State of North Dakota v. Regina McCarthy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SIERRA CLUB; NATURAL RESOURCES No. 15-15894
DEFENSE COUNCIL,
Plaintiffs-Appellees, D.C. No.
3:13-cv-03953-
v. SI

STATE OF NORTH DAKOTA; STATE OF
ARIZONA; COMMONWEALTH OF OPINION
KENTUCKY, Energy and
Environment Cabinet; STATE OF
NEVADA; STATE OF LOUISIANA,
Department of Environmental
Quality; STATE OF TEXAS,
Intervenor-Plaintiffs-Appellants,

v.

SCOTT PRUITT, in his official
capacity as Administrator of the
United States Environmental
Protection Agency,
Defendant-Appellee.
2 STATE OF NORTH DAKOTA V. MCCARTHY

Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding

Argued and Submitted March 16, 2017
San Francisco, California

Filed August 28, 2017

Before: J. Clifford Wallace, M. Margaret McKeown,
and Jay S. Bybee, Circuit Judges.

Opinion by Judge McKeown;
Dissent by Judge Wallace

SUMMARY *

Clean Air Act / Consent Decree

The panel affirmed the district court’s approval of a
Consent Decree between the Environmental Protection
Agency (“EPA”) and the Sierra Club that set a schedule for
the EPA to promulgate designations whether geographic
areas met national ambient air quality standards for sulfur
dioxide under the Clean Air Act.

The Consent Decree settlement provided that so long as
the EPA followed the agreed-upon designation schedule, the
Sierra Club would not move forward with its suit under the
citizen-suit provision of the Clean Air Act. The settlement
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 STATE OF NORTH DAKOTA V. MCCARTHY 3

did not modify the EPA’s statutory authority, nor did it affect
or bind the several states that intervened in the suit and
objected to the settlement.

The panel rejected the States’ three main objections to
the Consent Decree: that the Decree improperly disposed of
their claims; that the Decree imposed duties and obligations
on the States without their consent; and that the Decree was
not “fair, adequate and reasonable” because its deadlines far
exceeded the Clean Air Act’s three-year period to
promulgate designations.

Judge Wallace dissented because he disagreed with the
majority’s holding that the consent decree’s seven-year
extension of a deadline imposed by the Clean Air Act for the
EPA to fulfill a mandatory statutory duty did not conflict
with the Act. Judge Wallace would vacate the district
court’s judgment and remand for further proceedings

COUNSEL

Paul M. Seby (argued), Special Assistant Attorney General
for the State of North Dakota, Greenberg Traurig LLP,
Denver, Colorado; Wayne Stenehjem, Attorney General;
Margaret I. Olson, Assistant Attorney General; Office of the
Attorney General, Bismarck, North Dakota; Mark Brnovich,
Arizona Attorney General; Monique K. Coady, Assistant
Attorney General; Office of the Attorney General, Phoenix,
Arizona; C. Michael Haines, Executive Director; Jacquelyn
A. Quarles, Staff Attorney; Office of General Counsel,
Energy and Environment Cabinet, Frankfort, Kentucky;
Spencer B. Bowman, Legal Division, Louisiana Department
of Environmental Quality, Baton Rouge, Louisiana; Adam
Paul Laxalt, Attorney General; Belinda A. Suwe, Deputy
4 STATE OF NORTH DAKOTA V. MCCARTHY

Attorney General; Office of the Attorney General, Carson
City, Nevada; Ken Paxton, Attorney General; Charles E.
Roy, First Assistant Attorney General; James E. Davis,
Deputy Attorney General for Civil Litigation; Jon
Niermann, Chief, Environmental Protection Division;
Nancy Olinger, Assistant Attorney General; Office of the
Attorney General, Austin, Texas; for State Intervenor-
Plaintiffs-Appellants.

Zachary M. Fabish (argued), Sierra Club Environmental
Law Program, Washington, D.C.; Paul R. Cort, Earthjustice,
San Francisco, California; Nicholas Morales and David S.
Baron, Earthjustice, Washington, D.C.; for Plaintiffs-
Appellees Sierra Club and Natural Resources Defense
Council.

J. David Gunter II (argued) and Martha C. Mann, Attorneys;
John C. Cruden, Assistant Attorney General; Environment
& Natural Resources Division, United States Department of
Justice, Washington, D.C.; Michael Thrift, Office of General
Counsel, United States Environmental Protection Agency,
Washington, D.C.; for Defendant-Appellee.

OPINION

McKEOWN, Circuit Judge:

Under the Clean Air Act (“the Act”), the Environmental
Protection Agency (“EPA”) must establish and periodically
revise national ambient air quality standards (“NAAQS”).
After NAAQS are promulgated, the agency designates
whether geographic areas meet those NAAQS. At issue in
this appeal are the NAAQS designations for sulfur dioxide,
a pollutant that causes environmental harm and health risks.
 STATE OF NORTH DAKOTA V. MCCARTHY 5

When the EPA missed the statutory deadline to issue its
designations, the Sierra Club sued to force agency action.
The EPA and the Sierra Club ultimately resolved their
claims through a Consent Decree that set a schedule for the
EPA to promulgate designations. After a detailed hearing,
consideration of objections, and publication of the proposed
Consent Decree in the Federal Register, the district court
approved the settlement as “fair, adequate and reasonable.”

