North Carolina Response to 2nd Motion for Summary Judgment 5/22/2014 ND Cal

Plaintiff-Intervenor North Carolinas Case No.: 3:13-cv-03953 (SI) Opposition to Administrative Motion to Stay Proceedings

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Marc Bernstein (admitted pro hac vice)

Special Deputy Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

NC State Bar No. 21642

Phone Number: (919)716-6956

Fax Number: (919) 716-6764

E-mail Address: [email protected]

Michael N. Westheimer (State Bar No. 178938)

Buchalter Nemer, PC

55 Second Street, Suite 1700

San Francisco, CA 94105-3493

Phone Number: (415) 227-0900

Fax Number: (415) 904-3111


Attorneys for the State of North Carolina, Plaintiff-Intervenor

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO

SIERRA CLUB and NATURAL

RESOURCES DEFENSE COUNCIL,

Plaintiffs,

and

THE STATE OF NORTH CAROLINA et al.,

Plaintiff-Intervenors,

v.

GINA MCCARTHY, in her official capacity as

Administrator of the United States

Environmental Protection Agency,

Defendant.

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Case No.: 3:13-cv-03953 (SI)

Plaintiff-Intervenor North Carolinas Opposition to Administrative Motion

to Stay Proceedings

Judge: Hon. Susan Illston

Case3:13-cv-03953-SI Document110 Filed05/22/14 Page1 of 14

Plaintiff-Intervenor North Carolinas Case No.: 3:13-cv-03953 (SI) Opposition to Administrative Motion to Stay Proceedings Page i

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

ISSUE TO BE DECIDED .............................................................................................................. 1

INTRODUCTION .......................................................................................................................... 1

RELEVANT FACTS ...................................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

I. North Carolina Is Entitled to a Remedy on Its Complaint Regardless of Whether Other Parties Have Settled Claims Among Them. ................................................. 3

II. Delaying the Hearing -- and Thereby Delaying the Remedy -- Further Prejudices North Carolina on the Merits .................................................................................. 6

III. Retaining the May 30th Hearing on the States Remedy Proposals Will Conserve the Resources of the Court and the Parties. ............................................................ 8

CONCLUSION ............................................................................................................................. 10


Plaintiff-Intervenor North Carolinas Case No.: 3:13-cv-03953 (SI)

Opposition to Administrative Motion to Stay Proceedings Page ii

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TABLE OF AUTHORITIES

Cases

ATK Launch Sys. v. EPA,

669 F.3d 330 (D.C. Cir. 2012) ............................................................................................... 8

Catawba County v. EPA,

571 F.3d 20 (D.C. Cir. 2009) ................................................................................................. 8

New York v. Microsoft,

No. 98-1233, 2002 U.S. Dist. LEXIS 8607 (Jan. 28, 2002) ................................................. 3

Sierra Club, Inc. v. Electronic Controls Design, Inc.,

909 F.2d 1350 (9th Cir. 1990) ........................................................................................... 3,5

State of Alabama et al. v. TVA,

No. 11-cv-0070 (E.D. Tenn. June 30, 2011) ......................................................................... 9

State of North Carolina v. McCarthy,

No. 13-cv-710 (E.D.N.C. Jan. 8, 2014) ................................................................................ 9

United States v. Oregon,

913 F.2d 576 (9th Cir. 1990) ................................................................................................. 3

Statutes

42 U.S.C. 7407 ............................................................................................................................. 1

42 U.S.C. 7407(d)(1)(A) .......................................................................................................... 1, 7

42 U.S.C. 7407(d)(1)(B) .......................................................................................................... 4, 7

42 U.S.C. 7407(d)(1), (3) ............................................................................................................. 4

42 U.S.C. 7607(b) ........................................................................................................................ 8

Regulations

77 Fed. Reg. 46,295 (Aug. 3, 2012)............................................................................................. 1,2


Plaintiff-Intervenor North Carolinas Case No.: 3:13-cv-03953 (SI) Opposition to Administrative Motion to Stay Proceedings Page 1

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ISSUE TO BE DECIDED

Whether the Court should retain the scheduled May 30, 2014 hearing on the proposed

remedy, or continue the hearing until August 1, 2014 on the incorrect premise of the Defendant

and the Plaintiffs that their proposed consent decree would resolve North Carolinas claims.

