Opposition — Ruckelshaus v. Sierra Club

In the Supreme Court o

United States

Ocrosger Tzrm, 1982

Sm CLon A ExvinonmentaL Derense Found,

Respondent.

Brief in Opposition to Petition

for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

Josurn J. BrecHEr

Attorney for the Sierra Club

i

QUESTION PRESENTED

Whether the court below properly construed Clean Air

Act Section 307(f), 42 U.S.C. Section 7607(f) by awarding

attorneys fees to respondents under the circumstances of

this case, even though they did not prevail on the merits.

ii

TABLE OF CONTENTS

Page

— 2 1

Reasons for Denying the Petition 3

1. Congress intended to give courts discretion to award

fees to non-prevailing parties under Clean Air Act

§ 307(f) in appropriate cases. 4

2. The courts have unanimously supported the decision

below. 10

ID ccctninnnsncciituiintigitiimminstsiniiiaiiamamnasteeenmmanaes 11

TABLE OF AUTHORITIES

Cases Pages

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) 7, 10

Citizens Association of Georgetown v. Washington,

383 F. Supp. 136 (D. D. C. 19749 ————— 8, 10

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F. R. D. 353, 355 (D. Del. 1974) 8, 10

Metropolitan Washington Coalition for Clean Air

v. District of Columbia, 639 F.2d 802 (D.C. Cir.

1981) 8, 10, 11

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

1331 (1st Cir. 1973) 5, 6, 7, 8, 9, 10

Northern Plains Resource Council v. EPA, F.2d

— „17 E. R. C. 1343 (9th Cir. 1982) 11

Northslope Borough v. Andrus, 515 F.Supp. 961

(D. D.C. 1981)

Sierra Club v. Costle, 657 F. 2d 298 (D. C. Cir. 1981) — 1

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., 435 U.S. 519 (1978) — 2

No. 82-242

In the Supreme Court of the

United States

Octoser Term, 1982

Ax NR M. Gorsucn, ADMINISTRATOR,

ENVIRONMENTAL Protection AGENCY,

Petitioner,

vs.

Srerra Cus AND ENvinONMENTAL Derense Funn,

Respondent.

Brief in Opposition to Petition

for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

STATEMENT

In general, the Sierra Club agrees with the facts as

presented in the government’s petition. But the statement

fails to put into proper context the nature of the underlying

litigation, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir.

1981). The extraordinary length and level of detail of the

opinion shows that the issues were substantial and the case

was very close. The court reached its decision only “...

after interminable record searching (and considerable soul

searching).” 657 F.2d at 410. It agreed with two of the

Sierra Club’s major contentions—that dry scrubbing tech-

nology was not adequately demonstrated and did not pro-

vide a proper justification for EPA’s action (657 F.2d at

2

341, note 157, 351); and that the procedural history of the

adoption of the standard was improper. 657 F.2d at 356.

Nonetheless, the court below felt constrained to uphold

EPA’s decision for two principle reasons. First, Clean Air

Act section 307(d)(8) (42 U.S.C. section 7607(d)(8)) pro-

vides an unusually strict standard of judicial review:

In reviewing alleged procedural errors, the court may

invalidate the rule only if the errors were so serious

and related to matters of such central relevance to the

rule that there is a substantial likelihood that the rule

would have been significantly changed if such error

had not been made.

See, e. g., 657 F.2d at 353, 391-92, 396. Second, the Court of

Appeals heeded this court’s admonition in Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519 (1978) against“ .. . [I]mposing its own

notions of proper procedures upon an administrative agency

entrusted with substantive functions by Congress.” 657 F. 2d

at 391-92.

In short, while the Court of Appeals found many of the

Sierra Club’s criticisms of EPA’s action to be justified,

those errors were not of sufficient magnitude to require

reversal. Nonetheless, by pointing them out to the court

and the agency, the Sierra Club “aided agency implementa-

tion” of the Clean Air Act, (672 F.2d at 37) by instructing

EPA on a better (albeit not mandatory) way to conduct

rule-makings concerning the role of emerging technology on

air pollution standards.