Although styled as a Consent Decree, the settlement
between the EPA and the plaintiffs, the Sierra Club and the
Natural Resources Defense Council (collectively, the “Sierra
Club”), can best be described as a standstill, or non-suit,
agreement: so long as the EPA follows the agreed-upon
designation schedule, the Sierra Club will not move forward
with its suit. The agreement does not modify the EPA’s
statutory obligations, nor does it affect or bind the several
states (the “States”) that intervened in the suit and objected
to the settlement. The States may pursue a parallel lawsuit
that some of them previously initiated in North Dakota or
otherwise advance their claims elsewhere. We affirm the
district court’s approval of the Consent Decree.

Background

The Act is intended “to protect and enhance” the
country’s air resources “to promote the public health and
welfare and the [nation’s] productive capacity,” which it
seeks to accomplish by allocating implementation and
enforcement activities between the federal and state
governments. 42 U.S.C. § 7401. One of the Act’s
provisions aimed at reducing air pollution requires the EPA
to set NAAQS that relate to the permissible ambient
concentration of certain pollutants considered harmful to
public health and the environment. Id. §§ 7408–7410. Each
state has the primary responsibility for ensuring that the air
6 STATE OF NORTH DAKOTA V. MCCARTHY

quality within its boundaries meets and remains within the
NAAQS for each pollutant. Id. § 7407(a).

The EPA is directed to review the NAAQS every five
years and revise them as appropriate. Id. § 7409(d). Within
one year of the EPA’s promulgation of revised NAAQS for
a pollutant, each state must submit recommended
designations for areas within the state. Id. § 7407(d)(1)(A).
A region may be given one of three designations:
(1) “attainment,” for areas that meet the NAAQS;
(2) “nonattainment,” for areas that do not meet the NAAQS;
or (3) “unclassifiable,” for areas that “cannot be classified on
the basis of available information as meeting or not meeting
the [NAAQS].” Id.

What happens next is the genesis of the dispute before
us. After the states submit recommended designations, the
EPA must promulgate the designations of all regions “as
expeditiously as practicable, but in no case later than 2 years
from the date of promulgation” of the revised NAAQS. Id.
§ 7407(d)(1)(B). Congress provides a limited extension for
“up to one year” when the agency “has insufficient
information to promulgate the designations.” Id.

In June 2010, the EPA revised the primary NAAQS for
sulfur dioxide, a gas emitted chiefly when combusting fossil
fuels and high-sulfur-containing fuels. Although the precise
details of the revised NAAQS are not important for our
purposes, this revision caused unique challenges for the
collection of relevant emissions data.
 STATE OF NORTH DAKOTA V. MCCARTHY 7

Within the year, the States 1 complied with their
obligations and recommended designations for the revised
NAAQS. In August 2012, in part because data collection
challenges stemming from the revised NAAQS resulted in
insufficient data, the EPA opted for the one-year statutory
extension to June 2013. See id. § 7407(d)(1)(B). The EPA
also began consulting with stakeholders about the best way
to address the data challenges posed by the revised NAAQS,
which eventually culminated in the EPA’s promulgation of
the Data Requirements Rule. See Data Requirements Rule
for the 2010 1-Hour Sulfur Dioxide (SO2) Primary National
Ambient Air Quality Standard (NAAQS) (“Data
Requirements Rule”), 80 Fed. Reg. 51,052 (Aug. 21, 2015)
(to be codified at 40 C.F.R. pt. 51). However, by August
2013—after the EPA’s deadline had expired—the agency
had designated only 29 areas, leaving undesignated more
than 3,000 counties throughout the country.

In August 2013, the Sierra Club sued the EPA in the
Northern District of California under the Act’s citizen-suit
provision, 42 U.S.C. § 7604(a)(2), seeking to compel the
EPA to issue designations. Shortly after, the States moved
to intervene, asserting that their “claims against [the] EPA
will address [the] EPA’s failure to promulgate [sulfur
dioxide] NAAQS attainment designations in the time frame
mandated by the [Act]” and that they “have a significant
protectable interest in the terms of any remedial order or
settlement that might result from th[e Sierra Club’s] case.”
Nevada, North Dakota, South Dakota, and Texas had

1
The states in this appeal are Arizona, Kentucky, Nevada, North
Dakota, Louisiana, and Texas. North Carolina filed a complaint-in-
intervention, but it is not a party to this appeal. As discussed in note 2,
North Carolina is now pursuing a separate action against the EPA for its
failure to promulgate sulfur dioxide designations.
8 STATE OF NORTH DAKOTA V. MCCARTHY

previously filed their own citizen suit in the District Court of
North Dakota seeking the same relief, and that suit was
stayed pending the resolution of the case in California.

A month after the States asked to join the California suit,
the Sierra Club moved for summary judgment in an effort to
speed up the EPA’s publication of designations. The EPA
acknowledged that it missed the three-year deadline. With
no dispute on liability, the district court granted the Sierra
Club’s summary judgment motion. The court also granted
the States’ motion to intervene.

