................................................................ 6

I. THE PROPOSED CONSENT DECREE VIOLATES CAA 107(D). ........................................ 6A. EPA Has Determined It Lacks Sufficient Information To Promulgate Most Areas

Of The Country As Attainment Or Nonattainment. ....................................................... 7

B. The Only Remedy That May Be Included In The Proposed Consent Decree Is ForEPA To Timely Proceed With Designations Of Unclassifiable For Areas WhichEPA Believes It Lacks Sufficient Information. ..................................................................... 8

II. THE CONSENT DECREE ADVERSELY AFFECTS THE LEGAL RIGHTS ANDINTERESTS OF THE INTERVENOR STATES. ...................................................................... 10A. The Consent Decree Establishes Duties And Obligations Beyond When EPA Must

Take Final Action. ............................................................................................................... 10

B. The Consent Decree Impermissibly Imposes Legal Obligations Upon AndAdversely Affects The Legal Rights Of The Intervenor States. .......................................... 12

1. Including the proposed Data Requirements Rule in the proposed ConsentDecree imposes legal obligations upon the Intervenor States. ...................................... 12

2. The legal rights of the Intervenor States under the CAA are harmed by theproposed Consent Decree. ............................................................................................. 13

C. The Consent Decree Is Unfair, Unreasonable And Violates Public Policy. ........................ 171. The proposed Consent Decree is not fair. ..................................................................... 172. The proposed Consent Decree is not reasonable. .......................................................... 20

III. THE MAY 30 HEARING ON REMEDY MUST PROCEED. .................................................. 22CONCLUSION ................................................................................................................................... 23



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iiINTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO



CASE NO.: 3:13-cv-03953 SI

TABLE OF AUTHORITIES

Page(s)

CASES

Baughman v. Bradford Coal Co., Inc.,

592 F.2d 215 (3d Cir. 1979)...........................................................................................................13

Dep't of Toxic Substance Control v. Technichem, Inc.2013 WL 3856386 (N.D. Cal. July 24, 2013) ..................................................................................5

General Motors Corp. v. United States,496 U.S. 530 (1990) .................................................................................................................14, 16

Johnson v. Lodge #93 of Fraternal Order of Police,393 F.3d 1096 (10th Cir. 2004) .................................................................................................6, 21

Local No. 93, Intl Assoc. of Firefighters v. Cleveland,478 U.S. 501 (1986) .................................................................................................................5, 6, 9

Luminant Generation Co., L.L.C. v. U.S. E.P.A.,675 F.3d 917 (5th Cir. 2012) .........................................................................................................16

Natural Resources Defense Council v. Reilly,983 F.2d 259 (D.C. Cir. 1993) .......................................................................................................21

Reed v. United Teachers Los Angeles,208 Cal. App. 4th 322 (2012), review denied (Oct. 24, 2012) ..................................................6, 22

Sierra Club and Natural Resources Defense Council, v. EPA and Gina McCarthy, No.13-1262 (DC Cir. Dec. 18, 2013) ..................................................................................................15

Sierra Club, Inc. v. Elec. Controls Design, Inc.,909 F.2d 1350 (9th Cir. 1990) ...................................................................................................5, 15

Sierra Club v. California,658 F.Supp. 165 (N.D.Cal.1987) ...................................................................................................21

Sierra Club v. Johnson,444 F. Supp. 2d 46 (D.D.C. 2006) ...................................................................................................8

State of North Dakota et al v. McCarthy,1:13-cv-00109-CSM (D.N.D. Sep. 12, 2013) ..........................................................................15, 16

U.S. v. City of Hialeah,140 F.3d 968 (11th Cir. 1998) .................................................................................................14, 16



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iiiINTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO



CASE NO.: 3:13-cv-03953 SI

U.S. v. City of Miami, Fla.,664 F.2d 435 (5th Cir. 1981) ...........................................................................................................5

United States v. BP Exploration & Oil Co.,167 F.Supp.2d 1045 (N.D.Ind.2001) .....................................................................................passim

United States v. Oregon,913 F.2d 576 (9th Cir. 1990) .......................................................................................................5, 6

STATUTES

Clean Air Act, 42 U.S.C. 7401, et seq. (2014) .................................................................................1

CAA 101(a)(3), 42 U.S.C. 7401(a)(3) (2013) .........................................................................14, 21

CAA 107(a), 42 U.S.C. 7407(a) ..............................................................................................14, 21

CAA 107(d), 42 U.S.C. 7407(d) ............................................................................................passim

CAA 107(d)(1)(A); 42 U.S.C. 7407(d)(1)(A) .............................................................................6, 7

CAA 107(d)(1)(B)(i),42 U.S.C. 7407(d)(1)(B)(i) (2014) ......................................................7, 9, 20

CAA 113(g), 42 U.S.C. 7413(g) ......................................................................................................2

CAA 304(a)(2), 42 U.S.C. 7604(a)(2) .....................................................................................13, 21

FEDERAL REGISTER NOTICES

75 Fed. Reg. 35,520, 35,552/1, 35,574/3 (June 22, 2010) .....................................................................7

77 Fed. Reg. 27,446 (May 13, 2014) ...........................................................................................passim

77 Fed. Reg. 46,295, 46,296/3 (Aug. 3, 2012) ......................................................................................7

78 Fed. Reg. 47,191 (Aug. 5, 2013).....................................................................................................15

OTHER AUTHORITIES

40 C.F.R. 54.3 ...................................................................................................................................15

136 CONG.REC. S2,436 (daily ed. Mar. 8, 1990) ..............................................................................21



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1INTERVENOR-PLAINTIFFS THE STATE OF NORTH DAKOTA ET AL.S RESPONSE IN OPPOSITION TO



CASE NO.: 3:13-cv-03953 SI

STATEMENT OF THE ISSUES TO BE DECIDED

1. Whether the Court may enter the proposed consent decree (Consent Decree)

lodged by Plaintiffs the Sierra Club and the Natural Resources Defense Council (Plaintiffs) and

Defendant Regina McCarthy, in her official capacity as Administrator of the U.S. Environmental

Protection Agency (EPA), when the Consent Decree violates Clean Air Act (CAA or the Act)

107(d).

2. Whether the proposed Consent Decree imposes obligations and duties upon the

Intervenor States1that affect and impair the rights of the Intervenor States.

3. Whether the Court shall proceed with the May 30, 2014 hearing on remedy since the

proposed Consent Decree cannot dispose of the claims or interests of the Intervenor States, or the

Plaintiffs and because the Decree violates the CAA and the Decree impermissibly seeks to dispose

of the Intervenor States claims though they are not parties to the Decree.

INTRODUCTION AND

STATEMENT OF THE FACTS

Less than two weeks before the scheduled May 30th hearing on remedy, Plaintiffs and EPA

have lodged with this Court a proposed Consent Decree that, if entered by the Court, would impose

obligations and duties upon the Intervenor States that are contrary to the CAA and which imperil the

Acts cooperative federalism structure and authority granted to the States. The proposed Consent

Decree harms the interests of the Intervenor States because it violates CAA 107(d). Under CAA

107(d), EPA was required to proceed with area designations for the sulfur dioxide (SO2) national

ambient air quality standard (NAAQS) as expeditiously as practicable, but in no event more than

three years from the date of the revised SO2NAAQS. If at the end of this three year period EPA

1The Intervenor States are North Dakota, Arizona, Kentucky, Nevada, Louisiana and Texas.