INTRODUCTION

The Defendant (EPA) and the Plaintiffs seek to delay the remedy phase of this case by

proposing to stay the proceedings and implement what essentially is EPAs preferred remedy via

an eleventh-hour settlement among themselves. Further, they seek the Courts complicity in

foisting that settlement upon the non-settling parties. This puts the cart before the horse. The

threshold issue, which is now fully briefed and ready for determination, is whether the remedy

that North Carolina proposed is the proper remedy for EPAs admitted statutory violation. Even

if EPA and the Plaintiffs have settled matters among them, their proposed settlement already has

been contested in an extensive, full briefing to the Court and cannot deprive North Carolina of a

judicial determination of the remedy on its claim. Postponing the hearing just continues to delay

the remedy for North Carolina that is long overdue. Therefore, the Motion to Stay Proceedings

should be denied, and the current May 30th hearing date should remain on the calendar.

RELEVANT FACTS

The State of North Carolina intervened in this action to compel EPA to discharge a

statutory duty under section 107 of the Clean Air Act (CAA), 42 U.S.C. 7401, 7407 (2014).

By June 2013, EPA was required to inform the States which areas of each State complied with

the revised national ambient air quality standard (NAAQS) for sulfur dioxide (SO2), which

areas did not comply, and for which areas there was insufficient data. 77 Fed. Reg. 46,295 (Aug.

3, 2012). These three options are termed attainment, nonattainment, and unclassifiable,

respectively. 42 U.S.C. 7407(d)(1)(A). Thus, unlike for many other nondiscretionary duties

prescribed in the CAA, the duty to designate areas specifically details what EPA must do if it

lacks information to make a more substantive decision; it must designate the area as

unclassifiable. Nevertheless, EPA did not discharge, and it still has not discharged, this

statutory responsibility. ECF Doc. No. 104 at 8-9.



Opposition to Administrative Motion to Stay Proceedings Page 2

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In February 2013, EPA indicated its preferred schedule for promulgating the

designations. ECF Doc. No. 92-8 at 5. Despite the looming and inflexible statutory deadline

EPA had already granted itself the one extension Congress authorized, 77 Fed. Reg. 46,295

(Aug. 3, 2012) EPA declared that it desired to promulgate designations in December 2017 for

areas that assessed air quality using air quality modeling and in December 2020 for areas that

used air quality monitors. ECF Doc. No. 92-8 at 5.

In December 2013, this Court granted judgment against EPA on the issue of liability and

ordered the parties to discuss settlement and to propose a briefing schedule regarding remedy

should settlement discussions should fail. ECF Doc. No. 79. The parties initiated settlement

discussions promptly. The deadline to submit a briefing schedule was extended once, ECF Doc.

No. 81, however, in order to ensure a timely remedy under any circumstance, North Carolina

declined to put off the briefing schedule any further. The Court entered a briefing schedule,

which culminated with EPAs final brief on May 14, 2014 and a hearing on May 30, 2014. ECF

Doc. No. 85. The parties sought to extend the briefing schedule, but North Carolina opposed any

extension that would delay the hearing. ECF Doc. No. 88 at 2. The schedule was extended by

five days, but the hearing remained as scheduled. ECF Doc. No. 89.

On the day EPAs final brief was due, EPA and the Plaintiffs lodged their proposed

consent decree. ECF Doc. No. 102. The proposed decree generally tracks the position that EPA

announced well over a year ago, except that it would add a round of designations within sixteen

months for a small subset of areas. ECF Doc. No. 102-1. The proposed decree would require

designation of only one area in North Carolina at this sixteen-month deadline. North Carolina

declined to agree to this settlement in general because the six-plus year schedule far exceeds

what Congress required and what is reasonable under the facts.

EPA and the Plaintiffs also filed an administrative motion to postpone the May 30

hearing to August 1 in order to allow EPA to publish a notice of the proposed decree in the

Federal Register, collect public comment, and review the proposed decree in light of any public

comments. ECF Doc. No. 102 at 2. EPA and the Plaintiffs stated clearly in that short motion




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their contention that entry of their proposed consent decree would eliminate the need for the

Court to hear and/or resolve North Carolinas issues regarding the remedy. Id. at 1, 3.