The district court ordered the parties to confer on an
appropriate remedy. The parties briefed proposed remedies
and engaged in multiple settlement discussions over several
months, including at least ten joint settlement conferences.
Although efforts to reach a global resolution among the
EPA, the Sierra Club, and the States failed, the Sierra Club
and the EPA agreed to a settlement that the States declined
to join. Under that settlement, the EPA must roll out
designations in three phases, with the final promulgation of
designations no later than December 31, 2020—more than
seven years after the June 2013 deadline set by the Act’s
framework in 42 U.S.C. § 7407(d)(1)(B).

The Sierra Club and the EPA submitted a proposed
Consent Decree to the district court and published the
Consent Decree in the Federal Register for notice and
comment. Proposed Consent Decree, Clean Air Act Citizen
Suit, 79 Fed. Reg. 31,325 (June 2, 2014). More than one
hundred comments—including some by the States that are
intervenors here—were submitted in response to the
proposed Consent Decree. After a hearing in which the
States participated, the court entered the Consent Decree
over the States’ objection. Significantly, the court saw no
 STATE OF NORTH DAKOTA V. MCCARTHY 9

barrier to the States pursuing relief or claims in other actions
regarding the EPA’s tardy designations.

On appeal, the States raise three main objections to the
Consent Decree. They argue that the Consent Decree
improperly disposes of their claims, imposes duties and
obligations on the States without their consent, and is not
“fair, adequate and reasonable” because its deadlines far
exceed the Act’s three-year period to promulgate
designations.

Analysis

Our analysis of the Consent Decree is framed by the
Supreme Court’s teaching in Local No. 93, International
Association of Firefighters v. City of Cleveland (“Local No.
93”), 478 U.S. 501 (1986). In a discrimination suit brought
by minority firefighters against the City of Cleveland, the
union representing most of the city’s firefighters intervened
and objected to the settlement. The Supreme Court
explained that the consent decree was properly entered over
the objections because “one party—whether an original
party, a party that was joined later, or an intervenor—
c[annot] preclude other parties from settling their own
disputes and thereby withdrawing from the litigation.” Id. at
528–29 (emphasis added); see also id. at 504–06; United
States v. Carpenter, 526 F.3d 1237, 1240 (9th Cir. 2008)
(“We recognize that the intervenors whose claims are not the
subject of a settlement cannot veto that settlement.”). Thus,
an intervenor must be heard on whether to approve a consent
decree, but it cannot stop other litigants from resolving their
dispute by withholding its consent to a decree. Local No. 93,
478 U.S. at 529.

In other words, the States cannot block the Consent
Decree between the Sierra Club and the EPA simply because
10 STATE OF NORTH DAKOTA V. MCCARTHY

they disagree with its terms. The Supreme Court adopted
this approach for good reason; otherwise, one party could
hold the other parties hostage in ongoing litigation, and a
global settlement or judgment would be the only option. The
rule is especially applicable here because the States were
part of the hearing on the proposed Consent Decree; briefed
the proposed remedy; publicly commented on the proposed
Consent Decree, which was published in the Federal
Register; and participated in multiple settlement
conferences. The notion that the Consent Decree breezed
through without the States’ input or due consideration by the
district court is belied by the record. The district court’s
thoughtful and detailed order addresses the very issues the
States raise on appeal. See Order Granting Joint Motion to
Approve and Enter Consent Decree and Denying Other
Motions as Moot, Sierra Club v. McCarthy, No. 13-cv-
03953-SI (N.D. Cal. Mar. 2, 2015), ECF No. 162.

That said, it is well-established that “[a] court’s approval
of a consent decree between some of the parties . . . cannot
dispose of the valid claims of nonconsenting intervenors.”
Local No. 93, 478 U.S. at 529; E.E.O.C. v. Pan Am. World
Airways, Inc., 897 F.2d 1499, 1506 (9th Cir. 1990) (“It is
fundamental to our notions of due process that a consent
decree cannot prejudice the rights of a third party who fails
to consent to it.”).

The Consent Decree leaves the States’ claims intact. By
its very terms, the Consent Decree does not dispose of or
prejudice the States’ independent claims. Nowhere in the
Consent Decree are the States’ claims or grievances
identified or even referenced. To the extent that the Consent
Decree asserts that the Sierra Club and the EPA “have agreed
to a settlement of this action” or that the Consent Decree is
“an adequate and equitable resolution of all the claims in this
 STATE OF NORTH DAKOTA V. MCCARTHY 11

matter,” that language refers only to the action and claims
between the Sierra Club and the EPA. Additionally, the
Consent Decree does not limit the EPA’s rights in lawsuits
against third parties: “[n]othing in the terms of this Consent
Decree shall be construed to waive any remedies or defenses
the parties may have” under the Act, and nothing in the
Consent Decree attempts to circumscribe the rights of the
States or other third parties against the EPA. Importantly,
the district court recognized that the Consent Decree had no
bearing on the States’ claims, noting that “those [States] will
still be free to pursue earlier deadlines in [other] actions.” 2

Recognizing that the Consent Decree does not actually
extinguish their claims, the States shift gears slightly to
assert that the Consent Decree impermissibly saddles them
with legal duties or obligations. Were that true, the States
might have a winning argument, as a consent decree “may
not impose duties or obligations on a third party, without that
party’s consent.” Local No. 93, 478 U.S. at 529; United
States v. Oregon, 913 F.2d 576, 582 n.4 (9th Cir. 1990).
However, as the States ultimately acknowledge, the Consent
Decree does not subject them to any explicit obligations: it
does not mandate any specific state action, and only the
Sierra Club and the EPA can be held in contempt for failure
to comply with the Consent Decree’s terms. See Local No.
93, 478 U.S. at 529–30.

