North Dakota, et al. Reply to Responses on Motion to Intervene 11/18/2013 ND Cal

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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,ARIZONA, KENTUCKY, NEVADA, LOUISIANA AND TEXAS

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

Paul M. Seby (Admitted Pro Hac Vice)[email protected] C. Larsen (Admitted Pro Hac Vice)[email protected] LARSEN LLP165 Madison StreetDenver, CO 80206Telephone: 303 •248 •3772Facsimile: 720 •306 •7226

Attorneys for Proposed Plaintiff-IntervenorsThe 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 CatherineCortez 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 and NATURAL RESOURCESDEFENSE COUNCIL,

Plaintiffs,

v.

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

Defendant.

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

REPLY IN SUPPORT OF MOTION TOINTERVENE AS PLAINTIFFS BY THESTATES OF NORTH DAKOTA, ARIZONA,KENTUCKY, NEVADA, LOUISIANA ANDTEXAS

Date: December 13, 2013Time: 9:00 AMJudge: Hon. Susan IllstonDept: 10

Complaint Filed: August 26, 2013

Case3:13-cv-03953-SI Document67 Filed11/18/13 Page1 of 15

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28REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,

ARIZONA, KENTUCKY, NEVADA, LOUISIANA AND TEXASCASE NO.: 4:13-cv-03953 SI

THE STATE OF NORTH DAKOTAATTORNEY GENERALWayne Stenehjem, Attorney GeneralMargaret I. Olson (Admitted Pro Hac Vice)[email protected] of Attorney General500 North 9th StreetBismarck, 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 ViceAssistant Attorney General1275 West Washington StreetPhoenix, Arizona 85007-2926Telephone: (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 78711-2548Telephone: (512) [email protected]

CATHERINE CORTEZ MASTO, AttorneyGeneralBELINDA A. SUWE (NV Bar 12499)

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


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INTRODUCTION

This court should grant the Motion to Intervene as Plaintiffs filed by the States of North

Dakota, Arizona, Kentucky, Nevada, Louisiana and Texas (“Intervening States”) because the

Intervening States have a significant protectable interest in the subject matter of Plaintiffs’

Complaint, and that interest could be substantially impaired by the outcome of this case. Further,

neither Plaintiffs nor Defendant the U.S. Environmental Protection Agency (“EPA”) adequately

represent the Intervening States’ interests. As such, the Intervening States are entitled to intervene as

of right in this action under Fed. R. Civ. P. 24(a) or, in the alternative, should be granted permissive

intervention under Fed. R. Civ. P. 24(b).

ARGUMENT

I. The Intervening States Have A Concrete and Unique Interest in the Clean Air ActImplementation Process At Issue In This Case.

Contrary to the claims of Plaintiffs and EPA in their Responses [Plaintiffs’ Resp. at 4; EPA’s

Resp. at 6], the Intervening States have a particularized interest in the matters before this Court, and

that interest is not primarily economic. Intervening States’ primary interest in this case is sovereign

and with respect to ensuring the implementation of the Clean Air Act (“CAA” or “Act”), 42 U.S.C.

§§ 7409(d)(1), 7604(a)(2) (2013). In particular, the Intervening States are responsible for

implementing the national ambient air quality standards (“NAAQS”) that EPA adopts in order to

protect the health and welfare of their respective citizens.

Intervening States’ sovereign interest in the NAAQS implementation process arises out of the

specific role assigned to them by Congress. 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 States and local governments.” CAA § 101(a)(3), 42 U.S.C.


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§ 7401(a)(3) (2013) (emphasis added). “Each State shall have the primary responsibility for assuring

air quality within the entire geographic area comprising such State . . . .”. CAA § 107(a), 42 U.S.C. §

7407(a) (2013). This gives Intervening States the primary responsibility for implementing the

revised sulfur dioxide (“SO2”) NAAQS. See Am. Lung Ass'n v. E.P.A., 134 F.3d 388, 389 (D.C. Cir.

