Our Children's Earth Foundation et al v. U.S. Environmental Protection Agency et al, No. 4:2013cv02857 - Document 54 (N.D. Cal. 2014)
Court Description: ORDER granting [53} Stipulation to vacate hearing and enter CONSENT DECREE. Signed by Judge JEFFREY S. WHITE on 8/25/14. (jjoS, COURT STAFF) (Filed on 8/25/2014)
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Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page1 of 9 SAM HIRSCH Acting Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division THE HONORABLE JEFFREY S. WHITE SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ETHAN CARSON EDDY, Trial Attorney (Cal. Bar 237214) Wildlife and Marine Resources Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044 (202) 305-0202 (phone) (202) 305-0275 (fax) ethan.eddy@usdoj.gov JOHN THOMAS H. DO, Trial Attorney Environmental Defense Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044 (202) 514-2593 (Phone); (202) 514-8865 (Fax) john.do@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) OUR CHILDREN’S EARTH FOUNDATION and ) ECOLOGICAL RIGHTS FOUNDATION, ) ) Plaintiffs, ) v. ) ) U.S. ENVIRONMENTAL PROTECTION ) AGENCY, et al., ) Defendants. ) ) ) ___________________________________________ ) Case No. 3:13-cv-2857-JSW STIPULATION TO VACATE HEARING AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page2 of 9 1 Pursuant to Civil Local Rule 7-12, Plaintiffs Our Children’s Earth Foundation and 2 Ecological Rights Foundation (collectively, “Plaintiffs”) and Defendants U.S. Environmental 3 Protection Agency, Gina McCarthy, Administrator, and Jared Blumenfeld, Regional 4 Administrator of Region 9 (collectively, "EPA") hereby stipulate to vacate the scheduled motion 5 hearing on the United States’ partial motion to dismiss and request that Court enter the attached 6 Consent Decree. For the reasons stated below, the Consent Decree is fair, reasonable, and 7 8 9 10 consistent with the goals and requirements of the Clean Water Act (“CWA”), 33 U.S.C. §1251 et seq. Procedural Background 11 12 13 14 15 On June 20, 2013, Plaintiffs filed a complaint pursuant to Section 505(a)(2) of the CWA, 33 U.S.C. § 1365(a)(2); Section 11(g) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g)(1)(A); and Section 706(1) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), against the U.S. Environmental Protection Agency (“EPA”), the U.S. Fish and Wildlife 16 Service and the National Marine Fisheries Service (together “the Services”), and certain federal 17 18 19 officials of all three agencies. The Complaint included six claims alleging that: [1] EPA failed to perform a non- 20 discretionary duty to promulgate certain water quality criteria for selenium and mercury for the 21 State of California as required by CWA Section 303(c)(4), 33 U.S.C. § 1313(c)(4); [2] EPA 22 violated ESA Section 9, 16 U.S.C. § 1538(a)(1)(B), by failing to adopt certain CWA Section 23 303(c) criteria for selenium, mercury, pentachlorophenol, cadmium and dissolved metals as 24 envisioned in a biological opinion issued by the Services on March 24, 2000; [3] EPA violated 25 ESA Sections 7(a)(1) and 7(a)(2), 16 U.S.C. § 1536(a)(1) and (2), by failing to carry out certain 26 27 28 STIPULATION TO VACATE HEARING 1 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page3 of 9 1 conservation programs and reasonable and prudent measures contained in an ESA biological 2 opinion; [4] EPA violated ESA Section 7(a)(2), 16 U.S.C. § 1536(a)(2), by failing to reinitiate 3 ESA consultation; [5] the Services violated ESA Section 7(a)(2), 16 U.S.C. § 1536(a)(2), by 4 failing to reinitiate ESA consultation; and [6] EPA violated the APA, 5 U.S.C. § 706(1), by 5 unreasonably delaying the promulgation of certain selenium and mercury water quality criteria. 6 On October 1, 2013, the United States moved to dismiss the First, Second, Fifth, and 7 8 9 Sixth Claims for failure to state a claim and/or lack of subject matter jurisdiction. To facilitate settlement discussions, including court-mandated mediation, the motion to dismiss is currently 10 stayed. At present, the motion to dismiss is fully briefed and scheduled for hearing on 11 September 5, 2014. 12 13 14 The Fifth Claim against the Services was voluntarily dismissed by Plaintiffs on May 1, 2014, and Plaintiffs and EPA (the “Parties”) have now negotiated a proposed Consent Decree to resolve the remaining claims. 15 16 Statutory Background 17 18 19 As part of the CWA’s framework of cooperative federalism, States promulgate water quality standards (“WQS”), which consist of “the designated uses of the navigable waters 20 involved and the water quality criteria for such waters based upon such uses.” 33 U.S.C. § 21 1313(c)(2)(A). Criteria are “elements of State water quality standards, expressed as constituent 22 concentrations, levels, or narrative statements, representing a quality of water that supports a 23 particular use.” 40 C.F.R. § 131.3(b). 