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CASE NO.: 3:13-cv-03953 SI

believed that it lacked sufficient information to make area designations, the CAA 107(d) requires

EPA to promulgate area designations of unclassifiable.

Despite the clarity of CAA 107(d), EPA and Plaintiffs have proceeded to lodge with this

Court a proposed Consent Decree that far exceeds the Acts mandatory deadlines, reads out of the

Act the unclassifiable designation and imposes legal duties and obligations upon the States even

though the States were not involved in its development nor consented to its proposed terms. In fact,

the Intervenor States were only made aware by Plaintiffs counsel on May 6th that Plaintiffs and

EPA had been engaged in settlement discussions apart from the Intervenor States and that the parties

were close to finalizing the terms of a settlement. See Declaration of Paul M. Seby at 5. In that

May 6th communication, Plaintiffs counsel provided the Intervenor States with what they

represented as the principal terms of the settlement, but the draft proposed Consent Decree was not

made available to the Intervenor States until the afternoon of Friday, May 16th, despite numerous

requests beginning May 6th from the Intervenor States for a copy of the draft Decree. See id.at 5,

6 and 7. Plaintiffs and EPA lodged the proposed Consent Decree with the Court on the morning of

Monday, May 19th. See ECF No. 102.

As nonconsenting intervenor Plaintiffs, the Intervenor States cannot have their legal rights

preempted by the proposed Consent Decree. The Intervenor States understand that Plaintiffs and

EPA have at this time only lodged the proposed Consent Decree with the Court and that until the

public notice and comment process is completed pursuant to CAA 113(g), 42 U.S.C. 7413(g),

the proposed Consent Decree cannot be entered by this Court. However, the Intervenor States

respectfully ask this Court to act now to make a finding that 1) the proposed Consent Decree violates

CAA 107(d) and therefore cannot be entered; 2) the legal rights and interests of the Intervenor

States are harmed by the terms of the proposed Consent Decree and therefore the Decree cannot



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CASE NO.: 3:13-cv-03953 SI

dispose of the Intervenor States claims against EPA; and 3) because the primary issue of what the

appropriate remedy is remains unresolved, the Courts May 30th hearing on remedy must proceed

and the Court must deny Plaintiffs and EPAs request for a stay of the proceedings.

When this Court granted the Intervenor States Motion to Intervene, the Court expressly

found that the States will be directly affected by the outcome of Plaintiffs case even if resolution of

the case pertained solely to the timeframe in which EPA must act to make area designations for the

SO2NAAQS. The States will be directly affected because they have an interest in when the EPA

makes its designations. Order at 3, ECF No. 79. In acknowledging that the States want EPA to

proceed with making area designations for the SO2NAAQS as soon as possible, the Court further

found that it is undisputed that if the EPA designates areas within any of the intervening states as

nonattainment, the States are required to take steps to bring those areas into compliance with the

standard.Id.In that same Order, the Court granted Plaintiffs uncontested Motion for Summary

Judgment and ordered Plaintiffs, Defendant and the Intervenor States and North Carolina to meet

and confer regarding the remedy. If no agreement could be reached within 21- days of the Order,

the parties were required to proceed to briefing on remedy. Id. at 4.

Beginning in December of 2013, the parties, including Intervenor States, did consult

regarding remedy. Despite the Intervenor States best efforts to suggest and entertain areas of

compromise with Plaintiffs and EPA, it was evident that a remedy would not be agreed upon within

21- days of the Order and that a briefing schedule on remedy would need to be established.

Accordingly, the parties filed with the Court a motion to enter a briefing schedule, with the

Intervenor States proposing a more aggressive timeline in which to complete briefing. See ECF No.

82 at 4-5.The Court granted the extended briefing schedule proposed by the Plaintiffs and

Defendant. See ECF Nos. 85 & 85-1.



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CASE NO.: 3:13-cv-03953 SI

Since December 2013, the Intervenor States have repeatedly sought to reach compromise

with Plaintiffs and EPA in a manner that is consistent with CAA 107(d). As detailed in the

Intervenor States Opening Brief on Remedy and in their Response-Reply to Plaintiffs and EPAs

opening briefs, the only remedy available under CAA 107(d) for EPAs failure to timely

promulgate area designations is that the Agency must proceed as expeditiously as practicable with

designations of unclassifiable for all areas for which EPA believes there is not sufficient

information to make a designation of attainment or nonattainment. And for those areas where

EPA has sufficient information to make such designations of attainment or nonattainment, EPA

must also act as expeditiously as practicable to make such designations. However, EPA refuses to do

either.

Instead, EPA and Plaintiffs have agreed on a proposed Consent Decree that not only sets the

timetable by which EPA must act, but also defines the substantive criteria and process that EPA

must apply when making area designations. Further, the proposed Consent Decree specifically

imposes upon the Intervenor States additional specific and substantive obligations they must perform

should EPAs additional prospective data gathering initiative for SO2emissions be promulgated. Not

only is EPA ignoring the specific remedy that CAA 107(d) prescribes, EPA also seeks to

implement a Consent Decree that imposes upon the Intervenor States additional and burdensome

obligations and duties even though the Intervenor States are not parties to the Consent Decree.

Because the proposed Consent Decree violates the clear mandates that Congress set forth in

the CAA, and because its terms are patently unfair, unreasonable and violate public policy for the

reasons set forth below, the proposed Consent Decree cannot be entered by this Court. As such, the

Court should deny Plaintiffs and EPAs Motion to Stay the Proceedings and proceed with the

Courts May 30th hearing on remedy.



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CASE NO.: 3:13-cv-03953 SI

LEGAL STANDARD GOVERNING PROPOSED CONSENT DECREES

To approve a consent decree between settling parties, a Court must be satisfied that it is at

least fundamentally fair, adequate and reasonable [and] because it is a form of judgment, a

consent decree must conform to applicable laws. United States v. Oregon, 913 F.2d 576, 580 (9th

Cir. 1990). A consent decree that affects the public interest or non-settling parties imposes a

heightened responsibility on the court to protect the interests of those who did not participate in

negotiating the decree. See Oregon, 913 F.2d at 581. While it may be appropriate for a court to

afford deference to a government agency that is a party to a consent decree and which has expertise

in the subject matter addressed in the decree, a court must avoid giving a rubberstamp approval

and instead must conduct an independent investigation of the terms of the decree.Dep't of Toxic

Substance Control v. Technichem, Inc.2013 WL 3856386 (N.D. Cal. July 24, 2013) citing United

States v. BP Exploration & Oil Co., 167 F.Supp.2d 1045, 1050 (N.D.Ind.2001). When a consent

decree does more than just merely validate a compromise, but by virtue of its injunctive provisions,

reaches into the future and has continuing effect, and its terms require more careful scrutiny. U.S.

v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981).

