Petition — Ruckelshaus v. Sierra Club

Supreme Court brief1983

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Sunnz CLUB AND ENVIRONMENTAL DEFENSE FUND

if PETITION FORA WRIT OF CERTIORARI

0 THE UNITED STATES COURT OF APPEALS

Fon THE DISTRICT OF COLUMBIA CIRCUIT

e. 35

. tay wt -

QUESTION PRESENTED

Whether it was “appropriate,” within the meaning of

Section 307(f) of the Clean Air Act, 42 U.S.C. 7607(f),

to award over $90,000 in attorneys’ fees and costs to

parties who failed to prevail on any aspect of their chal-

lenge to regulations promulgated by the Administrator

of the Environmental Protection Agency. *

*The parties involved in the attorneys’ fees litigation are

solely those appearing in the caption of the case in this Court.

This case bega, however, as eight consolidated petitions for re-

view under the Clean Air Act. At that stage of the proceedings,

the litigants included a large number of other parties, mostly

electric utilities, whose names are collected in Appendix D, in-

fra, 41a—42a. '

TABLE OF CONTENTS

Page

. 1

een eee 66666660 1

. be ee ses 2

r ! bees eeees860 2

Reasons for granting the petition ..................... 8

sees 6060 28

resse eee 00 la

—»;m̃ . 23a

/ ² 39a

1 41a

TABLE OF AUTHORITIES

Cases:

Alabama Power Co. v. Gorsuch, 672 F.2d 1 ...... 6, 14,19

Alyeska Pipeline Service Co. v. Wilderness Soci-

I 14

Army & Air Force Exchange Service v. Sheehan,

No. 80-1437 (June 1, 1982) / ũ 7ʒ7 13

Clanton v. Allied Chemical Corp., 409 F.Supp.

be esse 20

Eastern Transportation Co. v. United States, 272

eee eee 00 14

Environmental Defense Fund, Inc. v. EPA, 672

D „ 6, 8-9, 23

Foster v. Boise-Cascade, Inc., 420 F.Supp. 674 ... 20

Indian Towing Co. v. United States, 350 U.S. 61 . 14

Kopet v. Esquire Realty Co., 523 F.2d 1005 ...... 23

Lehman v. Nakshian, 453 U.S. 156 .............. 14, 15

Metropolitan Washington Coalition for Clean Air

v. District of Columbia, 639 F.2d 802.......... 19

McMahon v. United States, 342 U.S. 25 ......... 13

Natural Resources Defense Council, Inc. v. EPA,

rere. sss e 12, 21, 25, 26, 27

Natural Resources Defense Council v. EPA, 512

e e ee 21, 25

Natural Resources Defense Council v. Train, 539

re 2¹

Cases—Continued: Page

Northcross v. Memphis Board of Education, 412

DEEMED Sdbewencdavivdcbubesedeiussescseses 8, 22, 25

Parham v. Southwestern Bell Telephone Co., F. 2d

— — „„ „00

Parker v. Mathews, 411 F.Supp. 105 ũ9 99. 20

Richards v. Griffith Rubber Mills, 300 F.Supp.

. sees ebe ese 24

Richardson v. Civil Service Commission of New

eee eee

Sierra Club v. Costle, 657 F. 2d 298. . . 2, 3, 4, 5, 10, 11

Thomas v. Honeybrook Mines, Inc., 428 F. 2d 981 24

United States v. Kubrick, 444 U.S. 111 .......... 13

United States v. Mitchell, 445 U.S. 585 .......... 13

United States v. Sherwood, 312 U.S. 584 ......... 13

United States v. Testan, 424 U.S. 392............ 13

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

No. 80-327 (Jan. 12, 1982) ͥ pp 12

Watt v. Energy Action Educational Foundation,

No. 80-1464 (Dec. 1, 19817777. 9

Statutes:

Act of Nov. 6, 1978, Pub. L. No. 95-601, 92 Stat.

eee eee ss sse 28

Age Discrimination in Employment Act of 1967, 29

rr ]! eee 14

Civil Rights Act of 1964, 42 U.S.C. 2000 a3 20

Civil Rights Act of 1968, 42 U.S.C. 2000e-5 55 20

Clean Air Act of 1977, 42 U.S.C. (& Supp. IV) 7401

et seq

Section 111, 42 U.S.C. (Supp. IV) 7411... 2, 6, 22

Section 304, 42 U.S.C. (Supp. IV)

eee 21, 22, 24, 25

Section 304(d), 42 U.S.C. (Supp. IV)

Fe 16, 19, 23, 25, 26

Section 307, 42 U.S.C. (Supp. IV)

ers 20-21, 22, 24, 25, 26

Section 307(b)(1), 42 U.S.C. (Supp. IV)

Dee ee 3

Section 307(f), 42 U. S. C. (Supp. IV) 7607(f) . passim

Statutes—Continued: Page

Clean Water Act, Section 505(d), 33 U.S.C.

eee sedate coecevesees 8, 23

Deep Seabed Hard Minerals Resources Act of 1977,

30 U.S.C. (Supp. IV) 1427 (e)) 8

Deepwater Port Act of 1974, 33 U.S.C. 1515(d) ... 8

Endangered Species Act of 1973, 16 U.S.C.

r ——— eee 8

Energy Policy and Conservation Act, 42 U. S. C.

eee 8

Marine Protection, essere and Sanctuaries Act

of 1972, 33 U.S.C. 141508 ))) 8

Noise Control Act of 1972, 42 U.S.C. 4911(d) ..... 8

Ocean Thermal Energy Conversion Act of 1980, 42

3 8

Outer Continental Shelf Lands Act, 43 U.S.C.

I. „ 8

Powerplant and Industrial Fuel Use Act of 1980, 42

U.S.C. (Supp. IV) 84350dpdꝰ 7777. 8

Safe Drinking Water Act, 42 U.S.C. 300j-8(d) .... 8, 23

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. IV) 1270(d)........... 8, 23

Toxic Substances Control Act of 1973, 15 U.S.C.

2601 et seq.:

Section 7(c)(4)(A), 15 U.S.C. 2605(c)(4)(A) ... 27, 28

Section 7(c)(4)(A)(i), 15 U.S.C.

EE 28

Section 9(d), 15 U.S.C. 2618(d).............. 8, 23

Miscellaneous:

122 Cong. Rec. 8300 (1976)0))))))) 23, 24

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) 23

H.R. Rep. No. 95-218, 95th Cong., Ist Sess.

.es 24, 25

H. R. Rep. No. 95-294, 95th Cong., Ist Sess.

D rene 15, 23, 25

H.R. Rep. No. 95-1089 (Pt. 2), 95th Cong., 2d

F ̃— NA—?:' bende 28

S. 4358, 91st Cong., 2d Sess. (1970) .............. 17

S. Rep. No. 91-1196, 91st Cong., 2d Sess.

.be esse pes 17, 18, 19, 20, 25

Miscellaneous— Continued Page

S. Rep. No. 92-414, 92d Cong., 2d Sess. (1972) ... 23

S. Rep. No. 93-231, 93d Cong., Ist Sess. (1973)

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977).. 22, 25

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

ANNE M. GORSUCH, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the Administrator

of the Environmental Protection Agency, petitions for a

writ of certiorari to review the decision of the United

States Court of Appeals for the District of Columbia

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la—22a) holding the Administrator liable for attorneys’

fees and costs is reported at 672 F.2d 33. The opinion of

the court of appeals (App. B, infra, 23a—38a) determin-

ing the amount of those fees and costs is not yet official-

ly reported.

JURISDICTION

The judgment order of the court of appeals (App. C,

infra, 39a-40a) was entered on July 16, 1982. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTE INVOLVED

Section 307(f) of the Clean Air Act, 42 U.S.C. (Supp.

IV) 7607(f), provides in pertinent part as follows:

In any judicial under this section, the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) whenev-

er it — 8 that such award is appropriate.

STATEMENT

Following a totally unsuccessful challenge to regula-

tions promulgated by the Environmental Protection

Agency (EPA), respondents Sierra Club and Environ-

mental Defense Fund (EDF) sought an award of attor-

neys’ fees and costs against the government under Sec-

tion 307(f) of the Clean Air Act, 42 U.S.C. (Supp. IV)

7607(f). Although respondents had not prevailed on any

issue in the litigation, the court of appeals determined

that they were entitled to fees and costs. Before dis-

cussing the court’s ruling on attorneys’ fees, we briefly

describe the underlying merits litigation.

1. Section 111 of the Clean Air Act, 42 U.S.C. (Supp.

IV) 7411, requires the EPA to set performance

promulgated revised new source performance

standards for coal-fired generators capable of firing

more than 250 million British thermal units (MBtu) per

hour.! The performance standards limited sulfur diox-

* A complete history of the rulemaking is set forth in the

court of appeals’ merits opinion, Sierra Club v. Costle, 657 F. 2d

ide (S02) emissions to a maximum of 1.2 pounds per

MBtu. In addition, powerplants with potential, i. e.,

uncontrolled, S02 emissions greater than 0.60 pounds

per MBtu were required to reduce such emissions by

90%; powerplants with potential emissions less than

0.60 pounds of S02 per MBtu were required to reduce

them by no less than 70%.

The Sierra Club, EDF, and industry organizations

filed petitions for review of the new source performance

standards in the United States Court of Appeals for the

District of Columbia Circuit.? Sierra Club challenged

EPA’s action on three grounds: (1) that EPA lacked

statutory authority to adopt a “variable” standard for

S02 emissions, i. e., a standard that allowed percentage

reductions in emissions ranging from 70% to 90% (Sier-

ra Club v. Costle, 657 F.2d 298, 316 (D.C. Cir. 1981));

(2) that EPA’s standard was not supported by the

rulemaking record (id. at 316-317); and (3) hat EPA

failed adequately to apprise the public of its intention to

adopt a variable reduction strategy, thereby depriving

the public of a fair opportunity to comment on the adop-

tion of a variable standard in the final rule (id. at

317-318). EDF challenged the performance standards

on oniy one ground—the alleged procedural! improprie-

ty of “ex parte contacts.” EDF asserted that a more

stringent S02 emission ceiling was attainable and would

have been adopted but for an “ex parte blitz” on EPA

after the close of the comment period, during which

EPA was pressured not to adopt a more stringent

standard (id. at 386).

cordingly, the above description of the merits litigation is con-

fined to that aspect of the new source performance standards.

2 Jurisdiction in the court of appeals was properly predicated

on Section 307(b)(1) of the Clean Air Act, 42 U.S.C. (Supp. IV)

7607(b)(1), which provides that judicial review of many of the

Administrator's actions, including the promulgation of new

source performance standards, may be had only in the United

States Court of Appeals for the District of Columbia Circuit.

On April 29, 1981, the court of appeals rendered its

decision on the merits. Sierra Club v. Costle, supra,

657 F.2d 298. The court rejected all of Sierra Club's

claims. First, it concluded that EPA had ample statuto-

ry authority to adopt a variable standard (657 F. 2d at

318-322). Second, it rejected Sierra Club’s charge that

the variable standard was without basis in the record.

After reviewing the technical background for the

standard, the factors considered by EPA in adopting

the standard, and examining the agency’s stated ration-

ale, the court held that EPA’s action was reasonable

(id. at 322-352). Finally, the court rebuffed Sierra

Club’s claim that EPA’s adoption of a variable standard

was procedurally defective. The court found that the

public in general and Sierra Club in particular had fair

notice of and opportunity to comment on the agency’s

intention to adopt a variable standard (id. at 353-356).

EDF fared no better on its claim. The court sepa-

rated the allegedly improper ex parte contacts into two

categories for analytical purposes: (1) written com-

ments submitted after the close of the comment period;

and (2) meetings after the close of the comment period

with the President and heads of other Executive

Branch agencies, congressional representatives, and

private parties (657 F. 2d at 386-387). With respect to

written comments received after the close of the com-

ment period, the court held that nothing on the face of

the Clean Air Act prohibited the agency from receiving

and considering such materials as long as they were

placed in the agency’s rulemaking docket. All such ma-

terials had in fact been properly docketed in this case

(id. at 397-400).

With respect to the meetings, the court again noted

that they were not prohibited by the Act; indeed, the

court thought that such meetings were desirable given

the importance of openness and accessibility on the part

of public officials (657 F.2d at 400-401). The court fur-

ther noted that summaries of seven of the nine con-

tested meetings had been placed in the rulemaking

docket, and held that this fully satisfied all statutory

and due process requirements (id. at 386-410). A sum-

mary of one of the remaining two meetings was omitted

from the docket through inadvertence. The court found

that this was an honest error and that, in any event,

the particular meeting was not of the type required to

be entered on the rulemaking docket (id. at 404). The

final meeting included the President and members of

the White House staff. The court expressly recognized

the President’s constitutional authority to control and

supervise executive policymaking and was hesitant to

fashion any new rule that would impair the President’s

ability to fullfill this role (id. at 405-407). In this partic-

ular instance, the court found that since EPA did not

base the rule on any information or data arising from

the meeting, there was no justification for requiring it

to be docketed on the rulemaking record (id. at 407).

Finally, the court noted that it could find no evidence

of impermissible congressional pressure on EPA arising

out of two meetings (both entered on the rulemaking

docket) that the Administrator had with West Virginia

Senator Robert Byrd. EDF’s claim in this regard was

rejected because it failed to present any evidence that

Senator Byrd had sought to influence the rulemaking

by injecting extraneous considerations into the agency’s

decisionmaking processes (657 F. 2d at 408-410).

2. After losing every issue on the merits, Sierra Club

and EDF, relying on Section 307(f) of the Clean Air

Act, filed motions seeking awards of attorneys’ fees and

costs. Although settlement discussions were initiated

between respondents and the Justice Department law-

yer then assigned to the litigation, no agreement was

ever consummated because the Assistant Attorney

General in charge of the matter declined to approve set-

tlement. Thereafter, the fee requests were fully briefed

by respondents and the government. Sierra Club and

EDF both argued that an award of fees and costs was

“appropriate” because they had conferred certain public

benefits by bringing their unsuccessful lawsuits. Specif-

ically, they contended that they had advanced the pur-

poses of the Clean Air Act by enabling the court of ap-

peals to construe the provisions of Section 111 of the

Act, thus providing future guidance to EPA and the

public as to how that provision should be interpreted

and implemented. EDF also argued separately that liti-

gation of the ex parte contacts issue had clarified the

“rules of the game” as to contacts with agency officials

during informal rulemakings. The government opposed

any fee award whatsoever because respondents not

only lost the litigation but failed to advance the pur-

poses of the Clean Air Act in any concrete or tangible

fashion.

On February 5, 1982, the court of appeals issued an

opinion rejecting all the government’s arguments in op-

position to the motions for fees (App. A, infra,

la—22a).* After examining the text of Section 307(f) and

its legislative history, the court concluded that an

award of fees was “appropriate” where the party

Actually, the court issued its opinion on January 22, 1982.

That opinion was later withdrawn and a substitute opinion is-

sued on February 5, 1982. On the same day, the court issued at-

torneys’ fee decisions in Alabama Power Co. v. Gorsuch, 672

F.2d 1 (D.C. Cir. 1982) (petition for rehearing pending, No.

78-1006), and Environmental Defense Fund, Inc. v. EPA, 672

F.2d 42 (D.C. Cir. 1982) (petition for rehearing pending, No.