24 25 Whenever a State adopts a new or revised WQS, it must submit the standard to EPA, pursuant to CWA section 303(c)(2), for review and approval or disapproval. 33 U.S.C. § 26 27 28 STIPULATION TO VACATE HEARING 2 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page4 of 9 1 1313(c)(2) and (c)(3). Once approved, the State’s standard becomes the applicable standard for 2 purposes of the CWA. 40 C.F.R. § 131.21. EPA has separate, discretionary authority to set new 3 or revised standards for a State sua sponte, independent of a State’s section 303(c)(2) 4 submission. In order for EPA to exercise that authority, the EPA Administrator must first 5 determine that a new or revised standard is necessary to meet the CWA’s requirements. 33 6 U.S.C. § 1313(c)(4)(B); 40 C.F.R. §§ 131.22(b), 131.5(b). Upon such determination, EPA is to 7 8 9 promptly propose standards and then promulgate final standards within 90 days of publication of a proposed standard. 33 U.S.C. § 1313(c)(4). Section 7 of the ESA directs each federal agency to ensure, in consultation with the 10 11 Services, that “any action authorized, funded, or carried out by such agency . . . is not likely to 12 jeopardize the continued existence of” any listed species or destroy or adversely modify 13 designated critical habitat. 16 U.S.C. § 1536(a)(2). If the agency proposing the relevant action 14 15 (“action agency”) determines that the action “may affect” ESA-listed species or critical habitat, the action agency must pursue either informal or formal consultation with the consulting agency. 16 50 C.F.R. §§ 402.13-402.14. 17 18 19 The Proposed Consent Decree The proposed Consent Decree would establish conditional requirements for EPA to 20 21 propose certain selenium criteria for waters outside of the San Francisco Bay Delta1 by 22 November 30, 2016 and certain mercury criteria for waters not covered by prior site-specific 23 criteria by June 30, 2017. Consent Decree ¶¶ 14 and 20. Under the Consent Decree, if EPA 24 25 26 27 28 1 The San Francisco “Bay Delta” is defined in Paragraph 6 of the Consent Decree by reference to certain water bodies defined under the 1992 National Toxics Rule. 57 Fed. Reg. 60848, 60921, codified at 40 C.F.R. § 131.36(b)(1)(ii). STIPULATION TO VACATE HEARING 3 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page5 of 9 1 proposes selenium criteria for the San Francisco Bay Delta, EPA’s deadline to propose selenium 2 criteria for the rest of California would be extended to November 30, 2018. Consent Decree ¶¶ 3 15. With respect to the proposed selenium criteria for waters outside of the San Francisco Bay 4 Delta and the proposed mercury criteria, the Consent Decree provides that EPA will request 5 initiation of any necessary ESA consultation within nine months of proposing criteria and that 6 EPA must promulgate final criteria within six months after the completion of any ESA 7 8 9 consultation. Consent Decree ¶¶ 16, 17, 21, and 22. In the event that EPA approves selenium or mercury criteria submitted by the State of California for any water body, EPA’s obligation to 10 propose or finalize criteria for those areas would be null and void. The Consent Decree does not 11 affect any person’s opportunity to participate in the development of water quality criteria for 12 California waters or to challenge the substantive adequacy of any criteria promulgated by EPA. 13 14 15 With the Fifth Claim having been voluntarily dismissed, the Second, Third, Fourth and Sixth Claims in the Complaint would be dismissed upon entry of the Consent Decree. Consent Decree ¶ 28. Resolving all of Plaintiffs’ claims in this matter, the First Claim will be dismissed 16 upon EPA meeting its obligations under the Consent Decree and termination of the Consent 17 18 19 20 Decree. Consent Decree ¶ 28. The Court would retain jurisdiction for the purposes of resolving any disputes arising under the Consent Decree including the awarding of reasonable attorney fees and costs. Consent Decree ¶¶ 24 and 36. 21 22 The Settlement is Fair and Reasonable 23 24 25 26 27 28 Approval of a proposed settlement is committed to the informed discretion of the district court. United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990). Further, “public policy generally supports “a presumption in favor of voluntary settlement” of litigation. United States STIPULATION TO VACATE HEARING 4 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page6 of 9 1 v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1436 (6th Cir. 1991). The Court should enter a 2 proposed consent judgment if it is fair, reasonable, and equitable, and does not violate the law or 3 public policy. Sierra Club v. Elec. Controls Design, 909 F.2d 1350, 1355 (9th Cir. 1990). 