                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                        )
AMERICAN NURSES ASSOCIATION, )
et al.,                                 )
                                        )
             Plaintiffs,                )
                                        )
        v.                              )             Civil Action No. 08-2198 (RMC)
                                        )
LISA JACKSON, Administrator, United )
States Environmental Protection Agency, )
et al.,                                 )
                                        )
             Defendants.                )
                                        )


                                  MEMORANDUM OPINION

               Plaintiffs1 complained on December 18, 2008, that Defendants Lisa Jackson,

Administrator, and the Environmental Protection Agency had failed to perform a mandatory

nondiscretionary duty under Section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2), by

failing to promulgate final maximum achievable control technology emissions standards for

hazardous air pollutants from coal- and oil-fired electric utility steam generating units (“EGUs”), as

required by Section 112(d) of the Act, 42 U.S.C. § 7412(d). The Utility Air Regulatory Group

(“UARG”), representing the utility industry, intervened as a defendant. On October 22, 2009, the

EPA filed a notice and a proposed consent decree by which this matter would be resolved. EPA

began the process of publication and receiving public comment as required by Section 113(g) of the



       1
          Plaintiffs are the American Nurses Association, Chesapeake Bay Foundation, Inc.,
Conservation Law Foundation, Environment America, Environmental Defense Fund, Izaak Walton
League of America, Natural Resources Council of Maine, Natural Resources Defense Council,
Physicians for Social Responsibility, Sierra Club, The Ohio Environmental Council, and
Waterkeeper Alliance, Inc.
Act, 42 U.S.C. § 7413(g). After receiving comments, EPA has decided not to withhold its consent

and the Department of Justice concurs. EPA thus filed its Motion to Enter Consent Decree on

February 24, 2010. See Dkt. # 25.

               Unfortunately, Plaintiffs and EPA did not consult with, or notify, Intervenor-

Defendant UARG of the proposed consent decree. UARG filed a protest to the terms of the decree,

which the parties briefed. The Court heard oral argument on April 13, 2010. For the reasons that

follow, the Court will approve the consent decree.

                                          I. ANALYSIS

               The proposed consent decree has three terms that UARG contends must be changed.

First, UARG wants Paragraph 4 of the proposed consent decree revised to eliminate the reference

to § 112(d) standards and instead require EPA to take “final agency action” by an appropriate

deadline. Second, UARG wants the deadline for the notice of proposed rulemaking extended by

three months. Third, UARG wants the time between the notice of the proposed rulemaking and the

notice of final rulemaking extended to one year, with at least four months for public comments. See

Response of Intervenor-Def. to Mot. to Enter Consent Decree [Dkt. # 26] at 5-7.

               The Court concludes that none of these objections warrants rejecting the proposed

consent decree. It is the Administrator’s legal position that she is under a mandatory, non-

discretionary duty to issue emission standards for coal- and oil-fired EGUs because they were listed

as a source category under § 112(c) of the Act, 42 U.S.C. § 7412(c), in 2000. See Defs.’ Reply [Dkt.

# 29] at 3. A consent decree is not a court “order,” Local Number 93, International Association of

Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S. 501, 519 (1986), and by entering this

consent decree the Court is only accepting the parties’ agreement to settle, not adjudicating whether


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the EPA’s legal position is correct. If necessary, UARG can challenge EPA’s final rule and its legal

position.

               UARG attacks the time frame within which EPA intends to conduct the subject

rulemaking as totally insufficient to allow the industry to participate fully. EPA has committed that

“[n]o later than March 16, 2011,” it shall sign for publication in the Federal Register a notice of

proposed rulemaking that will alert the industry to EPA’s proposed emission standards. See

Proposed Consent Decree [Dkt # 25] ¶ 3. Further, EPA has committed that “[n]o later than

November 16, 2011,” it will sign for publication its notice of final rulemaking. Id. ¶ 4. The Court

appreciates the industry’s concern that this schedule may be too hasty for the critical and expensive

regulatory decisions that will be made; however, the proposed Consent Decree allows for a change

of schedule if need be. Id. ¶ 6 (“Any provision of this Consent Decree may be modified by written

stipulation executed by counsel for the Parties and filed with the Court. In addition, any provision

of this Consent Decree may be modified by the Court upon motion by any Party to this Consent

Decree, for good cause shown, and upon consideration of any response by the non-moving Party.”).2

If the science and analysis require more time, EPA can obtain it. In the meantime, as the Plaintiffs

pointedly note, these emissions were listed in 2000 and more than a decade will have passed before

they are regulated.

               At oral argument, the Court expressed its concern that the Plaintiffs and EPA failed

completely to include UARG, despite its party status, in the negotiations leading to the proposed



       2
          As a non-party to the Consent Decree, UARG could not petition the Court directly for an
extension of the schedule. However, EPA has a duty to accommodate both Plaintiffs and the
industry as it develops any regulation; UARG could, if needed, persuade EPA to give its members
more time for comment.

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Consent Decree. Plaintiffs assured the Court that this practice is the norm and EPA cited Local

Number 93, International Association of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478

U.S. 501 (1986), in support. Local Number 93 concerned a consent decree that provided remedies

for minority firefighters who had been deprived of promotions. “Local 93 and the United States also

challenge the validity of the consent decree on the ground that it was entered without the consent of

the Union,” id. at 528, who had intervened as of right. The Court explained:

          A consent decree is primarily a means by which parties settle their disputes
          without having to bear the financial and other costs of litigating. It has
          never been supposed that one party – whether an original party, a party that
          was joined later, or an intervenor – could preclude other parties from
          settling their own disputes and thereby withdrawing from litigation. Thus,
          while an intervenor is entitled to present evidence and have its objections
          heard at the hearings on whether to approve a consent decree, it does not
          have power to block the decree merely by withholding its consent.

Id. at 528-29. UARG has raised not insubstantial concerns with the proposed Consent Decree but

the Court cannot now gauge the adequacy, or lack thereof, of the schedule. Should haste make

waste, the resulting regulations will be subject to successful challenge. If EPA has correctly

estimated the speed with which it can do the necessary data gathering and analyses, harmful

emissions will be sooner reduced. If EPA needs more time to get it right, it can seek more time.

                                       II. CONCLUSION

               For the foregoing reasons, the Court will grant EPA’s Motion to Enter Consent

Decree [Dkt. # 25] and will, on this date, execute the Consent Decree. A memorializing Order

accompanies this Memorandum Opinion.


Date: April 15, 2010                                                /s/
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge


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