79-1580). The principal differences between the January and

February Sierra Club opinions are that the February 5 opinion

adds a footnote responding to Judge Wilkey's dissent in

Alabama Power Co. v. Gorsuch, supra, 672 F. 2d at 8-33, and

deletes a passage cautioning that the amount of an award to

“self-appointed representatives of the public interest” should be

closely scrutinized.

seeking fees had “‘substantially contributed’ to the

goals of the Clean Air Act” (App. A, infra, 20a n.10),

whether or not the litigation was actually successful.

The court further concluded that the express goals of

the Clean Air Act included “prompt resolution of seri-

ous questions of statutory interpretation” (id. at 18a).

A litigant could satisfy this goal, the court ruled, by

making exemplary presentations on important, complex

and novel issues (id. at IZa- 13a, 18a—19a).

The court then suggested that the parties resume

their negotiations over the proper amount of fees to be

awarded, and ordered a status report on the negotia-

tions within three months. In May 1982, the parties ad-

vised the court that their negotiations had been

unsuccessful. Thereafter, Sierra Club and EDF filed

amended fee requests encompassing their work on the

case-in-chief and on the attorneys’ fee dispute. On July

16, 1982, the court of appeals issued its final opinion

(App. B, infra, 23a-38a). A majority of the panel de-

termined that Sierra Club was entitled to an award of

$44,715 in fees and $644.60 in expenses, and that EDF

was entitled to an award of $45,874.80 in fees (App. C,

infra, 39a—40a). Although the court made modest re-

ductions in the number of compensable hours claimed

by respondents, the majority awarded fees at the hour-

ly rates respondents had requested and rejected the

government’s argument that the awards should be re-

duced to reflect respondents’ total lack of success on the

merits (App. B, infra, 26a—30a, 32a—35a). The majority

stated that any such reduction could not be squared

with “the Clean Air Act’s overriding purpose of encour-

aging constructive legal challenges * * *” (id. at 30a).

The court did, however, agree with the government

that because of their failure to prevail respondents

were not entitled to any “bonus” in addition to their

“lodestar” fees (determined by multiplying the hours

reasonably expended by a reasonable hourly rate) (id.

at 30a-3la). Judge Robb dissented in part, asserting

that a reduction in respondents’ lodestar fees was “ap-

propriate” because respondents had “batted zero” and

if counsel were private practitioners their clients

might well complain that they could have lost the case

for less money” (id. at 36a—37a).

REASONS FOR GRANTING THE PETITION

In holding the government liable for attorneys’ fees

seurred by litigants who do not prevail in any respect,

the court of appeals has departed from accepted notions

of fee-shifting, and has established a precedent that

threatens to impose substantial burdens on the federal

courts, administrative agencies and the Justice Depart-

ment by encouraging unproductive, expensive and

time-consuming litigation. The court’s decision, fur-

The impact of the court’s decision is not necessarily limited

to attorneys’ fee awards under Section 307(f) of the Clean Air

Act. Some 13 other federal statutes contain virtually identical

attorneys’ fee provisions. See Toxic Substances Control Act, 15

U.S.C. 2618(d); Endangered Species Act of 1973, 16 U.S.C.

1540(g)(4); Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. (Supp. IV) 1270(d); Deep Seabed Hard Mineral Re-

sources Act, 30 U.S.C. (Supp. IV) 1427(c); Clean Water Act, 33

U.S.C. 1365(d); Marine Protection, Research and Sanctuaries

Act of 1972, 33 U.S.C. 1415(g)(4); Deepwater Port Act of 1974,

33 U.S.C. 1515(d); Safe Drinking Water Act, 42 U.S.C.

300j-8(d); Noise Control Act of 1972, 42 U.S.C. 4911(d); Energy

Policy and Conservation Act, 42 U.S.C. 6305(d); Powerplant

and Industrial Fuel Use Act of 1978, 42 U.S.C. (Supp. IV)

8435(d); Ocean Thermal Energy Conversion Act of 1980, 42

U.S.C. (Supp. IV) 9124(d); and Outer Continental Shelf Lands

Act, 43 U.S.C. (Supp. IV) 1349(a)(5). In light of this Court's de-

cision in Northcross v. Memphis Board of Education, 412 U.S.

427 (1973), that similar attorneys’ fee provisions should be in-

terpreted pari passu, it is likely that the ruling below will be ex-

tended to claims arising under other statutes. Indeed, a sepa-

rate panel of the court of appeals has already interpreted the

attorneys’ fee provision in the Toxic Substances Control Act to

permit awards to non-prevailing parties, in part by reliance on

the decision in this case. See Environmental Defense Fund,

thermore, disregards both settled principles of sover-

eign immunity and the congressional intent behind Sec-

tion 307(f) of the Clean Air Act.

1. The court adopted a seemingly benign standard in

this case, ruling that an award of attorneys’ fees would

be “appropriate” whenever a litigant “substantially con-

tribute” to the goals of the Clean Air Act (App. A, in-

fra, 20a n. 10). There can be little dispute, moreover,

that litigation resulting in proper implementation of the

statute substantially contributes to Congress’ goals.

Where the court went fundamentaily astray, however,

was in its equation of proper implementation of the

Clean Air Act with mere judicial “interpretation” of the

statute (id. at 5a n.3, 8a, lla, 18a). It is clear that Con-

gress intended to hold the government liable for attor-

neys’ fees in actions that spur proper implementation of

the Act by correcting administrative errors (see pages

16-17, infra). But it is equally clear that judicial inter-

—— of the Act is not in itself a goal of the statute.

nless one views litigation as desirable for its own

sake, it is difficult to comprehend how implementation

of the Act is furthered when a court finds, in the course

of interpreting the Act, that the Agency was already

implementing it correctly.

Inc. v. EPA, 672 F.2d 42, 48 (D.C. Cir. 1982) (petition for re-

hearing on other grounds pending, No. 79-1580). The govern-

ment does not plan to seek this Court’s review of the decision in

Environmental Defense Fund v. EPA because in that case

EDF prevailed on three of the four issues it litigated on the

merits; however, the opinion clearly sanctions an award to total-

ly unsuccessful parties. The ruling in the present case is also

having an immediate impact on other pending litigation. For ex-

ample, the Energy Action Educational Foundation is now

seeking attorneys’ fees and costs under the Outer Continental

Shelf Lands Act for its work in the district court, the court of

appeals and this Court in Watt v. Energy Action Educational

Foundation, No. 80-1464 (Dec. 1, 1981), notwithstanding the

fact that this Court unanimously rejected Energy Action’s posi-

tion on the merits.

The court of ap elevation of judicial review to

the level of a “goal” of the Clean Air Act is the sole ba-

sis for its conclusion that totally unsuccessful litigation

is capable of yielding public benefits that justify an

award of attorneys’ fees. For example, the court stated

that “by assistin — interpretation of the Clean

Air Act, Sierra Chu and EDF aided agency implemen-

tation and Congressional reevaluation of the Act” (App.

A, infra, 8a) (footnote omitted). The Agency’s imple-

mentation of the Act, however, was found to be in full

accord with congressional intent, and it is therefore dif-

ficult to imagine that the Agency was aided in any way

by judicial reaffirmation of its actions. As for congres-

sional reevaluation of the Act, Congress has ample tools

at its command to conduct that reevaluation without

the assistance of litigants who press unsuccessful

claims. The legislative history of Section 307(f) does not

support the notion that it was designed to promote

unsuccessful litigation for the edification of Congress.

The court below awarded attorneys’ fees not only be-

cause the respondents brought “complex and novel” is-

sues before it (App. A, i , 18a), but also because

“their assistance in the resolution of the issues was sub-

stantial” (ibid.). The court’s reliance on the “substantial

nature of petitioners’ assistance” (id. at 16a), however,

is insufficient to justify an award of attorneys’ fees.“

Surely the fact that a litigant’s position, though wrong,

was competently presented does not make fee-shifting

appropriate.

5 The court of appeals’ estimation of respondents’ contribution

to the litigation increased markedly between the time it

rendered its decision on the merits and its opinion below. For

example, in its opinion below the court praised EDF for as-

sisting the court’s deliberations on the ex parte contacts issue.

In the opinion on the merits, however, the court stated that

“the parties,” presumably including EDF, did not make the

court’s task of identifying the actions and incidents that gave

rise to EDF’s complaints “an easy one.” 657 F. 2d at 386 n.423.

The court stated (id. at 391):

The court stated that it was totally dependent upon

Sierra Club to brief and advocate the opposition to a

variable standard” (App. A, infra, 17a). But the court

failed to point out that absent this litigation there

would have been no need for judicial evaluation of the

variable standard in the first place. Similarly, the court

found that EDF’s contributions expedited and

“enriched” its consideration of the ex parte contacts is-

sue, and allowed the court to “resolve close questions of

interpretation for future rulemaking under the Act”

(id. at 18a). The court’s consideration, of course, was

only necessary because EDF raised the ex parte con-

tacts issue. Nothing in the Act, moreover, suggests

that Congress meant to pay litigants to resolve ques-

tions that might not even arise until “future

rulemaking{s}” (ibid.). An award of attorneys’ fees is

not “appropriate” merely because it furthers, even sub-

stantially, jurisprudential understanding.“

EDF does not specify which particular features in each of

the above-numerated communications violated due process

or constituted errors under the statute; indeed, EDF no-

where lists the communications in a form designed to clari-

fy why any particular communication was unlawful. In-

stead, EDF labels all post- comment communications with

EPA—from whatever source and in whatever form—as

“ex parte,” and claims that “this court has repeatedly

stated that ex parte contacts of substance violate due

process.”

As noted, the court rejected EDF’s position in its entirety (657

F. 2d at 386-410). Similarly, the court had no difficulty rejecting

Sierra Club’s construction of the statute. The court found the

language of the statute itself to be relatively clear (id. at 319),

and concluded that it “critically undercut{}” Sierra Club’s posi-

tion (id. at 318). The court found Sierra Club’s arguments based

on the legislative history no more persuasive. See generally id.

at 319-322.

Seen in this light, the ruling in this case conflicts with the

spirit of the Court’s recent decision in Valley Forge Christian

College v. Americans United for Separation of Church & State,

Inc., No. 80-327 (Jan. 12, 1982). Reviewing the Article III re-

Congress assigned to EPA the expensive, time-

consuming and important responsibility of imple-

menting the Clean Air Act. When EPA missteps, Con-

gress has encouraged private litigants to invoke judicial

review to put the Agency back on course. But where

EPA has not strayed, there is little logic to the assump-

tion that Congress intended to pay self-appointed rep-

resentatives of the public interest’ to judicially reaffirm

the Agency’s actions. Respondents were, of course,

free to take their disagreements with the Agency’s ap-

proach to court, but they should not expect the govern-

ment to pay them for having its course of action vindi-

cated. Rewarding litigants who actually aid Agency

implementation of the Clean Air Act by correcting

administrative errors is sufficient incentive for the citi-

zen involvement in the implementation of the Act that

was contemplated by Congress. Rewarding unsuccessful

litigants who do no more than vindicate the Agency’s ap-

proach to the statute not only does nothing to assist im-

plementation of the Act but, on the contrary, frus-

trates that purpose by diverting scarce Agency re-

sources from more pressing needs.“

quirements for standing to sue, the Court there emphasized

that federal courts are neither “publicly funded forums for the

ventilation of public grievances or the refinement of jurispru-

dential understanding” nor “judicial versions of college debating

forums.” Slip op. 8. Yet it is precisely for the ventilation of pub-

lie grievances and the refinement of jurisprudential understand-

ing that respondents were awarded fees in this litigation.

7 Natural Resources Defense Council, Inc. v. EPA, 484 F. 2d

1331, 1338-1339 (Ist Cir. 1973).

The court of appeals asserted that it would award fees to to-

tally unsuccessful parties only in “exceptional” circumstances

(App. A, infra, 13a). The court, however, provided no guide-

lines for ascertaining the “exceptional” case. Implementation of

statutes like the Clean Air Act is inherently important and inev-

2. The lower court’s liberal interpreiation of Section

307(f) is inconsistent with certuin fundamental consider-

ations underlying the doctrine of sovereign immunity

and the traditional rules governing the allocation of at-

torneys’ fees. The court of appeals’ departure from

these traditional norms cannot be squared with the lit-

eral language of the statute, or its legislative history.

The United States, as soveriegn, ‘is immune from

suit save as it consents to be sued ***.’” United States

v. Testan, 424 U.S. 392, 399 (1976), quoting United

States v. Sherwood, 312 U.S. 584, 586 (1941). The

Court has emphasized that such consent “cannot be im-

plied but must be ‘unequivocally expressed.“ Army

and Air Force Exchange Service v. Sheehan, No.

80-1437 (June 1, 1982), slip op. 6, quoting United

States v. Testan, supra, 424 U.S. at 399; United States

v. Mitchell, 445 U.S. 535, 538 (1980).

Where Congress has waived sovereign immunity, its

waiver is to be “construed strictly in favor of the sover-

eign.” McMahon v. United States, 342 U.S. 25, 27

(1951); United States v. Kubrick, 444 U.S. 111,

117-118 (1979); United States v. Sherwood, supra, 312

U.S. at 590. Thus, in interpreting a statute that waives

the immunity of the United States, the courts should

not “enlarge its liability *** beyond what the language

requires.” Eastern Transportation Co. v. United

itably complex, and it will be a rare case that does not raise nov-

el issues that a court, like the one below, might find worthy of

resolution. See id. at I2a- 13a. So long as the present ruling

stands, therefore, it can only encourage substantial amounts of

lengthy litigation that might otherwise not be brought, at great

cost both to the courts and the Executive Branch.

States, 272 U.S. 675, 686 (1927). Strict construction

conserves the public fise and limits recovery to those

situations in which it may be confidently concluded that

Congress has determined that the government should

be liable. See, e.g., Indian Towing Co. v. United

States, 350 U.S. 61, 68-69 (1955). These principles are,

of course, fully applicable to claims against the govern-

ment for attorneys’ fees.“ Alyeska Pipeline Service Co.

v. Wilderness Society, 421 U.S. 240, 267-268 & n.42

(1975).

In addition to the bar that sovereign immunity inter-

poses to fee awards against the government, attorneys’

fees generally are not available to parties who do not

prevail on any elaim. % Interpretation of the Clean Air

This Court’s recent decision in Lehman v. Nakshian, 453

U.S. 156 (1981), illustrates how principles of sovereign immuni-

ty should impact upon Section 307(f)’s provision for attorneys’

fees in “appropriate” cases. In Lehman, plaintiff sued the Navy

under the Age Discrimination in Employment Act of 1967, 29

U.S.C. 633a, which waived sovereign immunity for such suits.

Plaintiff claimed she was entitled to a trial by jury. The Court

noted that, in general, trial by jury is not available in suits

against the United States. In light of this general rule, the

Court held that “accepted principles of sovereign immunity re-

quire that a jury trial right be clearly provided in the legislation

creating the cause of action.” 453 U.S. at 162 n.9. The Court

further explained that “even if the legislative history were am-

biguous, that would not affect the proper resolution of this case,

because the plaintiff in an action against the United States has a

right to trial by jury only where Congress has affirmatively and

unambiguously granted that right by statute.” Id. at 168.

10 As Judge Wilkey stated in his dissenting opinion in Ala-

bama Power Co., supra, 672 F. 2d at 13:

All precedent and statute points to the fair conclusion that

there is a general presumption against one side (particu-

larly the winner) paying the other’s attorneys’ fees. Thus,

when in doubt, no award will be made. Dramatic devia-

tions from the American rule will be construed against.

Si:nilarly, there is a presumption that non-prevailing par-

ties are not entitled to costs.