Non-settling parties have the right to object to entry of a consent decree. See Local No. 93,

Intl Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 528-29 (1986). However, while an objecting

party is entitled to present evidence and have its objections heard at the hearings on whether to

approve a consent decree, it does not have the power to block the decree merely by withholding its

consent.Id. at 529. A district court should enter a proposed consent judgment if the court decides

that it is fair, reasonable and equitable and does not violate the law or public policy. Sierra Club,

Inc. v. Elec. Controls Design, Inc.,909 F.2d 1350, 1355 (9th Cir. 1990). With respect to public

policy, the most important factor is whether the decree comports with the goals of Congress.



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CASE NO.: 3:13-cv-03953 SI

BP Exploration & Oil Co., 167 F.Supp.2d at 1054. A party objecting to a consent decree must

demonstrate that the decree is unreasonable. Oregon, 913 F.2d at 581 (citations and internal

quotation marks omitted).

A consent decree is unreasonable when it adversely affects [the] legal rights or interests of

the nonconsenting intervenor.Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096,

1107 (10th Cir. 2004). Settling parties may not agree to take action [in a consent decree] that

conflicts with or violates the statute upon which the complaint was based.Local No. 93, Intl Assoc.

of Firefighters, 478 U.S. at 526. For parties that choose not to participate in a consent decree, their

rights should be given no less respect than the rights of parties who negotiate a consent decree.

In other words, all parties should have the right to either voluntarily compromise a claim or litigate.

Reed v. United Teachers Los Angeles, 208 Cal. App. 4th 322, 335-36, (2012), review denied (Oct.

24, 2012). The parties who choose to resolve litigation through settlement may not dispose of the

claims of a third party, and a fortiorimay not impose duties or obligations on a third party, without

the partys agreement.Local No. 93, Intl Assoc. of Firefighters, 478 U.S. at 529. Accordingly, no

court may enter a consent decree that imposes obligations on a party that did not consent to the

decree.Id.

ARGUMENT

I. THE PROPOSED CONSENT DECREE VIOLATES CAA 107(d).In CAA 107(d), Congress directed that EPA promulgate NAAQS designations no later than

three years after the promulgation of a new NAAQS. Congress also directed that, if the Agency

lacked sufficient information to make an area designation, it must designate that area as

unclassifiable. The Plaintiffs and Defendants proposed Consent Decree blatantly ignores CAA

107(d)s mandate. Instead, it arbitrarily grants EPA an additional seven years to do what the Agency



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CASE NO.: 3:13-cv-03953 SI

was mandated to do by June 2013: designate all areas of the country as either attainment,

nonattainment, or unclassifiable.

A. EPA Has Determined It Lacks Sufficient Information To Promulgate Most Areas OfThe Country As Attainment Or Nonattainment.

Congress gave EPA a clear directive that the Agency must promulgate NAAQS designations

within three years from the promulgation of a new NAAQS. SeeCAA 107(d), 42 U.S.C.

7402(d). The designation process begins with the Governor of each State submitting to the EPA

Administrator initial designations of attainment, nonattainment, or unclassifiable. CAA

107(d)(1)(A); 42 U.S.C. 7407(d)(1)(A). Upon receipt of the Governors initial designations, the

EPA Administrator shall promulgate the designations of all areas (or portions thereof) submitted

[by the Governor] as expeditiously as practicable, but in no case later than 2 years from the date of

promulgation of the new or revised [NAAQS]. CAA 107(d)(1)(B)(i); 42 U.S.C.

7407(d)(1)(B)(i). When the Administrator determines that she has insufficient informationto

promulgate the designations, she may request an additional year in which to promulgate area

designations.Id. (emphasis added). In August 2012, then- EPA Administrator Jackson announced

that she lacked sufficient information to make area designations for the 1-hour SO2NAAQS. See

Extension of Deadline for Promulgating Designations for the 2010 Primary SO2NAAQS, 77 Fed.

Reg. 46,295, 46,296/3 (Aug. 3, 2012).

Then- Administrator Jacksons announcement that she lacked sufficient information to

promulgate area designations was preceded by statements from EPA affirming this to be the case.

See Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final Rule,75 Fed. Reg.

35,520, 35,552/1, 35,574/3 (June 22, 2010) (EPA stated that it expected that most, if not all, of the

country would be initially designated unclassifiable); see also Memorandum to Regional Air



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CASE NO.: 3:13-cv-03953 SI

Directors, Mar. 24, 2011 at 22. EPA continues to consistently assert that it lacks sufficient

information to designate areas of the country as attainment or nonattainment for the SO2

NAAQS. For example, in the Agencys just proposed Data Requirements Rule for the 1-Hour Sulfur

Dioxide (SO2) Primary National Ambient Air Quality Standard (NAAQS); Proposed Rule, 77 Fed.

Reg. 27,446 (May 13, 2014) (Data Requirements Rule), EPA acknowledges that the Rule has

been proposed because many areas of the country do not have sufficient air quality monitoring in

place to identify maximum 1-hour SO2 concentrations. 79 Fed. Reg. 27,446/1. EPA further

acknowledges that the air quality data developed by the states in accordance with this rulemaking

would be used by the EPA in future rounds of area designations for the 1-hour SO2[NAAQS].Id.

Moreover, the acting Assistant Administrator for the EPA Office of Air and Radiation, Janet

McCabe, by sworn affidavit to this Court averred EPA believes that it was appropriate to not

promulgate area designations for rest (sic) of the country due to the lack of sufficientmonitoring

(and modeling) data. Affidavit at 6, ECF No. 96 (emphasis added).

B. The Only Remedy That May Be Included In The Proposed Consent Decree Is ForEPA To Timely Proceed With Designations Of Unclassifiable For Areas Which

EPA Believes It Lacks Sufficient Information.

CAA 107(d) gives EPA a clear directive not only as to how long the Agency has to

promulgate NAAQS designations which it has failed to follow - , but alsowhat those designations

must be if EPA lacks (or believes it lacks) sufficient information within the time allotted to make a

finding of attainment or nonattainment. When EPA has failed to discharge a nondiscretionary

duty under the Clean Air Act, a district court has jurisdiction to compel the Administrator to fulfill

it. Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52-53 (D.D.C. 2006).Therefore, the remedy in this

case must be consistent with CAA 107(d). However, Plaintiffs and EPA improvidently seek to go

2http://www.epa.gov/airquality/sulfurdioxide/pdfs/20110411so2designationsguidance.pdf, (last

viewed May 18, 2014).



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CASE NO.: 3:13-cv-03953 SI

well beyond what CAA 107(d) prescribes to not only give EPA an additional seven years to

complete all remaining area designations, but also to prescribe an entirely new and additive

mechanism by which EPA and the Statesmust proceed with those designations. Seeproposed

Consent Decree at 2-3. The remedy the CAA requires and which Plaintiffs and EPA summarily

reject - is that EPA immediately take the ministerial act of designating all areas of the country as

unclassifiable for which EPA concluded as of June 2013 that it believed lacked sufficient data to

make designations of attainment or nonattainment. For those areas of the country that EPA has

data showing attainment and EPA has not determined the data is insufficient, then EPA must

immediately proceed to promulgate designations of attainment.