1998) (The CAA clearly vests the States with the “primary responsibility for attaining, maintaining,

and enforcing these [SO2 NAAQS]. See 42 U.S.C. § 7410.”).

Not only do Intervening States have a general interest in CAA implementation, but also they

have a particular interest in the process for designating areas as attaining the SO2 NAAQS, as not

attaining the NAAQS, or as being unclassifiable and when EPA completes the NAAQS designation

process. Specifically, the Intervening States are required under the CAA to submit their

recommended area designations to EPA within one year of the promulgation of a new NAAQS, and

it is these designations that EPA has a nondiscretionary duty to act upon within three years. CAA §

107(d), 42 U.S.C. § 7407(d) (2013). The Intervening States are the entities obligated by the CAA to

actually write and administer State Implementation Plans (“SIP”) necessary to achieve and maintain

the SO2 NAAQS for the benefit of all their citizens, not just Plaintiffs’ members. The CAA provides

that the Intervening States, (not the Plaintiffs and not EPA), are the primary entities to provide the

proper balance of environmental, economic and other interests in meeting the NAAQS. Plaintiffs’

and EPA’s argument that the Intervening States assert only an interest in the results of the EPA’s

action (attainment, nonattainment or unclassifiable) fails to consider the unique position of the

Intervening States pursuant to the CAA and mischaracterizes the Intervening States’ interests in this

suit. Plaintiffs’ Resp. at 5; EPA’s Resp. at 9.

The applicable standard for determining whether a proposed intervenor has a protectable

interest pursuant to Fed. R. Civ. Pro. 24(a), is whether the “interest is protectable under some law,

and that there is a relationship between the legally protected interest and the claims at issue.”


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Wilderness Society v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir.2011), quoting Sierra Club

v. EPA, 995 F.2d 1478, 1481, 1484 (9th Cir. 1993) (abrogated on other grounds by Wilderness

Soc’y). Because the CAA gives States such broad and primary authority to accomplish the goals of

the statute, States possess an “interest independent of and behind the titles of [their] citizens, in all

the earth and air within [their] domain.” Massachusetts v. EPA, 549 U.S. 497, 518-19 (2007)

(quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907)). In Massachusetts, the

Supreme Court noted the “considerable relevance” assigned to a sovereign State seeking review of a

matter related to their authority to protect the environment within their borders. Id. Under the federal

system, the States are afforded such distinction, because they “are not relegated to the role of mere

provinces or political corporations, but retain the dignity, though not the full authority, of

sovereignty”. Id. at 519.

Further, the Ninth Circuit has held that a local government has a protectable interest where

EPA is identifying sources of pollution that the local government must at some point in the future

control. In Sierra Club, the City of Phoenix sought to intervene in a case brought against EPA in

which the Sierra Club asserted that EPA had a duty under the Clean Water Act “to promulgate

regulations establishing water quality standards…” and to review and “make a final decision on the

[State of Arizona’s] lists of [impaired waters], and to implement control strategies.” Sierra Club at

1480. The City of Phoenix sought to intervene as a matter of right in the Sierra Club’s suit since the

City operated two wastewater treatment facilities which were to be affected by EPA’s action. See id.

The Court concluded that not only did the City’s ownership of the two wastewater facilities result in

it having a protectable interest, but so too was the City’s obligation to implement control strategies

for pollution sources identified by EPA on the impaired waters list. Id. at 1486.

The Intervening States each have areas within their borders that are required to be designated

by EPA. EPA’s promulgation of those designations could “result in a practical impairment of the


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[States’] interests” if those designations are contrary to the States’ recommendation. Id. While EPA

and Plaintiffs assert in their Responses that Plaintiffs’ suit seeks nothing more than to impose a

schedule by which EPA must act, the fact of the matter is that the schedule pertains specifically to

recommended designations submitted by the Intervening States to EPA. This alone demonstrates that

the Intervening States have a protectable interest at issue in this lawsuit.