Act to allow an award of fees to the Sierra Club and

Environmental Defense Fund in this case contravenes

this general rule. Such an interpretation should be par-

ticularly disfavored here because it increases the bur-

den of the statute on the public fisc. See Lehman v.

Nakshian, 452 U.S. 156, 161 n.8 (1981). Thus respond-

ents’ claims for fees should not be allowed unless the

Court finds that Congress clearly and “unequivocally”

departed from the general presumption against

awarding fees to totally unsuccessful litigants. Id. at

160-161.

The government does not dispute that Congress has

authorized attorneys’ fees awards against the govern-

ment. The legislative history of Section 307(f) clearly

demonstrates that Congress meant to waive the gov-

ernment’s traditional immunity and to overcome the

presumption of the “American Rule” against fee-

shifting. See H.R. Rep. No. 95-294, 95th Cong., Ist

Sess. 337 (1977) (“In adopting this provision concerning

fees, the committee intended to meet the requirement

for specific authorization imposed by 28 U.S.C. sec.

2412 and by the Supreme Court’s ruling in Alyeska

„). But Congress’ decision to subject the govern-

ment to attorneys’ fee awards under Section 307(f) does

not mean that it has consented to an award in the cir-

cumstances of this case. Nothing in the language or leg-

islative history of Section 307(f) suggests that attor-

neys’ fees may be assessed against the government in

favor of unsuccessful suitors. It is highly unlikely that

such a radical departure from both the American Rule

on attorneys’ fees and the general rules of construction

governing waivers of sovereign immunity could have

passed Congress with nary a mention, let alone a clear

exposition of Cungress’ intent.

3. The court of appeals misinterpreted Congress’ in-

tent in enacting Section 307(f). The court concluded

that Congress’ decision not to employ a “prevailing

party” standard in Section 307(f) necessarily meant that

success on the meri‘s was not a relevant inquiry. The

government agrees that success on the merits, in the

traditional sense of a favorable final judgment, is not a

prerequisite for an award of fees under the statute.

Nevertheless, Section 307(f)’s legislative history clearly

indicates Congress’ understanding that some tangible

accomplishment is a prerequisite to eligibility for a fee

award under the statute. There is little in the legisla-

tive history to support the court of appeals’ conclusion

that unsuccessful, albeit competent, litigation of novel

or important issues is the sort of contribution to the ad-

ministration of the Clean Air Act that Congress intend-

ed to reward with attorneys’ fees.

a. Because the language of Section 307(f) does not

identify what situations Congress thought might be

“appropriate” for attorneys’ fee awards, the court of ap-

peals turned to the legislative history for guidance. The

court erred, however, in confining its analysis to the

legislative history of Section 307(f) alone. That section

was not added to the Clean Air Act until 1977, and its

meaning can only be determined by tracing its origins

in the Clean Air Act of 1970.

In the 1970 Act, Congress authorized courts to award

attorneys’ fees in “appropriate” cases under Section

394(d), 42 U.S.C. (Supp. IV) 7604(d)—the so-called eiti-

zens’ suit provision of the Act. That section allows citi-

zens to bring enforcement actions directly against per-

sons or entities alleged to be in violation of the Act or

against the EPA Administrator for failure to perform a

nondiscretionary duty. Congress’ purpose in enacting

this provision was to supplement government enforce-

ment efforts and motivate government agencies to take

more vigorous enforcement actions themselves. As

stated in the Senate Report (S. Rep. No. 91-1196, 91st

Cong., 2d Sess. 36-37, 38-39 (1970)):

Government initiative in seeking enforcement

under the Clean Air Act has been restrained.

Authorizing citizens to bring suits for viclations of

standards 1 motivate 1 a

charged wi responsibility to bring enforce-

ment and abatement proceedings.

XR X ee *

The Committee bill would provide in the citizen

suit provision that actions lie against the Sec-

retary for failure to exercise his duties under the

Act, including his enforcement duties. The Com-

mittee expects that many citizen suits would be of

this nature, since such suits would reduce the ulti-

mate burden on the citizen of going forward with

entire action.

Thus, Congress’ purpose was to enlist the aid of citi-

zens in those situations where the government was not

living up to its responsibilities. It is against this back-

drop that the Senate Report’s explanation of the attor-

neys’ fees provision in Section 304(d) must be evaluated

(S. Rep. No. 91-1196, supra, at 38) (emphasis added):

Concern was e that some lawyers would

use section 304 to bring frivolous and harassing ac-

tions. The Committee added a key element in

that the courts may award costs of litiga-

tion, reasonable attorney and expert

witness fee = ees, 222 the court Ai that

1! Section 304d) initially provided for attorneys’ fee awards

when the court determined that such an award would be in the

“public interest.” See S. 4358, 91st Cong., 2d Sess. (1970). This

was the version of the bill discussed in the Senate Report. The

bill was later changed to authorize fees where “appropriate.”

abuse of this provision, while at the same time en-

couraging the quality of the actions that wil be

The Courts should recognize that in bringing le.

imate actions under this section citizens would

performing a public service and in such in-

stances the courts should award costs of litigation

L 8 This should extend to plaintiffs in ac-

ch result in successful abatement but do

r For example, if as a result of a

citizen and before a verdict is issued, a

defendant abated a violation, the court may award

litigation 7 * borne by the plaintiffs in

prosecuting such actions.

Congress was thus focusing on two concerns, neither

of which supports the court of appeals’ approach to the

statute. 2 First, Congress wanted to protect prevailing

defendants against the burden of having to oppose friv-

olous lawsuits. Second, Congress wanted to reward le-

gitimate citizen suits. Although the court of appeals

would apparently read “legitimate actions” as including

those raising “important, novel or complex” issues

(App. A, infra, 13a), it is clear from a careful reading

of the entire passage that “legitimate actions” can only

have meant successful actions. That is because the next

sentence of the report states that fee awards should

“extend to plaintiffs in actions which result in successful

abatement but do not reach a verdict” (S. Rep. No.

91-1196, supra, at 38) (emphasis added). While Con-

gress thus obviated the need for a plaintiit to “prevail”

in the strictly technical sense of obtaining a judgment,

it clearly did not remove the element of success in a

practical sense, because a party stil! had to “win” in the

sense of producing the desired result, albeit without a

Indeed, the first concern the “appropriate” standard was

designed to deal with cuts against the award of fees in this case.

Far from authorizing fees in favor of unsuccessful plaintiffs, the

statute was designed to provide fees for successful defendants.

verdict. As Judge Wilkey put it in his dissent in

Alabama Power Co. v. Gorsuch, supra, 672 F.2d at 15,

19, to be awarded attorneys’ fees a party must at least

not lose. 1 A fair reading of the Senate Report thus

demonstrates that “abatement without final judgment”

represents the limits of a court’s discretion to award

fees under Section 304(d) to non-prevailing plaintiffs.

Although the court of appeals recognized the import

of the 1970 Senate Report, it nevertheless stated that it

did “not read the Report as ruling out all other in-

stances where attorneys’ fees would be appropriate”

13 The court of appeals’ decision in Metropolitan Washington

Coalition for Clean Air v. District of Columbia, 639 F. 2d 802

(D.C. Cir. 1981), is not authority to the contrary. At the time

plaintiffs filed suit in that case, and for three years thereafter,

the District of Columbia was in clear violation of its implemen-

tation plan under the Clean Air Act. Plaintiffs never obtained a

favorable final judgment, however, because the District modi-

fied the plan, and EPA approved the revision, in such a way as

to render the case moot. To the extent the court of appeals now

reads this decision as sanctioning fee awards to totally unsuc-

cessful parties (App. A, infra, 7a—10a), it is in error for the

same reasons it erred in the present case.

14 The report states that fee awards under Section 304(d) “ex-

tend to” situations where plaintiffs accomplish a tangible benefit

short of judgment; the report does not imply that a fee award is

proper when a litigant merely raises novel but unsuccessful con-

tentions (S. Rep. No. 91-1196, supra, at 38). The summary

“section-by-section” analysis of the Senate Report, however,

states that a “court may award costs of litigation to either party

whenever the court determines such an award is in the public

interest without regard to the outcome of the litigation.” S.

Rep. No. 91-1196, supra, at 65. There is no elaboration on the

meaning of “without regard to the outcome of the litigation”

but, in light of the more complete explanation of congressional

intent at page 38 of the report, there is no reason to believe that

Congress intended any radical departure from the notion that

awards were to be made to plaintiffs who accomplished some-

thing concrete, such as abatement of a violation, yet failed to se-

cure a favorable fina! judgment.

(App. A, infra, 4a n.3). Against the backdrop of sover-

eign immunity that should have informed the court’s

approach, however, it was not necessary for Congress

to “rule out” categories of cases; rather, Congress must

clearly and affirmatively “rule in” those situations

where it meant to authorize fee awards. And, at least

as of 1970, there is no clear indication that Congress

contemplated fee awards to totally unsuccessful liti-

gants. 15

b. In addition to dismissing the 1970 Senate Report

on the grounds that it did not “rule out” (App. A, infra,

4a n.3) the court’s construction, the court of appeals

held that it must focus its attention on the legislative

history of the 1977 amendments, which added an “ap-

propriate” attorneys’ fee provision to Section 307 of the

15 The court of appeals was concerned (App. A, infra, Ila)

with constructing a definition of “appropriate” that would go be-

yond the “prevailing party” standard that Congress had em-

ployed in other statutes, such as the Civil Rights Act of 1964, 42

U.S.C. 2000a-3, and the Civil Rights Act of 1968, 42 U.S.C.

2000e—5. However, the court of appeals overlooked the fact that

as of 1970, the first time Congress employed the “appropriate”

standard, the courts were narrowly construing “prevailing” to

include only those parties that had obtained a favorable final

judgment. It was not until 1976, for example, that courts began

awarding attorneys’ fees to civil rights plaintiffs who “pre-

vailed” by means of a settlement rather than a litigated judg-

ment. See, e.g., Foster v. Boise-Cascade, Inc., 420 F. Supp.

674 (S.D. Tex. 1976); Richardson v. Civil Service Commission

of New York, 420 F. Supp. 64 (S. D. N. V. 1976); Parker v.

Mathews 411 F. Supp. 1059 (D.D.C. 1976); Clanton v. Allied

Chemical Corp., 409 F. Supp. (E.D. Va. 1976). Thus, Con-

gress’ desire to reward parties whose litigation efforts had in

fact achieved the result sought, albeit without a judgment, ne-

cessitated the adoption of some standard other than the “pre-

vailing party” standard. The court of appeals thus erred in con-

cluding (App. A, infra, 5a n.3, 1la) that if Congress had only

meant to reward tangible accomplishments, it would not have

drafted a new standard.

Act (App. A, infra, 4a—6a). The court, however, ig-

nored the motivation behind Congress’ 1977 amend-

ment of Section 307.

In 1970, Congress had made no provision for awards

of attorneys’ fees in actions brought under Section 307,

which provides for direct review in the courts of ap-

peals of the Administrator’s actions in pronys'gating

regulations and approving state implementation pians.

In Natural Resources Defense Council, Inc. v. EPA,

484 F.2d 1331 (Ist Cir. 1973), the court was confronted

with a request for attorneys’ fees in an action brought

under Section 307. The court found that Section 304,

which permits suits against the Administrator for fail-

ure to perform a nondiscretionary duty, aptly covered

the case before it, where the essence of the claim was

that the Administrator failed to perform his duty with

respect to the review and approval of state implementa-

tion plans. The court’s problem, however, was that Sec-

tion 304 citizens’ suits may only be brought in district

courts, while the case before it had to be filed in the

court of appeals under Section 307. Using somewhat

questionable logic, the court concluded that Section 307

did no more than specify the forum, and that a suit

brought under Section 307 was really an action pursu-

ant to Section 304. Accordingly, the court concluded

that Congress had given the necessary authoriz:.tion for

an award of attorneys’ fees in actions brought under

Section 307. 484 F. 2d at 1335-1338.

This conclusion was subsequently rejected by the

Courts of Appeals for the Fifth and Distriet of Colum-

bia Circuits. Natural Resources Defense Council, Inc.

v. EPA, 539 F.2d 1068 (5th Cir. 1976); Natural Re-

sources Defense Council, Inc. v. EPA, 512 F.2d 1351

(D.C. Cir. 1975). Those courts concluded that Sections

304 and 307 contemplated distinct groups of cases and

that Section 304’s attorne,s’ fee provision could not be

engrafted onto Section 307 actions.

These rulings led Congress to amend Section 307 in

1977 to include express authorization for the award of

attorneys’ fees in cases brought under that section

whenever, as under Section 304, the court deemed such

awards to be “appropriate.” As the Senate Report ex-

plained (S. Rep. No. 95-127, 95th Cong., Ist Sess. 99

(1977)):

The purpose of the amendment to Section 307 is

to carry out the intent of the committee in 1970

that a court may, in its discretion, award costs of

litigation to a party bringing a suit under Section

307 of the Clean Air Act.

The law has been interpreted otherwise. Section

304 of the Clean Air Act specifically authorizes

courts to award costs; however, section 307 did not

contain a specific authorization. Courts have con-

strued the absence of such authorization in section

307 to indicate congressional intent to prohibit a

discretionary award of fees in section 307 suits.

It is thus clear that the congressional purpose behind

the 1977 amendment to Section 307 was to conform that

section to Section 304(d). The amendment does not re-

flect any change in Congress’ understanding of when a

fee award is “appropriate.” Cf. Northcross v. Memphis

Board of Education, supra. Thus, under Section 307,

as under Section 304, a litigant must “at least not lose”

in order to be eligible for a fee award. Fees are “appro-

priate” if a party prevails or if it accomplishes some

tangible result, such as a voluntary agreement by the

Administrator to modify a regulation or adopt some

other significant policy change.“

16 The legislative histories of other statutes containing provi-

sions authorizing attorneys’ fees where “appropriate” (see note

4, supra) are fully consistent with the government’s view of the

Clean Air Act. For example, the legislative history of Section

505(d) of the Clean Water Act, 33 U.S.C. 1365(d), shows that

Congress specifically intended Section 505(d) to be interpreted

similarly to Section 304(d) of the Clean Air Act. Indeed, the

House Report simply states that fact. H.R. Rep. No. 92-911,

92d Cong., 2d Sess. 132-133 (1972). The Senate Report, S. Rep.

No. 92-414, 92d Cong., 2d Sess. 81 (1972), reiterates the ration-

ale of Section 304(d) of the Clean Air Act in language virtually

identical to the Senate Report on the Clean Air Act. Thus, the

twin purposes of Section 505(d) of the Clean Water Act are to

punish frivolous or harassing litigants and to reward citizens’

suits that result in pollution abatement but fail to reach a ver-

dict. The legislative history of the Safe Drinking Water Act, 42

U.S.C. 300j-8(d), states that its attorneys’ fee provision is de-

signed las] a deterrent against frivolous suits.” S. Rep. No.

93-231, 93d Cong., Ist Sess. 17 (1973). The legislative history of

the attorneys’ fee provision in the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. (Supp. IV) 1270(d), specifi-

cally adopts the legislative history of Section 505(d) of the Clean

Water Act. H.R. Rep. No. 95-218, 95th Cong., Ist Sess. 90-91

(1977). The legislative history of the Toxic Substances Control

Act’s attorneys’ fee provision, 15 U.S.C. 2618(d), construed by

the court of appeals in Environmental Defense Fund, Inc. v.