The Supreme Court of the United States has clearly stated that settling parties may not agree

to take action [in a consent decree] that conflicts with or violates the statute upon which the

complaint was based.Local No. 93, Intl Assoc. of Firefighters, 478 U.S. at 526. Here, Plaintiffs

complaint properly alleged that the CAA expressly required EPA to promulgate and publish, not

later than June 2, 2013, designations identifying all areas of the nation violating the revised SO 2

standard, as well as all areas where the standard is met, and all areas where information is inadequate

to make a designation. 42 U.S.C. 7407(d)(1)(B)(i). ECF No. at 1. There is no dispute over

whether EPA failed to comply with CAA 107(d), as EPA has confessed to its failure to comply

with 42 U.S.C. 7407(d)(1)(B)(i). See Defendants Response to Motion for Summary Judgment at 2,

ECF No. 63 and Order at 3, ECF No. 79. Further, the same statute upon which Plaintiffs complaint

is based requires EPA to make area designations of unclassifiable when it lacks sufficient

information to promulgate a designation of attainment or nonattainment. EPA missed the

statutory deadline to promulgate area designations because it believes that it lacks sufficient

information to do so. As such, the only permitted resolution to EPAs failure is for the Court to order



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CASE NO.: 3:13-cv-03953 SI

the Agency to proceed with designations of unclassifiable when EPA believes that it lacks

sufficient information. The proposed Consent Decree violates CAA 107(d) because the Decree not

only gives EPA an additional 7 years to do what it was required to do no later than June 2013, but it

circumvents the unclassifiable designation and imposes legal obligations and duties upon EPA and

the States. As such the proposed Consent Decree cannot be entered by this Court.

II. THE CONSENT DECREE ADVERSELY AFFECTS THE LEGAL RIGHTS ANDINTERESTS OF THE INTERVENOR STATES.

A. The Consent Decree Establishes Duties And Obligations Beyond When EPA MustTake Final Action.

Contrary to the Plaintiffs and EPAs assertion that the proposed Consent Decree only sets a

binding and enforceable schedule for EPA to complete SO2designations, the proposed Decree does

far more. The proposed Consent Decree specifically dictates how EPA is to proceed with area

designations. Motion to Stay at 7. The proposed Consent Decree requires EPA to conduct the SO2

area designations in three rounds. The first round of designations is to be completed within 16-

months from the Courts entry of the Decree. In that round, EPA must designate any area that, based

upon the three most recent years of air monitoring data, shows a violation of the SO2NAAQS, or for

any area that contains a stationary source that emitted more than 16,000 tons of SO2in 2012, or (2)

emitted more than 2,600 tons of SO2and had an annual average emission rate of 0.45 lbs

SO2/Mmbtu or higher in 2012. See Consent Decree at 1(a), (b) ECF No. 102-1.

The second round of designations is to be completed no later than December 31, 2017. This

round will cover all remaining undesignated areas of the country that have not installed and begun

operating a new SO2monitoring network meeting EPA specifications referenced in EPAs just

proposed, but not final, Data Requirements Rule3.Id. at 2. The third and final round of

3As detailed in EPAs Data Requirements Rule, States have a choice of using modeling data to

collect the data that EPA is requiring to complete the second round of area designations or proceed



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CASE NO.: 3:13-cv-03953 SI

designations must be completed by December 31, 2020, and would address all remaining areas of

the country, which would be those areas that have in place a new SO2monitoring network sited in

accordance with the Data Requirements Rule.Id. at 3.

These proposed Consent Decree provisions go well beyond setting a mere timeline by which

EPA must act to promulgate area designations. These provisions dictate the types of sources located

in a certain area that EPA must first consider for designation with the 2010 SO 2NAAQS. See

Consent Decree at 1(b). To prescribe the types of sources located in a certain area that must be

designated violates CAA 107(d). Area designations must be based on whether an area shows

violations of a NAAQS, meets a NAAQS, or has insufficient data to do either (which would require

a designation of unclassifiable). CAA 107(d) does not say that designations can be based on the

mere presence of very specific and large emitting sources of SO2in a certain area.

The Consent Decree also dictates the mechanism that States must use in collecting new data

for EPA. See Consent Decree at 2. The new SO2emission data that EPA requires the States to

collect and submit to the Agency is to be obtained in accordance with EPAs just proposed Data

Requirements Rule. While the Data Requirements Rule has yet to promulgated, and EPAs current

public comment period will not even close until mid-July4, EPA is nonetheless making the proposed

provisions of the Data Requirements Rule a material condition of how EPA proceeds to make area

designations for the SO2NAAQS.

In addition, an update concerning Plaintiffs and EPAs lodging of the proposed Consent

Decree that was prepared by EPAs Office of Air and Radiation (OAR) and sent to EPA Region

IV, VI and IX, EPAs OAR acknowledges that the proposed Decree imposes obligations upon EPA

to install new monitoring networks that data from which will be used to promulgate the third andfinal round of area designations. See 79 Fed. Reg. 27,446/1.4Public comment on the proposed Data Requirements Rule closes July 14, 2014. See 79 Fed. Reg.

27,446/1.



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CASE NO.: 3:13-cv-03953 SI

and the States. The EPA OAR update acknowledges that the proposed Consent Decree requires that

EPA would follow the schedule discussed in the proposed SO2Data Requirements Rule Seby

Declaration, Attachment No. 1. For State air agencies, EPA OAR noted that the proposed Consent

Decree would also require that they comply with the Data Requirements Rule and that States would

have the choice [pursuant to the Rule] to use either improved monitoring or modeling around

priority SO2sources in most areas, and then submit the additional data resulting from that work to

the EPA by certain dates.Id. EPA itself has argued that this Court may only consider a remedy that

addresses when EPA acts to promulgate area designations. See EPAs Br., ECF No. 95 at 24-26 and

ECF No. 104 at 4. Yet, the proposed Consent Decree, (as affirmed by EPAs OAR on the same day

EPA lodged the Decree with this Court), goes well beyond simply providing for when EPA must act

to make area designations.

Further, Plaintiffs and EPA are presupposing that there will be no changes to the Data

Requirements Rue as it is currently drafted. The purpose of notice and comment rulemaking is that

an agency may receive the benefit of interested stakeholder comment on proposed rules. It is

unknown whether EPA assumes that there will be no comment to the Data Requirements Rule from

stakeholders, including State air agencies who will be implementing the Rule, that will merit

revisions to the Rule. However, if EPA does assume this to be the case, it further demonstrates

EPAs unwillingness to take into account the Intervenor States positions on this matter and their

unique role under the CAA.

B. The Consent Decree Impermissibly Imposes Legal Obligations Upon And AdverselyAffects The Legal Rights Of The Intervenor States.