Thus, contrary to the claims of Plaintiffs and EPA in their Reponses [Plaintiffs’ Resp. at 2, 6;

EPA Resp. at 7, 9], the Intervening States are much more than mere spectators whose interests are

“vague and speculative” or whose interests are primarily economic. Intervening States have a

“special position and interest” – indeed, a sovereign interest – in the pending NAAQS

implementation process and issues. Massachusetts, 549 U.S. at 518.

II. Intervening States’ Interests Differ From Those of Plaintiffs and EPA.

Intervening States have a particular interest in when EPA completes the process for

designating areas as attaining the SO2 NAAQS, as not attaining the NAAQS, or as being

unclassifiable: they want the NAAQS designation process to be completed as soon as possible. This

position is not shared by EPA or Plaintiffs.

A. Why the Intervening States Want the NAAQS Designation ProcessCompleted As Soon As Possible

Until EPA acts on the Intervening States recommended SO2 area designations, the States do

not know whether their individual SO2 programs are adequate or whether such programs are

inadequate, thus requiring the disruptive diversion of resources from other valuable environmental

protection work being done by the States. Until EPA completes the SO2 NAAQS designation

process, States do not know whether they may continue to issue preconstruction permits under the

prevention of significant deterioration of air quality program (CAA §§ 160-169, 42 U.S.C. §§ 7470-

7479 (2013)) or whether they will be told in the midst of the permitting process that they must


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switch and instead process new source construction permits under the CAA’s more onerous

nonattainment area new source review preconstruction permitting program, which is applicable in

nonattainment areas (CAA §§ 171-179, 42 U.S.C. §§ 7501-7509 (2013)).

Just as Plaintiffs claim to find EPA’s delay in making SO2 area designations for the country

harmful because it delays the “health and welfare protections to which Plaintiffs’ members are

entitled,” so too is the delay harmful to the Intervening States. Plaintiffs’ Resp. at 1. And Intervening

States are responsible for protecting the health and welfare of all their citizens, not just Plaintiffs’

members.

B. The Intervening States Have an Interest in the Prompt Completion of theNAAQS Designation Process Which Can Only Be Protected If They AreGranted Intervention.

While admitting that it has “not yet discharged all of its nondiscretionary duties under CAA

sections 107(d)(1)(B)(i) and (d)(2)(A),” EPA’s Resp. to Plaintiffs’ Mot. For Summary Judgment at 5

(Doc. No. 63), and while recognizing that the appropriate remedy for EPA’s failure is for this Court

to issue “an order requiring EPA to perform [its nondiscretionary] duty,” id. at 7, EPA does not then

indicate that it is ready to proceed immediately to the promulgation of final area designations.

Rather, EPA asks for additional time – perhaps a substantial amount of additional time – to complete

a task that should have been completed months ago. Specifically, EPA asks that any order by this

court include a “schedule for EPA action” that “should ensure that the Agency has sufficient time to

consider the data and information as well as the relevant technical and legal issues.” Id. (emphasis

added).

Congress, however, explicitly chose not to give EPA the authority to delay the NAAQS

designation process just because the Agency may be uncertain whether an area should be designated

“attainment.” Rather Congress explicitly stated that where “any area cannot be classified on the basis

of available information as meeting or not meeting” a particular NAAQS, then the area should be


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designated as “unclassifiable.” CAA § 107(d)(1)(A)(iii), 42 U.S.C. § 7407(d)(1)(A)(iii) (2013). And

thereafter, if information becomes available and demonstrates that the area is attaining the NAAQS

or is failing to attain the NAAQS, then the area can be redesignated, respectively, as “attainment” or

“nonattainment.” CAA § 107(d)(3), 42 U.S.C. § 7407(d)(3) (2013).