EPA, 672 F. 2d 42 (D.C. Cir. 1982), is likewise fully consistent

with the government’s position here. Although the court of ap-

peals relied heavily on a statement by Senator Tunney that fee

awards under the TSCA would be appropriate “where such

award is in the public interest without regard to the outcome of

the litigation,” 122 Cong. Rec. 8301 (1976), the court of appeals

failed to analyze the cases Senator Tunney cited in support of

that proposition. None of the four cases even remotely suggests

the appropriateness of an award for litigating losing issues.

Rather, in all four cases, the plaintiffs “prevailed” either in fact

or by obtaining a concrete, tangible benefit for themselves or

the class they represented in the form of a definite change in the

defendant’s conduct. Kopet v. Esquire Realty Co., 523 F.2d

1005, 1008-1009 (2d Cir. 1975); Parham v. Southwestern Bell

Telephone Co., 433 F.2d 421, 429-430 (8th Cir. 1970); Thomas

e. Rather than recognizing the narrow purpose be-

hind Congress’ amendment to Section 307, the court of

appeals based its entire decision on the House Report

accompanying the 1977 amendments. In pertinent part,

that report provides as follows (H.R. Rep. No. 95-294,

95th Cong., Ist Sess. 337 (1977)):

The committee bill also contains express authori-

ty for the courts to award attorneys fees and ex-

pert witness fees in two situations.* The judicial

review proceedings under section 307 of the act

when the court determines such award is appropri-

ate [sic].

In the case of section 307 judicial review litiga-

tion, the purposes of the authority to award fees

are not only to discourage frivolous litigation, but

also to encourage litigation which will assure prop-

er implementation and administration of the act or

otherwise serve the public interest. The committee

did not intend that the court’s discretion to award

fees under this provision should be restricted to

cases in which the party seeking fees was the “pre-

vailing party.” In fact, such an amendment was ex-

pressly rejected by the committee, largely on the

grounds set forth in NRDC v. EPA, 484 F.2d

1331, 1388 [sic] (1st Cir. 1973).

*Such fees are already authorized to be awarded in suits

brought under Section 304 of the Act.

The court of appeals ruled that whatever the policy

behind Section 304 attorneys’ fees actions this language

v. Honeybrook Mines, Inc., 428 F.2d 981, 985 (3d Cir. 1970);

Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Or.

1969). The court of appeals in Environmental Defense Fund,

Inc. also glossed over Senator Tunney’s statement that “the

court should follow prevailing case law which holds that a suc-

cessful ‘should ordinarily recover an [sic] attorneys’

‘fees’ * (122 Cong. Rec. 8300 (1976) (emphasis added)).

“shows that Congress in 1977 specifically adopted the

far broader policy of rewarding substantial contribu-

tions to the statutory goals of the Act” (App. A, infra,

4a—5a, n.3). Close examination of the House Report,

however, reveals several flaws in the court’s reasoning.

First, the initial paragraph, like the 1977 Senate Re-

port, shows only an intent to have Section 307 parallel

the existing attorneys’ fee provision in Section 304. Sec-

ond, the next paragraph quite clearly limits itself to ac-

tions under Section 307, and does not speak to Section

304 actions. It would be curious indeed if Congress real-

ly meant to adopt a “far broader policy” for Section 307

actions; indeed, such a result cannot be squared with

the Senate Committee’s explanation of the need to

amend Section 307 simply to bring it into harmony with

Section 304. S. Rep. No. 95-127, supra, at 99. Cf.

Northcross v. Memphis Board of Education, supra.

Yet the result of the court of appeals’ ruling is that Sec-

tion 307 litigants need not accomplish anything tangi-

ble in order to recover attorneys’ fees, while Section 304

litigants must at a minimum achieve some tangible re-

sult short of judgment. Finally, the House Committee’s

language about encouraging “proper implementation of

the act” does not suggest that unsuccessful litigation

contributes to proper implementation. To the contrary,

litigation that promotes “proper implementation of the

act” is quite obviously akin to the “legitimate actions”

contemplated by Congress in 1970. See S. Rep. No.

91-1196, supra, at 38, at page 18, supra.

Since the language of the House Report itself does

not support an award of attorneys’ fees to unsuccessful

litigants, it is necessary to analyze the First Circuit’s

decision in Natural Resources Defense Council, Inc. v.

EPA, upon which the House Committee “largely”

relied (H.R. Rep. No. 95-294, supra, at 337). Again, a

close reading of the case does not support the conclu-

sions reached by the court below. The primary issue in

National Resources Defense Council, Inc. v. EPA was

whether fees could ever be awarded to a Section 307 liti-

gant since, at the time of the decision, Section 307 did

not explicitly authorize fee awards. See page 21, supra.

Only after resolving that question in NRDC’s favor did

the court turn to a brief examination of the “appropri-

ateness” of a fee award. On this issue, the court was

faced with a very narrow question—should it award

any fees where the petitioners had prevaiied on most

but not all of the claims they had raised. In resolving

this issue, the court turned to the legislative history of

Section 304(d) which, as we have noted, contemplates

awards to successful plaintiffs or to plaintiffs who ac-

complish something concrete short of judgment.

Against this backdrop, the court stated (484 F.2d at

1338) (emphasis added):

We are not impressed by the government’s argu-

ment that because some issues were decided ad-

versely to petitioners each party should bear its

own costs. * * * We are at liberty to consider not

merely “who won” but what benefits were

conferred. The purpose of an award of costs and

fees is not mainly punitive. It is to allocate the

costs of litigation equitably, to encourage the

achievement of statutory goals. When the govern-

ment is attempting to carry out a program of such

vast and unchartered [sic] dimensions, there are

roles for both the official agency and a private

watchdog. The legislation is itself novel and com-

plex. Given the implementation dates, its early in-

terpretation is desirable. It is our impression,

overall, that petitioners, in their watchdog role,

have performed a service.

Were we to believe that the litigation were

wholly or in substantial part frivolous, we would

not, of course, award costs of any description to pe-

titioners. In such cases, indeed, we reserve the

right to award costs and fees in favor of the EPA.

But the challenges here, even those not sustained,

were mainly constructive and reasonable. And pe-

titioners were successful in several major respects;

they should not be penalized for having also ad-

vanced some points of lesser weight.

Thus, on its face, the First Circuit’s opinion is far

narrower than the court of appeals here suggested.

NRDC won major portions of its case; nothing in the

First Circuit’s opinion suggests that fees would still

have been awarded had NRDC failed to prevail on a

single issue. The court’s dictum about petitioners’

“watchdog” role cannot be considered in isolation; rath-

er, it must be examined in light of the government’s

contention that because NRDC lost some issues it

should be denied any fee award. 484 F. 2d at 1338. Only

in this limited sense can the First Circuit be said to

have rejected a “prevailing party” standard,“ and

there is nothing in the 1977 House Report’s citation to

NRDC v. EPA to suggest that it meant to go beyond

this holding.

In short, the court of appeals has adopted an errone-

ous standard unsupported by the plain language of Sec-

tion 307(f) or its legislative history. The case has

worked a virtual revolution in the traditional law of at-

torneys’ fees, in purported reliance on congressional in-

tent. It is unlikely, however, that such a revolution

would have occurred in Congress without anyone

noticing it. In light of the guiding principles of sover-

eign immunity and the general presumption against fee

awards to unsuccessful litigants, Congress clearly has

not spoken in the certain and unequivocal terms re-

quired to support the court of appeals’ decision. is

17 Moreover, at the time of the First Circuit’s supposed rejec-

tion of a “prevailing party” standard, that standard was still be-

ing narrowly cons*rued by the courts. See note 15, supra.

18 The court of ppeals also overlooked the fact that Congress

has in fact spoken clearly when it meant to award attorneys’

fees for the mere presentation of views. In Section 6(¢)(4)(A) of

the Toxic Substances Control Act, 15 U.S.C. 2605(c)(4)(A), Con-

gress authorized EPA to award reasonable attorneys’ fees to

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

RICHARD G. WILKINS

Assistant to the Solicitor General

KATHRYN A. OBERLY

JAMES M. SPEARS

JAMES P. LEAPE

Attorneys

AUGUST 1982

2 r in rulemaking proceedings under the Act.

t statute clearly demonstrates that Congress knew how to

draft language awarding fees for the mere presentation of issues

and viewpoints, whether or not those viewpoints were ultimate-

ly adopted. Under the statute, a rulemaking participant 1 be

awarded fees if that partieipant represents an interest which

would substantially contribute to a fair determination of the

issues to be resolved in the proceeding.“ 15 U.S.C.

2605(c)(4)(A)(i). In deciding what persons represent such an in-

terest, EPA is to take into account “the number and complexity

of such issues and the extent to which representation of such in-

terest will contribute to widespread public participation in the

proceeding and representation of a fair balance of interests for

the resolution of such issues.” 15 U.S.C. 2605 (c)(4)(A). Clearly,

these statutory directives make it appropriate for EPA to com-

pensate persons whose contribution to the public interest lies

ly in adding to the variety of public debate on an issue.

N remotely com le can be read into the “appropri-

ate” standard at issue in this case.

It is also worth noting that the same Congress that passed

Section 307(f) of the Clean Air Act refused to pass a portion of

the 1978 Nuclear Regulatory Commission ap tions bill

that would have expressly provided for attorneys’ fees for un-

successful nts of worthy causes before the NRC. Act of

Nov. 6, 1 Pub L. No. 95-601, 92 Stat. 2947 et seg., dis-

cussed in H.R. Rep. No. 95-1089 (Pt. 2), 95th Cong., 2d Sess.

2-3, 22-24 (1978). rejected section, Section 27840, appears

at pages 2-3 of that House Report.

APPENDIX A

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

SIERRA CLUB, PETITIONER

ANNE M. Gorsucu, Administrator of the

Environmental Protection Agency, RESPONDENT

NATIONAL COAL ASSOCIATION

ALABAMA POWER ASSOCIATION, ET AL., INTERVENORS

And Consolidated Case Nos. 79-1719, 79-1867,

79-1874, 80-1187, 80-1201, 80-1213, and 80-1338

On Motion for Award of Attorneys’ Fees

Decided February 5, 1982

Before: ROBB, WALD and GINSBURG, Circuit Judges.

Opinion Per curiam.

PER CURIAM: The Sierra Club and the Environmen-

tal Defense Fund (“EDF”), petitioners in Sierra Club

v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (hereinafter Si-

erra Club), seek an award of attorneys’ fees for their

participation in an unsuccessful appeal of certain Envi-

ronmental Protection Agency (“EPA”) regulations, 44

Fed. Reg. 33580 (June 11, 1979), promulgated pursuant

to the Clean Air Act, 42 U.S.C. 58 7301 et seg. (1979

Supp. III). We find that ander section 307(f) of the

Clean Air Act, 42 U.S.C. § 7607(f), this is an “appropri-

ate” case for the court to award attorneys’ fees.

Prior to August, 1981 (when EPA apparently adopt-

ed a policy of blanket opposition to all petitions for at-

torneys’ fees by non-prevailing parties'), Sierra Club

and EDF were actively engaged in negotiations with

EPA over the amount of attorneys’ fees. Therefore, we

hold here only that attorneys’ fees may be awarded to

nonprevailing parties under Section 307(f) and that such

an award to Sierra Club and EDF in this case is appro-

priate, and we suggest that the parties resume their

negotiations over the amount. If settlement proves im-

possible, the parties may return here for resciution of

this matter.?

I. AUTHORITY UNDER SECTION 307 (f) TO GRANT

ATTORNEYS’ FEES TO NON-PREVAILING PARTIES

Section 307(f) of the Clean Air Act provides that

In any judicial proceeding under this section, the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) whenev-

er it determines that such an award is appropriate.

42 U.S.C. § 7607(f) (emphasis added). An award of at-

torneys’ fees under the Clean Air Act is not limited to

“substantially prevailing” parties. Compare 42 U.S.C.

§ 7607(f) with 5 U.S.C. § 552(a)(4)(E) (awards in FOIA

cases available only to a complainant who has substan-

tially prevailed). On its face, the statutory provision

See Affidavit of David J. Lennett (September 22, 1981).

2 See Response For The United States To The Sierra Club's

Amended Request For Attorneys’ Fees (government support

for this approach); cf. United States v. American Telephone and

Telegraph Co., 551 F.2d 384, 394 (D.C. Cir. 1976) (where this

court suggested that the parties resume negotiation because of

the recognized difficulty of appellate court resolution).

clearly permits the court to award attorneys’ fees to

prevailing, substantially prevailing, or non-prevailing

parties in “appropriate” cases.

Ihe legislative history of section 307(f) confirms this

reading and offers guidance in identifying “appropriate”

cases. The House Report, H.R. Rep. No. 95-294, 95th

Cong., Ist Sess. 337 (1977), reprinted in 1977 U.S.

Cong. & Adm. News 1077, 1416, states:

In the case of the section 307 judicial review liti-

gation, the purposes of the authority to award fees

are not only to discourage frivolous litigation, but

also to encourage litigation which will assure prop-

er implementation and administration of the act or

otherwise serve the public interest. The committee

did not intend that the court’s discretion to award

fees under this provision should be restricted to

cases in which the party seeking fees was the “pre-

vailing party.” In fact, such an amendment was ex-

pressly rejected by the committee, largely on the

grounds set forth in NRDC v. EPA, 484 F.2d

1331, 1338 (Ist Cir. 1973).*

3 Although adding little to our understanding of legislative in-

tent, the Senate Report, S. Rep. No. 95-127, 95th Cong., Ist

Sess. 99 (1977), also confirms our reading:

forcement action. Attorneys fees and other costs may also

be awarded in judicial review proceedings brought under

section 307 of the Clean Air Act whenever the court deter-

mines that such an award is appropriate.

The passage explicitly sanctions awards when EPA (1) acts un-

The passage from Judge Campbell’s opinion in Nation-

al Resources Defense Council v. Environmental Pro-

tection Agency, 484 F.2d 1331, 1338 (Ist Cir. 1973)

(hereinafter NRDC), endorsed in the House Report,

reads:

pose of section 304(d), the government notes, was to punish

“frivolous or harassing litigation, and [to reward] citizens suits

which result in pollution abatement, but fail to reach a favorable

verdict.” Reply Brief For The United States On The Issue Of

Attorneys’ Fees For Losing Parties Under 42 U.S.C. 7607(f) at

8. In support, the government cites S. Rep. 91-1196, 9ist

Cong., 2d Sess. 38 (1970), which states:

Concern was expressed that some lawyers would use sec-

tion 304 to bring frivolous and harassing actions. The Com-

mittee has added a key element in providing that the

courts may award costs of litigation, including reasonable

attorney and expert witness fees, whenever the court de-

termines that such action is in the public interest. The

court could thus award costs of litigation to defendants

where the litigation was obviously frivolous or harassing.

This should have the effect of discouraging abuse of this

provision, while at the same time encouraging the quality

of the actions that will be brought.

The Courts should recognize that in bringing legitimate

actions under this section citizens would be performing a

public service and in such instances the court should award

costs of litigation to such party. This should extend to

plaintiffs in actions which result in successful abatement

but do not reach a verdict. For instance, if as a result of a

While the only example of a non-prevailing party awarded attor-

neys’ fees expressly cited in the Report is one where the case

was mooted by abatement, we do not read the Report as ruling

out all other instances where attorneys’ fees would be appropri-

ate. And, in any case, we cannot disregard the clear legislative

history specific to section 307, noted in the text. See pp. 4-6 in-

fra. That history shows that Congress in 1977 specifically adopt-

ed the far broader policy of rewarding substantial contributions

The of an award of costs and fees is not

—27— It is to allocate the costs of litiga-

tion equitably, to encourage the achievement of

statutory goals. When the government is at-

tempting to carry out a program of such vast and

uncharted dimensions, there are roles for both the

official agency and private watchdog. The legisla-

tion is itself complex and novel. Given the imple-

mentation dates, its early interpretation is

desirable.

