# Opposition — Ruckelshaus v. Sierra Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 680

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0785%3A03. Public record. Not legal advice.