Opposition — Ruckelshaus v. Sierra Club

Supreme Court of the Hnited States

Octoser Term, 1982

ANNE M. Gorsucn, Administrator,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

i

QUESTION PRESENTED

Whether the Court of Appeals abused the discretion

expressly conferred upon it by the Clean Air Act by making an

award of attorneys’ fees in this case based upon its finding that

the litigation furthered the goals of that Act.

TABLE OF CONTENTS

QUESTION PRESENTED ©0000... .cccccccsceseeseeeennnenenennnes

TABLE OF AUTHORITIES. ....0..........ccccccccccecocceeeeeseeeeees

TT TTTTETE TREATS EO

SUMMARY OF ARGUMENT ...............0.::ccccccccceeeeeeeeees

ARGUMENT

I. CERTIORARI SHOULD NOT BE GRANTED

REVIEW AN EXERCISE OF DIS-

TTL TIAL NE

A. The Clean Air Act Confers Broad Dis-

cretion on the Courts to Make Attorney

ON Re

B. There Is No Disagreement among the

Federal Courts Concerning the Fee Award

Provisions of the Clean Air Act ...................

C. Certiorari Is meg er Because the

Court of als’ Exercise of Discretion

Turned On Facts Of The Case .............

Il. THE COURT OF APPEALS’ DECISION REP-

RESENTS A SOUND EXERCISE OF THE

COURTS DISCRETION UNDER’ THE

I TTT ecient iiacireniieinpnienaenines

Ill. CERTIORARI SHOULD BE DENIED BE-

CAUSE THE ISSUE RAISED WILL AFFECT

FEW OTHER PARTIES OR CASES ..................

GTI invesscntencetucnesnmnsenensnindinsintembamiaencngsimeannaas

FT

22

TABLE OF AUTHORITIES

Page

CASES

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C.

Rn 18, 21

Alyeska Pipeline Service Co. v. Wilderness Society,

Fe Ie CUD ecccsnccsesnssnenscncscsnsnasnessesceesecenes 4,7,8

Carpenter v. Andrus, 499 F.Supp. 976 (D. Del.

SU ccocenentncedseccncsnsensssetesensemnatinmesenmmmemanqstecnsestse 27

Christiansburg Garment Co. v. Equal Empl. a

Opportunity Commission, 434 U Gee 412 (1978 8, 16

Citizens Association of Georgetown v. ane

383 F.Supp. 136 (D.D.C. 1974), rev'd on other

grounds, 535 F.2d 1318 (D.C. Cir. 1976) ............ 18, 20, 21

Consolidated Edison Co. v. Realty Investments

Associates, 524 F Supp. 150 (S.D.N.Y. 1981) .... 27

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353 ( D. Del. 1974)...... 18, 19,

20, 27

Environmental Defense Fund, Inc. v. EPA, 672

fF | ) 4. 9 | 21

Friends of the Earth v. Carey, 535 F.2d 165 (2d

Cir. 1976), cert. denied, 434 U.S. 902 (1977)...... 24

Hensley v. Eckerhart, No. 81-1244 (U.S. Sup. Ct.

cert. granted Mar. 1, 1982) .........ccccccceeereeeeeenernee 11

Indian Towing Co. v. United States, 350 US. 61

isc cneitcentiensinnsleneipsnendeatensatennmienanitanmmenmetneess 17

K v. Esquire Realty Co., 523 F.2d 1005 (2d.

iy, GUE cneansinnaibnnintedebistecvennasengenentegetantuneesmsesten 11

Lehman v. Nakshian, 453 U.S. 156 ( 1981) ............. 16, 17

Magnum Import Co. v. Coty, 262 U.S. 159 (1923).. 22

Maher v. Gagne, 448 U.S. 122 ( 1980) ........ccccceee 10

ww Washington Coalition for Clean Air

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

Montgomery Environmental Coalition v. Costle,

646 F.2d 595 (D.C. Cir. 1981) ccccccccceceeeeeeeeees

Natural Resources Defense Council, Inc. v. EPA,

484 F.2d 1331 ( Ist Cir, 1973) oo.cccccccccccccccceeeeee

Northern Plains Resource Council v. EPA, 670

F.2d 847 ( 9th Cir. 1982 ) .......ccccccccceccceeesesceeeeeeeeees

Parham v. Southwestern Bell Telephone Co., 433

F.2d 421 ( Sth Cir. 1970) ........csccsceoccocercersercensenees

Richards v. Griffith Rubber Mills, 300 F.Supp. 338

GEA SGD FOO P cctrccssscecseccsccssanscesscesecsssssessccseess

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

Thomas v. H rook Mines, Inc., 428 F.2d 981

to ae 1970), cert. denied, 401 US. 911

(1 I aansianiaeaestaaaiaaie deen arannaanaseeidiaennaminantneiesntiontats

United States v. Johnston, 268 U.S. 220 ( 1925)......

United States v. Kubrick, 444 U.S. 111 (1979) .......

STATUTES

Clean Air Act of 1977, 42 U.S.C. §§ 7401 ef seq.

(Supp. IV 1980)

Section 304(d), 42 U.S.C. § 7604(d) ‘Supp.

FG ee Perasenensnectscmpneerssrseneessnnmemmemecenseins

Section 307, 42 U.S.C. § 7607 (Supp. IV

pe ccnseneetusensscassessceesemersememesennnenmsnsnenteetins

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

BO WP rcseccesnscessseensescsccemesscensnensmnatteutactsenns

RULES

Us Ge, GREED BF. BGG cccnsscsnsssscscsnscsnsesnssentasmsccsstnsesies

18, 21

21

14, 15, 16,

18,24

18, 19

10

10

2,3

passim

il

22

17

Page

LEGISLATIVE MATERIALS

H.R. 10498, 94th Cong., 2d Sess. ( 1976) ................ y

H.R. Rep. No. 94-1742, 94th Cong., 2d Sess.

icine iehiit tate anreiliaiadihsitaiaetailiaiaeiilideaateantiaitmats zo)

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

ERE en Cee ates aE 14, 22,

23,24

S. 3219, 94th Cong., 2d Sess. (1976) ........ccccecceceeeees 8,9

S. 252, 95th Cong., Ist Sess. (1977) ........cccccccsceeeeeees 9, 12

S. 253, 95th Cong., Ist Sess. (1977) ........cccccceceeseeeees o)

S. Rep. No. 91-1196, 91st Cong., 2d Sess. ( 1970)... 13

Staff of the Subcommittee on Environmental Pol-

lution of the Committee on Environment and

Public Works, 95th Cong., Ist Sess., A Section-

by-Section Analysis of $.252 and $.253 Clean

Air Act Amendments (Comm. Print 1977) ......... 12, 13, 22

IN THE

Supreme Court of the United States

OctToser Term, 1982

No. 82-242

ANNE M. Gorsuch, Administrator,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

Sierra CLus and

ENVIRONMENTAL DEFENSE FUND,

Respondents.