The States’ argument can best be read as a claim that the
Consent Decree forces indirect duties and obligations on
2
As to North Carolina, the district court noted that the Consent
Decree “provides North Carolina with the relief sought, namely a
binding schedule to issue all remaining designations.” Notwithstanding
this observation, North Carolina is currently litigating its claims against
the EPA in the Eastern District of North Carolina. North Carolina v.
McCarthy, 5:13-cv-00710-FL (E.D.N.C. filed Oct. 9, 2013).
12 STATE OF NORTH DAKOTA V. MCCARTHY

them. This tack also fails because a careful look at the
briefing reveals that the States’ objection is with the
obligations imposed by the Data Requirements Rule, not the
Consent Decree. Indeed, the Data Requirements Rule,
which was promulgated under agency rulemaking
procedures including notice and comment, requires the
States to submit specific data reporting under the revised
NAAQS. See Data Requirements Rule, 80 Fed. Reg. at
51,064.

Although the Consent Decree references the Data
Requirements Rule, it does not impose any of that rule’s
substantive obligations on the States. That is, the Consent
Decree cannot and does not “permanently and substantially
amend[] an agency rule that would have otherwise been
subject to statutory rulemaking procedures.” Conservation
Nw. v. Sherman, 715 F.3d 1181, 1187 (9th Cir. 2013).
Instead, the terms of the Consent Decree operate
independently: the Consent Decree’s deadlines would
remain in effect even if the Data Requirements Rule had not
been promulgated, and the Data Requirements Rule would
still obligate the States to submit additional emissions data
in absence of the Consent Decree. The States cannot use the
Consent Decree to launch a backdoor challenge against this
duly promulgated agency rule.

In the end, what the States really take issue with is that
the EPA blew the deadline to promulgate NAAQS
designations and that the deadlines outlined in the Consent
Decree are not “fair, adequate and reasonable.” See Oregon,
913 F.2d at 580. That failure to comply with the statutorily
prescribed timeline—and the EPA’s continued failure to
remedy the problem—has left the States in their alleged
planning purgatory. But it is not the Consent Decree that
inflicts this “regulatory limbo.” The Consent Decree merely
 STATE OF NORTH DAKOTA V. MCCARTHY 13

gives the latest dates—vis-à-vis the agreement with the
Sierra Club—for the EPA to promulgate the designations.
The settlement between the Sierra Club and the EPA is not
the reason behind the States’ waiting game.

As a practical matter, had the EPA met the deadlines,
there would not be a lawsuit over the deadlines or a need to
establish a new baseline for compliance. The Act does not
prescribe a remedy for default, and, as the district court
observed, “the appropriate remedy in a ‘deadline’ case such
as this is to require [the] EPA to issue designations pursuant
to a schedule, not to mandate that [the] EPA issue any
particular designation.” Rather than impose a particular
substantive outcome, the district court approved a consent
decree that simply compels action by the EPA. See Brock v.
Pierce Cty., 476 U.S. 253, 260 & n.7 (1986); Sierra Club v.
EPA, 762 F.3d 971, 981 & n.5 (9th Cir. 2014). The EPA is
no stranger to consent decrees that set deadlines after it fails
to timely promulgate designations. See, e.g., Miss. Comm’n
on Envtl. Quality v. EPA, 790 F.3d 138, 158 (D.C. Cir. 2015)
(per curiam) (enforcing a consent decree’s deadlines and
noting that “[t]he EPA entered into the consent decree
precisely to settle allegations that it had already missed the
Act’s statutory deadlines for promulgating the 2008 ozone
NAAQS designations”); Nat. Res. Def. Council v. EPA,
777 F.3d 456, 461–63, 467 (D.C. Cir. 2014) (“EPA entered
into consent decrees aimed to enforce those provisions
[related to the promulgation of designations] under which it
agreed to promulgate revised NAAQS by March 2008 and
to issue designations by May 2012.”). The district court did
not abuse its broad authority in concluding that the Consent
Decree “is fair and reasonable, both procedurally and
substantively, and consistent with the Clear Air Act, and
other applicable law.” See Oregon, 913 F.2d at 580; Alaska
Ctr. for Env’t v. Browner, 20 F.3d 981, 986–87 (9th Cir.
14 STATE OF NORTH DAKOTA V. MCCARTHY

1994) (highlighting a district court’s “broad latitude” to
fashion equitable relief).

Nothing can put the genie back in the bottle now that the
EPA has missed the promulgation deadline, but the Consent
Decree leaves the States free to pursue their claims in other
litigation and to argue for even shorter timelines for agency
action. In its order, the district court reiterated the
representation by the Sierra Club and the EPA that “[a]ny
decision by this Court to enter the proposed consent decree
would not, in and of itself, result in the dismissal of the
Plaintiff-Intervenors’ claims in those suits. That is, if the
Court enters the proposed consent decree here, those parties
will still be free to pursue earlier deadlines in those actions
. . . .” At oral argument, the States acknowledged that they
could pursue their pending claims in the North Dakota
litigation. And North Carolina, which is not a party to this
appeal, is already pursuing its claims in federal court in
North Carolina. Put simply, the States cannot have it both
ways: they cannot try block the Consent Decree by arguing
that it improperly disposes of their claims while
simultaneously asserting that they can pursue those claims
in another forum such as the district court in North Dakota.