The litigation also aided the implementation of the Clean

Air Act by evoking a judicial determination on the per-

missible scope and limits of the use of macro-economic com-

puter modeling and econometric forecasting in EPA’s deci-

sion-making process. The Court of Appeals noted: “our

3

ruling on this question will inevitably affect agency pro-

cedures in a number of substantive contexts.” 672 F. 2d at 40.

The Court of Appeals established several “safety valves”

which an agency must observe in the process of econometric

modeling: public exposure of the assumptions and data put

into the model; acceptance and consideration of public com-

ment; admission of uncertainties; and“. . . the insistence

that ultimate responsibility for the policy decisions remains

with the agency rather than the computer.” 657 F.2d at 33.

Finally, the government’s statement neglects to point out

that the Court of Appeals also turned aside a challenge by

industry to the effect that a 90% reduction in sulfur dioxide

emissions is not technologically feasible. The court below

specifically acknowledged the Sierra Club’s contribution to

the successful resolution of this issue, which “. . . would have

been far less completely aired without Sierra Club’s par-

ticipation.” 672 F.2d at 41. The opinion also noted that

“ .. [T]he agency’s response to several challenges asserted

by the utilities was effectively supplemented by the efforts

of the environmental groups.” 672 F.2d at 36.

REASONS FOR DENYING THE PETITION

Under Rule 17 of this Court’s rules, certiorari “is not

a matter of right, but of judicial discretion, and will be

granted only when there are special and important reasons

therefor.” Rules 17(a) through (e) set forth two basic rea-

sons for granting the petition—a conflict in judicial deci-

sions or the existence of an important question of federal

law “which has not been, but should be, settled by this

Court.. As we show below, neither of these criteria are

satisfied here. While the policy of permitting attorneys fees

to losing parties in certain limited cases does constitute an

important legislative departure from past times, it is not a

matter which needs to be settled by this court. Congress has

4

already spoken to the issues in a clear and unambiguous

way. Plainly, the Court of Appeals interpreted the statute

correctly ; there is no call for this court to exercise its super-

visory functions in this case. (See Point 1) Furthermore,

judicial construction of the fees provision of the Clean Air

Act and similar statutes has consistently and unanimously

agreed with the court below. (See Point 2)

1. Congress intended to give courts discretion to award

fees to non-prevailing parties under Clean Air Act § 307(f)

in appropriate cases. Both the statutory language and the

legislative history unambiguously support the Court of Ap-

peals’ interpretation of section 307(f). That section states

in pertinent part:

In any judicial proceeding under this section the court

may award costs of litigation (including reasonable at-

torney and expert witness fees) whenever it determines

that such award is appropriate.

The court below noted, “on its face, the statutory provision

clearly permits the court to award attorneys fees to pre-

vailing, substantially prevailing, or non-prevailing parties

in ‘appropriate’ cases.” 672 F. 2d at 34.

The legislative history of section 307 (f) is crystal clear.

The House Report states:

In the case of section 307 judicial review litigation, the

purposes of the authority to award fees are not only

to discourage frivolous litigation, but also to encourage

litigation which will assure proper implementation and

administration of the act or otherwise serve the public

interest. The committee did not intend that the court’s

diseretion to award fees under this provision should

be restricted to cases in which the party seeking fees

was the “prevailing party.” In fact, such an amend-

ment was expressly rejected by the committee, largely

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

1331, 1338 (ist Cir. 1973). H. Rep. No. 95-294, 95th

Cong., Ist Sess., p. 337 (1977).

The key language from the NRDC case cited by the House

Report is as follows:

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 dimensions, there are roles for both

the official! agency and a private watchdog. The legis-

lation is f novel and complex. Given the implemen-

tation dates, its early interpretation is desirable. It is

our impression, overall, that petitioners, in their watch-

dog role, have performed a service.

The opinion below pointed out that in the 1977 amend-

ment “Congress made a clear choice between two different

attorneys fees provisions . .”, rejecting a proposal calling

for fees only to prevailing or partially prevailing parties

in favor of the “far broader policy” of § 307(f) as enacted,

allowing fees to any party whenever they are found to be

“appropriate”. See 672 F.2d at 35, note 3 citing A Legis-

lative History of the Clean Air Act Amendment of 1977,

3644, 3817 (1978).