ARGUMENT

I. North Carolina Is Entitled to a Remedy on Its Complaint Regardless of Whether

Other Parties Have Settled Claims Among Them.

The motion to stay the May 30 hearing is based at least in part on the astonishing

proposition that EPA and the Plaintiffs can agree between them to dispose of North Carolinas

claims. See ECF Doc. No. 102 at 3 (Entry of the proposed Consent Decree would foreclose the

need for the Court to hear other remedy proposals); id. at 1 (If the proposed Consent Decree is

finalized and entered, the Court will not need to resolve the pending competing proposals for the

remedy in this case.). They cite no law for this remarkable device and none exists. New York v.

Microsoft, No. 98-1233, 2002 U.S. Dist. LEXIS 8607 at *11-*12 (Jan. 28, 2002) (recognizing

that while some parties were seeking to have their settlement entered as a consent decree, the

claims of the States that declined to settle would proceed to a remedies-specific hearing).

Entering a consent decree is hardly the equivalent of a judicial resolution of contested

issues. A consent decree is essentially a settlement agreement subject to continued judicial

policing. It is not a decision on the merits or the achievement of the optimal outcome for all

parties, but is the product of negotiation and compromise. United States v. Oregon, 913 F.2d

576, 580 (9th Cir. 1990) (citation and quotation marks omitted). [A] district court should enter

a proposed consent judgment if the court decides that it is fair, reasonable, and equitable and

does not violate law or public policy. Sierra Club, Inc. v. Electronic Controls Design, Inc., 909

F.2d 1350, 1355 (9th Cir. 1990). The substance of a consent decree is not necessarily what the

Court in its judgment believes to be the best resolution of the contested issues. It is merely a

resolution to which the settling parties agreed and it is little more than that.

In contrast, when deciding on an appropriate remedy in a deadline case such as this, the

Court must first look to the deadlines established by Congress, which limit[s] the Courts

discretion. ECF Doc. No. 92 at 13 (citations and quotation marks omitted). The Court must

require EPA to act within the statutory time frame unless EPA demonstrates that doing so is




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impossible or infeasible and the agency bears the heavy burden of demonstrating impossibility

or infeasibility. Id. at 14 (citations and quotation marks omitted and punctuation altered). EPAs

previous similar actions, such as the recent NO2 designations, are persuasive evidence of the

time frame in which the agency can accomplish the present task. Id. at 14 (citations and

quotation marks omitted). This is a far cry from the more deferential fair, reasonable, and

equitable standard, particularly because it at least partially shifts the burden to the agency.

The factors that lead parties to settle rarely equate with a Courts review criteria. For

example, a longer time frame for designations may appeal to the Plaintiffs who act on a

nationwide basis, because more time may allow them to devote more resources to more sites

around the country. The Plaintiffs may also perceive that unclassifiable designations give non-

State entities such as themselves less leverage in the redesignation process than they have in the

process for initial designations. See 42 U.S.C. 7407(d)(1), (3) (allowing discretionary

redesignations initiated by EPA or a State, whereas initial designations are required and may be

compelled by the judiciary at the insistence of groups like the Plaintiffs). EPA has indicated that

it prefers a longer time frame due to resource constraints. E.g., ECF Doc. No. 95 at 21-22.

But these concerns are clearly not what drove Congress to enact the law as it did.

Instead, for example, Congress demanded that designations be completed as expeditiously as

practicable but no later than one year after the States submit their designations to EPA. ECF

Doc. No. 92 at 7; see also 42 U.S.C. 7407(d)(1)(B). Congress allowed a single exception to

this one-year deadline. It allowed a one-year postponement on the ground that EPA had

insufficient information to make designations. It did not allow a general exception based on the

resource constraints of EPA or interested stakeholders or any other grounds. As such, some of

the interests of Congress in enacting the procedures for designations in the CAA may, and it

appears to a near certainty that they do, differ significantly from the concerns that drove EPA

and the Plaintiffs to structure their proposed consent decree as they did. EPA and the Plaintiffs

cannot force the Court to substitute their interests as the determinants of the remedy for North

Carolina in place of the interests expressed by Congress.