In sum, as long as the EPA sticks to the schedule in the
Consent Decree, the Sierra Club will not advance its lawsuit
against the EPA. The Consent Decree does not prohibit the
EPA from promulgating designations prior to those
deadlines, nor does it otherwise constrain the agency’s
discretion. The States may have a complaint against the
EPA for failure to adhere to the Act’s schedule for
promulgating the designations for sulfur dioxide NAAQS,
but they cannot legitimately claim that the terms of the
Consent Decree, as opposed to the EPA itself, are to blame
for their predicament. Because the Consent Decree “does
 STATE OF NORTH DAKOTA V. MCCARTHY 15

not bind [the States] to do or not to do anything,” “imposes
no legal duties or obligations on th[em] at all,” and “does not
purport to resolve any claims the[y] might have,” the States
cannot block the Consent Decree merely by withholding
their consent. See Local No. 93478 U.S. at 529–30.

AFFIRMED.

WALLACE, Circuit Judge, dissenting:

The majority affirms the district court’s judgment,
entered in the form of a consent decree, permitting a seven-
year extension of a deadline imposed by the Clean Air Act
(Act) for the Environmental Protection Agency (EPA or
Agency) to fulfill a mandatory statutory duty. In so doing,
the majority holds that this extension, which allows the
Agency to collect additional data before carrying out its
statutory duty, does not conflict with the Act. I disagree, and
therefore respectfully dissent.

I.

When reviewing a consent decree, we employ an abuse
of discretion standard. Conservation Nw. v. Sherman,
715 F.3d 1181, 1185 (9th Cir. 2013). “Abuse of discretion
means that a decision rests on a clearly erroneous finding of
material fact or is the result of a failure to apply the correct
law.” Id. (internal quotation marks omitted), quoting Turtle
Island Restoration Network v. U.S. Dep’t of Commerce,
672 F.3d 1160, 1165 (9th Cir. 2012). Correspondingly, we
review the district court’s conclusions of law de novo. Id.
16 STATE OF NORTH DAKOTA V. MCCARTHY

II.

Although our review of the entry of a consent decree is
deferential, the decree must meet certain baseline
requirements to merit our approval. “Before approving a
consent decree, a district court must be satisfied that it is at
least fundamentally fair, adequate and reasonable. In
addition, because it is a form of judgment, a consent decree
must conform to applicable laws.” United States v. Oregon,
913 F.2d 576, 580 (9th Cir. 1990) (internal citation omitted).
The majority acknowledges this latter requirement, but its
opinion contains virtually no analysis of the decree’s
compliance with the Act. This omission makes all the
difference—as I explain below, the decree in fact conflicts
with the Act and therefore fails to “conform to applicable
laws.” Id. Accordingly, I would vacate the judgment and
remand for further proceedings. See Local No. 93, Int’l Ass’n
of Firefighters, AFL-CIO C.L.C. v. City of Cleveland,
478 U.S. 501, 526 (1986) (stating that parties to a consent
decree may not “agree to take action that conflicts with or
violates the statute upon which the complaint was based”);
Conservation Nw., 715 F.3d at 1185 (“[A] district court may
not approve a consent decree that ‘conflicts with or violates’
an applicable statute.” (quoting Local 93, 478 U.S. at 526)).

A.

The majority opinion ably outlines the Act’s
requirements with respect to the issuance of national ambient
air quality standards (NAAQS) and designations of
compliance (or lack thereof) with such standards. To
summarize briefly, the Act obliges the EPA to promulgate
NAAQS with respect to airborne pollutants. 42 U.S.C.
§ 7409(a). Within two years of promulgating or revising a
NAAQS, the Agency must designate every air quality
control region within the country as not meeting the standard
 STATE OF NORTH DAKOTA V. MCCARTHY 17

(“nonattainment”), meeting the standard (“attainment”), or
not capable of designation “on the basis of available
information” (“unclassifiable”). Id. § 7407(d)(1)(A)(i)–(iii),
7407(d)(1)(B)(i). This designation period may be extended
for up to one additional year if the EPA Administrator “has
insufficient information to promulgate the designations.” Id.
§ 7407(d)(1)(B)(i). Once an air quality control region has
been designated, the Agency may redesignate it if “available
information indicates that the designation of any area or
portion of an area within the State or interstate area should
be revised.” Id. § 7407(d)(3)(A)–(C).

The EPA revised its sulfur dioxide NAAQS in 2010,
thereby triggering its obligation to issue area designations
within the statutory timeframe. But even after taking the full
three years available to it, including the one-year extension
allowed by the Act, the EPA issued designations for just
twenty-nine regions, thus leaving most of the country
undesignated. The EPA attempted to explain this decision by
stating that it was “not yet prepared to issue designations”
for the remaining regions and promising to do so “in separate
future actions.” As the EPA admitted in the district court, its
withholding of those designations constituted a failure to
discharge a non-discretionary statutory duty. In short, the
EPA failed to do what the legislature charged it to do with
no real reason for its rejection of the congressional direction.