The government argues (Petition, p. 9) that “mere ju-

dicial ‘interpretation’ ” of the Clean Air Act was not a bene-

fit which Congress intended to reward with fees. But the

NRDC case cited in the House Report and discussed above

specifically noted that “early interpretation” of “novel and

complex” portions of the Clean Air Act is “desirable”.

NRDC v. EPA, 384 F.2d at 1338. As the Court below

concluded :

6

This legislative history makes it difficult to escape the

conclusion that the statutory goals of the Clean Air

Act can be furthered by parties who make a substan-

tial contribution to the interpretation and development

of the Act, [citation], as well as by substantially pre-

vailing parties and parties who win a favorable result

other than by receiving a favorable verdict. 672 F.2d

at 35, note 3.

Confronted with substantial and unambiguous evidence

that Congress meant to allow fees to be awarded to non-

prevailing parties, the government invites this court to re-

construct that history on the basis of its peculiar reading of

the legislative history of another section of the Clean Air

Act, enacted seven years earlier. Similarly, the government

suggests that this Court adopt its debatable interpretation

of the holding and import of the NRDC case in place of the

reading given by Congress. Neither of these efforts to re-

write the clear legislative history is entitled to credence.

The government maintains that the meaning of Clean

Air Act section 307(f) (added in 1977) “can only be deter-

mined by tracing its origins in the Clean Air Act of 1970.”

Petition, p. 16. The petition then discusses the history of

§ 304(d) of the Clean Air Act, 42 U.S.C. section 7604(d),

added in 1970, which provides for fees in “citizen suits”

brought in the district courts. The government points to two

purposes of § 304(d), as reflected in the Senate Report—to

discourage frivolous litigation and to encourage citizens to

bring “legitimate actions”, including those “which result in

succesful abatement, but do not reach a verdict.” S. Rep.

No. 91-1196, 91st Cong., 2nd Sess, 36-37, 38-39 (1970). The

government argues that the Senate Report, given a “careful

reading”, equates “legitimate actions” with “succesful ac-

tions”, because the Report refers to only a single type of

“legitimate action”, one in which abatement occurs before

judgment is obtained. See Petition, pp. 16-19.

7

The court beiow dealt with this argument as follows:

While the only example of a non-prevailing party

awarded attorneys’ 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 appropriate. And, in

any case, we cannot disregard the clear legislative

history specific to section 307 [discussed above] .. .

That history shows that Congress in 1977 specifically

adopted the far broader policy of awarding substantial

contributions to the statutory goals of the Act. 672 F.2d

at 35, note 3.

The government (Petition, p. 24) disagrees, arguing that

section 307(f) was enacted for a “narrow purpose”, merely

to “conform” section 307 with section 304(d). The Senate

Report does, undoubtedly, indicate a desire to allow fees

under section 307, as well as section 304, But that was not

the only purpose of the 1977 legislation. As noted above,

the House Report sets forth another goal: “. . . to encourage

litigation which will assure proper implementation and ad-

ministration of the Act or otherwise serve the public inter-

est.” To that end, the House Committee specifically stated

that non-prevailing parties could get fees when appropriate,

and endorsed the language to that effect in VRDC v. EPA,

supra. See H. Rep. No. 95-294, 95th Cong., Ist Sess. 337

(1977). A subsidiary purpose was to “meet the requirement

for specific authorization imposed by 28 U.S.C. § 2412 and

by the Supreme Court’s ruling in Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240 (1975).

As the Conference Report noted, both the House and Sen-

ate version of the fees provision under section 307 were

adopted in conference. H. Rep. No. 95-564, 95th Cong., 1st

Sess., p. 177 (1977). Thus, it is an inaccurate and mislead-

ing interpretation of the legislative history to contend that

8

the sole objective of the 1977 Amendment to § 307 was to

conform it to the supposedly limited scope of section 304(d).

The 1977 Senate Report reveals no such restrictive purpose

and the House Report clearly shows that Congress intended

to do far more than merely extend the provisions of § 304(d)

to actions under § 307— instead, it reacted to more recent

developments, endorsing the rationale of the NRDC opinion.