In short, the position of Intervening States in the pending litigation differs from that of EPA

and that of Plaintiffs. Those parties would apparently be comfortable with a NAAQS designation

schedule that would allow the Agency to take more time to consider more information (possibly

including yet-to-be-developed information) and to further analyze legal and technical issues. In

contrast, the Intervening States – consistent with CAA § 107(d)(1)(A)(iii), 42 U.S.C. § 7407(d)

(1)(A)(iii) (2013) – believe EPA is required to complete the NAAQS designation process

immediately, based on the information now available to the Agency. Only if this happens, will the

Intervening States see an end to living in a position of uncertainty as to whether their SO2 NAAQS

compliance programs and permitting programs are sufficient. The Intervening States are not seeking

to “avoid[ ] additional regulation” as the Plaintiffs allege. Plaintiff’s Resp. at 7. To the contrary, the

Intervening States take very seriously their specific and unique role under the CAA to implement the

SO2 NAAQS in their borders. The longer EPA is given to delay and not act on the Intervening States

timely submitted recommended SO2 area designations, the longer the Intervening States are harmed.

III. Intervening States’ Protectable Interests Can Only Be Protected If They AreGranted Intervention.

Also without merit are EPA’s claims [EPA Resp. at 12; Plaintiff Resp. at 8] that it is

unnecessary for the States to be granted intervention status because (a) EPA does not – in settling

deadline cases – go beyond just setting a date by which it must act to perform a nondiscretionary

duty; and (b) Intervening States’ interests are adequately protected by the provisions of CAA section


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113(g), 42 U.S.C. § 7413(g) (2013), which allows for public comment on settlements to which the

United States is a party.

EPA’s assurances are hollow. In fact, in settling deadline cases (like this case), EPA has

entered into agreements that go beyond dictating that the Agency will act by a date certain. For

example, in the matter of Environmental Defense v. Stephen L. Johnson, Acting Administrator, Case

No. 03-01737-RMU (D.D.C. August 15, 2003), EPA not only agreed to promulgate the Best

Available Retrofit Technology (“BART”) Rule by a specific date (see Exhibit A at 2), but EPA also

agreed to conduct “additional technical analyses in developing the final BART rule.” Also, in the

matter of National Parks Conservation Association et al. v. Lisa Jackson, Administrator 1: 11-cv-

01548 (ABJ) (D.D.C. August 29, 2011), EPA and Plaintiffs went beyond just setting a date by which

EPA would decide whether a State had submitted an adequate plan for implementing CAA

provisions, but also EPA agreed (see Ex. B. at 5) that the Agency could propose a separate federal

plan for addressing Plaintiffs’ concerns.

In addition, the section 113(g) comment process would not protect the Intervening States’

interests in this case. Section 113(g) merely allows the general public to “comment in writing” on a

proposed settlement agreement; EPA retains sole discretion to withdraw or withhold consent to the

settlement. CAA § 113(g), 42 U.S.C. § 7413(g) (2013). The Intervening States are unaware of any

case in which public participation through the section 113(g) comment process has led to the

withdrawal or material revision of a proposed settlement agreement involving EPA. Moreover,

section 113(g) would not provide commenters a role in any potential modifications to a settlement

agreement once it is made final, depriving the Intervening States of input on any efforts by EPA to

extend the agreed-upon deadlines. Therefore, the CAA’s provisions regarding public comment on

EPA settlement agreements do not adequately protect the Intervening States’ interests.


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In short, without a seat at the settlement table, the Intervening States are left with the

prospect of having EPA delay acting on their recommended designations for an indefinite amount of

time. That is not what Congress envisaged when it enacted the CAA’s area designation provisions

and when it directed that the States and the federal government were to work cooperatively to

combat air pollution in the country.

