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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)
paul.seby@sebylarsen.com
Marian C. Larsen (Admitted Pro Hac Vice)
mimi.larsen@sebylarsen.com
SEBY LARSEN LLP
165 Madison Street
Denver, CO 80206
Telephone: 303 •248 •3772
Facsimile: 720 •306 •7226
Attorneys for Proposed Plaintiff-Intervenors
The 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 Catherine
Cortez Masto, The State of Louisiana Department
of Environmental Quality, and the State of Texas
Attorney General Greg Abbott
[Counsel Listing Continued on Next Page]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SIERRA CLUB and NATURAL RESOURCES
DEFENSE COUNCIL,
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
REPLY IN SUPPORT OF MOTION TO
INTERVENE AS PLAINTIFFS BY THE
STATES OF NORTH DAKOTA, ARIZONA,
KENTUCKY, NEVADA, LOUISIANA AND
TEXAS
Date: December 13, 2013
Time: 9:00 AM
Judge: Hon. Susan Illston
Dept: 10
Complaint Filed: August 26, 2013
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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
THE STATE OF NORTH DAKOTA
ATTORNEY GENERAL
Wayne Stenehjem, Attorney General
Margaret I. Olson (Admitted Pro Hac Vice)
maiolson@nd.gov
Office of Attorney General
500 North 9
th
Street
Bismarck, ND 58501-4509
Telephone: (701) 328-3640
Facsimile: (701) 328-4300
HUNTON & WILLIAMS LLP
Timothy J. Carlstedt (SBN 168855)
tCarlstedt@hunton.com
550 South Hope Street, Suite 2000
Los Angeles, CA 90071-2627
Telephone: (213) 532-2000
Facsimile: (213) 532-2020
THE COMMONWEALTH OF KENTUCKY
ENERGY AND ENVIRONMENT CABINET
C. MICHAEL HAINES (KY Bar 27872)
Executive Director
JACQUELYN A. QUARLES (KY Bar 90400)
Pro Hac Vice
Staff Attorney,
Office of General Counsel
Energy and Environment Cabinet
200 Fair Oaks Lane, 1st Floor
Frankfort, KY 40601
Telephone: (502) 564-3999
Mike.Haines@ky.gov
Jackie.Quarles@ky.gov
THOMAS C. HORNE
ATTORNEY GENERAL
MONIQUE K. COADY (AZ Bar 025416)
Pro Hac Vice
Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
Telephone: (602) 542-8543
Facsimile: (602) 542-7798
monique.coady@azag.gov
LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY
SPENCER B. BOWMAN (LA Bar 33515)
Pro Hac Vice
Louisiana Department of Environmental Quality,
Legal Division
602 N. 5th St.
Baton Rouge, LA 70821-4302
Telephone: (225) 219-3985
spencer.bowman@la.gov
GREG ABBOTT, Attorney General
MARK L. WALTERS (CA Bar 160232)
Assistant Attorney General
Environmental Protection Division
(MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
mark.walters@texasattorneygeneral.gov
CATHERINE CORTEZ MASTO, Attorney
General
BELINDA A. SUWE (NV Bar 12499)
Pro Hac Vice
Deputy Attorney General
Nevada Office of Attorney General
100 North Carson Street
Carson City, NV 89701
Telephone: (775) 684-1163
bsuwe@ag.nv.gov
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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
1
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 Act
Implementation 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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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CASE NO.: 4:13-cv-03953 SI
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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 (“SO
2
”) 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 [SO
2
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 SO
2
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 SO
2
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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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
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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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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CASE NO.: 4:13-cv-03953 SI
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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 SO
2
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 Process
Completed As Soon As Possible
Until EPA acts on the Intervening States recommended SO
2
area designations, the States do
not know whether their individual SO
2
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 SO
2
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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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CASE NO.: 4:13-cv-03953 SI
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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 SO
2
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 the
NAAQS Designation Process Which Can Only Be Protected If They Are
Granted 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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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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 SO
2
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
SO
2
NAAQS in their borders. The longer EPA is given to delay and not act on the Intervening States
timely submitted recommended SO
2
area designations, the longer the Intervening States are harmed.