In any event, Congress intended to allow fees to non-

prevailing parties under Section 304(d). Sen. Spong, a

prominent supporter of the 1970 Clean Air Act amend-

ments, remarked during debate on section 304(d): “The

courts are given discretionary authority to award costs, in-

cluding reasonable attorney and witness fees to any party.”

Senate Consideration of the Report of the Conference Com-

mittee, December 18, 1970, reprinted in “A Legislative His-

tory of the Clean Air Act Amendments of 1970”, 93rd Cong.

2nd Sess., volume 1, p. 147 (1974).

The courts, too have unanimously construed section

304(d) to allow fees to non-prevailing parties. See, e. .,

Natural Resources Defense Council v. EPA, supra, 484

F.2d 1331, 1338 (Ist Cir. 1973); Delaware Citizens for

Clean Air, Inc. v. Stauffer Chemical Co., 62 F. R. D. 353, 355

(D. Del. 1974); Citizens Association of Georgetown v.

Washington, 383 F.Supp. 136 (D.D.C. 1974), reversed on

other grounds, 535 F.2d 1318 (D.C. Cir. 1976) ; Metropolitan

Washington Coalition for Clean Air v. District of Columbia,

639 F.2d 802 (D.C. Cir. 1981). In summary, even if one

accepts the dubious argument that Congress meant section

307(f) to do no more than track section 304(d), the courts

would still have discretion to award fees to non-prevailing

parties.

A recent legislative development reenforces the con-

struction of § 307 (f) by the Court of Appeals. During a

9

mark-up session on amendments to the Clean Air Act

before the Senate Environment Committee on August 19,

1982, Sen. Simpson offered an amendment which would limit

fee awards to prevailing parties. The Committee voted to

adopt the proposed amendment. The relevant portion of tlie

hearing transcript is attached as Appendix A. Obviously,

Senator Simpson’s proposal would have been unnecessary

if, as the government contends, existing law already denied

fees to non-prevailing parties.

The government argues that a party must prevail on

at least some issues in order to be entitled to an award

under section 307(f) (Petition, pp. 25-26). It maintains that

a “close reading” of Natural Resources Defense Council

v. EPA, supra, supports that conclusion, noting that the

petitioners in NRDC were actually successful on some

issues. Thus, it is argued, the court’s actual holding was that

fees would be paid only on successful issues. But the court

did not indicate that fees should be withheld on the losing

issues. The opinion stated: “But the challenges here, even

those not sustained, were mainly constructive and reason-

able.” 484 F.2d at 1338 (Emphasis supplied). Thus, both

the language and the holding of the NRDC case support

the principle that fees may be awarded on losing issues.

The government (Petition, pp. 13-14) contends that the

statute should be construed so as to be consistent with

“certain fundamental considerations underlying the doc-

trine of sovereign immunity and the traditional rules gov-

erning the allocation of attorneys’ fees.” This contention is

difficult to take seriously, in view of the government’s con-

cession that the legislative history “... clearly demonstrates

that Congress meant to waive the government’s traditional

immunity and to overcome the presumption of the ‘American

Rule’ against fee shifting.” (Petition, p. 15). As noted above,

the legislative history states specifically that section 307(f)

10

was intended to meet the requirements of the Alyeska case

to waive sovereign immunity and the “American Rule” by

means of specific legislative reference.

2. The courts have unanimously supported the decision

below. Statutes such as Clean Air Act § 307(f), which per-

mit a court to award fees to any party when “appropriate”,

have consistently and without exception been construed by

the courts to permit the award of fees to losing parties.

Those decisions are discussed in the opinion below at 672

F.2d 36-38. The first such case was Natural Resources

Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973)

which, as noted above, was endorsed by the House Com-

mittee which drafted § 307 (f). A year later, the district

court for Delaware construed Clean Air Act section 304(d),

concluding that “ultimate success in a citizen’s suit was

not intended to be a prerequisite to an award.” Delaware

Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62

F.R.D. 353, 355 (D. Del. 1974).

A third early decision to the same effect was Citizens

Association of Georgetown v. Washington, 373 F.Supp.