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To determine the appropriate remedy for EPAs admitted statutory violation, this Court

adopted the briefing schedule proposed by EPA and the Plaintiffs. The schedule, although

longer than that favored by North Carolina, was a fair process to elucidate the various interests

and positions of the parties on even terms and place the issues squarely before the Court for

resolution. EPA and the Plaintiffs now seek to upset their own apple cart to their decided and

unfair advantage. EPA and the Plaintiffs are essentially demanding that their proposed remedy

be given priority over all other proposals and that their proposal ought to be entered by the Court

as long as it is judged to be fair, reasonable, and equitable regardless of whether the proposals

of other parties are equally or even more fair, reasonable, and equitable. Sierra Club, 909 F.2d

at 1355. But the Courts task at hand is to review all of the proposals and determine which is

best supported by the law and the facts. The Court must, for example, determine whether EPAs

protestations regarding its alleged resource constraints are credible and, if so, whether those

constraints dictate that it is impossible or infeasible to meet Congress deadlines. The Court

must also assess whether it is reasonable that EPA could resolve the NO2 designations process in

one year but apparently requires several times that to accomplish a similar task regarding SO2.

After evaluating the declarations, documentation and arguments, the Court must determine

which proposal before it comports best with the demonstrated facts and congressional intent, or

the Court may develop its own remedy to most appropriately implement the will of Congress on

the facts. But under the process pushed by EPA and the Plaintiffs, their proposal must be given

priority, and the Court is not permitted to make any changes to it. Heading down the path that

EPA and the Plaintiffs suggest and allowing the proposed consent decree to effectively become

the remedy on North Carolinas Complaint would essentially be allowing EPA and the Plaintiffs

to sit in judgment of North Carolinas claims in place of the Court. EPA has broad authority in

the area of environmental law, but it does not have the authority to act as a court to resolve an

issue between it and a State.

Indeed, EPAs suggestion that entering the proposed decree would moot North Carolinas

proposed remedy is entirely backwards. Even if EPA and the Plaintiffs were to convince the

Court to enter their proposed settlement, an order on North Carolinas claim could require EPA




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to act more quickly than EPAs and the Plaintiffs agreed-upon schedule. That is, EPAs

agreement to comply with some elongated remedy does not foreclose the option that the law may

require EPA to act more quickly. But the opposite is not true. If the Court agrees that the CAA

means what it says that EPA must act as expeditiously as practicable but in no later than one

year from the States submittals and the Court adopts North Carolinas proposed remedy (or

even a reasonable approximation of North Carolinas proposal), then EPA and the Plaintiffs

proposed decree would be moot. Should EPA be required to complete the designations in short

order, then there would be nothing left to do when the dates in the proposed consent decree

finally arrived. (EPA could still use its preferred schedule as a template for any redesignations.)

EPA and the Plaintiffs further assert that [a] limited stay is necessary to allow EPA to

follow the requirements of the CAA for providing public notice prior to entering into a consent

decree. ECF Doc. No. 102 at 2. This statement simply is not true. Absent a stay, EPA may

still follow the process for public review and comment on the proposed decree. If the process

results in EPA and the Plaintiffs continuing to support the proposed decree, they may then return

to the Court to request that the Court enter that decree. Nothing in the CAA or any other law

requires the Court to delay a hearing on North Carolinas remedy so that EPA can conduct its

review process. Therefore, the requested stay is hardly necessary.

For all of these reasons, North Carolina retains the right to a remedy on its claims and the

Court should not delay the hearing on the ground that a stay may, in EPAs words, foreclose the

need for the Court to hear North Carolinas remedy proposal[]. ECF Doc. No. 102 at 3.