1. Including the proposed Data Requirements Rule in the proposed ConsentDecree imposes legal obligations upon the Intervenor States.

The proposed Consent Decree does more than just affirm a compromise reached by Plaintiffs

and EPA as to when EPA must act, the proposed Decree imposes specific criteria that EPA and the



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CASE NO.: 3:13-cv-03953 SI

Intervenor States must use for making area designations. See Consent Decree at 1, 2, and 3. The

proposed Data Requirements Rule is, as EPA describes it, a rule directing state and tribal air

agencies (air agencies) to provide data tocharacterize current air quality in areas with large

sources of [SO2] emissions if such areas do not have sufficient air quality monitoring in place to

identify maximum 1-hour SO2 concentrations. 79 Fed. Reg. 27,446/1. Including in the proposed

Consent Decree the substantive requirement that the second and third round of area designations is

to be completed in accordance with the Data Requirements Rule, Plaintiffs and EPA are imposing

obligations and requirements upon the Intervenor States.

The proposed Data Requirements Rule describes a process and timetables by which air

agencies would characterize air quality around sources through ambient monitoring and/or air

quality modeling techniques and submit such data to EPA.Id.The proposed Data Requirements

Rule is a significant proposal that, once promulgated, will require several years and significant

financial resources on the part of the States to implement. As such, including the proposed Data

Requirements Rule in the proposed Consent Decree places legal obligations upon the Intervenor

States even though they are a nonconsenting party to the Decree.

2. The legal rights of the Intervenor States under the CAA are harmed by theproposed Consent Decree.

The CAA provides that citizens, which term includes States, may bring civil suits against

EPA for the Agencys failure to perform a nondiscretionary duty. See CAA 304(a)(2), 42 U.S.C.

7604(a)(2). Congress intended citizen suits to both goad the responsible agencies to more vigorous

enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an

alternate enforcement mechanism.Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d

Cir. 1979) (internal citations omitted). The proposed Consent Decree, if adopted, would

impermissibly deny the Intervenor States of their right to have their claims concerning EPAs failure



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CASE NO.: 3:13-cv-03953 SI

to timely designate all areas of the country for the SO2NAAQS disposed of and would also

eviscerate the cooperative federalism structure of the CAA.

The CAA establishes a comprehensive national program that makes the States and the

Federal Government partners in the struggle against air pollution. General Motors Corp. v. United

States, 496 U.S. 530, 532 (1990). In that partnership, EPA sets various standards and goals, but air

pollution prevention . . . and air pollution control at its source is the primary responsibility of

Statesand local governments. CAA 101(a)(3), 42 U.S.C. 7401(a)(3) (2013) (emphasis added);

see also id. CAA 107(a), 42 U.S.C. 7407(a) (Each State shall have the primary responsibility

for assuring air quality within the entire geographic area comprising such State . . . .). The

Intervenor States sought intervention in this case because EPA had failed to take timely action on

their initial area designations. See Intervenor States Motion to Intervene at 2, ECF No. 23. It is the

States, not Plaintiffs or EPA, who are vested under the CAA to gather the data and make initial area

designations for the SO2NAAQS. See CAA 107(d), 42 U.S.C. 7407(d). Under the terms of the

proposed Consent Decree, all of the work that the Intervenor States completed to make their initial

designations5

will be arbitrarily discarded by EPA, and the States will be obligated under the

proposed Consent Decree to proceed to gather new data for EPA in accordance with onerous and

unprecedented requirements of the proposed Data Requirements Rule. To avoid the Intervenor States

being left on the sidelines while EPA and Plaintiffs negotiated an adverse settlement that the States

would then have to implement, is precisely why the States intervened in this case. See Intervenor

States Motion to Intervene at 23, ECF No. 23. And though the States are intervenors and not

plaintiffs or third-party plaintiffs, that does not permit that [they] be shafted by the settling

parties. U.S. v. City of Hialeah, 140 F.3d 968, 978 (11th Cir. 1998).

5See Affidavit of Terry OClair at 5, ECF No. 23-1; Affidavit of Eric Massey at 5, ECF No. 23-2; Affidavit of Sean Alteri at 8, ECF No. 23-3; Affidavit of Sanford Phillips at 5, ECF No. 23-4;Affidavit of Jasmine Mehta at 5, ECF No. 23-5; and Affidavit of Steve Hagle at 8, ECF No. 23-6.



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CASE NO.: 3:13-cv-03953 SI

The Intervenor States, here and individually in other federal courts, have sought to enforce

CAA 107(d) as it relates to EPAs failure to timely promulgate area designations for the SO2

NAAQS. In the U.S. Court of Appeals District of Columbia Circuit, the States of North Dakota,

Kentucky, Louisiana and Texas were granted intervention in the Sierra Club and the Natural

Resources Defense Councils petition for review6of EPAs final rule designating 29 areas of the

country as nonattainment. See Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary

National Ambient Air Quality Standard, 78 Fed. Reg. 47,191 (Aug. 5, 2013). On January 23, 2014,

the D.C. Circuit ordered that Sierra Club and the Natural Resources Defense Councils petition for

review be held in abeyance pending the outcome of a petition for reconsideration currently before

EPA. SeeOrder, ECF No. 1476376.

The Intervenor States of North Dakota, Nevada and Texas joined by the State of South

Dakota filed a citizen suit on September 12, 2013 in the District of North Dakota7to compel EPA

to comply with its CAA 107(d) obligations. This citizen suit was filed after the States gave notice

on July 3, 2013 to EPA, pursuant to 40 C.F.R. 54.3, of the States intent to sue the Agency for its

failure to comply with CAA 107(d). EPA, over the objections of North Dakota, Nevada, Texas and

South Dakota, successfully petitioned the Court in North Dakota to hold that case in abeyance

pending the outcome of this case. In its Motion to hold the North Dakota case in abeyance, EPA told

the Court that any remedy that is stipulated to or ordered in the Sierra Club matter in the Northern

District of California would address the concerns that EPA anticipates the [States] would raise

in this matter, and would obviate the need to litigate the issues again in this Court. EPA Motion to

Hold Case in Abeyance at 6, ECF No. 19 (emphasis added).

6Sierra Club and Natural Resources Defense Council, v. EPA and Gina McCarthy, No. 13-1262(DC Cir. Dec. 18, 2013).7State of North Dakota et al v. McCarthy,1:13-cv-00109-CSM (D.N.D. Sep. 12, 2013)



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CASE NO.: 3:13-cv-03953 SI

In granting EPAs motion to hold the matter in abeyance, the Court in North Dakota

concluded that it is quite likely that the issues presented in this case will be resolved by the action

now pending in the Northern District of California. State of North Dakota et al v. McCarthy, Order

at 3, Doc. No. 28. However, the resolution currently proposed by Plaintiffs and EPA completely

ignores the rights and interests of the Intervenor States. The proposed Consent Decree treats the

States not as partners in the fight against air pollution, (see General Motors Corp., 496 U.S. at 532),

but rather like junior political offices that can do nothing more than implement what EPA

(eventually) commands. Such poor regard is fundamentally contrary to the CAAs cooperative

federalism structure.Luminant Generation Co., L.L.C. v. U.S. E.P.A., 675 F.3d 917, 921 (5th Cir.