For Judge Campbell, and apparently for Congress, it

was not enough merely to consider “who won.” The

to the statutory goals of the Act. In 1977 Congress made a clear

choice between two different attorneys’ fees provisions. Com-

pare S. 252 (“In any judicial proceeding under this Act in which

the United States ... is a party ... any party other than the

United States which prevails in such action shall recover ...

reasonable costs. including reasonable attorneys’ fees. ... In

any case in which such party prevails in part, the court shall

have discretion to award such reasonable costs.” (Emphasis

added.)) with S. 253 (“In any judicial proceeding under this sec-

tion, the court may award costs of litigation (including reason-

able attorney and expert witness fees) whenever it determines

that such award is appropriate.”). Reprinted in 5 A LEGISLA-

TIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977,

3644, 3817 (1978) (hereinafter LEGISLATIVE History). During

Congressional hearings, areas of controversy on the issue of at-

torneys’ fees included questions about whether there was any

need to modify existing judicial practice and whether awards

ought to be based on need rather than on the judicial disposition

of the suit. Id. at 3893.

This legislative history makes it difficult to escape the conclu-

sion that the statutory goals of the Clean Air Act can be fur-

thered by parties who make a substantial contribution to the in-

terpretation and development of the Act, see pp. 12-13, infra,

as well as by substantially prevailing parties and parties who

win a favorable result other than by receiving a favorable ver-

dict. See pp. 10-13 infra.

benefits conferred by the litigation were an equally im-

portant consideration.“

The government here seeks to distinguish Sierra

Club from NRDC, and thereby to pull this case beyond

the purview of the plain language and the intent of the

statutory provision, by arguing that the party awarded

attorneys’ fees in NRDC prevailed on some, although

not on all issues. See Brief For The United States On

The Issue of Attorneys’ Fees For Losing Parties Under

42 U.S.C. 7607(f) at 11. The passage from NRDC re-

printed above cannot, however, be read so narrowly. It

indicates that the relevant inquiry is whether the lit-

*NRDC at 1338. See also Delaware Citizens For Clean Air

Ine. v. Stauffer Chemical Company, 62 F. R. D. 353, 355 (D. Del.

1974):

Int is fair to conclude from the language chosen by Con-

gress that ultimate success in a citizen’s suit was not in-

tended to be a prerequisite to an award. At the same time,

however, in light of the absence of any more specific decla-

ration of congressional intent, I believe that “appropriate”

should be read in the context of the pre-existing notions

about the circumstances under which one party may fairly

be required to bear his adversary’s costs of litigation. In

this context it seems to this Court that success or failure

must be given substantial weight and that an award of

counsel fees to a losing party should be reserved for those

cases in which either the litigation, though ultimately

unsuccessful, serves the objectives of the Act in some sub-

stantial way or in which other exceptional circumstances

tip the balance of the equities decidedly in the losing

party’s favor. The exercise of the equitable judgment thus

called for must be made in light of all the actions of both

parties during the course of litigation as well as during the

relevant preceding period.

In considering the “appropriateness” of an award, the court also

inquired into plaintiff's motives in bringing the suit and whether

the suit was substantial or frivolous. It is thus clear that when

Congress enacted the “appropriateness” standard in 1977, it

was not surveying an empty field.

igation successful or not—furthered the goals of the

Act. It was this general policy which Congress sought

to codify in the 1977 Amendments of the Clean Air

Act.5

Our reading of the legislative history is supported by

recent decisions of this court and the district court for

the District of Columbia. In Metropolitan Washington

Coalition for Clean Air v. The District of Columbia,

639 F.2d 802 (D.C. Cir. 1981) (hereinafter Washington

Coalition), this court reversed a decision of the district

court, which, although acknowledging that unsuccessful

parties may be awarded attorneys’ fees under the Clean

Air Act, found no public benefit from the lawsuit be-

cause the challenged operation of a municipal incinera-

tor was ultimately determined not to endanger public

health. The district court also found that the suit had

“questionable legitimacy” because EPA was already

considering revisions of the District of Columbia imple-

mentation plan and therefore the non-prevailing party’s

efforts “did not serve to expedite the Administrator's

decision.” This court reversed and remanded because:

the District court incorrectly focused its attention

on the outcome and practical effects of the litiga-

tion, to the exclusion of a more relevant considera-

tion: whether the suit was of the type that Con-

gress intended to encourage when it enacted the

citizen-suit provision. ... Quite obviously, the leg-

islature, when it called for citizen-suits, considered

a fee recovery to be consonant with the public in-

terest whenever the underlying suit was a prudent

and desirable effort to achieve an unfulfilled objec-

tive of the Act. The attorneys’ fee feature was of-

Further, it should be noted that in Sierra Club the agency's

response to several challenges asserted by the utilities was ef-

fectively supplemented by the efforts of the environmental

groups. See pp. 15-18 infra.

fered as an inducement to citizen-suits, which Con-

gress deemed necessary; and if the hope Congress

had for such suits is to become a reality, decisions

of fee allowance cannot make wholesale substitu-

tions of hindsight for the legitimate expectations of

citizen plaintiffs.

Id. at 804. It is true that in Washington Coalition we

noted that at the time the suit began there may have

been “a well founded expectation that the suit would

bring about a more timely compliance with the [imple-

mentation] plan, and in that fashion an observance of

the [Clean Air] Act.” Jd. at 805. The government

therefore suggests that we read Washington Coalition

to permit awards of attorneys’ fees to “non-prevailing

parties” only in those situations where, except for

intervening events, the litigation would have been suc-

cessful. Although the government’s reading is snugly fit

to the facts of Washington Coalition, that reading is

not properly tailored to the case’s rationale. We find

the rationale of Washington Coalition to be broad

enough to cover a case like Sierra Club where the non-

prevailing parties had a “well-founded expectation” of

success when their suit was brought—the issues were

not frivolous but substantial—and where the appeal

furthered the goals of the Act by facilitating the prompt

resolution of the important and complex issues con-

fronting this court involving the Act’s interpretation.

Moreover, by assisting judicial interpretation of the

Clean Air Act, Sierra Club and EDF aided agency im-

plementation and Congressional reevaluation® of the

Act.

See 42 U.S.C. § 7626. Congress is presently considering re-

visions. See, e.g., H.R. 1431, 97th Cong., Ist Sess. (1981); see

generally, L. LAVE & G. OMENN, CLEARING THE AIR: RE-

FORMING THE CLEAN AIR ACT (1981); E. HASKELL, THE POLI-

Tics OF CLEAN AIR: EPA STANDARDS FOR COAL-BURNING

POWER PiANTS (1982); Pedersen, Why The Clean Air Act

Our decision in Washington Coalition took note of

Judge Richey’s opinion in Citizens Association of

Georgetown v. Washington, 383 F. Supp. 136 (D.D.C.

1974), rev'd on other grounds, 535 F. 2d 1318 (D.C. Cir.

1976) (hereinafter Citizens Ass’n). The issue presented

there was “whether Plaintiffs, who were unsuccessful

in a suit brought under the Clean Air Act, 42 U.S.C.

$§ 1857 et seg., should be awarded costs and attorneys’

fees.” Id. at 143. After trial, the district court con-

cluded that the plaintiffs had not successfully proved a

violation of the Act. Nevertheless, understanding Con-

gress to have intended courts to award attorneys’ fees

in appropriate cases to unsuccessful as well as success-

ful parties, the district court granted plaintiffs’ request

because the litigation had furthered the Act’s purpose

of encouraging citizen suits to accelerate enforcement of

the Clean Air Act. In support of its holding the court

noted that the case was one of first impression in the

circuit, extensive preparation was required, non-

frivolous claims were raised, and the suit was brought

in the face of a clean air regulatory vacuum in the Dis-

trict of Columbia.

Works Badly, 129 U. Pa. L. Rev. 1059 (1981). On the status of

the revisions see N.Y. Times, Jan. 4, 1982 at B-8.

Id. at 145. More recently, District Judge Robinson granted

attorneys’ fees to unsuccessful plaintiffs who had brought suit

under the National Environmental Policy Act (“NEPA”), 42

U.S.C. 88 4321 et seg., the Endangered Species Act (“ESA”),

16 U.S.C. §§ 1531 et seg., and the Outer Continental Shelf

Lands Act (“OCSLA”), 43 U.S.C. §§ 1331 et seg. North Slope

Borough v. Andrus, 515 F. Supp. 961 (D.D.C. 1981). (The case

is presently before this court on appeal.) Both ESA, 16 U.S.C.

§ 1540(g)(4), and OCSLA, 43 U.S.C. § 1349(a)(5), contain attor-

neys’ fees provisions virtually identical to the one contained in

the Clean Air Act. 16 U.S.C. § 1540(g)(4) provides:

The court, in issuing any final order in any suit brought

pursuant to paragraph (1) of this subsection, may award

costs of litigation (including reasonable attorney and ex-

10a

It is clear from the foregoing review that whether Si-

erra Club and EDF are entitled to attorneys’ fees turns

not on whether they have prevailed in whole or in part,

pert witness fees) to any party, whenever the court deter-

mines such award is appropriate.

43 U.S.C. § 134%a)(5), provides, in relevant part:

A court, in issuing any final order in any action brought

pursuant to subsection (a)(1) or subsection (e) of this see-

tion, may award costs of litigation, including reasonable at-

torney and expert witness fees, to any party, whenever

such court determines such award is appropriate.

The district court had found violations of both ESA and NEPA,

but not OCSLA, and had determined that an award of attor-

neys’ fees was appropriate. This court reversed, finding no stat-

utory violations. North Slope Borough v. Andrus, No. 80-1148

(D.C. Cir. October 9, 1981). The attorneys’ fees award was nei-

ther challenged in nor disturbed by this court. Thereafter, the

parties entered into negotiations over the amount of the award.

On January 21, 1981, a Stipulation of Settlement was filed, but

before court approval, it was withdrawn. On February 3, 1981,

the district court, after listening to essentially the same argu-

ments presented here, reaffirmed its ruling that plaintiffs were

entitled to attorneys’ fees. North Slope Borough v. Andrus, 507

F. Supp. 106 (D.D.C. 1981). Judge Robinson observed:

The “appropriateness” of an attorneys’ fees award is de-

termined by analyzing whether “the underlying suit was a

prudent and desirable effort to achieve an unfulfilled objec-

tive of the Act.” The appropriateness of a fee award may

thus be viewed on a continuum—some suits will reflect

more “prudent and desirable effort({s}” than others.. . De-

nial of an award of attorneys’ fees in this action would

throw the issue of entitlement under the applicable stat-

utes completely into disarray. In fact, denial of a fee award

eould only be supported by the application of the “substan-

tially prevailing party” standard. This would require

amending the ESA and the OCSLA, a task beyond the

power of the Court. The Court once again affirms Plain-

tiffs’ entitlement to attorneys’ fees.

North Slope Borough v. Andrus, 515 F. Supp. at 965 (footnotes

omitted).

lla

but on whether they have served the goals of the Clean

Air Act. The government’s current position, that non-

prevailing parties are not entitled to attorneys’ fees,

conflicts with the language and history of section 307

and judicial precedent. Under the government’s posi-

tion, there would have been no need to abandon the

“substantially prevailing” standard commonly used to

guide judicial awards of attorneys’ fees. See p. 3 supra;

n.8 infra. Clearly Congress meant something more by

the provision in the Clear Air Act: it intended to en-

courage the participation of “public interest” groups in

resolving complex technical questions and important

and difficult questions of statutory interpretation, and

in monitoring the prompt implementation of the Act.

We hasten to alleviate the government’s concern that

because implementation of the Clean Air Act is so com-

plex, no challenge will appear frivolous and so all non-

prevailing parties will automatically be awarded attor-

neys’ fees. We believe that courts confronted with

complex cases will be able to distinguish appropriate

For a similarly worded statutory provision, see the Toxic

Substances Control Act (“TSCA”), 15 U.S.C. § 2618(d):

The decision of the court in an action commenced under

subsection (a), or of the Supreme Court of the United

States on review of such a decision, may include an award

of costs of suit and reasonable fees for attorneys and ex-

pert witness if the court determines that such an award is

appropriate.

Environmental Defense Fund v. Environmental Protection

Agency, Nos. 79-1811 & 79-1816 (D.C. Cir. Feb. 5, 1982), in-

terprets this provision in a manner consistent with this opinion.

See also, Deep Seabed Hard Minerals Resources Act, 30 U.S.C.

§ 1427(c); Clean Water Act, 33 U.S.C. §§ 1365(d), 1415(g)(4),

1515(d), Safe Drinking Water Act, 42 U.S.C. § 300j8(d); Noise

Control Act, 42 U.S.C. § 4911(d); Energy Policy and Conserva-

tion Act, 42 U.S.C. § 6305(d).

12a

cases.“ In this case, although the parties awarded fees

did not substantially prevail, they did substantially

contribute to the goals of the Act: the issues they ad-

Thus even a prevailing or substantially prevailing party who

does not substantially contribute to the goals of the Clean Air

Act may not be entitled to attorneys’ fees. In this respect, the

“substantially contributing” standard of the Clean Air Act re-

sembles the “substantially prevailing” standard of the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), which

provides:

The court may assess against the United States reasonable

attorney fees and other costs reasonably incurred in any

case under this section in which the complainant has sub-

stantially prevailed.

(Emphasis added.) FOIA presents two questions for courts de-

termining whether to award fees and costs: (1) is the plaintiff

eligible for an award, and (2) is the plaintiff entitled to an

award. Fund for Constitutional Government v. National Ar-

chives and Records Service, 656 F.2d 856, 870 (D.C. Cir. 1981);

Church of Scientology v. Harris, No. 80-1189 (D.C. Cir. April

17, 1981) (hereinafter Harris), slip op. at 8; Cox v. U.S. Dept.

of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979) (hereinafter Cor). To

be eligible for an award under FOIA, the plaintiff must demon-

strate (1) that the prosecution of the action could be reasonably

regarded as necessary, and (2) that the action had a substantial

causative effect on the delivery of the documents. Harris at 8,

11; Cox at 6. Determination of whether a plaintiff is entitled to

an award is, nowever, within the sound discretion of the court.

See Harris at 13 (“the decision as to whether to award fees and

costs to an eligible party rests in the sound discretion of the dis-

trict court.”); Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir.

1979) (“Congress, in authorizing the award of attorneys’ fees,

left to the traditional equitable discretion of the courts the deci-

sion whether such fees are appropriate in any given disclosure

case.); Cor at 7 (“A decision on whether to award attorneys’

fees to an eligible party resides in the discretion of the district

court ...”); Nationwide Building Maintenance, Inc. v. Sampson,

559 F.2d 704, 715 (D.C. Cir. 1977) (“The touchstone of a court’s

discretionary decision under section 552(a)(4)(E) must be

whether an award of attorney fees is necessary to implement

13a

dressed were important, complex and novel; their as-

sistance in the resolution of the issues was substantial

and not duplicative of the efforts of other parties; and

the caliber of their written and oral presentations was

exemplary. While the occasions upon which non-pre-

vailing parties will meet such criteria may be exception-

al, see American Petroleum Institute v. Costle, No.

