holding that the section of the CAA authorizing citizen suits and the section concerning judicial review of agency action “contemplate distinct groups of cases”
How later courts described this case
- holding that the section of the CAA authorizing citizen suits and the section concerning judicial review of agency action “contemplate distinct groups of cases”
- “[wjhile the courts play jurisdictional badminton with these provisions, batting one case back to the District Court under Section 304 while taking another identical one under Section 307, litigants should not be denied substantial rights because of uncertainty created by courts and Congress”
- "(w)hile the courts play jurisdictional badminton with these provisions, batting one case back to the District Court under Section 304 while taking another identical one under Section 307, litigants should not be denied substantial rights because of uncertainty created by courts and Congress"
- such application is not contemplated
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge
(concurring and dissenting):
While I concur in Part I of the court’s opinion and in much of the analysis in Part II, I am forced to dissent from the court’s decision to deny attorneys’ fees in this case.
Judge Bazelon has well outlined the reasons for and against awarding attorneys’ fees to the Natural Resources Defense Council (NRDC). I am persuaded by the reasons for awarding fees. The litigation here at issue, while apparently properly brought before this court under Section 307, 42 U.S.C. § 1857h-5 (1970), could, in my judgment, have been brought in District Court under Section *1361 304, 42 U.S.C. § 1857h — 2 (1970), as well. Of course, so far as this motion is concerned the difference is crucial; Section 304 authorizes attorneys’ fees while Section 307 does not. I do not think, however, that the congressional purpose in allowing fees under Section 304 should be frustrated where an action, cognizable under Section 304, is brought under Section 307 instead. I think this is particularly so because the courts have been of so little help to litigants attempting to discern the parameters of Sections 304 and 307. While the courts play jurisdictional badminton with these provisions, batting one case back to the District Court under Section 304 while taking another identical one under Section 307, litigants should not be denied substantial rights because of uncertainty created by courts and Congress. Compare Sierra Club v. Ruckelshaus, D. D.C., 344 F.Supp. 253 , affirmed on the basis of the District Court opinion, 4 BNA Env.Rep. Cas. 1815 (1972), affirmed by an equally divided Court, 412 U.S. 541 , 93 S.Ct. 2770 , 37 L.Ed.2d 140 (1973), with Anaconda v. Ruckelshaus, 10 Cir., 482 F.2d 1301 (1973), reversing D. Colo., 352 F.Supp. 697 (1972).
I believe NRDC is an innocent victim of this badminton game. When the evidence before the Administrator proved that lead emissions from automobiles endangered the public health, I believe he had no choice but to regulate those emissions. His failure to perform that non-discretionary duty created District Court jurisdiction over NRDC’s claim under Section 304, while his simultaneous promulgation of related lead regulations created jurisdiction in this court under Section 307. I do not believe NRDC should be penalized for suing under Section 307. Since Congress intended that private citizens bringing such public interest litigation should be rewarded with attorneys’ fees and since the law is so unsettled as to which section NRDC should properly have utilized, I would award fees to NRDC. My conclusion that the attorneys’ fees provision of Section 304 should be read broadly is buttressed by the impossibility of awarding fees on other theories. Alyeska Pipeline Service Co. v. Wilderness Society, - U.S. -, 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975).
Accordingly, I respectfully dissent from the judgment of the court.