IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

States of North Dakota, South Dakota, )Nevada, and Texas, )

)Plaintiffs, ) ORDER GRANTING DEFENDANT’S

) MOTION TO HOLD CASE IN vs. ) ABEYANCE

)Regina McCarthy, in her official capacity as )as Administrator of the United States )Environmental Protection Agency, ) Case No. 1:13-cv-109

)Defendant. )

______________________________________________________________________________

Before the Court is Defendant Regina McCarthy, Administrator of the United States

Environmental Protection Agency (“EPA”), motion to hold the case in abeyance, filed on February

14, 2014. See Docket No. 19. Plaintiffs North Dakota, South Dakota, Nevada, and Texas filed

responses in opposition to the motion on March 21, 2014. See Docket Nos. 22 and 23. The

Plaintiffs filed an amended response on April 4, 2014. See Docket No. 25. The EPA filed a reply

brief on April 4, 2013. See Docket No. 26. For the reasons explained below, the motion is granted.

I. BACKGROUND

This case concerns claims by the Plaintiffs that the EPA failed to perform a nondiscretionary

action under the federal Clean Air Act, 42 U.S.C. § 7401 et. seq. Specifically, the Plaintiffs allege

the EPA has failed to designate areas of the country as attaining, not attaining, or unclassifiable

under the revised National Ambient Air Quality Standard (“NAAQS”) for sulfur dioxide (“SO2”)

as required by Section § 7407(d)(1)(B) of the Clean Air Act. The Clean Air Act’s citizen suit

provision allows any person to sue in district court to compel the EPA’s Administrator to perform

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any nondiscretionary act or duty under the Clean Air Act. 42 U.S.C. § 7604(a)(2) (“The district

courts shall have jurisdiction . . . to order the Administrator to perform such [nondiscretionary act

or duty under the CAA].)” The Plaintiffs seek to compel the EPA to take the action mandated by

the Clean Air Act. There is little dispute that the EPA has failed to make the required designations.

Rather, the debate centers on the appropriate remedy. Settlement discussions have thus far been

unsuccessful.

Actions have been filed against the EPA in three different federal district courts seeking to

compel the EPA to perform the nondiscretionary duty at issue. The Sierra Club and Natural

Resources Defense Council, Inc. filed the first complaint in the Northern District of California on

August 26, 2013. Sierra Club et al. v. McCarthy, N.D. Cal. Case No. 13-cv-3953-SI. The Plaintiffs

in this action filed their complaint on September 12, 2013. The State of North Carolina filed a

complaint in the Eastern District of North Carolina on October 9, 2013. State of North Carolina v.

McCarthy, E.D.N.C. Case No. 5:13-cv-710-F.

Motions to intervene as plaintiff-intervenors in the California case were filed by three of the

Plaintiffs in this case (North Dakota, Nevada, and Texas), as well as North Carolina, Arizona,

Kentucky, and Louisiana. The motions to intervene were granted on December 6, 2013. In the same

order granting the motions to intervene, the Court granted Plaintiffs Sierra Club and the Natural

Resources Defense Council’s motion for summary judgment on the issue of liability. The Court

directed the parties to confer on the issue of a remedy but no agreement could be reached. Briefing

on the remedy issue was to be completed by May 14, 2014. A hearing is scheduled for May 30,

2014.

In the North Carolina case, the State of North Carolina filed an unopposed motion to hold

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the action in abeyance pending the outcome of the California case. North Carolina’s motion was

made on the same grounds as the EPA’s motion in this case. The federal court granted that motion

on January 8, 2014, and ordered that the parties file a status report no later than May 8, 2014.

II. LEGAL DISCUSSION

It is well-established that a trial court has the inherent power to stay proceedings in order to

control its docket, conserve judicial resources, and ensure that matters are handled with economy

of time and effort for itself, counsel, and the parties. United States v. Minnkota Power Co-op., Inc.,

831 F. Supp. 2d 1109, 1118 (D.N.D. 2011) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).

The decision to stay proceedings involves an exercise of judgment, which must weigh competing

interests and maintain an even balance. Id. at 1118. The party requesting a stay has the burden to

demonstrate a clear case of hardship or inequity if required to go forward, and consideration must

be given to whether the stay will work damage to another party. Id.

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. The California case will almost certainly be decided

before this Court could reach a resolution because summary judgment has already been granted on

the issue of liability and briefing is complete on the remedy issue. The Court notes the California

case was the first federal case filed addressing the failure of the EPA to issue area designations for

SO2 NAAQS. Further, three of the four Plaintiffs in this case are parties in the California litigation.

By staying this action, duplicative litigation proceeding in two federal district courts can be avoided

and scarce judicial resources can be conserved. The resources of the parties will be conserved as

well. The Court recognizes that a stay of this matter is not to South Dakota’s advantage. However,

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South Dakota could have easily intervened in the California case. Judicial economy must prevail

under these circumstances and the Court retains the option of reopening this case if circumstances

warrant.

III. CONCLUSION

After a careful review of the entire record the Court finds that a stay is warranted. For the

reasons set forth above, the Court GRANTS the EPA’s motion to hold the case in abeyance (Docket

No. 19) and ORDERS as follows:

1) This matter is stayed until further order of the Court.

2) All pending deadlines be shall continued.

3) The parties shall file a joint status report within 120 days of the date of this order, setting

forth any developments in the California case (or any other related matter) that may affect the status

of this case.

4) Any party may at any time move this Court for an order terminating, in whole or in part,

the order of the Court staying the matter.

IT IS SO ORDERED.

Dated this 13th day of May, 2014.

/s/ Daniel L. Hovland Daniel L. Hovland, District JudgeUnited States District Court

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