The consent decree seeks to remedy this failure by
effectively rewriting the statute with a series of staggered
deadlines for completing designations that extends until
December 31, 2020—seven years after the congressional
statutory cut-off date. These deadlines appear to have been
chosen without congressional approval to enable or at least
permit the EPA to obtain additional information for making
initial designations. This includes data that the States are
18 STATE OF NORTH DAKOTA V. MCCARTHY

now required to collect pursuant to a new regulation—the
Data Requirements Rule (Rule)—that imposes more
stringent information-gathering obligations than previously
were applicable. In its order accepting the party-drafted
decree, the district court observed that the States likely
would have to “supplement and update their previous
submissions” if the Rule were adopted. The consent decree
bears this out, describing the Rule’s purpose as “direct[ing]
states to conduct additional information collection and
analyses . . . for purposes of informing future area
designations under the 2010 revised . . . [sulfur dioxide]
NAAQS.” It is thus clear that the parties agreed to the
consent decree, and the district court approved it, on the
understanding that the EPA would use the extra time to
collect additional data for making its initial designations.
Absent from this “amendment” was the approval of
Congress, which passed the statutory requirements being
modified.

B.

District courts have “broad latitude in fashioning
equitable relief when necessary to remedy an established
wrong,” such as a federal agency’s failure to take required
action. Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 986
(9th Cir. 1994). We have held that this latitude even permits
a court faced with such procrastination to effectively amend
the statute by establishing “deadlines that are far more
lenient than those contained within the [statute] itself.” Id.

At least for now, this is the framework we must use to
review the district court’s approval of the consent decree.
Before proceeding further, however, I want to register my
strenuous disagreement with this unfortunate rule. It thrusts
courts into a quasi-legislative role for which they are poorly
equipped. Although it is impossible to compel an agency’s
 STATE OF NORTH DAKOTA V. MCCARTHY 19

compliance with a statutory deadline once it has passed, and
a court must take some action to remedy the failure, it does
not follow that the proper course of action is for the court to
assume the legislative mantle and effectively rewrite the
agency’s statutory obligations. As an institution, we lack the
considerable investigative resources and deliberative
capacity available to Congress when it crafts statutes like the
Act to govern agency action. We therefore should be hesitant
to jettison the legislature’s considered judgment regarding
issues like the one before us. While we frequently chant the
importance of separation of powers to protect the judiciary,
this rule seems to say there is no breach when we invade the
legislative branch.

Nor is the possibility of undermining congressional
intent under such a rule limited to the courts. Agencies
themselves can evade the “especially heavy” burden to
justify departing from “a statutory command,” Ala. Power
Co. v. Costle, 636 F.2d 323, 359–50 (D.C. Cir. 1979), merely
by disregarding their deadlines, since they can count on the
courts to impose new deadlines—and sometimes “far more
lenient” ones—that necessarily post-date the ones contained
in relevant statutes. See Browner, 20 F.3d at 986. It would
be far better for us to refrain from such legislative ventures
and limit our role to ordering agencies to comply with their
statutory duties as early as practicable, and if they cannot,
they should return to the legislature for a solution.

C.

Nonetheless, we cannot, as a panel, overrule our
precedent. Nor need we to resolve this case, for the consent
decree does not merely set deadlines “far more lenient than
those contained within the [statute] itself.” Id. As explained,
the consent decree in effect authorizes the EPA to collect
additional data before issuing its initial designations; indeed,
20 STATE OF NORTH DAKOTA V. MCCARTHY

the decree’s deadlines are predicated on the assumption that
that is how the Agency will use the additional time. The Act,
however, forbids such additional data-gathering when it
comes at the expense of timely designations. The parties
were powerless to dispense with this proscription, and the
district court lacked authority to approve their agreement to
do so.

Three of the Act’s provisions, taken together, reflect
Congress’s intent to restrict the EPA’s data-gathering
authority in the situation before us, where the Agency desires
to collect more data before making initial designations. The
first is the one-year extension available to the EPA
Administrator when the Agency lacks the necessary
information to make initial designations after two years. The
second relevant provision is the unclassifiable designation
category, which is meant to fill the gap when the information
available to the Agency does not support either an attainment
or nonattainment designation. The third provision is the
redesignation process, which allows the EPA to revise its
initial designations as the data warrant.

1.

Regarding the extension provision, the Act requires the
EPA to issue designations within two years of promulgating
or revising a NAAQS, but permits the Agency to extend that
deadline “for up to one year in the event the Administrator
has insufficient information to promulgate the designations.”
42 U.S.C. § 7407(d)(1)(B)(i). The Act provides for no
further extensions. In this provision, then, Congress
anticipated the EPA’s desire to delay designations
specifically for the purpose of collecting additional data, and
determined that it would cap the Agency’s ability to do so at
one extra year. Thus, Congress specifically intended that the
EPA only be able to collect a maximum of three years’ worth
 STATE OF NORTH DAKOTA V. MCCARTHY 21

of data before making initial designations. Permitting the
Agency to gather data for up to seven additional years, as the
consent decree does, therefore frustrates Congress’s intent.
Cf. Sierra Club v. EPA, 294 F.3d 155, 160 (D.C. Cir. 2002)
(“We cannot but infer from the presence of . . . specific
exemptions that the absence of any other exemption . . . was
deliberate, and that the Agency’s attempt to grant such a
dispensation is contrary to the intent of the Congress.”).