79-1104 (D.C. Cir. October 27, 1981) (denial of request

for attorneys’ fees), Sierra Club is such an occasion.

II. THE APPROPRIATENESS OF AN AWARD

OF ATTORNEY'S FEES

A. The Importance of the Case and the Issues Involved

Sierra Club v. Costle was a significant case involving

an EPA rule governing sulfur dioxide and particulate

emissions from fossil-fueled electric utility plants across

the nation. We described its impact in our opinion as

follows:

The importance of the challenged standards

arises not only from the magnitude of the environ-

ment and health interests involved, but also from

the critical implications the new pollution controls

have for the economy—at the local and national

levels. Further heightening the significance of this

controversy is the crucial role coal burning power

FOIA.”); Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C. Cir.

1977) (“Although a complainant may have substantially pre-

vailed in an action, the award of costs and attorney fees does

not automatically follow. There are other factors which the

court should consider in determining the appropriateness of an

award of costs and attorney fees.” (Footnotes omitted.)). As in

the case of FOIA, by enacting the attorneys’ fees provision of

the Clean Air Act, Congress has given courts broad discretion.

See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240,

262 (1974) (“the circumstances under which attorneys’ fees are

to be awarded and the range of discretion of the courts in mak-

ing those awards are matters for Congress to determine.”

(Footnote omitted; emphasis added.)).

14a

plants are expected to play in our nation’s effort to

cope with the problems associated with energy

searcity.®

The significance of this case is reflected to some degree

in a spate of recent articles. See Ackerman & Hassler, Be-

yond the New Deal: Coal and the Clean Air Act, 89 Yale

L.J. 1466 (1980). Ackerman and Hassler’s article appears

in expanded form as a book entitled Clean Coal/Dirty Air:

or How the Clean Air Act Became a Multibillion-Dollar

Bail-Out for High Sulfur Coal Producers and What

Should Be Done About It (Yale Univ. Press 1981); Banks,

EPA Bends to Industry Pressure on Coal NSPS—and

Breaks, 9 Ecology L.Q. 67 (1980); Currie, Direct Federal

Regulation of Stationary Sources Under the Clean Air

Act, 128 U. Pa. L. Rev. 1389 (1980); Navarro, The Politics

of Air Pollution, Public Interest, Spring 1980, 36-44; see

also New Source Performance Standards for Coal-Fired

Power Plants, 8 Ecology L.Q. 784 (1980); Reconciling

Coal Conversion Policy and Significant Deterioration of

Air Quality, 15 Tulsa L.J. 532 (1980).

See generally Report of the National Commission on Air

Quality, To Breathe Clean Air (1981); Del. Duca, The

Clean Air Act: A Realistic Assessment of Cost Effective-

ness, 5 Harv. Env. L. Rev. 184 (1981); Smith, The Fight

Over Clean Air Begins, SCIENCE, March 20, 1981.

1328-30.

Sierra Club, 657 F.2d at 313. Our assessment of the

case’s importance to the national welfare was shared by

all parties in the case.“ The technical complexity of the

See, e.g., EPA Brief at 5—6 (“this regulation will reduce sul-

fur dioxide emissions by half, particulate matter emissions by 70

percent ... New coal-fired plants will be several times cleaner

than existing plants ... These benefits will cost billions ... In

addition, the ... standard ... will prod the development of a

technology that is cheaper, more reliable, more energy efficient,

less water demanding and more environmentally sound over-

all.“); Brief for Intervenor-Respondent National Coal Associa-

tion at 4 (“The Standards have a major impact on the type and

quality of coal which can be used by new generating plants, as

15a

case necessitated extensive preparation by the parties

and the court. In formulating the regulation, EPA had

prepared 120 studies, collected 400 items of reference

literature, received almost 1,400 comments, written 650

letters and 200 interagency memoranda, held over 50

meetings and substantive telephone conversations with

the public, and conducted four days of public hearings.

The statement accompanying the regulation took up to

43 triple columns of single-spaced type. Approximately

700 pages of briefs were submitted to this court on the

merits of the case. The joint appendix contained 5,620

pages, bound in twelve volumes. The certified index to

the record listed over 2,520 submissions. Seven months

after oral argument, this court emerged with a 250

page opinion upholding the agency’s regulations.

Among the serious questions presented or addressed

by Sierra Club and EDF in the appeal were: (1) Wheth-

er section 111 of the Clean Air Act as amended in 1977

authorized EPA to promulgate a variable percentage

well as on the marketability and competitive position of coal

compared to other fuels. In some cases the Standards also have

a significant bearing on methods of mining and processing

coal.”); Appalachian Power Co. Brief at 59 (“If Electric Utilities

are correct that compliance with the 90 percent standard entails

substantial risks, a large percentage of the coal reserves in Illi-

nois, Indiana, Western Kentucky, Ohio and West Virginia may

be eliminated as a boiler fuel. In addition, fewer new coal fired

plants may be built as a result of the disincentives to high sulfur

coal use. Finally, if fewer plants are built, additional emissions

and oil consumption will result from increased reliance on older

coal and oil-fired plants.); Brief of Intervenor Missouri Associ-

ation of Municipal Utilities at 10. (“The establishment of a vari-

able standard makes the use of dry technology economically fea-

sible at the stage of implementation of the technological control

requirement. {Rjelatively small utilities, such as the munici-

pal systems which make up MAMU, will be able to continue use

of locally available medium sulfur coal at a much more reason-

able cost to their customers.”).

16a

reduction standard rather than a uniform reduction

standard, and if so whether variability could be based

upon the sulfur content of the coal burned. (Sierra Club

provided the first major occasion for judicial interpreta-

tion of this newly revised provision in the 1977 Amend-

ments to the Clean Air Act, and so demanded not only

a microscopic examination of the legislative history but

also a detailed review of the practical effects of a varia-

ble standard.) (2) Whether a variable standard could be

issued in order to encourage new technology, i.e., dry

scrubbing. (This issue required extensive analysis of

the record, as well as statutory interpretation of the re-

lationship among several newly amended sections of the

Clean Air Act.) (3) Whether EPA’s econometric com-

puter model, used to forecast the future impacts of al-

ternative standards, was reliable, and whether the as-

sumptions underlying the model were valid. (Our ruling

on this question will inevitably affect agency proce-

dures in a number of substantive contexts.) (4) Wheth-

er a 90% reduction of sulfur dioxide was technologically

feasible. (A challenge to feasibility was brought by the

utilities and defended by the environmental groups as

well as EPA.) (5) Whether EPA’s adoption of a 1.2

lbs./MBtu emissions ceiling was procedurally defective

because of post-comment period contacts. (This was the

first comprehensive judicial application of section 307(d)

of the Clean Air Act, which legislated a complete set of

guidelines for rulemaking under that Act.) None of

these issues was remotely frivolous; all deserved to

have been aired, and having been aired will contribute

both to the agency’s future efforts to implement the

Clean Air Act and to Congress’ ongoing review of the

Act.

B. The Substantial Nature of the Petitioners’

Assistance

Although it seems almost inconceivable that a major

17a

review of the rule could have been conducted without

questioning EPA’s authority and evidentiary basis for

promulgating a variable percentage reduction standard,

an issue that the EPA Administrator had referred to at

the start of the rulemaking as the “main” issue in the

proceeding, Sierra Club was the only party to raise it.

The court was thus totally dependent upon Sierra Club

to brief and advocate the opposition to a variable

standard. Without Sierra Club, an issue conceded by

EPA to be critically important would not have been

raised or decided during the first judicial challenge to

the statutory provision. The absence of debate on the

issue, moreover, could have affected the outcome of

other related issues in the case, e.g.,the proper level of

total emissions (the so-called 1.2 lb./MBtu standard),

since individual standards of section 111 operate inter-

dependently. And the argument pressed most intensely

by the utilities, that a 90% reduction in sulfur emissions

was technologically infeasible given the state of

antipollution technology, would have been far less com-

pletely aired without Sierra Club’s participation. The

various parts of a complex rule like this one do not trav-

el alone, and the court’s education on each part of the

rule informed its decisions on other parts.

Similarly, the critical role played by EDF in the

court’s premier interpretation of the new rulemaking

procedures laid down in the 1977 Amendments must be

recognized. This first comprehensive judicial interpre-

tation of section 307(d) of the Clean Air Act consumed

60 pages of the court’s opinion and involved detailed

challenges to several facets of the rulemaking. EDF’s

contribution involved factual research into meetings

and communications between agency officials, White

House personnel, members of Congress and industry

representatives, as well as a legal analysis of the pro-

priety of such meetings under the new section 307 and

existing case law on ex parte contacts in rulemaking.

18a

Several documents pertaining to these contacts, pref-

fered by EPA for the first time on appeal, were con-

sulted by the court. See Sierra Club, 657 F.2d at

389-90 n.450; cf. Citizens Ass’n, 383 F. Supp. at 145

(benefits from public exposure). We have little doubt

that without EDF’s substantial contribution to this as-

pect of the case, our deliberations would have been less

enriched and more time consuming. We note too that

EDF’s procedural challenges not only clarified how the

new section 307(d) would operate, but apparently pro-

vided fuel for discussion about appropriate restrictions

on ex parte comments in other administrative proceed-

ings. See Stockman Memorandum For Heads of Execu-

tive Departments and Agencies 2 (June 13, 1981).

Again, it was EDF’s challenge that instigated the first

major judicial inquiry into how section 307’s rulemaking

procedures would operate—a review that was neces-

sary in order to resolve close questions of interpreta-

tion for future rulemaking under the Act.

C. Conclusion

In conclusion, we find that the express goals of the

Clean Air Act—prompt resolution of serious questions

of statutory interpretation and citizen participation in

monitoring administration of the Act through enforce-

ment suits—require that substantial contributions to

significant litigation in furtherance of these goals be

compensated. It was absolutely essential in a case of

this dimension that this court have expert and articu-

late spokesmen for environmental as well as industrial

interests. The rulemaking process not only involved

highly technical and complex data, but controversial

considerations of public policy. Given the complexity of

the subject matter, without competent representatives

of environmental interests, the process of judicial re-

view might have been fatally skewed.

The questions raised by Sierra Club and EDF needed

to be resolved; yet no other party had a sufficient eco-

19a

nomic interest at stake to represent them. Sierra Club

and EDF were required to expend great efforts to per-

form their advocacy tasks well in matters of such tech-

nical complexity; their contribution to the court’s

prompt disposition of all issues raised in the case was

substantial. As Congress recognized in enacting the cit-

izen suit/cost provision of section 307, one cannot ex-

pect that contributions as substantial as those made by

Sierra Club and EDF would be made by public interest

groups without some form of compensation.

III. INSTRUCTIONS To THE LITIGANTS

We postpone consideration of the amount of compen-

sation to be awarded in order to allow the parties to re-

sume their abruptly ended negotiations. We commend

to the parties the guidelines for attorneys’ fees set out

in Environmental Defense Fund v. Environmmental

Protection Agency, Nos. 79-1811 & 79-1816 (D.C. Cir.

Feb. 5, 1982); Alabama Power Company v. Gorsuch,

No. 78-1006 (D.C. Cir. Feb. 5, 1982); Anderson v.

United States Department of the Treasury, 648 F. 2d 1

(D.C. Cir. 1979); Copeland v. Marshall, 641 F.2d 880

(D.C. Cir. 1980), and Evans v. Sheraton Park Hotel,

503 F.2d 117 (D.C. Cir. 1974). Finally, the same statu-

tory language that allows us to make attorneys’ fees

awards in cases such as Sierra Club, limits our power

to judicial proceedings. Cf. New York Gaslight Club,

Inc. v. Carey, 447 U.S. 54, 62 (1980); Parker v.

Califano, 561 F.2d 320, 327 S. C. Cir. 1977) (interpre-

tation of statutes not containing limitations to adminis-

trative or judicial proceedings). Sierra Club and EDF

are, therefore, not entitled to an award of attorneys’

fees for their participation in the administrative pro-

ceedings preceding their appeal.

The parties are expected to keep this court abreast of

the progress of their negotiations by filing a report

within three months of the date this opinion issues. If

20a

at that time it is clear that settlement is impossible,

this court will fix an award for attorneys’ fees. %

So Ordered.

1% We have taken due notice of Judge Wilkey's dissent in

Alabama Power Co. v. Gorsuch, No. 78-1006 (D.C. Cir. Feb. 5,

1982). In that dissent Judge Wilkey expresses disagreement

with our interpretation of section 307(f)’s “appropriate” specifi-

cation and suggests that we have, on the one hand, “conjured

up” a number of standards to define that statutory term, and,

on the other, “enacted” a single “nonfrivolous” standard. Id. at

19. Further, by interpreting “appropriate” as we have, Judge

Wilkey appears to accuse us of judicially legislating. First, we

believe our opinion makes clear that we have articulated one

standard for appropriateness, and that standard allows courts

to award attorneys’ fees to parties who have “substantially con-

tributed” to the goals of the Clean Air Act. In applying that

standard to the Sierra Club litigation, we have enumerated sev-

eral relevant factors, derived from the legislative history and

prior cases, which Judge Wilkey mistakenly reads as estab-

lishing several different standards. We believe that it is equally

clear that the standard we have applied amounts to much more

than a “non-frivolous” standard. See pp. 11-13 supra. Finally,

we do not feel free either to ignore Congress’ mandate to deter-

mine the appropriateness of an award in each case, or to rewrite

its legislation and substitute “prevailing” for “appropriate.”

Congress expressly used “appropriate” as the standard in sec-

tion 307(f); it specifically gave to courts the authority to inter-

pret that standard on a case-by-case basis (an entirely logical

delegation, since courts would be in the best position to assess

the contributions of the parties and the importance of each

case). That authority is akin to that which courts are already

exercising under a variety of statutory provisions. See n.8 su-

pra. Clearly Congress knows the difference between “prevail-

ing” and “appropriate.” Compare the statutory provisions cited

in n.7, supra, with the attorneys’ fees provision used in FOIA,

n.8 supra. Judge Wilkey appears reluctant to permit courts to

flesh out section 307(f) as Congress required them to do; we, on

the other hand, are reluctant to rewrite the legislation itself.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

September Term, 1981

SIERRA CLUB, PETITIONER

ANNE M. GORSUCH, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

NATIONAL COAL ASSOCIATION, ET AL., INTERVENORS

AND CONSOLIDATED CASES

Filed—February 5, 1982

Before: ROBB, WALD and GINSBURG, Circuit Judges

ORDER

Upon consideration of petitioner’s (Sierra Club)

motion for an award of attorneys’ fees, and of its sup-

plemental memorandum of points and authorities in

support of that motion; of said petitioner’s amended

motion for attorneys’ fees, the motion of petitioner En-

vironmental Defense Fund for an award of attorneys’

fees, the brief of respondent United States on the issue

of attorneys’ fees, and its response to petitioner Sierra

Club’s amended motion for attorneys’ fees; the motion

of respondent United States to bifurcate the issue of at-

torneys fees, petitioner Environmental Defense Fund’s

opposition to the motion to bifurcate, and petitioner’s

response to the brief of respondent United States and

to its motion to bifurcate; of petitioner Environmental

Defense Fund’s amended motion for an award of attor-

neys’ fees (with attachments), petitioner’s reply to the

response of respondent United States concerning the

amended request for attorneys’ fees, reply brief of re-

spondent United States on the issue of attorneys’ fees

21a

22a

for losing parties under 42 USC § 7607(f), petitioner

Environmental Defense Fund’s response to the reply

brief of respondent; of petitioner Environmental De-

fense Fund’s motion for leave to file an opposition in re-

ply to respondent’s memorandum on the proper size of

an attorneys’ fee award, time having expired, and of

petitioner Sierra Club’s motion for permission to file re-

sponse to the memorandum of respondent United

States on the proper size of an award of attorneys’ fees

to a losing litigant, out of time, and of said petitioner’s

lodged response, it is

ORDERED, by the Court, that the motions of peti-

tioners Sierra Club and Environmental Defense Fund

for leave to file responses to the memorandum of re-

spondent United States on the proper size of any attor-

neys’ fee award are granted and the Clerk is directed to

file and to docket said responses, and it is

FURTHER ORDERED, by the Court, that attor-

neys’ fees are awarded to petitioners Sierra Club and

Environmental Defense Fund in such amounts as the

parties may agree upon following further negotiations

in accordance with the opinion of this Court filed herein

this date. The parties are directed to keep this Court

abreast of the progress of their negotiations by filing a

report on or before May 5, 1982. If at that time it is

clear that settlement is impossible, this Court will fix

an award for attorneys’ fees.