136 (D.D.C. 1974), reversed on other grounds, 535 F.2d

1318 (D.C. Cir. 1976). Once again, the plaintiffs were un-

successful in an effort to prove a violation of Clean Air

Act standards. Nevertheless, they were awarded attorneys

fees „. .. because the litigation had furthered the act’s

purpose of encouraging citizen suits to accelerate enforce-

ment of the Clean Air Act.” 672 F.2d at 37.

In Metropolitan Washington Coalition for Clean Air v.

District of Columbia, 639 F.2d 802 (D.C. Cir. 1981) the

District of Columbia Cireuit reversed a district court deci-

sion refusing to award fees under section 304(d) because

the plaintiffs had not prevailed. The Court of Appeals ruled

11

that the lower court had “incorrectly focused attention on

the outcome and practical effects of the litigation, to the

exclusion of a more relevant consideration: whether the

suit was of the type that Congress intended to encourage

when it enacted the citizen-suit provision...” 639 F.2d at

804. The court concluded that Congress intended fees to

be awarded “whenever the underlying suit was a prudent

and desirable effort to achieve an unfulfilled objection of

the Act.” Ibid.

The most recent judicial pronouncement on this subject

is Northern Plains Resource Council v. EPA, ... F.2d ....,

17 E. R. C. 1343 (9th Cir. No. 79-7618, March 1, 1982). There,

the Ninth Cireuit awarded fees to a losing party under

section 307 (f) of the Clean Air Act. The court found the

issue so unremarkable that its discussion of the propiety

of the award was restricted to three short paragraphs. It

concluded :

We agreed with the D.C. Cireuit that in determining

whether a party—prevailing or non-prevailing—can

recover attorney’s fees under section 307(f) from the

government, the test is “whether in the light of what

was known...when the action was instituted, the

action was of the type Congress sought to encourage

when it authorized awards of attorney’s fees.” 17

E.R.C. at 1344, quoting Metropolitan Washington

Coalition for Clean Air v. District of Columbia, supra,

639 F.2d 802, 804.

CONCLUSION

The decision of the court below is fully supported by the

statutory language, the legislative history, and a substan-

1. See also Northslope Borough v. Andrus, 515 F.Supp. 961

(D.D.C. 1981) (appeal pending), awarding fees to unsuccessful

plaintiffs on the basis of “appropriate” fee authorizations in the

Endangered Species Act, 16 U.S.C. § 1640(g) (4) and Outer Con-

tinental Shelfs Land Act, 43 U.S.C. § 1349(a) (5).

12

tial body of judicial precedent. Confronted with all these

authorities, the government resorts to a twisted reading

of the statute and a narrow, crabbed interpretation of the

cases to bolster its point of view. Its basic contention,

stripped of its flimsy legal justification, is that awarding

fees to non-prevailing parties is not a good idea. As this

court has so often noted, such an argument should be made

to Congress, not the courts.

This court should not take seriously the government’s

assertion that the decision below “threatens to impose

substantial burdens on the federal courts, administrative

agencies and the Justice Department by encouraging un-

productive, expensive and time-consuming litigation.”

(Petition, p. 8). Fears that the decision will open a “flood-

gate” of litigation under the Clean Air Act and other

statutes which provide for fees in “appropriate” cases is

unfounded. Potential litigants are still faced by substantial

expenses and risks even if fees might be available if they

lose. First, as the court below noted, litigants are not

entitled to fees for the substantial effort that must be put

in to the administrative proceedings which precede the

appeal. 672 F.2d at 42. In this case, for example, the

Sierra Club devoted at least 721 hours to administrative

proceedings leading up to the litigation, far more time

than was spent on compensable judicial litigation. See

Sierra Club’s Amended Request for Attorneys Fees,

October 13, 1981. Second, a fee award is by no means

assured even for judicial litigation. The court below noted

that fees will be awarded to non-prevailing parties only in

“exceptional” circumstances. 672 F.2d at 39.

Thus, contrary to the government’s insinuation, the deci-

sion below will not cause a rush to the courthouse by

litigous lawyers and clients. The substantial expenses and

13

uncertainties connected with major litigation under the

Clean Air Act will remain to deter all but the most con-

sequential and important lawsuits. Those are precisely the

kinds of suits that Congress intended to promote under

8307 (f). The petition for a writ of certiorari should be

denied.