BRIEF OF RESPONDENT ENVIRONMENTAL

DEFENSE FUND IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

DISTRICT OF COLUMBIA CIRCUIT

STATEMENT

The Statement set forth in the Petition’ omits several

pertinent aspects of this case and mischaracterizes the degree of

success achieved by the Environmental Defense Fund and the

Sierra Club. First, it fails to set forth adequately the sheer

volume and complexity of the litigation. As summarized by the

Court of Appeals,

' Citation references to the Petition will be abbreviated “Pet”. Respond-

ent Environmental Defense Fund will be referred to as “EDF” and petitioner

will be referred to as “EPA”.

2

The technical complexity of the 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 mee-

tings and substantive telephone conversations with

the public, and conducted four days of public hea-

rings. 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 reco. J listed over

2,520 submissions. Seven months after oral argu-

ment, this court emerged with a 250 page opinion

upholding the agency’s regulations.

Sierra Club v. Gorsuch, 672 F.2d 39-40 (D.C.

Cir. 1982); Pet. at 14a-15a (footnote omitted ).

After analyzing this massive record, the Court of Appeals was

in a uniquely appropriate position to assess the contribution of

the parties toward the resolution of important and complex

issues.

Second, the EPA petition largely ignores several significant

consequences of the Court of Appeals’ ruling on the merits. In

responding to EDF’s challenges to EPA’s conduct, the Court of

Appeals held that both due process and the new rulemaking

procedures of section 307 of the Clean Air Act, 42 U.S.C. §

7607, require EPA to comply with three requirements con-

cerning oral communications after the close of the comment

period. First, EPA must docket all such communications which

it considers to be “of central relevance to the rulemaking.”

Sierra Club v. Costle, 657 F.2d 298, 402 (D.C. Cir. 1981).

Second, meetings with other executive branch officials need not

3

be docketed where they involve policy discussions only and

EPA does not seek to rely on any “information or data” arising

from such meetings. /d. at 404-07. Third, the Court held that

congressional contacts with the Agency will not invalidate a

rulemaking where the communications focus on the substance

of the proposed rule itself and do not include any effort

designed to force the Agency to consider factors “not made

relevant by Congress in the applicable statute.” Jd. at 408-10.

Although the Court of Appeals concluded, on the basis of

the factual record, that these standards had not been violated in

the present case, it also noted that much of the information

necessary to make that determination was unearthed only as a

result of EDF’s efforts during the pendency of the appeal. 672

F.2d at 41; Pet. at 18a. Equally important, procedures for

informal rulemaking for the entire executive branch have been

altered, apparently in direct response to the Court of Appeals

ruling in this case. On June 11, 1981, David A. Stockman,

Director of the Office of Management and Budget, issued a

memorandum to the heads of executive departments and

agencies setting forth procedures to be followed for trans-

mission of factual communications to agencies engaged in

informal rulemaking.? ( App. A, la-2a.) The memorandum sets

forth measures to ensure that factual communications received

by OMB from the public will also be transmitted to the agency

“for inclusion in the rulemaking record” and admonishes that

the “agencies receiving such materials from the public should

take care to see that they are placed in the record.” ( App. A,

la.) The memorandum also addresses the question of factual

material developed by OMB itself, and states that “such

material, when submitted to an agency for its consideration,

will be identified as material appropriate for the whole record

of the agency rulemaking.” (App. A, 2a.) Finally, the memo-

randum emphasizes that “our procedures will be consistent with

the holding of and policies discussed in Sierra Club v. Costle,”

2A copy of the Memorandum is attached hereto as Appendix A

(hereafter “App. A”).

4

which had been decided a few months earlier. The “Stockman

memorandum” cites no legal authority other than the Court of

Appeals’ ruling in this case and it addresses issues which were

raised in this case only by EDF.

Finally, on the basis of its familiarity with the record, the

Court of Appeals was able to assess the contribution made by

each of the respondents in resolving a case which all the parties

recognized to be of national importance. 672 F.2d at 39; Pet. at

14a. As the Court noted, it was totally dependent upon Sierra

Club to brief and advocate certain issues, and EPA was

significantly assisted by Sierra Club’s support in defending

certain aspects of the regulation in face of an industry chal-

lenge. 672 F.2d at 41; Pet. at 17a. Similarly, the Court

applauded the “critical role played by EDF in the Court’s

premier interpretation of the rulemaking procedures laid down

in the 1977 Amendments” of the Clean Air Act. 672 F.2d at 41;

Pet. at 17a. After noting EDF’s contribution, involving factual

research and legal analysis, and that several documens relating

to post-comment period contacts with EPA were made avail-

able to the public for the first time as a result of EDF's

challenge, the Court stated it had “little doubt that without

EDF’s substantial contribution to this aspect of the case, our

deliberations would have been less enriched and more time

consuming.” 672 F.2d at 41; Pet. at 18a. The consequences of

this litigation and respondents’ contributions thereto formed the

basis of the Court of Appeals’ conclusion that the respondents

had furthered the goals of the Clean Air Act and, hence, that a

fee award was “appropriate.”

SUMMARY OF ARGUMENT

Certiorari should be denied herein for several reasons.

First, the decision of the Court of Appeals to award attorney

fees in this case was an exercise of discretionary authority

conferred upon it by the Clean Air Act and accordingly is

subject to review only for an abuse of that discretion. This

Court stated in the Alyeska Pipeline case, 421 U.S. 240 (1975),

that Congress determines the scope of the court’s discretion to

award fees. In this case, Congress conferred authority on the

5

court to make such an award under the Clean Air Act “when-

ever it determines that such an award is appropriate.” 42

U.S.C. § 7607(f) (Supp. IV 1980). Congress consciously

rejected any limitation of awards to parties who “prevailed” or

who only “prevailed in part.” The proper standard, explicitly

suggested in the legislative history of the Act and applied by the

Court of Appeals, is for the court to determine whether the

litigation furthered the goals of the Clean Air Act. This

standard has been accepted and approved by every federal

court which has addressed the issue. In contrast, EPA suggests

that the discretion of the courts is limited to awarding fees to

“successful” litigants, but no court or legislative committee has

ever expressed that interpretation. Moreover, the clear ex-

pression of congressional intent to authorize discretionary “fee

shifting” and waive sovereign immunity overcomes the general-

ized rules of construction based upon sovereign immunity relied

upon by EPA. Certiorari should thus be denied because the

issue presented involves an exercise of discretion clearly within

the authority of the Court of Appeals, based upon the factual

record before it.

Second, certiorari should be denied because, under the

proper standard, the decision below was sound. The litigation

furthered the goals of the Clean Air Act by furthering proper

implementation of the Act, resulting from early judicial guid-

ance with respect to novel and complex issues. Moreover, this

litigation produced “tangible accomplishments” and was

“successful” in requiring EPA «o divulge the factual circum-

stances of EPA contacts with the public, other executive branch

officials and members of Congress, so that the propriety of

those meetings could be assessed. Furthermore, in assessing

those issues, the court established new standards for informal

rulemaking, under which certain kinds of communications must

be docketed in the rulemaking record. That ruling led

promptly to a change in procedures for a!! executive branch

agencies, apparently on the basis of the Court of Appeals’

decision in this case. Finally, to use EPA’s expression, the

action was “legitimate” in that it involved important and

6

complex issues in regulatory schemes of national importance.

Moreover, due to EPA’s withholding of factual information

with regard to outside contacts, EDF could not determine, at

the outset of the case, the nature and substance of those

contacts; thus, EDF had legitimate reason to bring this action.