2012). The CAA establishes a comprehensive program for controlling and improving the nations

air quality through state and federal regulation.Id. (internal citations omitted) (emphasis added).

Because the proposed Consent Decree adversely affects the legal rights under the CAA of the

Intervenor States, this Court may not enter the Decree. City of Hialeah, 140 F.3d at 979.

Further, Plaintiffs and EPA assert that Plaintiff-Intervenors are not harmed by a lack of

designation of any areas in their respective states during this time, as any failure to designate on the

part of EPA results in states being in the same regulatory position as if the undesignated areas are

designated attainment or unclassifiable. Motion at 4, ECF No. 102. Plaintiffs and EPA are wrong

the Intervenor States are harmed as long as EPA fails to designate areas for the SO2NAAQS. As

discussed in the Intervenor States Opening and Response-Reply Briefs, the States have significant

regulatory and economic interests that are harmed by EPAs continued failure to act. See Intervenor

States Opening Brief at12, ECF No. 94 and Intervenor States Response-Reply Brief at 8, ECF No.

101. That harm is ameliorated once EPA promulgates area designations. If EPA proceeds with area

designations of unclassifiable, that would provide the States with certainty. See Intervenor States



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CASE NO.: 3:13-cv-03953 SI

Opening Brief at 12, ECF No. 94 and Intervenor States Response-Reply Brief at 7-9, ECF No.101.

EPA itself has stated that issuing an unclassifiable designation for a NAAQS does not trigger any

additional requirements for states/tribes, and that [e]xisting requirements (PSD, FARR, etc. do not

change as a result of this designation. SeeFact Sheet PM2.5 Designations under the Clean Air Act8

at 2. Without a designation, including a designation of unclassifiable, the Intervenor States and

their regulated industries face uncertainty, and the likelihood that industries will be unwilling to

invest money or locate facilities in their State.

C. The Consent Decree Is Unfair, Unreasonable And Violates Public Policy.1. The proposed Consent Decree is not fair.

Parties to a consent decree must negotiate in good faith.BP Exploration & Oil Co., 167

F.Supp.2d at 1052. Since December 2013, all parties have been engaged in discussions on remedy as

directed by the Court. Order at 3, ECF No. 79.Throughout this process, Plaintiffs and EPA have

been unwilling to seriously consider the Intervenor States proposed remedy proposals. However, the

Intervenor States have continued to engage with Plaintiffs and EPA in remedy discussions, hoping

that a reasonable compromise could be reached that complied with the CAA. As recently as April

15, counsel to Intervenor the State of North Dakota confirmed in writing to Plaintiffs and EPA the

Intervenor States desire to continue to engage in settlement discussions. See Declaration of Paul M.

Seby at 2. However, not until April 30th did EPA respond to the Intervenor States and the State of

North Carolinas separate request to continue to engage in settlement discussions. See id. at 3. On

May 1st, counsel to the parties and Intervenor States and the State of North Carolina assembled via

conference call to discuss where there may be an opportunity to reach a reasonable compromise that

8http://yosemite.epa.gov/R10/TRIBAL.NSF/0/2b53e3b490a0ab42882575eb007dbfff/$FILE/TribalFactSheetforPM2.5.pdf(last viewed May 21, 2014)



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CASE NO.: 3:13-cv-03953 SI

complied with the CAA. See id. at 4. No such agreement was reached on the call, but the parties

agreed to remain open to group discussions. See id.

Five days later, on May 6, 2014, Plaintiffs counsel notified the Intervenor States that

Plaintiffs and EPA were close to finalizing a unilateral settlement of Plaintiffs claims and provided

an excerpt of the proposed Consent Decree that purported to set forth the principal terms of their

proposed settlement. See id.at 5.Notably, Intervenor States had not been apprised of these side

settlement discussions between Plaintiffs and EPA though Intervenor States and the State of North

Carolina had just been on a settlement call with EPA and Plaintiffs counsel five days earlier. See

id.at 4. The Intervenor States requested multiple times after receipt of the May 6th email a copy of

the draft proposed Consent Decree so that they may review the proposed settlement terms in the

context of the entire Consent Decree. See id.at 6. However, a copy of the proposed draft Consent

Decree was not finally offered to the Intervenor States until May 16th, (ten days later), only after the

Plaintiffs, EPA, Intervenor States and the State of North Carolina had convened a call to discuss the

principal terms of the draft proposed Consent Decree. See id. at 7.

While nothing prohibits EPA and Plaintiffs from engaging in settlement discussions separate

from the Intervenor States, to do so in light of the Intervenor States specific request to remain

engaged with all parties on settlement discussions is very troubling. Even more troubling to the

Intervenor States is that they were not presented with the proposed draft Consent Decree for review

and consideration until May 16th one business day before it was lodged with this Court and the

same day that the parties convened by telephone to discuss the proposed principal terms of the

settlement. See id.. In fact, it was not until one hour before the parties convened on a conference call

to discuss the May 6th settlement proposal that Plaintiffs counsel sent an email to the Intervenor

States stating that a copy of the proposed draft Consent Decree could be shared with the States if



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CASE NO.: 3:13-cv-03953 SI

they agreed to keep the draft Decree confidential. See id.The Consent Decree was not sent to the

Intervenor States by Plaintiffs counsel until after the May 16th call. See id.

Unfortunately, Plaintiffs counsel and EPA have elected to take the attitude that the States

can take it or leave it when it comes to the terms of the proposed Consent Decree. As detailed

here, and extensively in the Intervenor States Opening Brief on Remedy and Response-Reply to

Plaintiffs and EPAs Opening Briefs, the CAA sets forth the remedy that must be implemented by

EPA. However, even before Plaintiffs commenced their suit against EPA, the Agency was explicit

that it intended to proceed with its own preferred approach - a tiered process for making area

designations over the course of the next seven years. In its Next Steps for Area Designations and

Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, dated February 6,

20139, EPA sets forth its preferred approach and schedule for the designations process. (EPAs

Updated Strategy Paper).

In its Updated Strategy Paper, EPA also announced that it would propose a data

requirements rule, which would provide States information on implementation of new SO2air

quality monitoring networks to be established in the States. Further, States would be required to

conduct air quality modeling to determine compliance in areas that lacked monitors. The new

monitoring and/or modeling data would be used by EPA and the States to make the initial area

designations for the 2010 SO2NAAQS. For areas that would be designated based on modeling

alone, EPA would finalize designations by December 2017 three and a half years after the

Administrators non-discretionary duty to make the initial SO2NAAQS designations. For areas with

new monitors, final designations would not be promulgated until six and a half years after the June

2013 deadline, i.e., December 2020. The preferred approach set forth in EPAs Updated Strategy

9See http://www.epa.gov/airquality/sulfurdioxide/pdfs/20130207SO2StrategyPaper.pdf, (last viewed

May 20, 2014).