IV. The Intervening States Do Not Share a Common Interest With Plaintiffs or EPA.

Neither Plaintiffs nor EPA will adequately represent the Intervening States’ procedural

interest in this case. EPA’s argument that the Intervening States have not articulated “how their

professed interest in an expeditious schedule … differs from that of the Plaintiffs” (EPA Resp. at 13)

is fundamentally flawed. Just because both Plaintiffs and Intervening States both seek to have the

CAA enforced does not mean that they have similar interests. Plaintiffs and EPA fail to acknowledge

that the required showing of inadequate representation is “minimal” and that the States need only

demonstrate that their representation by current parties “may be” inadequate. Arakaki v. Cayetano,

324 F.3d 1078, 1086 (9th Cir. 2003) (internal citation omitted). Although the burden is higher where

the proposed intervenor and an existing party share the same “ultimate objective,” id., as detailed

above the Intervening States, Plaintiffs and EPA do not share a common ultimate objective in this

case.

V. In the Alternative, This Court Should Grant Permissive Intervention.

The Intervening States satisfy all of the requirements for permissive intervention under Rule

24(b)(1)(B). See Mot. to Intervene at 34; see also Fed. R. Civ. P. 24(b)(1)(B). If Intervening States

are not granted intervention as of right, this Court should grant permissive intervention in the

alternative. Contrary to Plaintiffs’ assertions, the Intervening States do have a significant protectable

interest in this matter and the States’ interests are directly relevant to the claim raised by Sierra Club.

Plaintiffs’ Resp. at 10. Accordingly, Intervening States are not required to show an independent


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basis for jurisdiction, and their defenses share common questions of law and fact with Plaintiffs’

claims justifying permissive intervention. See Ctr. for Biological Diversity v. Lubchenco, No. 09-

04087 EDL, 2010 WL 1038398, at *10 (N.D. Cal. Mar. 19, 2010) (granting permissive intervention

in remedy phase of litigation).

VI. Conditioning The Terms Of The Intervening States Intervention Is Not Necessary.

Plaintiffs ask that if the Court grants the Intervening States Motion to Intervene, that the

States of North Dakota, Nevada and Texas should “not be allowed to seek relief in this Court while

they are simultaneously seeking relief on the same or similar grounds in the District of North

Dakota.” Plaintiffs’ Resp. at 11. Similarly, Plaintiffs ask the Court to condition the remaining

Intervening States intervention on the condition that they “not pursue[ ] in other courts the same

claims they seek to present here.” Id. In deciding whether the Intervening States are entitled to

intervene as of right pursuant to Fed. R. Civ. P. 24(a), or in the alternative should be granted

permissive intervention under Fed. R. Civ. P. 24(b), the Court should not determine whether the case

brought by North Dakota, Nevada and Texas in the U.S. District of North Dakota should or should

not proceed. Nor should the Court limit the remaining Intervening States ability to bring suit against

EPA on the issues that are before this Court. All the Intervening States are seeking is to intervene in

this matter so that they may protect their significant and legally cognizable interests.

CONCLUSION

For the reasons set forth above, the Intervening States respectfully request the Court grant its

Motion to Intervene as Plaintiffs without any restrictions on participation in the case.


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DATED: November 18, 2013

Respectfully Submitted,

/s/ Paul M. SebyPAUL M. SEBYSpecial Assistant Attorney-GeneralMARIAN C. LARSENSpecial Assistant Attorney GeneralSeby Larsen LLP165 Madison StreetDenver, CO 80206Telephone: (303) 248-3772

TIMOTHY J. CARLSTEDTSpecial Assistant Attorney-GeneralHunton & Williams LLP575 Market St., #3700San Francisco, CA 94105Telephone: (415) 975-3710Attorneys for the State of North Dakota

NORTH DAKOTA

WAYNE STENEHJEMAttorney General

MARGARET I. OLSONAssistant Attorney GeneralOffice of Attorney General500 North 9th StreetBismarck, 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, 1st FloorFrankfort, KY 40601Telephone: (502) 564-3999Attorneys for Commonwealth of KentuckyEnergy and Environment Cabinet


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LOUISIANA

LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITY

/s/ Spencer B. BowmanSPENCER B. BOWMAN (#33515)Legal DivisionLouisiana Department of Environmental QualityP.O. Box 4302Baton 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. 160232


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Environmental Protection Division (MC-066)P.O. Box 12548Austin, Texas 78711-2548Telephone: (512) 463-2012Attorneys for the State of Texas


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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 18th day of November, 2013, upon all registered counsel of record

using the Court’s CM/ECF system.