EDF's efforts succeeded in producing important and substantial

benefits to the public.

Third, certiorari should be denied because the decision

below will affect few other cases or parties. EPA’s “floodgates

of litigation” rhetoric ignores reality. Although fourteen fee

award statutes using the identical standard were enacted sev-

eral years ago and the courts have agreed upon the inter-

pretation of those laws, fee awards to parties who do not

“substantially prevail” are very rare. In fact, under those

statutes, fees have occasionally been denied to a prevailing

party. In short, the courts have handled the discretion con-

ferred upon them in a sound manner and there is no important

reason for this Court to review this case.

ARGUMENT

I. CERTIORARI SHOULD NOT BE GRANTED TO RE-

VIEW AN EXERCISE OF DISCRETION.

A. The Clean Air Act Confers Broad Discretion on the

Courts to Make Attorney Fee Awards.

In its Petition for Writ of Certiorari, EPA seeks this Court’s

review of an award of attorney fees under section 307(f) of the

Clean Air Act (the “Act”). 42 U.S.C. (Supp. IV) § 7607(f).

Although the Petition does not specifically rely on any of the

characteristic reasons for granting review set forth in this

C. urt’s rules, EPA appears to contend that this case raises “an

important question of federal law which has not been, but

should be, settled by this Court.” Sup. Ct. R. 17.1(c). Petitioner

inaccurately describes EDF and Sierra Club as “totally

unsuccessful” in this litigation, Pet. at 15, and contends that the

Court of Appeals lacked authority under the Act to award fees

“to parties who do not prevail on any claim.” Pet. at 14. Yet no

court or legislative report has ever endorsed that interpretation

:

of the law. In fact, the question of entitlement to a fee award is

clearly one which Congress has committed to judicial discretion

and petitioner’s remedy, if any, lies with Congress and not the

courts. It would be wasteful of this Court’s time and resources

to review the massive record herein to determine whether, on

the facts, there has been an abuse of discretion in this case.

There can be no serious question that the Court of Appeals

had the authority to determine whether to make an award of

fees in this case. Section 307(f) of the Act broadly provides, in

part:

In any judicial proceeding under this section, the

court may award costs of litigation (including reason-

able attorney ... fees) whenever it determines that

such award is appropriate.

42 U.S.C. § 7607 (f) (Supp.IV 1980) (emphasis

added ).

This statutory language unmistakably grants the court the

power to decide whether to make an award and indicates that

the authority conferred is discretionary.

Prior decisions of this Court have recognized that the scope

of discretion conferred upon the courts under fee award statutes

is for Congress to determine. In Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975), this Court reversed an

award of attorney fees for lack of statutory authorization,

noting that various kinds of fee award statutes had been

enacted and stating:

Under this scheme of things, it is apparent that the

circumstances under which attorneys’ fees are to be

awarded and the range of discretion of the courts in

making those awards are matters for Congress to

determine.

421 U.S. at 262 (emphasis added ).

While describing the various federal statutes which authorize

fee awards, this Court recognized, in Christiansburg Garment

Co. v. Equal Employment Opportunity Commission, 434 U.S. 412

( 1978),3 that

[s]ome of these statutes make fee awards mandatory

for prevailing plaintiffs; others make awards per-

missive but limit them to certain parties, usually

prevailing plaintiffs. But many of the statutes are

more flexible, authorizing the award of attorney’s fees

to either plaintiffs or defendants, and entrusting the

effectuation of the statutory policy to the discretion of

the district courts.*

* See, e.g. ...Clean Air Act, 84 Stat. 1706, 42 U.S.C.

§ 1857h-2(d) ... [ie. § 304(d) of the Act, authorizing district

court fee awards in terms identical to § 307(f)}.

434 US. at 415-16 (certain footnotes omitted,

emphasis added. )

By the terms of section 307(f) of the Act, Congress plainly

did not limit fee awards to certain parties depending on their

degree of “success.” Rather, “it entrust{ed] the effectuation of

the statutory policy to the discretion of the ... courts.” The

significance of this point is reinforced by the legislative history.

It reflects that on two separate occasions Congress consciously

selected the current statutory provision over an alternative

which would have limited the parties eligible for fee awards

and restricted the discretion of the courts. In 1976, the Senate

passed a bill, S. 3219, which contained the following provision:

In any judicial proceeding under this Act in which the

United States or an officer or employee thereof is a

party (other than as an intervenor), any party other

than the United States which prevails in such action

3 The Court in Christiansburg Garment faced the question of the proper

standard for fee awards to prevailing defendants under a statute authorizing

an award to the prevailing party only. The important point is the Court's

recognition of the varying “flexibility,” as determined by Congress, provided

under different statutes. The discretionary nature of fee awards under section

304( d) of the Act was also recognized in the Alyeska case, 421 U.S. at 261

n.35.

9

shall recover from the United States the reasonable

costs for such party’s participation in such proceed-

ing, including reasonable attorney’s fees, expert wit-

ness fees, and the costs of any studies, analyses, tests,

or engineering reports that the court finds were

necessary to litigate such action. In any case in which

such party prevails in part, the court shall have

discretion to award such reasonable costs.

$.3219, 94th Cong., 2d Sess. § 35 (1976) rep-

rinted in A Legislative History of the Clean Air Act

Amendments of 1977 at 4689 (1978) (hereafter

“Legislative History”) (emphasis added ).

The House, however, passed a bill with a provision identical to

the version finally enacted, and in the Conference Committee

the House version prevailed. H.R. 10498, 94th Cong., 2d Sess.

(1976), reprinted in Legislative History at 6071; H.R. Rep. No.

94-1742, 94th Cong., 2d Sess. (1976), reprinted in Legislative

History at 4401.

Since the 1976 Conference Committee amendments did

not pass during the 94th Congress, various bills were reintro-

duced the following January, including two bills introduced in

the Senate. §.252 contained a fee award provision identical to

the version rejected by the Conference Committee in the

preceding Congress. $.252, 95th Cong., Ist Sess. §36 (1977),

reprinted in Legislative History at 3644. In contrast, $.253

provided that the court “may” award reasonable attorney fees

“whenever it determines that such an award is appropriate.”

S.253, 95th Cong., Ist Sess. §36 ( 1977), reprinted in Legislative

History at 3817. The Senate Committee opted for the latter

provision, which ultimately was enacted.

The congressional choice between these provisions is

important in two respects. First, the rejected provision would

have limited the discretion of the courts by mandating awards

to prevailing parties. Second, the rejected provision would

have limited awards to “prevailing” parties and parties who

10

“prevail in part”. By rejecting the narrower provision, Con-

gress evinced an intent to confer broad discretion to make or

deny fee awards, even where the potential recipient did not

“prevail in part”. This choice was made on two separate

occasions by different committees of different Congresses.