II. Delaying the Hearing and Thereby Delaying the Remedy Further Prejudices North Carolina on the Merits

This is a suit to compel EPA to act after EPA failed to act by a deadline established by

Congress. Congress deadline passed almost a year ago. EPA has given no lawful justification

for its failure to abide by that deadline, and EPA has requested a remedy that far exceeds the

duration of time that Congress allotted to EPA. Every delay in reaching a resolution of this case

plays directly into EPAs proposed remedy and directly against North Carolinas proposed

remedy. This Court should not allow EPA to at least partially defeat North Carolinas proposed




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remedy through the procedural device of moving at virtually the last minute to continue a

hearing that has been on the Courts calendar for over four months. See ECF Doc. No. 85 at 2.

The CAA requires that designations be made as expeditiously as practicable. 42

U.S.C. 7407(d)(1)(B). Congress was so concerned about providing the States with a prompt

determination that it took the unusual step of specifying what EPA must do if EPA was unable to

gather sufficient information to make a timely determination, that is, EPA must designate the

area as unclassifiable. Id. 7407(d)(1)(A). But the extended schedule in the proposed decree

would virtually write the unclassifiable designation out of the CAA, contrary to Congress

intent. The Court should turn aside EPAs desire to delay a resolution that would merely serve to

avoid a statutory outcome that Congress expressly sanctioned.

North Carolina has consistently sought an expedited resolution to this case because the

passage of time continues to delay designations that should have been made in June 2013. For

example, North Carolina did not oppose the request to extend the briefing schedule on remedy

so long as it d[id] not result in rescheduling the hearing date set for May 30, 2014. ECF Doc.

No. 88 at 2; see also ECF Doc. No. 82 at 6-7 (proposing a briefing schedule that would have

closed one month before that requested by EPA and the Plaintiffs).1 The lack of any

designations deprives North Carolina of a right specifically granted to the States by the United

States government, i.e., to have each of its areas designated as either attainment,

nonattainment or unclassifiable. EPAs protestation that a non-designation is functionally

equivalent to a designation of attainment or unclassifiable, ECF Doc. No. 102 at 4, is beside

the point. If Congress agreed that a failure to designate was an acceptable path forward, it would

not have enacted a law that proclaimed just the opposite. The bottom line is that drawn by

1 EPA and the Plaintiffs list six instances in this case in which deadlines have been

extended or hearing dates moved. ECF Doc. No. 102 at 4. To the extent that they are attempting

to show that North Carolina has not been diligent in the prosecution of this case, they are wrong.

For example, two of these six instances were unavoidable consequences of the federal

government shutdown. ECF Doc. Nos. 37 and 43. By further illustration, two extensions to

briefing deadlines were based on the fact that the extensions would not delay resolution of the

issues. ECF Doc. No. 88 at 2; ECF Doc. No. 58 at 3.




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Congress, and according to Congress any designation even unclassifiable is better than no

designation at all, and prompt designations are required.

EPAs failure to designate robs North Carolina of the right, granted by Congress in

section 307 of the CAA, 42 U.S.C. 7607(b), to test EPAs designations in court. See, e.g., ATK

Launch Sys. v. EPA, 669 F.3d 330 (D.C. Cir. 2012). Even a designation of unclassifiable

would permit a judicial challenge to EPAs conclusions. Catawba County v. EPA, 571 F.3d 20,

29 (D.C. Cir. 2009). For example, EPA may designate an area unclassifiable because a

monitor in that area was, in EPAs opinion, not sited correctly and therefore did not

appropriately record representative ambient pollutant levels. But the State may disagree and

submit that the monitor was properly sited and clearly demonstrated that air quality was attaining

the SO2 standard. Once an area is determined to be attaining the standard according to a properly

sited monitor, it is far less likely that the area could be redesignated to nonattainment based on,

for example, air quality modeling, which only approximates air quality using mathematical

techniques. Therefore, even if EPA is correct that a designation of attainment or

unclassifiable would be indistinguishable from a non-designation from a regulatory

perspective, EPA is wrong that a non-designation does not prejudice the State.2

III. Retaining the May 30th Hearing on the States Remedy Proposals Will Conserve the Resources of the Court and the Parties.

In their Motion to Stay Proceedings, the Plaintiffs and EPA suggest that continuing the

hearing until August 1 would avoid the waste of judicial resources. ECF Doc. No. 102 at 3.

To the contrary, the Plaintiffs and EPA have demonstrated disregard for the Courts and

intervening parties time by waiting until the eleventh hour to announce their proposed consent

decree. Rather than making North Carolina pay the price for this delay, the Court should move

forward with the May 30, 2014 hearing date.

