UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

STATE OF NORTH DAKOTA, et al.,

Plaintiffs,

vs. Case No. 1:13-cv-109-DLH-CSM

GINA McCARTHY, Administrator of the
United States Environmental Protection
Agency,

Defendant.
/

EPAS REPLY IN SUPPORT OF
MOTION TO HOLD CASE IN ABEYANCE

Defendant Gina McCarthy, Administrator of the United States
Environmental Protection Agency (EPA), hereby submits this reply in support of
EPAs motion to hold this matter in abeyance (ECF No. 19). As explained in
EPAs motion, there are three suits pending in three different district courts that all
seek to compel the Administrator to perform the same alleged nondiscretionary
duty under the Clean Air Act (CAA): to complete designations of areas of the
country as attaining, not attaining, or being unclassifiable under the 2010 revised
primary National Ambient Air Quality Standard (NAAQS) for sulfur dioxide
(SO
2
) as required by CAA Section 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B).
ECF No. 19 at 2.
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Plaintiffs the States of North Dakota, Nevada, and Texas, joined by the
States of Arizona and Kentucky, are all also parties in the first filed suit, in which
the District Court for the Northern District of California has entered summary
judgment as to the Administrators liability. Id. at 2-3. The States of North
Dakota, Nevada, and Texas are also represented by the same counsel in this case
and in the Northern District of California matter. Moreover, the State of North
Carolina, also a party in the Northern District Court of California case, filed its
own unopposed motion to hold in abeyance its separate case filed in the Eastern
District of North Carolina, which the court there granted.
The parties in the Northern District of California matter are currently in the
process of briefing the appropriate remedy. In order to conserve the resources of
the courts and the parties, EPA has moved for a stay of this action, similar to the
stay entered by the District Court for the Eastern District of North Carolina in
response to the State of North Carolinas motion. Id. at 4-5.
ARGUMENT
It is well-established that a trial court has the inherent power to stay
proceedings to control its docket, to conserve judicial resources, and to ensure that
each matter is handled with economy of time and effort for itself, for counsel,
and for litigants. United States v. Minnkota Power Co-op, Inc., 831 F. Supp. 2d
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1109, 1118 (D.N.D. 2011) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). Here, it would be inefficient and a burden on both the Courts and the
parties resources to have duplicative litigation proceeding in two separate district
courts, with differing degrees of progress in addressing the issues to be resolved,
and with partially overlapping but partially different sets of parties. It would be far
more efficient to allow the first filed and more advanced case, in which all parties
in all three cases are parties (except for Plaintiff South Dakota), to progress to
resolution.
In response to EPAs motion, Plaintiff South Dakota the one party in the
instant case who chose not to intervene in the Northern District of California case
argues that to hold this case in abeyance would force it out of its chosen forum.
ECF No. 22 at 4. However, a party is not guaranteed an absolute right to choose
the forum in which a matter will be heard. See, e.g., 28 U.S.C. 1401(a)
(authorizing transfer between district courts); Van Dusen v. Barrack, 376 U.S.
612, 84 S.Ct. 805 (1964) (recognizing that 28 U.S.C. 1401(a) is meant to avoid
unnecessary inconvenience to the litigants, witnesses, and the public, and to
conserve time, energy, and money). There is likewise no guarantee that this Court
would resolve the instant suit on both liability and remedy before the Northern
District of California court reaches a decision as to the appropriate remedy. In the
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case management conference held before this Court on J anuary 13, 2014, Plaintiff
South Dakota acknowledged that it had not sought to intervene in the first filed of
the three nondiscretionary duty suits, and that it knew of no reason the Northern
District of California court would deny intervention. In light of the fact that the
Court in the Northern District of California allowed instant Plaintiffs North
Dakota, Nevada and Texas, along with Louisiana, Kentucky, Arizona and North
Carolina, to intervene in the first filed nondiscretionary duty suit, it would be a
hardship to require EPA to simultaneously defend the same claim in two courts,
especially given the State of North Carolinas recognition that proceeding in its
own separate case was an inefficient use of judicial resources. Moreover, there is a
distinct possibility that the different district courts could reach different decisions
as to what schedule EPA should be operating under either nationally or with
respect to specific states which would cause confusion for both the Agency and
the parties involved.
As Plaintiffs North Dakota, Nevada, and Texas are aware, the Northern
District of California case has had a schedule in place for briefing the remedy
phase of the case since J anuary 2014, and the parties to that action have been in
ongoing settlement discussions since December 2013 while simultaneously
proceeding to brief remedy. See Sierra Club v. McCarthy, N.D. Cal. Case No.
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3:13-cv-3953-SI, ECF Nos. 85, 89.
1
That court has also scheduled a hearing on
the remedy for May 30, 2014.
Any remedy that is stipulated to or ordered in the Sierra Club matter in the
Northern District of California case would address the concerns that EPA
anticipates the Plaintiffs would raise in this matter, and would obviate the need to
litigate the issues again before this Court. EPA further anticipates that the remedy
will likely be entered or decided by the district court in Sierra Club before the same
issue could be briefed and decided by this Court.
For these reasons of economy of resources of both the parties and the
judicial system, EPA respectfully requests that the Court order that:
1. this matter be held in abeyance;
2. all pending deadlines be continued;
3. the parties file a joint status report within 120 days of the date of this
Courts order, setting forth any developments in the Sierra Club matter (or any
other related matter) that may affect the status of this case;

1
The briefing schedule was briefly extended on the motion of the States of North
Dakota, Nevada, Texas, and other Intervenor-Plaintiffs. See Sierra Club v.
McCarthy, N.D. Cal. Case No. 3:13-cv-3953-SI, ECF No. 88 at 1.
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4. any party be allowed at any time to move this Court for an order
terminating, in whole or in part, the order of the Court holding the matter in
abeyance.
Dated: April 4, 2014 Respectfully Submitted,
/s/ Martha C. Mann
Martha C. Mann
United States Department of J ustice
Environmental & Natural Resources
Division
P.O. Box 7611
Washington, D.C. 20044
martha.mann@usdoj.gov
Tel: 202.514.2664


Of Counsel:

Michael Thrift
United States Environmental Protection Agency
Office of General Counsel
Air and Radiation Law Office (2344-A)
1200 Pennsylvania Ave., N.W.
Washington D.C. 20460











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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused a true and correct copy of the
foregoing to be electronically filed on April 4, 2014. All registered counsel are to
receive notice of the filing via the Courts electronic case filing system.



/s/ Martha C. Mann
MARTHA C. MANN
United States Department of J ustice
Environment and Natural Resources
Division



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