The significance of Congress’ rejection of any “prevailing

party” (or “prevailing in part”) limitation is further empha-

sized by the broad interpretation which the phrase “prevailing

party” had, by 1977, received in the courts. Petitioner concedes

that the term had been construed by district courts to include

parties who “prevail” by settlement rather than by litigated

judgment, Pet. at 20 n.15, and that interpretation has been

confirmed by this Court. Maher v. Gagne, 448 US. 122

(1980). The Petition does not refer to the fact that, in some

cases, fee awards had been made prior to 1977 to parties who

received little or none of the relief claimed, even under

“prevailing party” standards. Parham v. Southwestern Bell

Telephone Co., 433 F.2d 421 (8th Cir. 1970); Richards v.

Griffith Rubber Mills, 300 F. Supp. 338 (D. Oregon 1969). It

4In Parham plainuff sought an award of back pay and injunctive relief

for the class he represented on the basis of alleged discriminatory hiring

practices. Although the court found that unlawful discriminatory practices

had at one time existed, it denied injunctive relief due to good faith efforts by

defendant to remedy the violation. Moreover, the claim for back pay was

denied because the court found that plainuff had not been denied employ-

ment on the basis of race. Although no relief was awarded, the court awarded

fees on the basis that the lawsuit had acted as a catalyst to remedial action

and plaintiff had performed a public service by establishing the Title VII

In Richards, plainuff claimed that she had unlawfully been denied a

Promotion on the basis of sex and sought an order requiring the promotion,

back pay, and an injunction. The court found the denial to have violated 42

U.S.C. §2000e-2( a), but denied back pay and injunctive relief on the basis of

defendant's good faith reliance on a state regulation. The court did not order

a promotion since it found at the me of the decision plainuff occupied the

position she orginally sought. After noting that the statute authonzed a fee

award to the “prevailing party” in the court's discretion, the court awarded

plainuff attorney fees of $250.

(footnote continues )

is unnecessary in the present case to resolve whether those cases

properly interpret the “prevailing party” standard; since that

standard is absent from the Clean Air Act its interpretation is

not involved in this case.5 The cases cited are indicative,

however, of the broad interpretation given that standard.

Hence, the fact that Congress consciously rejected any form of

“prevailing party” limitation for the Clean Air Act, despite the

(footnote continued)

As EPA points out, both Parham and Richards were mentioned by

Senator Tunney following his statement that fee awards under the Toxic

Substances Control Act. worded identically to section 307(f), are to be made

“where such award is in the public interest without regard to the outcome of

the litigation.” 122 Cong. Rec. 8301 (1976). EPA contends that in all the

cases cited by Senator Tunney, the plaintiffs prevailed in some sense or

conferred a tangible benefit upon the class they represented. Pet. at 23 n.16.

That analysis seems implausible in light of the facts of the cases. Moreover,

even if it were so, petitioner ignores the fact that Richards and Parham were

decided under “prevailing party” standards, and the other two cases, Kopet v.

Esquire Realty Co., 523 F.2d 1005 (2d. Cir. 1975) and Thomas v. Honey-

brook Mines, Inc., 428 F.2d 981 (3rd Cir. 1970), cert. denied, 401 US. 911

(1971) involved fee awards based not on statute, but on the traditional

equitable basis that plaintuffs had conferred a “common benefit” on a class

which they represented. Thus. although the prevailing party standard had

been liberally construed. a finding of some degree of “success” was necessary

for fees to be awarded in all four of those cases. in contrast to the approach

suggested by Senator Tunney and taken under the Clean Air Act. In short, it

is clear that Senator Tunney was not citing those cases as an indication of the

outer limits of the courts’ discretion, as petitioner contends, since they were

decided under standards which required some degree of “success” and

Senator Tunney was expressing the concept that fees could be awarded

“without regard to the outcome of the litigation.”

EPA also attaches great significance to Senator Tunney’s statement that

courts should adhere to existing case law, under which successful plaintiffs

ordinarily should receive fee awards. Pet. at 23 n.16. Yet this merely suggests

a presumption in favor of successful plaintiffs, not that courts may never

award fees to non-prevailing plaintuffs.

5For the same reason. this case raises issues totally unlike those

presented in Hensley v. Eckerhart, No. 81-1244 (U.S. Sup. Ct. cert. granted

Mar. |, 1982), which involves a “prevailing party” standard and the question

raised is whether such a standard requires apportionment where fees are

awarded to a party who only prevails in part.

12

expansive interpretation already given that term, indicates that

Congress intended to confer broad authority on the courts to

make discretionary fee awards.

Congress was also aware of the liberal interpretation which

had been given section 304(d) of the Act, which authorizes fee

awards in citizen suit enforcement actions under section 304 of

the Act.® That provision was enacted in 1970 and is essentially

identical to section 307(f). In 1977, the staff of the Senate

Committee on Environment and Public Works compared the

two Senate bills introduced in that year. With respect to $.252,

the Report described the attorney fees provision which

amended section 307, but which would have applied to “any

judicial proceeding under this Act”.? This was intended to

include citizen suit enforcement litigation under section 304, as

is confirmed by the Report’s description of the proposal:

This language covers instances when the Federal

Government goes to court to enforce against a pollu-

tion source, when a pollution source goes to court to

oppose a Federal action, and those instances in which

a private citizen goes to court to require that the

Federal Government, under the Citizen Suit provi-

sions of the Clean Air Act, act against a pollution

source or to enforce, requirements of the Act [sic].

Staff of the Subcommittee on Environmental

Pollution of the Committee on Environment and

Public Works, 95th Cong., Ist Sess., A Section-by-

Section Analysis of $.252 and §.253 Clean Air Act

Amendments 37 (Comm. Print 1977), reprinted in

Legislative History at 3893 (hereafter “Staff Re-

port’’).

Thus §$.252 would have imposed new restrictions on the fee

award provision of section 304, which was originally enacted to

authorize fee awards “in the public interest without regard to

6 See cases discussed in text, infra, at 19-21.

7 See text quoted at 8-9, supra.

13

the outcome of the litigation.”® In light of these proposed

restrictions, the Report notes that one area of controversy

related to the provision was:

Is there any need to modify the existing judicial

practice of awarding fees based on the individual

circumstances of each case?

Id., at 37; Legislative History at 3893 (emphasis

added ).

The Senate Committee thus squarely faced the issue

presented in this case: should the courts’ discretion be limited to

award fees only to parties who “prevailed in part,” or should

they be free to make awards, as they had been under section

304, to make awards “based on the individual circumstances of

each case?” Clearly, when the Senate Committee chose ihe fee

award provision of $.253, which was identical to the fee award

provision under existing section 304(d), it chose to endorse the

“existing judicial practice” of broadly discretionary fee awards

and to extend it to section 307.

A further indication of congressional intent in rejecting any

prevailing party limitation on fee awards is given by the House

®S. Rep. No. 91-1196, 91st Congress, 2d Sess. at 65. Petitioner argues.

in part, that section 304 was also intended to be limited to “successful”

parties, Pet. at 16-20, largely ignoring the plain thrust of the quoted language.