Per Curiam

FOR THE COURT:

GEorRGE A. FISHER

Clerk

Dated: February 5, 1982

Opinion Per Curiam

APPENDIX B

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

SIERRA CLUB, PETITIONER

ANNE M. GorSUCH, Administrator of the Environmen-

tal Protection Agency, RESPONDENT

NATIONAL COAL ASSOCIATION

ALABAMA POWER ASSOCIATION, ET AL., INTERVENORS

And Consolidated Case Nos. 79-1719, 79-1867,

79-1874, 80-1187, 80-1201, 80-1213, and 80-1338

On Motion for Award of Attorneys’ Fees

Decided July 16, 1982

Before: ROBB, WALD and GINSBURG, Circuit

Judges.

Opinion Per Curiam.

Opinion dissenting in part filed by Senior Circuit

Judge ROBB.

PER CURIAM: In Sierra Club v. Gorsuch, 672 F.2d

33 (D.C. Cir. 1982) (hereinafter Sierra Club II), we

held that an award of attorneys’ fees to the Sierra Club

and the Environmental Defense Fund (“EDF”), non-

prevailing parties in Sierra Club v. Costle, 657 F.2d

298 (D.C. Cir. 1981) (hereinafter Sierra Club I), was

“appropriate” under section 307(f) of the Clean Air Act,

42 U.S.C. § 7607(f), because those parties had “sub-

stantially contributed” to the goals of the Clean Air Act

23a

24a

Amendments of 1977 by litigating “important, complex

and novel” issues of statutory interpretation. Sierra

Club II, 672 F.2d at 39. At the express suggestion of

the government, we postponed consideration of the pre-

cise amount of compensation to be awarded in order to

allow the parties to resume negotiations which had

been abruptly ended by a shift in government policy re-

sulting in routine oppostion to the grant of attorneys’

fees to non-prevailing parties. Id. at 34 n.2. Unfortu-

nately, a settlement has proven impossible. According-

ly, we must now resolve the matter. Taking into ac-

count the decisions of this court in National

Association of Concerned Veterans v. Secretary of De-

fense, No. 81-1364 (D.C. Cir. Apr. 23, 1982) (petition

for rehearing and rehearing en banc pending) (herein-

after NACV); Environmental Defense Fund v. Envi-

ronmental Protection Agency, 672 F.2d 42 (D.C. Cir.

1982) (hereinafter EDF v. EPA); Alabama Power

Company v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982);

Anderson v. United States Department of the Treas-

ury, 648 F.2d 1 (D.C. Cir. 1979); and, most important,

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)

(en banc) (hereinafter Copeland), we find that Sierra

Club is entitled to attorneys’ fees amounting to $44,715

(plus $644.60 in expenses') and that EDF is entitled to

$45,874.80.

Sierra Club requested an award of $2,642.96 for expenses.

In the exercise of our discretion, see 42 U.S.C. § 7607(f); see

also Fed. R. App. P. 39, we do not allow expenses for filing fees

($139.42), brief printing ($658.94), and preparation of the ap-

pendix ($1,200). The $497.14 lawyer overhead costs, consisting

of telephone calls and airfare documented prior to October 13,

1981, should be awarded, however, as out-of-pocket expenses

not reimbursable in the counsel’s hourly rate. Likewise, we al-

low $147.46 in similar expenses (telephone ($65.34) and copying

($82.12)) incurred since October 13, 1981; contrary to the gov-

ernment’s assertion, they were properly documented. See Dec-

laration of Joseph J. Brecher at 1 (May 5, 1982).

25a

I. SIERRA CLUB’S REQUEST

Prior to the termination of fee negotiations in Au-

gust, 1981, the government made a written offer of

$32,265 to Sierra Club, which Sierra Club claims to

have accepted before the government withdrew the of-

fer under a revised policy of disputing all attorneys’

fees claims by nonprevailing parties. Following our

opinion in Sierra Club II, declaring that the Clean Air

Act contemplated attorneys’ fees awards in “appropri-

ate” cases and holding Sierra Club I to be such a case,

Sierra Club submitted a proposal for $60,656.75. This

figure included Sierra Club’s computation of the “lode-

star’—“the number of hours reasonably expended

multiplied by a reasonable hourly rate,” Copeland, 641

F.2d at 891—on the basis of 479.5 hours at $110 per

hour plus a 15% upward adjustment of the lodestar

amount due to the government’s alleged delaying tac-

tics throughout the fee proceedings. See Sierra Club’s

Report To The Court And Second Amended Request

For Attorneys’ Fees at 2 (May 10, 1982) (hereinafter Si-

erra Club’s Report). The government countered with

an offer of $36,335, representing a reduction in hours

and an hourly rate of $90 rather than $110 for time

spent on the case-in-chief by the Sierra Club’s attorney,

Joseph Brecher.? See id. at Exhibit B. The govern-

ment’s figure, however, included the full 37 hours

claimed for work on the attorneys’ fees issue at $110

per hour. Jd. The government predictably resisted any

upward adjustment in the lodestar amount. Id. Sierra

Club’s final counteroffer, which was refused, was for

459.5 hours at $110 or $50,545.

2 Joseph Brecher is the only attorney for whom compensation

is sought by Sierra Club. Sierra Club’s original petition in May,

‘1981 had requested only $90 per hour for Brecher’s time. This

was revised in October to $110, after negotiations had broken

off. Sierra Club’s Report at Exhibit C.

26a

Now Sierra Club requests $106,590 (and litigation

costs of $2,642.96) based upon a lodestar of 484.5 hours

(an additional 5 hours having been spent on fee negotia-

tions) at $110 per hour, or $53,295, supplemented by a

50% upward adjustment for “exemplary” quality of rep-

resentation and the public benefit conferred, and an ad-

ditional 50% for delay in receipt of payment. The three

main points of contention between Sierra Club and the

government are: number of compensable hours, rate of

pay for Brecher’s time and the percentage of upward

adjustment, if any.

A. Number of Hours

The government argues that Sierra Club’s claim of

442.5 hours for work on the judicial aspect of its case-

in-chief impermissibly includes non-litigation related ac-

tivities as well as excessive hourly claims for certain lii-

igation related activities. Specifically, approximately 67

hours for which Sierra Club seeks compensation were

devoted to preparation of its administrative petition for

reconsideration. The government correctly objects to

these hours based upon our holding in Sierra Club II,

which states: “the same statutory language that allows

us to make attorneys’ fees awards in cases such as Sier-

ra Club II], limits our power to judicial awards

Sierra Club and EDF are, therefore, not entitled to an

award of attorneys’ fees for their participation in the

administrative proceedings preceding their appeal.” 672

F.2d at 42. Sierra Club’s claim for these 67 hours is

based upon a reading of that statement which lays too

much emphasis upon the phrase “preceding their ap-

peal,” modifying “administrative proceedings.” While it

appears in this case that the petition for reconsideration

to the Administrator was filed after an appeal from the

decision on the final rule had been noticed, Sierra Club

II was not intended to sanction attorneys’ fees awards

for administrative proceedings that happen to follow a

27a

notice of appeal. Indeed, in our subsequent decision in

American Petroleum Institute v. Costle, 665 F.2d

1176, 1191-92 (D.C. Cir. 1981), we made it clear that

the filing of a petition for reconsideration was a statuto-

ry prerequisite to judicial review of procedural objec-

tions arising after the close of the comment period.

Hence, we disallow the 67 hours spent on the petition

for reconsideration, as well as 5.5 hours afterward de-

voted to research apparently connected therewith.*

Another 15.5 hours disputed by the government per-

tains to time Sierra Club claims to have spent prepar-

ing its petition for judicial review, a one-page docu-

ment. The government concedes, United States’

Response to Sierra Club’s & Environmental Defense

Fund’s Status Reports and Amended Requests for At-

torneys Fees at 9 (May 10, 1982) (hereinafter U.S. Re-

sponse), that the “reasonable” number of hours spent

on that document is “simply a matter of judgment.” Al-

though we note that a less experienced lawyer was al-

lowed 42 hours for this purpose in EDF v. EPA, 672

F. 2d at 50, we believe 10 hours is a reasonable amount

here since the preparer was Brecher himself and his

hourly rate a premium one. We additionally note the

government did not object to 10 hours allocated by

EDF for such a purpose in this proceeding.

These hours cover research on the following matters:

Date of Work Description Hours

1/23/80 Draft letter to Costle re: California SO2 1.0

scrubbers

1/24/80 Submit letter re: 95% control 2.5

1/25/80 Research re: western scrubbers 5

1/26/80 Draft letter to Costle re: S.C. Coal Project 1.5

Declaration Of Joseph J. Brecher In Support Of Sierra Club's

Motion For An Award Of Attorneys Fees, Exhibit A at 4 (May

11, 1981). We have no indication that this research between Jan-

uary 23 and 26 was concerned exclusively with judicial matters.

The petition for reconsideration was not denied until February,

1980.

28a

Thus we disallow 78 of Brecher’s hours for Sierra

Club’s case-in-chief. We also note, however, that

Brecher documents 5 hours devoted to attorneys’ fee

negotiations since our decision in Sierra Club II, and

we see no reason to limit the allowable time to the 37

hours previously expended as the government sug-

gests. This makes the allowable total for Sierra Club

406.5 hours.

B. Hourly Rate

The government vigorously contests a rate of $110

per hour for Sierra Club’s counsel. It suggests, citing

NACV, that Sierra Club did not document its claim

that $110 per hour was the “market rate” for Brecher’s

time by affidavits, from Brecher himself or from other

counsel with comparable experience, showing billings

for private clients at such a rate in comparable cases or

recent court awards of fees to them in cases of compa-

rable complexity. We do not think that affidavits of pri-

vate attorneys like Brecher who represent primarily

non-profit public interest organizational clients about

their billing practices are necessary in all cases, espe-

cially where evidence of recent court awarded fees in

comparable cases to comparably experienced lawyers

exists to satisfy the demands of Copeland and NACV

that court awarded fees be based on the prevailing mar-

ket rate for the attorney’s services.“

For several reasons, we believe that the $110 hourly

rate is proper for Brecher’s time. First, Joseph Brecher

is a well known environmental lawyer, who is retained

by the Sierra Club Legal Defense Fund to represent

4NACV, slip op. at 8, recognizes that “lawyers associated

with public interest groups or single practitioners who special-

ize in Title VII or FOIA cases . . . may not have an established

‘billing rate’ that reflects how their own services have been

valued in the market.”

29a

them in many litigation matters. He has continuously

engaged in the practice of environmental law since

1970, representing primarily environmental organiza-

tions and Indian tribes before state and federal courts

including the Supreme Court of the United States. He

is the author of books and articles on environmental law

and teaches that subject at Golden Gate Law School.

Second, in our Sierra Club II opinion we alluded to the

“technical complexity of the case” and its need for “ex-

tensive preparation” as well as its “importance to the

national welfare.” Third, we have a very recent prece-

dent in our own court awarding $110 per hour fees ex-

pressly based upon prevailing market rates to a compa-

rably experienced public interest lawyer in a

comparably complex environmental case. In EDF v.

EPA, 672 F.2d at 58, the court stated:

In this case, given the importance of the post-

decision negotiations, the high level of skill re-

quired (to maintain a litigation victory and yet ac-

commodate to the legitimate needs and interests of

numerous intervenors and a federal agency), the

significant public interest value of the litigation,

and the going “market value” for the services of a

lawyer with rate claimed for Mr. Butler is perfect-

ly reasonable.“

See also Palila v. Hawaii Dept. of Land & Natural Re-

sources, 512 F. Supp. 1006 (D. Hawaii 1981) ($110 per

hour fee award).

Finally, the government suggests we lower the hour-

ly rate because Sierra Club did not prevail. We decline

to do so for the same reasons we declined to lower the

5 In EDF v. EPA, 672 F. 2d at 58, we noted that “EPA does

not seriously contest the accuracy of rates cited by EDF insofar

as ‘market value’ is concerned.” Butler, see EDF v. EPA, 672

F. 2d at 50, and Brecher have been in environmental practice for

the same period of time, spearhearing the same kinds of

litigation.

30a

hours “reasonably expended” in EDF v. EPA on issues

on which EDF did not prevail. See EDF v. EPA, 672

F. 2d at 55. In so doing, we do not suggest such a reduc-

tion may never be proper. See Copeland, 641 F.2d at

893. Nonetheless, here the public service benefits of the

litigation and the relative modesty of the fee for

Brecher’s gargantuan efforts on the case do not in our

opinion warrant any reduction if the Clean Air Act’s

overriding purpose of encouraging constructive legal

challenges, which would not otherwise be brought for

lack of economic incentive, is to be served.

C. Adjustments to the Lodestar

Sierra’s lodestar then is 406.5 hours at $110 per hour

or $44,715. Sierra Club asks for a “substantial upward

adjustment in the lodestar,” i.e., 100% based on the

three factors identified in Copeland and EDF v. EPA:

quality of representation; public benefit; and delay in

receipt of payment. We decline, however, to allow any

upward adjustment in this case for the following

reasons:

We think it is proper to consider in this regard, as

the government suggests, that Sierra Club did not pre-

vail on any issue. The aim of “appropriate” attorneys’

fees is to encourage parties without economic incentives

to litigate important issues, but such efforts cannot be

risk-free. Compensation for reasonable hours at market

rates will generally be sufficient where the party has

not prevailed. See Copeland, 641 F.2d at 844 (“The

As we repeated recently in EDF v. EPA, 672 F.2d at 59

n. 16 (citing Copeland, 641 F.2d at 892), t he burden of justi-

fying any deviation from the ‘lodestar’ rests on the party pro-

posing the deviation.” See also EDF v. EPA, 672 F. 2d at 61:

Finally, we must also consider the “results of the litiga-

tion.” Copeland, 641 F.2d at 894. Although petitioners

need not “prevail” in order to claim attorneys’ fees under

TSCA, we believe that “non-prevailing” is a factor that

3la

‘lodestar’ itself generally compensates lawyers ade-

quately for their time. An upward adjustment for quali-

ty is appropriate only when the attorney performed ex-

ceptionally well, or obtained an exceptional result for

the client.”) EDF v. EPA, 672 F. ad at 59-61, allowed

a “modest” adjustment of 15-20% to reflect benefits to

the public as well as the delay in receipt of payment. In

that case, however, the claimants had prevailed on sev-

eral of the issues in the suit. And although it is true

that payments were delayed here, as well as in EDF v.