/s/Paul M. SebyPaul M. Seby


EXHIBIT A

Case3:13-cv-03953-SI Document67-1 Filed11/18/13 Page1 of 4

Pursuant to Fed. R. Civ. 25(d)(1), Mr. Johnson is substituted for his predecessor in office,/1

Michael O. Leavitt.

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

____________________________________)

ENVIRONMENTAL DEFENSE, ))

Plaintiff, ))

v. ) Case No.: 03-01737 (RMU) )

STEPHEN L. JOHNSON, Acting ) Administrator, United States )

and Environmental Protection Agency, )/1

UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY )

)Defendants. )

____________________________________)

STIPULATED MODIFICATION OF CONSENT DECREE

WHEREAS, the Court entered a Consent Decree in this matter on August 3, 2004,

pursuant to motions filed by plaintiff Environmental Defense (“ED”) and defendants Stephen L.

Johnson, Acting Administrator of the United States Environmental Protection Agency, and the

United States Environmental Protection Agency (collectively “EPA”);

WHEREAS, Paragraph 2.b.i. of the Consent Decree provides that, no later than April 15,

2005, EPA must sign for publication in the Federal Register a notice of final rulemaking setting

forth the final “BART Rule,” which is defined in Paragraph 1 of the Consent Decree as the final

regulations and guidelines that are required to be promulgated and published in the Federal

Register by the Administrator pursuant to sections 169A(a)(4), 169A(b) and 169B(e) of the Clean

Air Act (“CAA”), 42 U.S.C. §§ 7491(a)(4), 7491(b) and 7492(e);

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WHEREAS, Paragraph 3 of the Consent Decree provides that ED and EPA may extend

the deadlines established in Paragraph 2 by written stipulation executed by counsel for the Parties

and filed with the Court;

WHEREAS, EPA intends to take final action by November 8, 2005, in response to the

D.C. Circuit’s remand in Center for Energy and Economic Development v. EPA, 398 F.3d 653

(D.C. Cir. 2005);

WHEREAS, EPA has committed to conduct additional technical analyses in developing

the final BART Rule;

NOW THEREFORE, ED and EPA agree and stipulate that Paragraph 2.b.i. of the

Consent Decree shall be modified as follows to extend the deadline for EPA’s signature from

April 15, 2005, to June 15, 2005;

2.b. i. No later than June 15, 2005, EPA shall sign for publication in

the Federal Register a notice of final rulemaking setting forth its final BART

Rule.

SO AGREED:

Date: April 15, 2005 KELLY A. JOHNSONActing Assistant Attorney GeneralEnvironment and Natural Resources Division

/s/ Eileen T. McDonoughEILEEN T. MCDONOUGHEnvironmental Defense SectionU.S. Department of JusticeP.O. Box 23986Washington, D.C. 20026-3986(202) 514-3126


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M. LEA ANDERSONOffice of General Counsel (2344A)U.S. Environmental Protection Agency1200 Pennsylvania Avenue, N.W.Washington, D.C. 20460(202) 564-5571

Date: April 15, 2005 /s/ David S. BaronDAVID S. BARON Earthjustice 1625 Massachusetts Ave., N.W.Suite 702Washington, D.C. 20036-2212(202) 667-4500


EXHIBIT B

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Case 1:11-cv-01548-ABJ Document 21 Filed 03/30/12 Page 1 of 11Case3:13-cv-03953-SI Document67-2 Filed11/18/13 Page2 of 12

North Dakota, et al. Reply to Responses on Motion to Intervene 11/18/2013 ND Cal

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