Pet. at 19 n.13, and arguing instead that another section of the report, which

contemplates fee awards for parties who bring “legitimate” actions, does not

clearly authorize a fee award in this case. Pet. at 18-19. EPA cites no

authority for its conclusory statement that “legitimate” actions are limited to

those which are “successful,” /d., which is contrary to the idea that fee awards

are discretionary without regard to the outcome of the litigation. Moreover,

as the Court of Appeals found, the expressions of legislative intent in the 1977

Amendments are clear, regardless of the intent with respect to the enactment

of section 304 in 1970. 672 F.2d at 35 n.3: Pet. at 3a n.3. Although EPA

suggests the Congress intended sections 304(d) and 307(f) to be equally

narrow, Pet. at 22, when Congress enacted section 307(f) it considered

304( d) to be broad and intended section 307( f) to be equally broad. This is

clear from the fact that Congress in 1977 rejected a version of section 307(f)

which would have restricted discretion to award fees under section 304, as

discussed in the text.

14

Report which accompanied the 1977 Amendments. That

Report, relied on by the Court of Appeals, states:

In the case of the 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 discretion 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 amendment was expressly

rejected by the committee, largely on the grounds set

forth in NRDC v. EPA, 484 F. 2d 1331, 1388 [sic;

1338] (Ist Cir. 1973).

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

(1977), reprinted in Legislative History at 2804

(1979) (emphasis added ).

Petitioner suggests that this language is somehow consistent

with its view that fee awards were limited by Congress to

successful parties. Pet. at 24-25. Its argument fails to address

the express rejection of any “prevailing party” restriction which,

it concedes, had received a liberal construction by 1977. Pet. at

20 n.15. Moreover, EPA suggests that the thrust of the Report

is limited by the case cited, Natural Resources Defense Council,

Inc. v. EPA, 484 F.2d 1331 (Ist Cir. 1973) [hereinafter cited

as NRDC v. EPA}, for which EPA suggests a narrow inter-

pretation. But Congress is obviously not bound by stare decisis

and the citation to NRDC v. EPA in the House Report was an

express adoption of the rationale of that case, not merely its

precise holding. In that case, the court held that a fee award

was “appropriate” under section 304 for a party which only

partially prevailed. The court’s reasoning, however, is far

broader:

We are not impressed by the government’s

argument that because some issues were decided

15

adversely to petitioners each party should bear its

own costs. The authorizing language of 304(d)

permits an award “to any party, whenever the court

determines such award is appropriate.” This suggests

greater latitude even than is found in 28 U.S.C. 2412,

which authorizes awards to “the prevailing party.” 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

interpretation 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 petition-

ers. 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 petitioners were

successful in several major respects; they should not

be penalized for having also advanced some points of

lesser weight.

484 F.2d at 1338 (emphasis added).

This language indicates the court’s view that the touchstone for

fee awards under the Clean Air Act is “to encourage the

achievement of statutory goals” and that awards may be made

for unsuccessful challenges where they are “constructive and

reasonable.” Although petitioner would limit the House Report

to the factual situation in NRDC v. EPA, in which NRDC

16

“prevailed in part,” petitioner overlooks the fact that Congress

consciously rejected precisely such a limitation on two occasions

and opted for the broader provision ultimately enacted. In this

context it is clear that the House Report adopted the rationale

of the First Circuit’s opinion and intended that the courts’

discretion not be limited to “successful” parties.

EDF does not suggest that the Act confers unfettered

discretion on the courts. Rather, EDF contends, and petitioner

appears to concede, that the governing consideration is whether

the litigation furthered the purposes of the Clean Air Act. Pet.

at 9. The Court of Appeals adopted this approach, consistent

with this Court’s observation that the discretion conferred

merely “entrust[s] the effectuation of the statutory policy to the

discretion of the... courts.” Christiansburg Garment Co. v.

EEOC, supra, 434 U.S. at 416. Moreover, the principle that the

court’s discretion is to be guided by the goals of the Act in

question is clearly enunciated in the legislative history of section

307 quoted above. Petitioner’s disagreement with the Court of

Appeals is essentially over the manner in which the court, in its

discretion, applied this standard to the facts of this case.

Petitioner also suggests that the doctrine of sovereign

immunity shouid have influenced the court’s decision in this

case. Pet. at 13-15. This contention misses the mark. Petition-

er concedes that the legislative history of section 307 “clearly

demonstrates that Congress meant to waive the government’s

traditional immunity and to overcome the presumption of the

‘American Rule’ against fee shifting.” Pet. at 15. Nonetheless,

petitioner suggests that certain special rules of construction

should have governed the Court of Appeals’ decision in this

case. Pet. at 13-14. However, there is substantial support for

the argument that once the government has unequivocably

waived immunity from the suit, the only remaining issue is one

of statutory construction. Lehman v. Nakshian, 453 U.S. 156,

17

171 (1981) (Brennan J., dissenting ).? Moreover, even if the

doctrine of sovereign immunity does require a conservative

interpretation of statutory waivers, cases cited by petitioner

indicate that the ultimate question is nonetheless one of con-

gressional intent. For example, in United States v. Kubrick, 444

U.S. 111 (1979), this Court stated, in interpreting the statute of

limitations under the Federal Tort Claims Act, that “we should

not take it upon ourselves to extend the waiver beyond thar

which Congress intended. ... Neither, however, should we

assume the authority to narrow the waiver that Congress in-

tended.” 444 US. at 117-118 (emphasis added, citations

omitted ). In Indian Towing Co. v. United States, 350 U.S. 61

(1955), this Court also interpreted the Federal Tort Claims Act

in light of the “broad and just purpose which the statute was

designed to effect,” 350 U.S. at 68, and stated:

Of course, when dealing with a statute subjecting the

Government to liability for potentially great sums of

money, this Court must not promote profligacy by

careless construction. Neither should it as a self-

constituted guardian of the Treasury import immunity

back into a statute designed to limit it.

350 U.S. at 69 (emphasis added ).

9 The Lehman case, upon which EPA relies, Pet. at 14 0.9, held that a

plaintiff is not entitled to a jury trial in an action against the government

under the Age Discrimination in Employment Act. The case is dis-

tinguishable from the present case since the statutory provision waiving

sovereign immunity and authorizing actions against the government was silent

regarding the right to jury trial, while the section providing a nght of action

against private employees was later amended to provide such a right

expressly. Based on this fact, the Court concluded that it was “unnecessary to

go beyond the language of the statute itself to resolve the case. 453 US. at

165. Moreover, the Court found that the legislative history confirmed its

reading. /d. at 165-68. Finally, in dictum, the majority suggested that even if

the legislative history were ambiguous, plaintiff would not be entitled to a jury

since sovereign immunity would require the right to a jury to be “affirmati-

vely and unambiguously” stated. /d at 168. In Lehman, the statutory

language and legislative history gave a clear indication of legislative intent.

In the present case, they “affirmatively and unambiguously” indicate that

Congress intended to confer discretion on the courts without limiting that

discretion to “prevailing” or “successful” parties.

18

In the present case, it is clear from the statutory language and

the legislative history that Congress intended to confer broad

discretion upon the courts to make fee awards, without restrict-

ing such awards to “prevailing” or “successful” parties. If

sovereign immunity does require the application of certain rules

of construction, those general rules are more than overcome by

the clear showing of congressional intent in this case.

B. There is No Disagreement among the Federal Courts

Concerning the Fee Award Provisions of the Clean

Air Act.

Every federal court which has considered the issue has

concluded that Congress did not intend to deny the courts the

power to make fee awards to non-prevailing parties, in their

discretion. These courts have concluded that the governing

standard is whether the litigation furthered the goals of the

Clean Air Act. As a result, the government's current inter-

pretation lacks support in any case law.