September 13, 1982

Respectfully submitted,

Josy J. BrRECHER

Attorney for the Sierra Club

Appendix A

Stenographic Transcript Of

HEARINGS

Before The

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

MARK-UP SESSION

THE CLEAN AIR ACT

August 19, 1982

WASHINGTON, D.C.

MILTON REPORTING, INC.

Official Reporters

(Notary Public: D.C.-Virginia-Maryland)

1601 Connecticut Avenue, N.W., Suite #301

Washington, D.C. 20009

833-3598

2 Appendiz

Senator Simpson. Mr. Chairman, I do appreciate very

much coming to this point where I have three remaining

amendments and hopefully, they can be disposed to today.

The first two were the ones with regard to attorney’s

fees. I think I explained that rather clearly the other day.

We had in the Act two places where a court may award

the costs of litigation, including attorney’s fees “Whenever

it determines that such an award is appropriate.”

May we have order, Mr. Chairman?

Senator Stafford. Yes. The Chair would ask that the

committee and especial!’ our guests will kindly refrain

from audible conversations. The Senator is making an im-

portant statement about an important amendment. The

Chair would dislike to have to ask any of our guests to

leave, but we do want order so the Senator’s amendment

can be heard and the statement in support of it.

Senator Simpson. Thank you.

The present language simply states that “Those fees

may be awarded whenever it is determined that such an

award is is appropriate.” The purpose of the amendment,

because of what has occurred recently in the District of

Columbia Circuit where we have seen the award of at-

torney’s fees to parties who have sued the government

and lost on all counts, my amendment would simply

restrict such awards for attorney’s fees to “prevailing or

substantially prevailing” parties, which is a limitation

which is most commonly used in almost every other statute ;

many, many statutes in my research where I found that we

had some 110 different statutes and 97 of them were limited

in the manner in which I suggest.

I think it is just too much to ask the taxpayers to pay

the expenses of someone who sues the government and

loses at every step of the proceedings. That is the purpose

of my amendment.

Appendiz 3

Senator Stafford. Is there discussion of this amend-

ment?

Senator Baucus. Mr. Chairman.

Senator Baucus. Mr. Chairman, I want to thank the

Senator from Wyoming for offering this amendment. I have

offered the same kind of amendment in other cases, in tax

eases and also other cases in either Tax Court or Federal

District Court, where taxpayers who are suing are on the

receiving end of the suite from Uncle Sam and where they

prevail and were awarded attorney’s fees, too. We thought

that provision was gone. I thank the Senator from Wyoming

for performing the same service here.

Senator Simpson. I thank the Chairman.

Senator Domenici. Could I ask the Senator from

Wyoming, I know that the statutes are not consistent or

homogeneous on attorney’s fees. I support your amend-

ment, but I wonder, will this be the single test for environ-

mental lawsuits, or are there other statutes that they might

impose on court as providing a different standard from

whence they would be entitled? If so, should we not say

this is the only quality of measuring attorney’s fees and

make it absolutely clear? Are you certain that it will be

this and no other test?

Senator Simpson. I think in my research, Pete, I found

110 different statutes allowing the awarding of attorney’s

fees. There are 13 statutes, admittedly principally involved

with environmental matters, but not all, who discuss this

term “awards as appropriate.”

(10:55 a.m.)

Senator Simpson. There are environmental statutes

whereby the award is to the prevailing parties or sub-

stantially prevailing. 97 out of those statutes limit the

awards to prevailing parties or in some way restrict the

award.

4 Appendiz

Senator Domenici. So you are satisfied that this is going

to become the test if it becomes law and they are not going

to have another statute to look at to say, “There is another

test”?

Senator Simpson. I think this would be the test.

Senator Domenici. For this kind of lawsuit?

Senator Simpson. I think so, certainly under the Clean

Air Act, obviously.

Senator Stafford. Is there further discussion? Is there

a request for a roll call?

Senator Simpson. No.

Senator Stafford. Hearing none, all those in favor of

the amendment will say aye.

(Chorus of ayes.)

Senator Stafford. Those opposed, no.

Senator Stafford. No.

The ayes appear to have it. The ayes do have it. The

amendment is adopted.