EPA, through an initial termination in negotiations, on

balance we do not consider the government’s desire to

test its new “prevailing party” fee policy in court so ar-

bitrary as to court penalties. Sierra Club’s counsel is

being paid at $110 per hour, the current market rate,

whereas his original request was for $90 per hour, thus

according him some compensation for the delay. See

EDF v. EPA, 672 F.2d at 60; Copeland, 641 F.2d at

893 n.23. As in EDF v. EPA, we allow no adjustment

for the contingency factor since Sierra Club is being

paid despite its non-prevailing status. And while the

quality of representation by Sierra Club was exempla-

ry, we believe the $110 rate, though perhaps lower

than that billable to private clients, is still near the top

level of court awarded fees and incorporates a presump-

tion of skill and dedication of the type exhibited by legal

craftsmen of Mr. Brecher’s capabilities in this area of

the law.

II. EDF’s REQUEST

EDF requests attorneys’ fees of $98,359.50 reflecting

$62,010 for services rendered by EDF’s own attorneys,

should militate against upward adjustments in the “lode-

star.” Here, EDF lost on one of three issues decided by

the court in EDF v. EPA. The issue was hardly insignifi-

cant and, therefore, it cannot be ignored in our

calculations.

32a

and $36,349.50 for their retained counsel, Trilling &

Kennedy, who worked on the attorneys’ fees portion of

the proceeding. The Trilling & Kennedy amounts re-

flect upward adjustments of 80% (for the period be-

tween February and May, 1982) and 100% (for the prior

period). See Motion Of The Environmental Defense

Fund To Amend And Supplement Its Application For

Attorneys’ Fees And Amended Application Therefore

at 2 (May 17, 1982) (hereinafter Motion of the EDF).?

A. Number of Hours

EDF claims 398 hours for the work of four staff at-

torneys.* The government has no quarrel with this

7 EDF originally accepted the government's offer of $30,125

in October, 1981 before the government's withdrawal of the of-

fer. On March 29, 1982, EDF stated that a lodestar of $31,005

for EDF attorneys and $9,795.50 for Trilling & Kennedy would

be satisfactory if “multiplied by an appropriate upward adjust-

ment.” Motion of the EDF at Exhibit 1.

Butler Rauch Corcoran Lennett

Preparation of Petition for Review 10

(filed 8-10-79)

Motion for Order Compelling EPA to 21

Convene Proceedings for Reconsid-

eration (filed 10-26-79)

Reply to EPA's Opposition to Said 3.5 30

Motion (filed 11-28-79)

Preparation of Petition for Review of 7

Motion for Discovery and Memorandum 15

in Support Thereof (filed 4-11-80)

Reply to EPA's Opposition to Said 17.5 40 35 19

Motion, Motion to Supplement the

Record & Memorandum in Support

Thereof tied 5-14-80)

Reply to EPA's Response to Motion to 10

Supplement the Record (filed

5-28-80)

EDF Brief (filed 7-11-80) 40 25

33a

number. It does, however, dispute the additional 179

hours“ claimed for Trilling & Kennedy, asserting that

there was no need for both partners to represent EDF

at fee negotiations and consultations. ! In support the

government cites Copeland, 641 F. 2d at 891: “no com-

pensation is due for non-productive time. For example,

where three attorneys are present at a hearing when

one would suffice, compensation should be denied for

the excess time.” We are satisfied, however, that such

was not the case here. We have carefully surveyed the

documentation by Trilling & Kennedy and have assured

ourselves that their efforts were not duplicative. See,

e.g., Motion of the EDF, Declaration of Bingham

Kennedy.

We are, however, troubled by a claim of close to

$20,000 for time spent attempting to collect $31,005. Of

course, the government must pay some price for an

unsuccessful, even if bona fide, effort to block an award

in Sierra Club I. But approximately half of the 179

hours was for time spent by Trilling & Kennedy during

the three months following our decision in Sierra Club

EDF Reply Brief (filed 9-30-80) and 50 30 14

Preparation for Oral Argument

Attorneys Fees Request 7

TOTAL 121 123 114 40

Hours claimed are: Kennedy, 50.75; Trilling, 102.80;

Doherty, 25.5 See Motion of the EDF, Declaration of Bingham

Kennedy at 22-24; Memorandum In Support Of Amended

Motion For Attorneys’ Fees And In Reply To Respondent’s Op-

position To EDF’s Request For An Award Of Attorneys’ Fees

at 39 (Nov. 13, 1981). An additional 6.05 hours were recently re-

quested, which we allow in full. Reply of Petitioner EDF To

May 27, 1982 U.S. Response at 6 (June 9, 1982).

1% In EDF v. EPA, 672 F.2d at 62, the total hours awarded

to Trilling & Kennedy were 84.8.

34a

II. During that same period, Brecher spent five addi-

tional hours on Sierra Club’s attorneys’ fees claim. In

retrospect, Sierra Club seems to have been more pru-

dent, but we cannot say all but five hours of Trilling &

Kennedy’s time was unreasonably spent. However, af-

ter examining the time sheets and affidavits of Trilling

& Kennedy, we feel that some reduction is in order. We

conclude that only 40.38 hours were reasonably ex-

pended after February 5. (This represents a downward

adjustment of approximately 50%.) With the adjust-

ments noted on Trilling & Kennedy’s May i8, 1982 er-

ratum, the total hours recognized for Trilling & Ken-

nedy are 147.93.

B. Rates of Pay

Although the government makes a general challenge

to EDF’s rate of pay for its attorneys on the basis that

it does not accord with NACV standards of proof for

“market value,” we are not convinced. The EDF law-

yers are billed per hour respectively at $110 for chief

counsel William Butler, $75 for Robert Rauch, and $55

each for Larry Corcoran and David J. Lennett. Since

all are employed by a public interest organization, they

cannot be expected to submit client billings. Further,

EDF v. EPA approved hourly rates for Butler and

Lennett of the same amount claimed here. See also

Copeland, 641 F.2d at 902 ($57 hourly rate for associ-

ates is reasonable). And as to the other two EDF attor-

neys (Rauch and Corcoran): Rauch has 7 years of expe-

rience in environmental work and is asking $75 per

hour—this is certainly comparable to the rate applied

to Ms. Warren who received $90 per hour in EDF v.

EPA and who had 9 years of the same kind of experi-

ence—and Corcoran is of the same vintage as Mr. Len-

nett. The government interposes no specific objection

to the rate of pay ($110 per hour) for Trilling &

Kennedy’s service and only a minor objection to the

35a

rate of pay for EDF’s attorneys.'! Thus, EDF is enti-

tled to an award of $45,874.80, calculated as follows:

Rate/Hr. Hrs. Lodestar

Butler $110 121 $13,310.00

Rauch 75 123 9,225.00

Corcoran 55 114 6,270.00

Lennett 55 40 2,200.00

$31,005.00

Kennedy $110 50.75 $ 5,582.50

Trilling 110 102.80 11,308.00

Doherty 55 25.50 1,402.50

Adjustment to

Trilling &

Kennedy hours 110 (37.17 ) (4,088.70)

Additional hours

spent to re-

spond to U.S.

Response !? 110 6.05 665.50

$14,869.80

$45,874.80

un See Declaration of Jose R. Allen at 7 (May 27, 1982):

Hours Rate Lodestar

William Butler 121 $100/hr ($110/hr) $12,100 ($13,310)

Robert Rauch 123 $75/hr ($75/hr) $ 9,225 ($ 9,225)

Larry Corcoran 114 $50/hr ($55/hr) $ 5,700 ($ 6,270)

David Lennett 40 Sao hr ($55/hr) $ 1,600 ( 2,200)

Lega! Intern* 7% $20 hr (0) $ 1,500(0)

Totals $30,125 ($31,005)

*EDF did not claim any hours for the work of a legal intern in

its amended motion.

(EDF figures inside parentheses; government figures outside

parentheses.)

12 See n.9 supra.

36a

For the reasons detailed above, we decline to allow

any upward adjustment to that figure.

Judgment Accordingly

Ross, Senior Circuit Judge, dissenting in part: I

agree that Sierra Club and the Environmental Defense

Fund are entitled to some attorneys’ fees despite their

lack of success on the merits. I also agree with the

court’s calculation of hours reasonably expended and

hourly rates. However, when a litigant loses on every

issue in the case, as here, I think the “appropriate”

standard under section 307(f) of the Clean Air Act calls

for some reduction in the lodestar amount. Accordingly,

I dissent from the portion of the majority opinion dis-

cussing adjustments to the lodestar.

In Copeland v. Marshall, 205 U.S. App. D.C. 390,

641 F.2d 880 (1980) (en banc), this court stated that ad-

justments to the lodestar “may be upward or down-

ward,” noting Han upward adjustment for quality is

appropriate only when the attorney performed excep-

tionally well, or obtained an exceptional result for the

client.” Jd. at 404, 641 F.2d at 894. Considering result

as part of the quality assessment, it is hard to imagine a

better case for downward adjustment than this one. If

counsel were private practitioners their clients might

well complain that they could have lost the case for less

money.

This argument applies with special force to statutes

such as section 307(f), which permit awards of attor-

neys’ fees to non-prevailing parties where “appropri-

ate”. One purpose of awarding fees to non-prevailing

parties is to shift the costs of a private lawsuit to the

“taxpaying public, which receives the benefits of [the]

litigation.” Natural Resources Defense Council, Inc. v.

EPA, 484 F.2d 1331, 1338 (Ist Cir. 1973), cited in H.

Rep. No. 95-294, 95th Cong., Ist Sess. 337. Reducing

37a

the award in this case would recognize the diminished

value of a losing lawsuit to the public.

This court has refused to reduce the lodestar to ac-

count for lack of success when a party lost on only one

of three issues. See Environmental Defense Fund v.

EPA, — U.S. App. D.C. , 672 F.2d 42 (1982).

Here, however, the petitioners lost on every issue; they

batted zero. if downward adjustments to the lodestar

are ever to be made as Copeland v. Marshall suggests,

this is an “apprupriate” place to start.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

September Term, 1981

SIERRA CLUB, PETITIONER

ANNE M. GORSUCH, Administrator of the

Environmental Protection Agency, Respondent

NATIONAL COAL ASSOCIATION,

ALABAMA POWER ASSOCIATION, ET AL., INTERVENORS

and consolidated case Nos. 79-1719, 79-1867,

79-1874, 80-1187, 80-1201, 80-1213, and 80-1338.

Filed—July 16, 1982

Before: ROBB, WALD and GINSBURG, Circuit Judges

ORDER

It is ORDERED by the Court, swa sponte, that the

opinion for the Court filed in the above entitled case be,

and it hereby is, amended as follows:

Page 2, line 23—delete “(petition for rehearing and

rehearing en banc pending)” and insert in lieu

thereof “(as amended July 15, 1982)”.

) PER CURIAM

FOR THE COURT

GEORGE A. FISHER

Clerk

APPENDIX C

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

September Term, 1981

SIERRA CLUB, PETITIONER

ANNE M. GORSUCH, Administrator of the

Environmental Protection Agency, RESPONDENT

And Consolidated Case Nos. 79-1719, 79-1867,

79-1874, 80-1187, 80-1201, 80-1213 and 80-1338

Filed—July 16, 1982

Before: RoBB, Senior Circuit Judge, WALD and

GINSBURG, Circuit Judges

ORDER

Upon consideration of the parties’ reports to the

Court on the status of settlement negotiations relating

to attorneys’ fees, of petitioners’ amended requests for

attorneys’ fees, of respondent’s statements in response

to petitioners’ status reports and to their amended re-

quests for attorneys’ fees, and of the replies thereto,

and for the reasons set forth in the Opinions for the

Court filed herein on February 5, 1982 and on this date,

respectively, it is

ORDERED, by the Court, that petitioner Sierra

Club is entitled to attorneys’ fees amounting to $44,715.

(plus $644.60 in expenses) and that petitioner Environ-

39a

40a

mental Defense Fund is entitled to attorneys’ fees in

the sum of $45,874.80, all payable by respondent.

PER CURIAM

FOR THE COURT

GEORGE A. FISHER

Clerk

Date: July 16, 1982

Opinion Per Curiam

Opinion dissenting in part filed by Senior Circuit Judge

Robb.

APPENDIX D

Parties to the Petitions for Review in the court be-

low, on the merits of those petitions, and who did not

participate on the issue of attorneys’ fees, are:

Alabama Power Company; Arizona Public Service

Company; Appalachian Power Company; Arkansas-

Missouri Power Company; Arkansas Power & Light

Company; Baltimore Gas and Electric Company;

Boston Edison Company; Carolina Power & Light Com-

pany; Central Hudson Gas & Electric Corporation; Cen-

tral Illinois Light Company; Central Illinois Public

Service Company; Central Maine Power Company;

Central Power & Light Company; Central & South

West Corporation; Cincinnati Gas & Electric Company;

Columbus and Southern Ohio Electric Company; Com-

monwealth Edison Company; Connecticut Light and

Power Company; Consolidated Edison Company of

New York, Ine.; Consumers Power Company; Dayton

Power and Light Company; Delmarva Power and Light

Company; Detroit Edison Company; Duke Power Com-

pany; Edison Electric Institute; Florida Power Corpo-

ration; Florida Power & Light Company; General Pub-

lie Utilities Corporation; Georgia Power Company; Gulf

Power Company; Gulf States Utilities Company;

Hartford Electric Light Company; Helyoke Water

Power Company; Houston Lighting & Power Company;

Illinois Power Company; Indiana & Michigan Electric

Company; Indianapolis Power & Light Company; Iowa-

Illinois Gas and Electric Company; Iowa Power and

Light Company; Iowa Public Service Company; Jersey

Central Power & Light Company; Kansas City Power

& Light Company; Kentucky Power Company;

Kentucky Utilities Company; Louisiana Power & Light

Company; Madison Gas and Electric Company; Metro-

politan Edison Company; Middle South Utilities, Inc.;

Minnesota Power & Light; Mississippi Power Company;

Mississippi Power & Light Company; Missouri Associa-

4la

42a

tion of Municipal Utilities; Monongahela Power Compa-

ny; National Coal Association; National Rural Electric

Cooperative Association; Nevada Power Company;

New England Power Company; New Orleans Public

Service, Inc.; New York State Electric & Gas Corpora-

tion; Niagara Mohawk Power Corporation; Northeast

Utilities Service Company; Northern Indiana Public

Service Co.; Northern States Power Company; Ohio

Edison Company; Ohio Power Company; Ohio Valley

Electric Corporation; Oklahoma Gas & Electric Compa-

ny; Pacific Power & Light Company; Pennsylvania

Electric Company; Pennsylvania Power Company;

Pennsylvania Power & Light Company; Portland Gen-

eral Electric Company; Potomac Edison Company; Po-

tomac Electric Power Company; Public Service Com-

pany of Indiana, Inc.; Public Service Company of

Oklahoma; Public Service Electric & Gas Company;

Rochester Gas & Electric Corporation; Salt River Proj-

ect; San Diego Gas & Electric Company; Southern Cal-

ifornia Edison Company; Southwestern Electric Power

Company; State of California Air Resources Board;

Tampa Electric Company; Texas Utilities Generating

Company; Toledo Electric Power Company; Tucson

Electric Power Company; Union Electric Company;

Utah Power & Light Company; Virginia Electric &

Power Company; Western Massachusetts Electric

Company; West Penn Power Company; West Texas

Utilities Company; Wisconsin Electric Power Company;

Wisconsin Power & Light Company; and Wisconsin

Public Service Corporation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.