Several decisions have considered the question of the

proper interpretation of the fee award provisions of the Clean

Air Act and reached the same conclusion as the Court of

Appeal’s decision herein. Northern Plains Resource Council v.

EPA, 670 F.2d 847 (9th Cir. 1982); Alabama Power Co. v.

Gorsuch, 672 F.2d | (D.C. Cir. 1982); Metropolitan Washing-

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

802 (D.C. Cir. 1981); NRDC v. EPA, 484 F.2d 1331 ( Ist Cir.

1973); Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353 (D. Del. 1974); Citizens

Asseciation 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).

In the Northern Plains Resource Council case, the Ninth

Circuit awarded fees to a petitioner which had unsuccessfully

challenged EPA’s issuance of a permit under the Clean Air Act.

19

In awarding fees under section 307 of the Act, the court stated

the governing principle as follows:

[I]n determining whether a party—prevailing or

non-prevailing—can recover attorney’s fees under §

307(f) from the Government, the test is “whether in

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 attorneys’

fees.”

670 F.2d at 848 (citation omitted ).

The Court concluded that an award of fees was appropriate

because petitioner “brought this suit to promote the quality of

air resources, and because the suit presented issues important to

the construction of the Clean Air Act....” 670 F.2d at 849.

In Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., supra, the court considered an application for

attorney fees by a citizens group which had challenged

unsuccessfully the defendant’s right to emit sulfur dioxide

above certain levels. In concluding that an award of fees was

inappropriate under section 304 of the Act, the court observed

that a limitation of awards to a prevailing party was “notably

missing” from the Act, but adopted the following approach in

assessing the appropriateness of a fee award:

The legislative history regarding Section 304 provides

little guidance for determining when award of coun-

sel fees is “appropriate.” I think it is fair to conclude

from the language chosen by Congress that ultimate

success in a citizen’s suit was not intended to be a

prerequisite to an award. At the same time, however,

in light of the absence of any more specific declara-

tion of congressional intent, I believe that “appropri-

ate” 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

20

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 substantial 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.

62 F.R.D. at 355 (emphasis added, footnote

omitted ).

The court concluded that a fee award was not appropriate on

the facts of the case because the suit had not induced the

defendant to act in some way which benefitted the public, nor

had it “in any other tangible or direct way contributed to

achievement of the objectives of the Clean Air Act.” 62 F.R.D.

at 355. Such is not the case herein.

In Citizens Association of Georgetown v. Washington,

supra, plaintiffs sought to prevent completion of two private

construction projects on the Georgetown waterfront in an action

brought under section 304 of the Act. Although plaintiffs were

unsuccessful in their suit, the court concluded that the case was

“an exceptional case” in which a fee award was appropriate.

The court reviewed the statutory language and legislative

history and reasoned that “success or failure on the merits has

nothing to do with the trial court’s power to award costs and

attorneys’ fees in citizen suits under the Clean Air Act.” 383

F.Supp. at 144 (emphasis in original). Accordingly, the court

concluded that “an award is appropriate if the suit has benefit-

ed the public interest as declared in the Clean Air Act.” 383 F.

Supp. at 144. The court further reasoned that “the advance-

ment of an important legislative policy may justify the award of

21

costs and fees even where the plaintiff does not obtain the

ultimate relief he seeks.” 383 F.Supp. at 144.

Despite this unanimity of authority, petitioner argues that

there is a “general presumption” against fee awards to

“unsuccessful” litigants, Pet. at 14-15, but cites no support for

that proposition. Indeed, the petitioner manufactures this

“general presumption” out of whole cloth. Specifically. in the

first sentence of this argument the Petition observes that

attorney fees “generally are not available to parties who do not

prevail on any claim.” Pet. at 14. That statement is obviously

true, since most fee award statutes are limited to “prevailing

parties” and, even in cases where courts have the discretion to

award fees to non-prevailing parties, such awards are highly

unusual. But in the second sentence of the argument this bland

generalization is elevated to the status of a “general rule.” Pet.

at 15. Finally, in the last sentence of the paragraph the

“general rule” has become a “general presumption.” /d. The

only support cited for the existence of this “general presump-

tion” is a statement in a lone dissenting opinion by Judge

Wilkey in Alabama Power v. Gorsuch,"® 672 F.2d at 13; Pet. at

14 n.10.

Based on this scanty support, and after conceding that

section 307 was intended to waive sovereign immunity, peti-

tioner proceeds to an astonishing statement: “Nothing in the

language or legislative history of Section 307(f) suggests that

attorneys’ fees may be assessed against the government in favor

of unsuccessful suitors.” Pet. at 15. That statement totally

ignores the plain thrust of the statutory language and the

© Alabama Power was decided by the United States Court of Appeals for

the District of Columbia Circuit, which chose to rule contrary to Judge

Wilkey’s views not only in Alabama Power itself. but also in that Court's

decision in this case and in EDF v. EPA, 672 F.2d 42 (D.C. Cir. 1982).

Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639

F.2d 802 (D.C. Cir. 1981). and Montgomery Environmental Coalition vy.

Costle, 646 F.2d 595 (D.C. Cir. 1981).

22

overwhelming evidence of the legislative history discussed

above, all of which indicate that the courts may, in their

discretion, award fees to non-prevailing parties against the

government in an appropriate case. Specifically, it ignores

evidence that: ( | ) Congress intended to put the government on

an equal footing with private litigants under the Clean Air Act,

Staff Report at 37, Legislative History at 3893; (2) Congress

clearly intended to waive sovereign immunity and the presump-

tion in favor of the “American Rule” in fee award litigation

and, in the same Report, expressly rejected any limitation to

“prevailing parties”, H.R. Rep. No. 95-294, 95th Cong., Ist

Sess. 337 ( 1977), reprinted in [1977] U.S. Code Cong. & Adm.

News 1077, 1416; and (3) on two occasions, Congress con-

sciously rejected a limitation of fee awards to only those parties

who “prevail” or “prevail in part.” (See text. supra, at 8-9.)

Contrary to the petitioner’s imagined “presumption,” it is clear

that, under section 307(f) of the Clean Air Act, Congress

intended that the government, as well as private litigants, pay

attorney fees when the courts in their discretion consider them

justified.

C. Certiorari Is Inappropriate Because the Court of

Appeals’ Exercise of Discretion Turned On The

Facts of The Case.