III. Intervening States’ Protectable Interests Can Only Be Protected If They Are
Granted 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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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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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REPLY IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATES OF NORTH DAKOTA,
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CASE NO.: 4:13-cv-03953 SI
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DATED: November 18, 2013
Respectfully Submitted,
/s/ Paul M. Seby
PAUL M. SEBY
Special Assistant Attorney-General
MARIAN C. LARSEN
Special Assistant Attorney General
Seby Larsen LLP
165 Madison Street
Denver, CO 80206
Telephone: (303) 248-3772
TIMOTHY J. CARLSTEDT
Special Assistant Attorney-General
Hunton & Williams LLP
575 Market St., #3700
San Francisco, CA 94105
Telephone: (415) 975-3710
Attorneys for the State of North Dakota
NORTH DAKOTA
WAYNE STENEHJEM
Attorney General
MARGARET I. OLSON
Assistant Attorney General
Office of Attorney General
500 North 9
th
Street
Bismarck, ND 58501-4509
Telephone: (701) 328-3640
ARIZONA
THOMAS C. HORNE
Arizona Attorney General
/s/ Monique K. Coady
MONIQUE K. COADY
Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
(602) 542-8543
Attorneys for the State of Arizona
KENTUCKY
C. MICHAEL HAINES
Executive Director
Commonwealth of Kentucky
Energy and Environment Cabinet
/s/ Jacquelyn A. Quarles
JACQUELYN A. QUARLES
Staff Attorney
Office of General Counsel
Energy and Environment Cabinet
200 Fair Oaks Lane, 1
st
Floor
Frankfort, KY 40601
Telephone: (502) 564-3999
Attorneys for Commonwealth of Kentucky
Energy and Environment Cabinet
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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
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LOUISIANA
LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY
/s/ Spencer B. Bowman
SPENCER B. BOWMAN (#33515)
Legal Division
Louisiana Department of Environmental Quality
P.O. Box 4302
Baton Rouge, LA 70821-4302
Telephone: (225) 219-3985
Attorneys for State of Louisiana
Department of Environmental Quality
NEVADA
CATHERINE CORTEZ MASTO
Nevada Attorney General
/s/ Belinda A. Suwe
BELINDA A. SUWE
Nevada Bar No. 12499
Deputy Attorney General
Attorneys for State of Nevada
Department of Conservation Natural Resources
Division of Environmental Protection
TEXAS
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JOHN B. SCOTT
Deputy Attorney General for Civil Litigation
JON NIERMANN
Assistant Attorney General
Chief, Environmental Protection Division
/s/ Mark L. Walters
MARK L. WALTERS
Assistant Attorney General
California State Bar No. 160232
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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
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Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Attorneys for the State of Texas
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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
13
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. Seby
Paul M. Seby
Case3:13-cv-03953-SI Document67 Filed11/18/13 Page15 of 15
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 COURT
FOR 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);
Case 1:03-cv-01737-RMU Document 28 Filed 04/15/05 Page 1 of 3 Case3:13-cv-03953-SI Document67-1 Filed11/18/13 Page2 of 4
2
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. JOHNSON
Acting Assistant Attorney General
Environment and Natural
Resources Division
/s/ Eileen T. McDonough
EILEEN T. MCDONOUGH
Environmental Defense Section
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 20026-3986
(202) 514-3126
Case 1:03-cv-01737-RMU Document 28 Filed 04/15/05 Page 2 of 3 Case3:13-cv-03953-SI Document67-1 Filed11/18/13 Page3 of 4
3
M. LEA ANDERSON
Office of General Counsel (2344A)
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
(202) 564-5571
Date: April 15, 2005 /s/ David S. Baron
DAVID S. BARON
Earthjustice
1625 Massachusetts Ave., N.W.
Suite 702
Washington, D.C. 20036-2212
(202) 667-4500
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EXHIBIT B
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