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Paper is virtually identical to the terms and obligations set forth in the proposed Consent Decree and

is contrary to the CAA.

The Intervenor States cannot be a party to a Consent Decree that violates the CAA. However,

while the CAA establishes the remedy that EPA must implement, that does not mean that there is no

opportunity for compromise on how quickly EPA proceeds to implement the remedy. But rather than

work cooperatively with the Intervenor States to develop a compromise that complies with the CAA,

the parties have elected to ignore the Intervenor States and have proposed a Consent Decree that

achieves Plaintiffs and EPAs agenda at the expense of the explicit mandates of the CAA.

2. The proposed Consent Decree is not reasonable.When considering whether the proposed Consent Decree is reasonable, the Court should

consider whether the Decree actually implements and furthers the goals of the underlying statute,

and whether it is in the public interest. See BP Exploration & Oil Co., 167 F.Supp.2d at 1053. As

detailed in the Intervenor States briefs before this Court, Congress was clear that EPA shall act as

expeditiously as possible, when making area designations, and that the longest EPA shall have to

act is three years from the date a NAAQS is promulgated. CAA 107(d)(1)(B)(i),42 U.S.C.

7407(d)(1)(B)(i). Congress was also clear that if EPA lacked adequate information to determine if an

area attained a NAAQS, that area would be designated unclassifiable. Because the CAA says that

EPA must complete that designation process in no more than three years, EPA cannot on its own

decide to eschew use of the unclassifiable designation and instead take more than twice as long to

get the job done. The proposed Consent Decree does not further the goals of CAA 107(d). To the

contrary, the proposed Consent Decree frustrates Congresss intent that EPA act diligently to make

area designations and that if EPA lacks sufficient information to do so within three years, that it

proceed with unclassifiable designations.



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Further, a consent decree is unreasonable when it adversely affects [the] legal rights or

interests of the nonconsenting intervenor.Lodge #93 of Fraternal Order of Police, 393 F.3d at

1107. If the proposed Consent Decree is entered, the Intervenor States rights under the citizen suit

provision, (CAA 304(a)(2), 42 U.S.C. 7604(a)(2)), will be extinguished as the Decree will

dispose of the States claims without the States ever having their claims heard in Court. The

authority vested in the Intervenor States under CAA 101(a)(3), 42 U.S.C. 7401(a)(3) and CAA

107(a), 42 U.S.C. 7407(a) to prevent and control air pollution within their borders will have been

ignored by EPA. And the duty assigned to the Intervenor States to make and submit to EPA initial

designations for the SO2NAAQS will have been tossed aside for EPAs preferred and unlawful -

approach to proceeding with area designations.

The proposed Consent Decree does not further the public interest. In CAA 107(d),

Congress provided for contingent environmental protection in the event that EPA misses a

deadline.Natural Resources Defense Council v. Reilly, 983 F.2d 259, 272 (D.C. Cir. 1993). The

contingent environmental protection here is that those areas where EPA believes it lacks sufficient

information shall be designated as unclassifiable. Congress found it necessary to take such action

because it is well aware of EPAs failure to timely meet its obligations under the CAA. [T]he

history of the Clean Air Act demonstrates that we cannot rely on EPA to follow through on even its

mandatory obligations.(statement of Senator Lieberman) 136 CONG.REC. S2,436 (daily ed. Mar.

8, 1990). EPAs long-standing unwillingness to comply with the CAA is unfortunately evident in

the proposed Consent Decree where the Agency is proposing that it be permitted to proceed with a

settlement that is contrary to the CAA. Sierra Club v. California, 658 F.Supp. 165, 175

(N.D.Cal.1987). That is not in the publics interest.

3. The proposed Consent Decree violates public policy.



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CASE NO.: 3:13-cv-03953 SI

If a consent decree contravene[s] the statute upon which initial claims are based, it violates

public policy.BP Exploration & Oil Co., 167 F.Supp.2d at 1054. As detailed in Section I supra, the

proposed Consent Decree violates CAA 107(d). As such, the proposed Consent Decree violates

public policy and must not be entered by this Court.

III.THE MAY 30 HEARING ON REMEDY MUST PROCEED.The proposed Consent Decree violates the CAA, harms the legal rights of the Intervenor

States and violates public policy. As such, the Intervenor States cannot be a party to the Decree. Nor

can this Court enter the proposed Consent Decree. Therefore, the May 30th hearing on remedy must

proceed. Because the proposed Consent Decree cannot be entered by this Court, there remains the

question of what is the remedy in this case. The parties have all fully briefed the question of remedy.

No party would be disadvantaged by proceeding with the May 30th hearing. Counsel to Intervenor

State North Dakota will appear in person before the Court on May 30th to represent the positions of

the Intervenor States. Counsel to Intervenor States Arizona, Kentucky, Louisiana, Nevada and Texas

will appear by phone.

Were this Court to remove the May 30th hearing from its calendar and grant Plaintiffs and

EPAs Motion to Stay the proceedings that would harm the Intervenor States. Without a hearing on

remedy, the Intervenor States will have no opportunity to have their claims against EPA heard.

The Intervenor States cannot be penalized for choosing not to participate in an invalid consent

decree. The Intervenor States rights should be given no less respect than the rights of parties

who negotiate a consent decree. In other words, all parties should have the right to either voluntarily

compromise a claim or litigate.Reed, 208 Cal. App. 4th at 335-36. Accordingly, because the terms

of the proposed Consent Decree are unlawful and cannot be entered by this Court, the May 30th

hearing should proceed as to all parties to this matter.



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CASE NO.: 3:13-cv-03953 SI

CONCLUSION

For all of the foregoing reasons, the Intervenor States requests that the Court enter an order

denying EPAs and Plaintiffs requested relief and proceed with the May 30th hearing on remedy.

DATED: May 22, 2014

Respectfully Submitted,

/s/ Paul M. SebyPAUL M. SEBYSpecial Assistant Attorney-GeneralMARIAN C. LARSENSpecial Assistant Attorney GeneralHOLLAND & HART LLP555 17th Street, Suite 3200P.O. Box 8749Denver, CO 80201-8749Telephone: (303) 295-8430

TIMOTHY J. CARLSTEDTSpecial Assistant Attorney-GeneralHunton & Williams LLP575 Market St., #3700San Francisco, CA 94105Telephone: (415) 975-3710

Attorneys for the State of North Dakota

NORTH DAKOTA

WAYNE STENEHJEMAttorney General

MARGARET I. OLSONAssistant Attorney GeneralOffice of Attorney General500 North 9thStreetBismarck, ND 58501-4509Telephone: (701) 328-3640

ARIZONA

THOMAS C. HORNEArizona Attorney General

/s/Monique K. CoadyMONIQUE K. COADYAssistant Attorney General1275 West Washington StreetPhoenix, Arizona 85007-2926(602) 542-8543Attorneys for the State of Arizona