Since it is plain that the Court of Appeals had the power to

make an award of fees herein, the only remaining issue is

whether, on the facts of the case, the court abused its discretion

in doing so. EDF contends that certiorari should not be

granted to review such discretionary determinations based on a

factual record.'' As stated in United States v. Johnston, 268

U.S. 220, 227 (1925) this Court should “not grant a certiorari

to review evidence and discuss specific facts.” To conduct such

''As demonstrated in the following section, the Court of Appeals

properly exercised its discretion and made a sound decision on the basis of the

record before 1. Moreover, even if this Court would have ruled differently on

those facts in the first instance. EPA’s Petition ts not an appropriate vehicle for

this Court to do so. Magnum Import Co. v. Coty, 262 U.S. 159, 163 (1923)

(“The jurisdiction [of the Supreme Court to review cases by certiorari] was

not conferred upon this Court merely to give the defeated party in the Circuit

Court of Appeals another hearing.” )

23

a review in this case would require this Court to review an

enormous record. Without such an analysis, this Court would

be unable io assess the contribution made by EDF and Sierra

Club to the objectives of the Clean Air Act. Since EPA

concedes that an award of fees does not require success in the

form of a court judgment, Pet. at 16, this Court would be

required to weigh the significance of the effects of this litigation

in other respects. These include the disclosures of factual

information required of EPA at the behest of EDF, the changes

in executive branch informal rulemaking procedures also result-

ing from EDF’s participation in this case, and the degree of

clarification of complex technical and legal issues addressed by

the Sierra Club. Even if this Court, after reviewing the

voluminous record, were to come to a conclusion different from

that of the Court of Appeals, it seems unlikely that the ruling at

the conclusion of such an undertaking would be of sufficient

import to justify the effort.

Il. THE COURT OF APPEALS’ DECISION REPRE-

SENTS A SOUND EXERCISE OF THE COURT'S

DISCRETION UNDER THE CLEAN AIR ACT.

The petitioner appears to concede that the proper standard

in determining fee awards under the Clean Air Act is whether

the litigation substantially contributed to the goals of the Act.

Pet. at 9. However, the Petition inaccurately suggests that the

Court of Appeals reasoned that judicial interpretation of the

statute was, in itself, a goal of the Act. /d. Finally, the Petition

cryptically describes in two sentences the court’s analysis of the

manner in which the respondents furthered the goals of the Act

in this case. Pet. at 7.

The Court of Appeals recognized that the litigation herein

furthered the goals of the Act in several respects, each of which

was identified by Congress in the legislative history. First, the

House report which accompanied the 1977 amendments ex-

plicitly sought to “encourage litigation which will assure proper

implementation and administration of the act or otherwise serve

24

the public interest.” H.R. Rep. No. 95-294, 95th Cong., Ist

Sess. 337 (1977), reprinted in Legislative History at 2804

(emphasis added); 672 F.2d at 41. Second, in assessing the

meaning of the term “appropriate” the court considered the

language of the First Circuit in NRDC v. EPA, supra, explicitly

approved by the House Report, in which the court observed

that “[t}he legislation is itself complex and novel. Given the

implementation dates, its early interpretation is desirable.” Pet.

at Sa; 484 F.2d at 1338 (emphasis added). By establishing the

procedural requirements of section 307, on which EDF based

its challenge, Congress also sought to restrain “broad adminis-

trative discretion . . . by thorough and careful procedural

safeguards that insure an effective opportunity for public

Participation in the rulemaking process.” H.R. Rep. No. 95-

294, supra, reprinted in [1977] U.S. Cong. & Admin. News

1077, 1398.

The Court of Appeals acknowledged the importance of

these considerations in its ruling on a fee award and recognized

that, although litigation is not an end in itself, Congress clearly

and repeatedly emphasized the important role that litigation

such as this should play in assuring the proper implementation

of the Act.'? In assessing whether an award was appropriate on

the facts of this case, the court observed that this case represent-

ed the first interpretation of the new rulemaking procedures

established by the 1977 amendments to the Clean Air Act. 672

F.2d at 41. In addition, the court considered the importance of

'2 As the Second Circuit observed in Friends of the Earth v. Carey, 535

F.2d 165, 172-73 (1976), cert. denied, 434 U.S. 902 (1977):

In enacting § 304 of the 1970 Amendments. Congress made clear

that citizen groups are not to be treated as nuisances or trouble-

makers but rather as welcomed participants in the vindication of

environmental interests .. . .

Thus the Act seeks to encourage citizen participation rather

than to treat it as curiosity or a theoretical remedy .... As

additional encouragement the Act expressly authorizes courts to

award costs of litigation to any party when “appropriate.”

§ 304(d).

25

the case (Pet. at |13a—15a), the technical complexities of the

issues involved ( Pet. at 17a), and the importance and difficulty

of the legal issues presented ( Pet. 17a - 18a). Petitioner ignores

the fact that the Court of Appeals found that, in certain

respects, both the Sierra Club and EDF were successful. With

respect to the industry challenge to the EPA standard, which

Sierra Club and EDF both opposed, the court noted:

[T]he argument pressed most intensely by the utili-

ties, that a 90% reduction in sulphur emissions was

technologically unfeasible given the state of antipol-

lution technnology, 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

travel alone, and the court’s education on each part

of the rule informed its decisions on other parts.

672 F.2d at 41: Pet. at 17a.

The court further noted that:

EDF’s contribution involved factual research into

meetings and communications between agency offi-

cials, White House personnel, members of Congress

and industry representatives, as well as a legal ana-

lysis of the propriety of such meetings under the new

section 307 and existing case law on ex parte contacts

in rulemaking. Several documents pertaining to these

contacts, proferred by EPA for the first time on

appeal, were consulted by the court.... We note too

that EDF’s procedural challenges not only clarified

how the new section 307(d) would operate, but

apparently provided fuel for discussion about appro-

priate restrictions on ex parte comments in other

administrative proceedings. See Stockman Memo-

randum For Heads of Executive Departments and

Agencies. 2 (June 13, 1981).

672 F.2d at 41; Pet. at 18a (emphasis added ).

26

Petitioner makes absolutely no mention of these aspects of the

court’s findings in characterizing the respondents as “totally

unsuccessful” in this litigation.

Indeed, based upon the Court of Appeal’s findings, it is

apparent that this case meets the standards which petitioner

would impose upon fee awards. Petitioner suggests, at various

points, that, 'n order for the Court to be authorized to make a

fee award, the recipient must have made some “tangible

accomplishment,” brought a “legitimate action” and been

“successful” to some extent. Pet. at 16-18. Although the

petition does not discuss it, the discovery revelations required of

EPA as a result of the litigation indicate a “tangible accom-

plishment.” In addition, the fact that informal rulemaking

procedures for all executive branch agencies were changed to

ensure compliance with the Court of Appeals ruling in this case

indicates a substantial degree of “success.” In fact, the Stock-

man Memorandum by itself rebuts the petitioner’s suggestion

that respondents were “totally unsuccessful” in this litigation.

Moreover, the court’s finding that respondents have engaged in

good faith litigation of important and complex legal issues

indicates that the action was “legitimate.” Accordingly, even

under the government’s standard a fee award was within the

ambit of the court’s discretion in this case.

Ill. CERTIORARI SHOULD BE DENIED BECAUSE THE

ISSUE RAISED WILL AFFECT FEW OTHER

PARTIES OR CASES.

The petitioner raises a “floodgates of litigation” argument,

suggesting that the decision below will give rise to what it

considers unproductive litigation under the Clean Air Act and

identically worded statutes. Pet. at 8-9 and 8 n.4._ This

argument lacks merit. As the petitioner’s citations indicate, for

the most part the statutes in question were enacted into law

several ywars ago and, as discussed above, every federal court to

consider them, has interpreted these statutory provisions in the

same manner, i.e., as conferring broad discretionary authority

27

on the courts to make fee awards to litigants who further the

purposes of the statute without regard to their success in the

action. Moreover, as the Court of Appeals recognized in this

case, it is extremely rare for a fee award to be made to a party

who does not prevail. Although the courts have discretionary

power to make such awards, in fact they rarely do so.