2 EPA seems to contend that the States want EPA to issue unclassifiable designations

only so they can turn around and challenge the designations on their merits. ECF Doc. No. 104

at 19. North Carolina hopes that EPA would promulgate designations of unclassifiable only where appropriate. However, Congress allowed parties to raise such issues before the courts, as

necessary, and it is not for EPA to question the wisdom of the rights that Congress established.




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North Carolina has demonstrated its respect for the parties and the courts limited

resources throughout this process. For example, North Carolina has stipulated to extending

deadlines regarding the initial case management conference and ADR because those

requirements would have divert[ed] resources from ongoing efforts to dispose of the case. ECF

Doc. No. 86 at 3. In its virtually identical action in the United States District Court for the

Eastern District of North Carolina, North Carolina initiated a stay of the matter because this

Court appeared to be closer to a resolution of the same issues. See Order Holding Case in

Abeyance at 1, State of North Carolina v. McCarthy, No. 13-CV-710 (E.D.N.C. Jan. 8, 2014)

(E.D.N.C. ECF Doc. No. 17). Furthermore, North Carolina does not intend to seek a hearing on

the propriety of the proposed decree should this Court grant North Carolina a remedy more

expedient than the drawn-out process to which the Plaintiffs and EPA have agreed (although

North Carolina would still oppose the proposed consent decree). Far more complex consent

decrees have been entered without a hearing. See, e.g., Consent Decree, State of Alabama et al.

v. TVA, No. 11-cv-0070 (E.D. Tenn. June 30, 2011) (E.D. Tenn. ECF Doc. No. 20) (entering

without a hearing a detailed consent decree among North Carolina and other parties requiring

massive regional SO2 and NOX emissions reductions from a federal electric utility).

The Plaintiffs and EPAs announcement of their proposed consent decree comes after

the parties have fully briefed the remedy issue, and are preparing for the hearing on May 30,

2014. The Plaintiffs and EPA fail to explain why they could not have foreseen some time ago

their desire for a later hearing date, or why North Carolina should bear any burden imposed by

their delay. EPA and the Plaintiffs knew at least as early as May 8 22 days before the hearing

that they intended to move to continue the hearing but waited until May 19 11 days before

the hearing to so move the Court. EPAs and the Plaintiffs delay in raising this issue to the

Court is particularly egregious considering that counsel must travel from significant distances

around the country for the May 30 hearing. This Court should not allow EPA and the Plaintiffs

to throw this important process into disarray to suit their own whims. The briefing schedule that

the Court adopted was that proposed by EPA and the Plaintiffs and the hearing was scheduled at




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a reasonable time thereafter. EPA and the Plaintiffs should be required to play by the rules that

they represented to the Court were appropriate. 3

The Plaintiffs and EPAs delay is all the more inexplicable because the proposed consent

decrees terms vary only slightly from the position that EPA publicly announced over a year ago.

Compare ECF Doc. No. 97-3 at 5 (setting forth, in February 2013, EPAs preferred schedule

with final designations for modeled areas by December 2017 and final designations for rest of

country, including for new monitored areas by December 2020) with ECF Doc. No. 102-1 at 5-

6 (setting forth proposed decree requiring designations by December 2017 for areas without

monitors (i.e., areas using modeling) and designations by December 2020 for all remaining areas

(i.e., those using monitoring)). The only substantive amendment appears to be the addition of an

accelerated timetable for a small category of sources. ECF Doc. No. 102-1 at 5. The addition of

this minor change likely did not require lengthy negotiations between the Plaintiffs and EPA.

Given that negotiations began over five months ago, it is not unreasonable to infer that the

Plaintiffs and EPA have taken so long to announce such a simple settlement in order to defeat

North Carolinas meritorious claim to a far shorter remedy than either of them prefers. In any

event, North Carolinas rights should not be prejudiced by the Plaintiffs and EPAs eleventh-

hour bridging of their differences.

CONCLUSION

For all of the foregoing reasons, the Court should deny the Motion to Stay Proceedings

and hear the parties arguments on remedy at the hearing scheduled for May 30, 2014.

