Competitive Enterprise Institute Comments on Proposed Consent Decree in Sierra Club et al. v.

McCarthy, Civil Action No 3:13-cv-3953-SI (N.D. Cal.)

Docket ID: EPA-HQ-OGC-2014-0421

I. EPA Should Not Cede Its Regulatory Priority-Making to Environmental Special Interests
Simply put, the Clean Air Act contains far many more deadlines than the agency has proven capable of
performing. Of 200 date-certain duties pursuant to three core Clean Air Act programs since 1993, only
2% were completed on time, and the agency was, on average, late by almost 6 years.
1

If the EPA is out of compliance with virtually all its Clean Air Act deadlines, as is evident, then clearly the
agency has limited resources relative to its responsibilities. As a result, establishing any deadline
determines how the EPA deploys its limited resources; this is no different than rendering policy.
If the EPA wants to give priority to its many outstanding responsibilities, it should do so in consultation
with the states, which have to actually implement these regulations. After all, Congress intended for the
Clean Air Act to be a cooperative federalism regulatory regime, whereby the States and EPA partnered
in order to improve the nations air quality.
For the proposed consent decree, however, EPA spurned the States input. Indeed, the agency opposed
the States intervention of right in Sierra Club, et al. v. McCarthy. Cheekily, EPAs brief in opposition to
the States right to intervene explained to the court that even were it to grant the motion to intervene,
intervention would not guarantee Proposed Intervenors participation in any potential settlement
negotiations. EPAs basically saying that its going to ignore the States, no matter what.
And thats precisely what happened. Starting in December 2013, the parties engaged in remedy
negotiations, as required by the court. On April 15, the intervenor States confirmed in writing their
desire to continue discussions. EPA waited until April 30 to respond. The following day, the parties
convened a conference call. No agreement was reached on the May 1 call, but parties agreed to
continue to negotiate in good faith.
The actions of EPA and the plaintiffs soon belied their promises to remain open to group discussions.
Less than a week later, on May 6 2014, counsel for Sierra Club and NRDC informed the Intervenor States
that they (the plaintiffs) were close to finalizing an agreement with the EPA. This was the first that the
intervenor States had heard of these side negotiations that had led to an imminent agreement. The

1
See EPAs Woeful Deadline Performance Raises Questions about Agencys Competence, Climate Change
Regulations, Sue and Settle, William Yeatman, CEI Web Memo, July 2013
intervenor States requested a copy of the settlement, but EPA and the plaintiffs did not send one until
ten days later, on May 16. Three days later (and only one business day later), EPA and the plaintiffs filed
a second motion for summary judgment, requesting to hold the case in abeyance while it took public
comment on a proposed consent decree (Attachment 1 to the motion) that had been lodged with the
court. On May 27, 2014, Judge Susan Illston granted the second motion to stay the proceedings.
Why is the agency treating the States like theyre junior to environmental special interests? In fact,
States are sovereigns subject to voters. They are, moreover, EPAs partner under the cooperative
federalism structure established by the Clean Air Act. By contrast, the environmental petitioners in
Sierra Club, et al. v. McCarthy are special interests that are investing millions of dollars into political
campaigns.
To wit, in 2012 Sierra Club reported assets in excess of $82 million and NRDC had revenues in excess of $
103 million. Crucially, both of these organizations are deploying their considerable resources into the
political arena. National environmental organizations now routinely endorse political candidates, engage
in get out the vote initiatives, and even produce political advertising.
2

It defies logicand the Congresss intentthat the EPA would conduct negotiations that impact Clean
Air Act policy (by establishing how the agency allocates its limited resources) with environmental special
interests, to the exclusion of States.
It should be noted that this isnt the first time the agency has litigated against a States participation in a
deadline citizen suit before the federal district court for Northern California. On September 22, 2011 ,
North Dakota Attorney General Wayne Stenehjem sought intervention in an agency-forcing citizen suit
brought by Wildearth Guardians over the EPA's inaction regarding a number of SIP revisions resulting
from a 2007 revision of the ozone National Ambient Air Quality Standards (WildEarth Guardians v.
Jackson, No. 4:09-CV-02453 (N.D. Cal. Feb. 23, 2010). Rather than welcome the state's participation, in
accordance with the tenets of cooperative federalism, EPA opposed (successfully) North Dakota's
involvement. The agencys repeated refusal to work with States in determining its regulatory priorities is
an alarming pattern.
Faced with more deadlines that it can perform, EPA is plainly overwhelmed. With its resources limited
relative to its responsibilities, the unambiguous intent of the Congress (as codified in the Clean Air Act)
dictates that the agency should work with States to prioritize its regulatory responsibilities. However, in
the proposed consent decree, the agency has again actively spurned the input of multiple States, and

2
NRDC started a 501 c(4) advocacy group, NRDC Action Fund, to "work CO educate and mobilize voters[.]",
accessed; The Sierra Club, Impact of the 2012 Elections, http://content.sierradub.org/ politics-elections/impact-
2012 (last visited Oct. 22, 2013). 00 Sierra Club's Politics & Elections webpage, the organization boasts of how,
"Working closely with Obama for America, we recruited more than 12,000 members to join Environmentalists for
Obama, to participate in 'Get Out the Vote' (GOTV) shifts on Election Day, aod to plug into the Obama campaign's
dashboard to make over 30,000 phone calls. .It worked. November 9, [he Obama campaign acknowledged our
contribution tills cycle, stating the Club was 'an integral part of (the) win"'}.

instead negotiated with increasingly politicized environmental special interests. EPAs treatment of its
co-sovereigns is an affront to the Congresss cooperative federalism design for the Clean Air Act, and
should not stand.
In the cause of cooperative federalism as intended by the Congress, the EPA should rescind the
proposed consent decree, and work with the States intervenors to establish a compliance schedule for
area designations pursuant to the agencys 2010 revision of the SO2 NAAQS.


Sincerely,
William Yeatman
Senior Fellow
Competitive Enterprise Institute