2.

The second pertinent provision, the unclassifiable
designation category, buttresses this reading. An
unclassifiable designation is appropriate for “any area that
cannot be classified on the basis of available information.”
42 U.S.C. § 7407(d)(1)(A)(iii). Such a designation
presupposes that the EPA may not be able to collect
sufficient data to make a designation of attainment or
nonattainment within the statutorily designated time limit,
and any area not so designated is unclassifiable at that time.
It also implies that the Agency’s data-gathering authority is
temporally limited. If it were not, then there would be no
need for the unclassifiable designation—the Agency could
simply delay making designations indefinitely until it
obtained enough information to designate all areas as
attainment or nonattainment. The inclusion of the
unclassifiable designation therefore makes sense only if
Congress understood the Act to require the EPA to make
initial designations, at least in some cases, before the Agency
finished gathering all of the data needed to make attainment
or nonattainment designations. Allowing the Agency to
withhold its designations until it gathers the necessary data
to make one of those designations would render the
unclassifiable designation provision superfluous. The
Agency’s interpretation of these designations thus makes no
22 STATE OF NORTH DAKOTA V. MCCARTHY

sense and is unnecessary for carrying out its statutory
responsibility.

This is not to say that the consent decree in fact
authorizes the EPA to delay its initial designations until it
has collected sufficient information to designate all areas as
attainment or nonattainment. It is possible that the Agency
may have to designate some areas as unclassifiable even at
the end of the decree’s generous timeline. But that does not
mean that the decree is consistent with the Act. By granting
the Agency up to seven extra years to make initial
designations, the decree adds a fourth option, which appears
nowhere in the statute, to the list of actions the EPA may
take at the conclusion of the Act’s three-year information-
gathering period: withhold. Instead of performing its
mandatory duty to designate all areas with one of the three
labels, the EPA instead may simply refuse and continue to
collect data, contrary to Congress’s intent, until whatever
future deadline a court may see fit to impose. The consent
decree itself, of course, does not demand such an outcome
because it applies only in this case. But we can approve the
consent decree only by holding that the Act allows for such
an expansion of the Agency’s data-gathering authority, and
that holding certainly will control the outcome of future
cases.

3.

The third provision germane to this issue is the
redesignation process, which authorizes the EPA to
redesignate an area when the information available to the
Agency indicates that a new designation is warranted. Id.
§ 7407(d)(3)(A)–(C). Like the unclassifiable designation,
the inclusion of this provision makes sense only if the Act
sets a hard deadline for making initial designations even
when the Agency would prefer to collect additional data. The
 STATE OF NORTH DAKOTA V. MCCARTHY 23

redesignation process acts as an escape hatch to mitigate the
otherwise undesirable consequences of requiring initial
designations before all the relevant data are gathered.
Without redesignation, the EPA would be either stuck with
its initial designations or forced to promulgate another
NAAQS and start the designation process over if subsequent
data brought the initial designations into question. But with
redesignation, the EPA can both meet the statutory deadline
for making initial designations and ensure that its
designations at all times reflect the most current data
available. If the Act allowed the EPA to continue collecting
data without making an initial designation until it was
satisfied that its research was complete, the redesignation
option would be of little or no practical value.

D.

Read together, these provisions clarify Congress’s intent
with respect to situations—like this one—where the EPA
wishes to delay designations so that it can collect additional
relevant information. Congress determined that the Agency
should be able to gather data for a maximum of three years
before making initial designations. If the Agency lacks
sufficient information to designate areas as attainment or
nonattainment at the end of those three years, it should make
use of the unclassifiable designation for such areas. Once it
issues initial designations, the Agency can then continue to
gather information and redesignate areas as the data warrant.
The EPA’s delay in this case, and the consent decree’s
extended deadlines premised on the assumption that the
Agency will continue to gather data in the interim, frustrate
this purpose by greatly enlarging the time in which the
Agency can collect information without ever making an
initial designation.
24 STATE OF NORTH DAKOTA V. MCCARTHY

The interpretation I suggest is consistent with both the
Act’s goal “to protect and enhance the quality of the Nation’s
air resources so as to promote the public health and welfare,”
id. § 7401(b)(1), and its character as “an exercise in
cooperative federalism.” Dominion Transmission, Inc. v.
Summers, 723 F.3d 238, 240 (D.C. Cir. 2013); see also Gen.
Motors Corp. v. United States, 496 U.S. 530, 532 (1990)
(describing the Act as “a comprehensive national program
that made the States and the Federal Government partners in
the struggle against air pollution”). As the Intervenor-
Appellants point out, this process provides “regulatory
certainty” by creating a defined timeframe for receiving
designations, which impose certain obligations on states in
crafting their implementation plans. See 42 U.S.C.
§§ 7407(a), 7502. At the same time, it affords the EPA the
means to ensure its designations are based on the most up-
to-date information available. Approving the consent decree,
and thus blessing similar future extensions by district courts
confronting agency intransigence, runs roughshod over the
states’ interests in favor of vindicating the EPA’s desire to
depart from the rules Congress has mandated for it. If the
Act’s three-year data-collection timeframe is inadequate, the
Agency’s remedy lies with the legislature, not the courts.

