Association of Irritated Residents v. United States Environmental Protection Agency et al

Filing 28

ORDER re 27 granting STIPULATION. Signed by Judge Claudia Wilken on 10/27/09. (scc, COURT STAFF) (Filed on 10/27/2009)

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JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division ROCHELLE L. RUSSELL (Cal. Bar No. 244992) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 Tel: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendants

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

ASSOCIATION OF IRRITATED RESIDENTS, an unincorporated association, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

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Case No. 08-cv-05650 CW STIPULATION and ORDER

STIPULATION AND ORDER

08-CV-05650 CW

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WHEREAS, on December 18, 2008, the Association of Irritated Residents filed the complaint in the above-captioned matter against the United States Environmental Protection Agency et al. (collectively, "EPA"), alleging that EPA has failed to undertake certain nondiscretionary duties under section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2); WHEREAS, Plaintiff's claims in this matter, other than the costs of litigation and reasonable attorneys' fees, were resolved by a Consent Decree entered by the Court on August 19, 2009, see Dkt. 24; WHEREAS, Plaintiff and EPA wish to settle Plaintiff's claims for costs of litigation in this matter, including reasonable attorneys' fees, in order to avoid unnecessary litigation and without any admission of fact or law; NOW THEREFORE, the parties, by and through their undersigned counsel, hereby stipulate to the entry of an order that: 1. The United States shall pay, within 90 days, $11,500 to the Center on Race,

Poverty & the Environment by electronic funds transfer in accordance with instructions provided to Defense counsel by Plaintiff''s counsel. 2. Any obligation of the United States to expend funds under this settlement

agreement are subject to the availability of appropriations in accordance with the Anti-Deficiency Act, 31 U.S.C. § 1341. This settlement agreement shall not be construed to require the United States to obligate or pay funds in contravention of said Anti-Deficiency Act, 31 U.S.C. § 1341. 3. Payment pursuant to Paragraph 1 within 90 days of the date on which the Court

enters this Stipulation and Order (or after 90 days if Plaintiff accepts payment after that date) will constitute full and final payment of costs of litigation, including reasonable attorneys' fees, incurred by Plaintiff in connection with this case prior to the Court's entry of the Consent Decree and in negotiating this Stipulation and Order. Upon payment within 90 days of the date on which the Court enters this Stipulation and Order (or upon payment after 90 days if Plaintiffs accept payment), Plaintiff releases the United States, including EPA, from any claims regarding such fees and costs incurred by Plaintiff in connection with this case prior to the Court's entry of the Consent Decree and in negotiating this Stipulation and Order. The payment pursuant to
STIPULATION AND ORDER

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08-CV-05650 CW

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Paragraph 1 does not affect Plaintiff's right to seek to recover reasonable costs and attorneys' fees that Plaintiff may incur to enforce the Consent Decree, nor does it affect the right of EPA to oppose any such request for fees and costs, as provided in Paragraph 11 of the Consent Decree. 4. In the event the United States fails to pay the sum specified in Paragraph 1 within

90 days of the date on which the Court enters this Stipulation and Order, Plaintiff may file a motion with the Court for its costs of litigation, including reasonable attorneys' fees. Such motion shall be filed no later than 150 days after the date the Court enters this Stipulation and Order. The parties agree that, in litigation over such fee application, the United States reserves any defenses it may have to a fee application. Respectfully submitted, COUNSEL FOR DEFENDANTS: Dated: October 26, 2009 JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division /s/ Rochelle L. Russell ROCHELLE L. RUSSELL Attorney, Environmental Defense Section United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, CA 94105 Tel: [phone] Email: [e-mail] Counsel for Defendants COUNSEL FOR PLAINTIFF: Dated: October 26, 2009 /s/ Brent Newell BRENT NEWELL Center On Race, Poverty & the Environment 47 Kearney Street, Suite 804 San Francisco, CA 94108 Phone: [phone] Email: [e-mail] Counsel for Plaintiff Association of Irritated Residents

PURSUANT TO STIPULATION, IT IS SO ORDERED. The Case Management Conference set for 12/15/09 is vacated. 10/27/09 Dated: _________________ __________________________________ Hon. Claudia Wilken United States District Court Judge 3
08-CV-05650 CW

STIPULATION AND ORDER