4 Where the United States is a party to the consent decree, a court “should pay deference to the 5 judgment of the government agency which has negotiated and submitted the proposed 6 judgment.” SEC v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984). The relevant standard is “not 7 8 9 whether the settlement is one which the court itself might have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable, and faithful to the objectives of the 10 governing statute.” United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990). 11 And, in no event may the Court rewrite or modify the parties’ proposed settlement. See Officers 12 for Justice v. Civil Serv. Comm’n of City and County of San Francisco, 688 F.2d 615, 630 (9th 13 Cir. 1982). 14 15 Under these governing legal standards, the Parties respectfully submit that the settlement is fair, reasonable, in the public interest, and faithful to the CWA’s objectives. The Parties 16 engaged in arm’s-length negotiations through counsel for months, and reached a mutually 17 18 19 acceptable compromise. See Oregon, 913 F.2d at 581 (decrees resulting from good faith, arm’slength negotiations are “presumptively valid”). The proposed settlement avoids further costly 20 litigation while meeting the objectives of the Clean Water Act to “restore and maintain the 21 chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). 22 Specifically, the public benefits from EPA’s scheduled commitments to promulgate certain water 23 quality criteria that protect designated uses of California waters and reflect the most recent 24 scientific data. Further, the Consent Decree allows time for ESA consultation between EPA and 25 the Services to ensure that the actions proposed pursuant to the Consent Decree do not 26 27 28 STIPULATION TO VACATE HEARING 5 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page7 of 9 1 unlawfully jeopardize ESA-listed species or designated critical habitats. Finally, the Consent 2 Decree allows time for California to submit its own water quality criteria in lieu of EPA-imposed 3 criteria and in no way restricts the public’s participation in the development of water quality 4 criteria. 5 6 CONCLUSION 7 8 9 WHEREFORE, the settlement is fair, reasonable, equitable, in the public interest, and consistent with the purposes of the Clean Water Act, the Parties stipulate that the motion hearing 10 for the United States’ motion to dismiss be vacated and request that the Court sign and date the 11 signature page of the Consent Decree (Attachment A) and enter it as an order of the Court. 12 13 Respectfully submitted this 22nd day of August, 2014. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAM HIRSCH Acting Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ETHAN CARSON EDDY, Trial Attorney Wildlife and Marine Resources Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044 (202) 305-0202 (Phone); (202) 305-0275 (Fax) ethan.eddy@usdoj.gov s/ John Thomas H. Do JOHN THOMAS H. DO, Trial Attorney Environmental Defense Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044 (202) 514-2593 (Phone); (202) 514-8865 (Fax) john.do@usdoj.gov STIPULATION TO VACATE HEARING 6 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page8 of 9 1 Attorneys for Defendants 2 s/ Christopher A. Sproul (as authorized) CHRISTOPHER A. SPROUL JODENE ISAACS Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: csproul@enviroadvocates.com 3 4 5 6 7 8 Attorneys for Plaintiffs 9 10 11 12 13 14 E-FILING ATTESTATION Pursuant to Civil Local Rule 5.1(i)(3), I attest that counsel for Plaintiffs has concurred in the filing of this document. s/ John Thomas H. Do JOHN THOMAS H. DO Counsel for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO VACATE HEARING 7 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW Case4:13-cv-02857-JSW Document53 Filed08/22/14 Page9 of 9 1 2 [PROPOSED] ORDER 3 4 Before the Court is the Parties’ STIPULATION TO VACATE HEARING AND 5 REQUEST TO ENTER CONSENT DECREE. Upon due consideration, and for good cause 6 shown, the Consent Decree has been ENTERED as of this date. Further, the hearing on the 7 8 9 10 UNITED STATES’ MOTION TO DIMISS scheduled for September 5, 2014 is hereby VACATED. PURSUANT TO STIPULATION, IT IS SO ORDERED. 11 12 13 August 25, 2014 Dated:________________ ______________________________ HON. JEFFREY S. WHITE United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO VACATE HEARING 8 AND REQUEST TO ENTER CONSENT DECREE; [PROPOSED] ORDER Case No. 3:13-cv-2857-JSW
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