The only evidence which the petitioner cites as indicating

the rising tide of litigation is a single pending case in which the

Energy Action Educational Foundation “is now seeking at-

torneys’ fees.” Pet. at 8 n.4. In stark contrast to this lack of

decided cases are the cases in which fees have been denied to

non-prevailing parties and even, in some cases, to litigants who

did prevail. £.g., Consolidated Edison Co. v. Realty In-

vestments Associates, 524 F.Supp. 150 (S.D.N.Y. 1981) (fees

denied prevailing defendant under section 304 of the Clean Air

Act); Carpenter v. Andrus, 499 F. Supp. 976 (D. Del. 1986}

(fees denied a prevailing plaintiff under the Endangered Spe-

cies Act on ground that plaintiffs suit did not advance the

statutory purposes); Delaware Citizens for Clean Air, Inc. v.

Stauffer Chemical Co., 62 F.R.D. 353 (D. Del. 1974) ( fees

denied to non-profit citizens group which unsuccessfully chal-

lenged defendant’s right to emit sulfur dioxide above certain

levels ).

In light of the rarity of fee awards to non-prevailing parties

under the Clean Air Act and identical statutory provisions, the

decision in this case will have little practical effect upon other

cases or litigants. The court in this case did not apply a new

standard, but rather applied the statutory interpretation which

had been consistently expressed by other federal courts. What

was unusual about this case was not the standard applied, but

the factual circumstances which led the Court of Appeals to

make an award of attorney fees. In this case, although the

Court of Appeals awarded judgment to EPA, the guidelines it

established as a direct result of EDF’s challenge had a signifi-

cant impact upon future implementation of the Act. Moreover,

28

EDF's challenge led the government to take the unusual step of

adopting new procedural safeguards despite its success in court.

Because the Court of Appeals based its decision on these

limiting circumstances, it is unlikely that any future litigant who

does not prevail will be awarded attorney fees solely on the

basis of the volume of the record and the complexity of the

issues. Accordingly, fee awards to non-prevailing parties

should be as rare in the future as they have been in the past. As

a result, the decision of the Court of Appeals will have little

practical effect on most litigation under the statutes involved

and certiorari should be denied.

CONCLUSION

It is a matter of record that the government's opposition to

an award of attorney fees to EDF and Sierra Club in this case

was the result of a change of administration policy concerning

fee awards to non-prevailing parties. '3 672 F.2d at 34, 41; ___

F.2d at __; Pet. at 2a, 19a, 24a. In this context, it is not

surprising that petitioner is unable to cite any authority, either

in case law or legislative history, which directly supports or

expresses its interpretation of the applicable statutory provision.

Instead, the petitioner relies upon a dissenting opinion for direct

support ( Pet. at 14 0.10, 19), “notions” concerning fee awards

( Pet. at 8), unsupported assertions of what it feels is “surely” or

“clearly” the case (Pet. at 9, 10), its view of what litigants

“should” expect (Pet. at 12), and “the spirit” of a decision of

this Court involving standing under the First Amendment ( Pet.

at 11 n.6). The lack of authority directly supporting the

petitioner strongly suggests that its position is not an indication

of what the law is, but merely what petitioner would like it to

be. Although a change in policy may alter the government's

"3 Prior to the change of policy, the administrative interpretation of the

Statute was consistent with the position taken by respondents herein. Accord-

ingly the Court of Appeals’ decision did not disturb any long-standing

administrative interpretation of the law.

29

tactics in litigation, it cannot alter the legislative determinations

which govern this case.

The fee awards involved in this case have now been in

litigation for more than a year and a half. The issues raised

herein do not involve difficult or unresolved questions of

statutory construction, as indicated by the unanimity of inter-

pretation by the federal courts which have addressed the

subject. Further review ot this case will only delay unnecessar-

ily payment of the fees to which respondents are entitled.

For the reasons set forth above, respondent Environmental

Defense Fund urges this court to deny the Petition for Certio-

rari.

Respectfully submitted,

BINGHAM KENNEDY

Counsel of Record

Barry J. TRILLING

TRILLING & KENNEDY

1100 Seventeenth Street, N.W.

Suite 1100

Washington, D.C. 20036

Telephone: (202) 223-1577

Attorneys for Respondent Environmen-

tal Defense Fund

September 27, 1982

la

EXECUTIVE OFFICE OF THE PRESIDENT

OFFICE OF MANAGEMENT AND BUDGET

Washington, D.C. 20503

June 11, 1981

Embargoed for Release:

6:00 p.m. E.D.T.

June 13, 1981

M-81-9

MEMORANDUM FOR HEADS OF EXECUTIVE

DEPARTMENTS AND AGENCIES

FROM: DAVID A. STOCKMAN

DIRECTOR

SUBJECT: Certain Communications Pursuant to Executive

Order 12291, “Federal Regulation”

Regulatory relief is one of the cornerstones of President

Reagan’s program of economic recovery. As an important step

in achieving regulatory relief, on February 17, 1981, the

President issued Executive Order 12291, “Federal Regulation.”

This memorandum explains how the Presidential Task Force

on Regulatory Relief and the Office of Management and

Budget (OMB) will communicate with the public and the

agencies regarding proposed regulations covered by E.O.

12291. It also describes certain obligations of the public and

agencies in this reg ird.

A major purpose of the Executive Order is to ensure that,

to the extent permitted by law, regulatory decisions are based

upon sound analysis of the potential consequences. Toward

2a

this end, a comprehensive factual basis is essential to assist

agencies and other interested parties in assessing the economic

and other ramifications of proposed regulations.

Under the Executive Order, both the Task Force and OMB

will be reviewing factual materials related to regulatory propo-

sals. Both the public and the agencies should understand that

the primary forum for receiving factual communications

regarding proposed rules is the agency issuing the proposal, not

the Task Force or OMB. Factual materials that are sent to the

Task Force or OMB regarding proposed regulations should

indicate that they have also been sent to the relevant agency.

Pursuant to this policy, the Task Force and OMB will regularly

advise those members of the public with whom they commu-

nicate that relevant factual materials submitted to them should

also be sent to the agency for inclusion in the rulemaking

record. Accordingly, agencies receiving such materials from the

public should take care to see that they are placed in the record.

On occasion, the Task Force staff and OMB will receive or

develop factual material which they believe should be consid-

ered by an agency during a particular informal rulemaking. In

accordance with advice provided by the Department of Justice,

such material, when submitted to an agency for its consid-

eration, will be identified as material appropriate for the whole

record of the agency rulemaking.

Two additional matters should be noted. First, our

procedures will be consistent with the holding of and policies

discussed in Sierra Club v. Costle, No. 79-1565, slip op. at 212-

20 (D.C. Cir. April 29, 1981). Second, these procedures apply

only to informal rulemaking proceedings and are not in any

sense intended to affect the more stringent ex parte rules

applicable to agency adjudications and formal rulemakings.

(Such proceedings are expressly intended by Congress to be

more in the nature of formal judicial proceedings and involve

bars against various forms of ex parte communication. )