3 A hearing would also allow North Carolina to address serious deficiencies in EPAs

position on remedy that have only now been made clear in EPAs last brief. As just one of several examples, EPA now claims that the SO2 process is distinguishable from the NO2 process

because in the NO2 process EPA completely lacked information on which to make designations,

making an unclassifiable designation proper, whereas for SO2 EPA now asserts that although information presently exists that EPA must consider before promulgating the remaining designations, EPA just has not figured out what to do with that information. ECF Doc. No. 104 at 14-15. But EPA also proposes that it needs several years to conduct more air quality modeling

monitoring. ECF Doc. No. 95 at 8-9. If that is the case, EPA must believe that the information

now before it is insufficient. Accordingly, EPAs distinction between the SO2 process and NO2 process, which it only clarified in its reply brief, is disingenuous.




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DATED: May 22, 2014.

Respectfully submitted,

ROY COOPER

Attorney General

By: /s/ Marc Bernstein

Marc Bernstein



P.O. Box 629

Raleigh, NC 27602

/s/ Michael N. Westheimer

Michael N. Westheimer

Buchalter Nemer, PC



Attorneys for Plaintiff-Intervenor State of North

Carolina


Proposed Order on Plaintiffs and Defendants Case No. 3:13-cv-03953 (SI)

Administrative Motion for Stay of Proceedings Until August 1, 2014 Page 1

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Marc Bernstein (admitted pro hac vice)



P.O. Box 629

Raleigh, NC 27602

NC State Bar No. 21642

Phone Number: (919) 716-6956

Fax Number: (919) 716-6764


Michael N. Westheimer (State Bar No. 178938)

Buchalter Nemer, PC



Phone Number: (415) 227-0900

Fax Number: (415) 904-3111


Attorneys for the State of North Carolina, Plaintiff-Intervenor

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIERRA CLUB and NATURAL

RESOURCES DEFENSE COUNCIL,

Plaintiffs,

and

THE STATE OF NORTH CAROLINA

Plaintiff-Intervenor,

v.

GINA MCCARTHY, in her official capacity

as Administrator of the United States

Environmental Protection Agency,

Defendant.

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Case No: 3:13-cv-03953 (SI)

(Proposed) Order Denying Plaintiffs and Defendants Administrative Motion for Stay of Proceedings Until August 1,

2014

Case3:13-cv-03953-SI Document110-1 Filed05/22/14 Page1 of 2

Proposed Order on Plaintiffs and Defendants Case No. 3:13-cv-03953 (SI)

Administrative Motion for Stay of Proceedings Until August 1, 2014 Page 2

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The parties have fully briefed the issue of the remedy in this case. Pursuant to the Order

dated January 15, 2014, a hearing on the remedy was set for May 30, 2014. On May 19, 2014,

Plaintiffs and Defendant filed a Notice of Lodging Proposed Consent Decree and Motion to Stay

Proceedings Until August 1, 2014, requesting a stay of all proceedings in this matter until August

1, 2014 in order to allow Defendant to publish notice of the proposed consent decree in the

Federal Register and accept public comment on the same. ECF Doc. No. 102 at 2. On May 21,

2014, Plaintiff-Intervenor North Carolina filed a response in opposition to the Motion to Stay

Proceedings. Plaintiff-Intervenor North Carolina requested that the hearing May 30, 2014 be

held in order to resolve remedy issues on North Carolinas claims.

Having considered the papers in support of Plaintiffs and Defendants motion and any

other relevant submissions, the Court issues the following order:

It Is Hereby Ordered That Plaintiffs and Defendants Motion is Denied. The hearing

shall not be stayed, and the previously ordered briefing schedule and hearing date for

determining the remedy shall not be altered. A hearing on the remedy regarding North

Carolinas claims will be held on May 30, 2014 as previously scheduled.

IT IS SO ORDERED.

DATED: ________________ ___________________________

The Honorable Susan Illston

United States District Judge

Case3:13-cv-03953-SI Document110-1 Filed05/22/14 Page2 of 2

Documents

North Carolina Response to 2nd Motion for Summary Judgment 5/22/2014 ND Cal