KENTUCKY

C. MICHAEL HAINESExecutive DirectorCommonwealth of KentuckyEnergy and Environment Cabinet

/s/Jacquelyn A. QuarlesJACQUELYN A. QUARLESStaff AttorneyOffice of General CounselEnergy and Environment Cabinet200 Fair Oaks Lane, 1stFloorFrankfort, KY 40601Telephone: (502) 564-3999Attorneys for Commonwealth of KentuckyEnergy and Environment Cabinet

LOUISIANA

LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITY

/s/ Spencer B. BowmanSPENCER B. BOWMAN (#33515)Legal DivisionLouisiana Department of Environmental QualityP.O. Box 4302



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CASE NO.: 3:13-cv-03953 SI

Baton Rouge, LA 70821-4302Telephone: (225) 219-3985Attorneys for State of LouisianaDepartment of Environmental Quality

NEVADA

CATHERINE CORTEZ MASTONevada Attorney General

/s/Belinda A. SuweBELINDA A. SUWENevada Bar No. 12499Deputy Attorney GeneralAttorneys for State of NevadaDepartment of Conservation Natural ResourcesDivision of Environmental Protection

TEXAS

GREG ABBOTTAttorney General of Texas

DANIEL T. HODGEFirst Assistant Attorney General

JOHN B. SCOTTDeputy Attorney General for Civil Litigation

JON NIERMANNAssistant Attorney GeneralChief, Environmental Protection Division

/s/Mark L. WaltersMARK L. WALTERSAssistant Attorney GeneralCalifornia State Bar No. 160232Environmental Protection Division (MC-066)P.O. Box 12548Austin, Texas 78711-2548Telephone: (512) 463-2012Attorneys for the State of Texas



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CASE NO.: 3:13-cv-03953 SI

CERTIFICATE OF SERVICE

I, Paul M. Seby, hereby certify that a true and correct copy of the foregoing was served by

Notice of Electronic Filing this 22nd day of May, 2014, upon all registered counsel of record using

the Courts CM/ECF system.

/s/Paul M. SebyPaul M. Seby



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1DECLARATION OF PAUL M. SEBY IN SUPPORT OF INTERVENOR PLAINTIFFS THE STATE OF

NORTH DAKOTAS ET AL. RESPONSE IN OPPOSITION TO PLAINTIFFS AND EPAS NOTICE OF

LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY PROCEEDINGS

UNTIL AUGUST 1, 2014CASE NO.: 3:13-cv-03953 SI

Paul M. Seby (Admitted Pro Hac Vice)

[email protected] C. Larsen (Admitted Pro Hac Vice)

[email protected]

Holland & Hart LLP

555 17th Street, Suite 3200P.O. Box 8749

Denver, CO 80201-8749

Telephone: (303) 295-8430Facsimile: (303) 291-9177

Attorneys for Intervenor PlaintiffsThe State of North Dakota Attorney General

Wayne Stenehjem, The State of Arizona

Attorney General Tom Horne, The Commonwealth

of Kentucky Energy and Environment Cabinet,

The State of Nevada Attorney General CatherineCortez Masto, The State of Louisiana Department

of Environmental Quality, and the State of TexasAttorney General Greg Abbott

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB, et al.,

Plaintiffs,

v.

REGINA MCCARTHY, in her official capacity

as Administrator of the United States

Environmental Protection Agency,

Defendant.

CASE NO.: 4:13-CV-03953 SI

DECLARATIONOF PAUL M. SEBY IN

SUPPORT OF INTERVENOR PLAINTIFFS

THE STATE OF NORTH DAKOTA, THE

STATE OF ARIZONA, THE

COMMONWEALTH OF KENTUCKY

ENERGY AND ENVIRONMENT

CABINET, THE STATE OF

LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITY, THE

STATE OF NEVADA, AND THE

STATE OF TEXASS RESPONSE IN

OPPOSITION TO PLAINTIFFS AND EPAS

Case3:13-cv-03953-SI Document107-1 Filed05/22/14 Page1 of 4


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NOTICE OF LODGING PROPOSED

CONSENT DECREE AND MOTION TO

STAY PROCEEDINGS UNTIL AUGUST 1,

2014

Date: May 30, 2014Time: 9:00 AM

Judge: Hon. Susan Illston

Dept: 10

Complaint Filed: August 26, 2013

DECLARATION OF PAUL M. SEBY

I, Paul M. Seby, declare as follows:

1. I am a Special Assistant Attorney General for the State of North Dakota. I submit thisdeclaration in support of Intervenor-Plaintiffs the State of North Dakota, the State of

Arizona, the Commonwealth of Kentucky Energy and Environment Cabinet, the State of

Louisiana Department of Environmental Quality, the State of Nevada and the State of

Texass (the Intervenor States), Response In Opposition To Plaintiffs And EPAs

Notice of Lodging Proposed Consent Decree And Motion To Stay Proceedings Until

August 1, 2014.

2. On April 15, 2014, I confirmed via email to Plaintiffs and EPAs counsel that theIntervenor States desired to continue to engage in settlement discussions.

3. On April 30, 2014, EPAs counsel responded via email to me, Plaintiffs counsel and tothe State of North Carolinas counsel that EPA would like to participate in further

settlement discussions with the parties.

4. On May 1, 2014, I participated in a conference call with Plaintiffs counsel, EPAscounsel and the State of North Carolinas counsel to discuss whether there may exist an

opportunity to reach a reasonable compromise that complied with the Clean Air Act. No

such agreement was reached on the call, but the parties agreed to remain open to group

discussions.

Case3:13-cv-03953-SI Document107-1 Filed05/22/14 Page2 of 4


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5. On May 6, 2014, I received an e-mail from Plaintiffs counsel informing me that EPAhad been engaged in settlement discussions with Plaintiffs apart from the Intervenor

States and that the parties were close to finalizing the terms of a settlement. The

Intervenor States had not been previously made aware of EPA and Plaintiffs discussions.

6. After the May 6, 2014 email, I, and each of the other Intervenor States requested multipletimes that EPA and Plaintiffs provide the Intervenor States a copy of the draft proposed

Consent Decree.

7. On May 16, 2014, counsel to Intervenor States, EPAs counsel, Plaintiffs counsel andthe State of North Carolinas counsel participated in a conference call to discuss the

principal terms of settlement that Plaintiffs counsel sent on May 6th. One hour before

the parties convened on the call, Plaintiffs counsel sent to me an email stating that a

copy of the proposed draft Consent Decree could be shared with the Intervenor States if

they agreed to keep the draft Decree confidential. On May 16, after the conference call

was concluded, Plaintiffs counsel provided the Intervenor States with a copy of the draft

proposed Consent Decree.

8. By email dated May 19, 2014, the EPA Office of Air and Radiation (OAR) sent toEPA Regional Offices IV, VI and IX an update concerning Plaintiffs and EPAs lodging

of the proposed Consent Decree in this case. EPA Regional Offices IV, VI and IX

forwarded copies of the EPA OAR email to the Commonwealth of Kentucky and the

States of Arizona, Louisiana, Nevada and Texas. A true and correct copy of the emails

sent by EPA Regiona

north dakota et al. response to 2nd motion for summary judgment 5/22/2014 nd cal

Documents