III.

The EPA argues that the consent decree is consistent
with Sierra Club v. EPA, 762 F.3d 971 (9th Cir. 2014),
where we held that the Agency’s failure to issue a power
plant operation permit timely did not exempt it from
applying the most updated air quality standards, which had
gone into effect after the missed deadline, when it finally
issued the permit. Id. at 983. In so concluding, we relied on
the “basic principle that EPA is bound to enforce
administrative guidelines in effect when it takes final
 STATE OF NORTH DAKOTA V. MCCARTHY 25

action.” Id. at 980. Taken at face value, this principle would
require the Agency to abide by the now-operative Rule’s
requirements in issuing its designations.

Sierra Club is distinguishable because applying the
applicable guidelines in that case was consistent with the
Act’s requirements, whereas postponing the designations
here so that the EPA can collect more data conflicts with the
Act. But even if this aspect of Sierra Club extends to the
situation before us, nothing in the Rule actually forces the
Agency to delay the making of one of the three initial
designations while it collects the data that the Rule calls for.
See 40 C.F.R. §§ 51.1200–.1205. The Rule requires neither
that the EPA gather additional data before making the
designations nor that it withhold those designations until the
deadlines established in the consent decree. Consequently,
the Agency’s obligation to enforce the Rule, such as it is,
does not demand the outcome imposed by the consent
decree.

The two cases cited for the proposition that the EPA is
“no stranger” to consent decrees like the one before us
likewise are unhelpful to the majority’s analysis. In
Mississippi Commission on Environmental Quality v. EPA,
790 F.3d 138 (D.C. Cir. 2015), to which Sierra Club was a
party, the D.C. Circuit reviewed the Agency’s refusal to
delay its designations to gather more data, even though it
previously had entered into a consent decree that permitted
it to do so. Id. at 158. The court sided with the EPA,
observing that the Agency would have “infringe[d] the Act’s
deadlines still further” had it delayed as Sierra Club was
urging. Id. If anything, then, Mississippi Commission
acknowledged that prolonging a delay in issuing overdue
designations to collect additional data conflicts with the Act.
26 STATE OF NORTH DAKOTA V. MCCARTHY

Natural Resources Defense Council v. EPA, 777 F.3d
456 (D.C. Cir. 2014), fares no better. There, the D.C. Circuit
merely recognized that, as part of a different case, the
Agency had entered into a consent decree requiring it to
issue designations within four years of promulgating a
revised NAAQS; the court did not review that decree or hold
that it complied with the Act. See id. at 462–63, 467; see also
Air Quality Designations for the 2008 Ozone National
Ambient Air Quality Standards, 77 Fed. Reg. 30,088, 30,091
(May 21, 2012) (identifying the case in which the consent
decree was entered). Although it appears that the Agency
permitted states to update their submissions during the fourth
year, and thus obtained additional data before making initial
designations, 77 Fed. Reg. at 30,091, neither the consent
decree nor the act of collecting additional data was subject
to appellate review. Accordingly, Natural Resources
Defense Council does not support the proposition that
extending the EPA’s initial designation deadline so it can
gather more data is consistent with the Act.

Nor does the majority’s characterization of the decree as
a “non-suit agreement” redeem it. It is not clear exactly what
role this characterization of the consent decree plays in the
majority’s analysis. To the extent the majority is trying to
distinguish this consent decree from others, all consent
decrees operate in the same way. It is always the case that
one or more parties refrains from pressing its claims as long
as the other party (or parties) abides by the terms of the
consent decree. The decree in our case is not unique in that
sense.

What the majority appears to be employing is a “no
harm, no foul” rationale—because the effect of the consent
decree is only to halt Sierra Club’s and Natural Resources
Defense Council’s (NRDC) claims against the EPA while
 STATE OF NORTH DAKOTA V. MCCARTHY 27

leaving intact the Intervenor-Appellants’ claims, the decree
has no consequential legal effect. I do not agree. As
explained above, we can affirm the district court’s judgment
only by holding that the consent decree “conform[s] to
applicable laws.” Oregon, 913 F.2d at 580. There is no
exception for decrees that operate as effective non-action
agreements. (Such an exception would swallow the rule; as
just mentioned, all consent decrees are non-action
agreements as the majority uses that term.) Approval of the
consent decree therefore has a legal effect of significant
consequence: it amounts to a holding that the decree’s
expansion of the Agency’s pre-designation data-collection
authority does not conflict with the Act.

I cannot go along with this conclusion. I believe that the
consent decree does conflict with the Act by permitting the
EPA to delay its initial designations while it collects more
data. The separation of powers doctrine forbids our
amending the statute—only the Congress can do that. The
EPA can return to the legislative branch—but should not be
allowed to misuse the judicial branch. The district court’s
judgment should be vacated and the case remanded for the
parties to try again or for the district court to determine an
appropriate remedy that complies with all applicable laws.