Petitioners Reply Brief — Ruckelshaus v. Sierra Club

— =

aS Reni ‘<<

re,

aa

’

&

7

» a

az.

e) ur,

as

7

Vd

\

i

-

7

ANNE M. GorsucH, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

TABLE OF AUTHORITIES

Page

Cases:

Alabama Power Co. v. Gorsuch,

GSP. BBE ccccccceccescescccoscccccesces 10

Bryant v. Yellen, 447 U.S. 352 .....0ceeeeeeees 6

Carpenter v. Andrus, 499 F. Supp. 976 ......... 3

Citizens Association of Georgetown Vv.

Washington, 383 F. Supp. 136, rev'd,

SSS FP. BB CPUS ccccccccccccccceccccccces 9, 10

Delaware Citizens for Clean Air, Inc. v.

Stauffer Chemical Co., 62 F.R.D. 353, aff'd,

SID. BOGE ccccccccccccccesccccccccces 3,9

Lehman v. Nakshian, 453 U.S. 156 .......... 2,3

McMahon v. United States, 342 U.S. 25 ........ 3

Metropolitan Coalition for Clean Air v.

District of Columbia, 639 F.2d 802 ......... 10

NRDC v. EPA, 484 F.2d 1331 .......... 4,5, 10

Northern Plains Resource Council v. EPA,

GTO F. BO GGT .cccccccccccccccesccccccceses 9

Parham v. Southwestern Bell Telephone Co.,

GO FFB cccccccctccccccccncccesccccss 4

Richards v. Griffith Rubber Mills,

300 F. Sepp. S58 nn cc cccccccccccccccccccees 4

Sierra Club v. Costle,657 F.2d 298 .........-. 7

United States v. Mitchell, 445 U.S. 535 ......... 2

Page

Cases—Continued:

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., No. 80-327 (Jan. 12, 1982) ........5005. 11

Williams vy. General Food Corp.,

GB FP. BB TBD cccccccccccccasccctcccccceces 4

Statutes:

Clean Air Act Amendments of 1977, 42 U.S.C.

(Supp. IV) 7401 et seq.:

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

FEED ccvcscccocccccseececosccccceces 4,9

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

PENNE cccccccccccccccccccoccescoces 3,4

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

PED cepeccdscvcdestesccediccccccecs 5,6

TOBTE) wcccccccccccccscccccccccccces 1,2

ISGRIEMG) ccccccccccccccccccccccccccccccees

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

, EPP TTTTTTTTTTTTTTT TTT Tie 6

Miscellaneous:

Mark-Up Session on the Clean Air Act

Amendments of 1982: Hearings Before the

Senate Comm. on Environment and Public

Works, 97th Cong., 2d Sess. (1982)

(Stenographic Transcript of Milton Reporting,

Inc., Washington, D.C.) .........0eeeeeeeeee 7

On the Supreme Court of the Hnited States

OcToBER TERM, 1982

No. 82-242

ANNE M. GorsuCH, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Both respondents urge the Court to deny the petition

because this case purportedly involves no more than a

fact-bound exercise of discretion by the court of appeals

that, they claim, was fully consistent with congressional

intent, and because the decision below allegedly follows

other lower court rulings on- “the same question. Neither

contention is correct.

1. To be sure, Section 307(f) of the Clean Air Act

Amendments of 1977, 42 U.S.C. (Supp. IV) 7607(f), confers

discretion on the courts of appeals to decide when attor-

neys’ fee awards are “appropriate.” But the question pre-

sented by the petition is not simply whether the court below

abused that discretion in this case. Instead, the fundamental

issue we have tendered—which is one of law rather than

fact—is whether Congress intended the courts ever to have

discretion to award fees to totally unsuccessful parties.

2

Contrary to respondents’ suggestions, the size or complex-

ity of the case has no bearing on this question. EDF Br. in

Opp. 1-2; S.C. Br. in Opp. 1.' Nor is it necessary to sift

through the voluminous record in this case because respon-

dents concede that the EPA actions they challenged were

upheld in every respect. EDF Br. in Opp. 3; S.C. Br. in Opp.

2. Thus, the Court need only determine whether, as a matter

of law, the discretion conferred by Congress encompasses

fee awards to totally unsuccessful litigants.”

Respondents argue that the lower court’s interpretation

of Section 307(f) is supported, if not compelled, by the

legislative history of that provision. But the legislative his-

tory does not go so far, and when viewed under the rules of

strict construction that govern waivers of sovereign immun-

ity, this history cannot support the award of fees to totally

unsuccessful parties.

a. Itis well established that waivers of sovereign immun-

ity must be “unequivocally expressed.” Lehman v. Nak-

shian, 453 U.S. 156, 160-161 (1981), quoting United States

v. Mitchell, 445 U.S. 535, 538 (1980). Respondents do not

dispute this doctrine. Rather, they note that this Court has

refused to infer immunity where Congress intended to

waive it. EDF Br. in Opp. 17. Congressional intent, they

argue, is the central inquiry? (ibid.). But this aphorism does

not relax the standard for determining congressional intent

or measuring its scope. Congress’ intent to waive sovereign

immunity must be “affirmatively and unambiguously”

'The Brief in Opposition filed by the Environmental Defense Fund

will be cited as “EDF Br. in Opp.” and that filed by the Sierra Club wil!

be cited as “S.C. Br. in Opp.”

2Apparently recognizing that fee awards to totally unsuccessful par-

ties are difficult to justify as “appropriate,” respondents have manufac-

tured various “public benefits” allegedly attributable to their lawsuits.

Even a cursory examination of these “benefits,” however, shows them

to be illusory. See pages 7-9, injra.

3

stated, Lehman v. Nakshian, supra, 453 U.S. at 168, and

the waiver must be “construed strictly in favor of the sover-

eign.” McMahon v. United States, 342 U.S. 25, 27 (1951).

Applying these standards to the evidence of congressional

intent relied on by respondents, it cannot be concluded that

Congress “unequivocally expressed” an intent to authorize

attorneys’ fees to parties who did not succeed in any tangi-

ble manner.

b. Respondents emphasize that Congress rejected a

proposal providing that attorneys’ fees “shall” be awarded

to any party that “prevails” and “may” be awarded to any

party that “prevails in part.” EDF Br. in Opp. 8-9. But this

proposal may have been reiected because it inflexibly

required an award toa prevailing party, regardless whether

that party had furthered or frustrated the goals of the Act.’

Rejection of the proposal thus sheds little light on the

proper interpretation of the provision ultimately adopted.‘

See, e.g., Carpenter v. Andrus, 499 F. Supp. 976, 979(D. Del. 1980)

(denying attorneys’ fees to a successful plaintiff under the Endangered

Species Act of 1973's “whenever * * * appropriate” provision, 16

U.S.C. 1540(g\4), because the suit failed to “advance the statutory

purpose”).

‘EDF emphasizes, however, that in choosing between the two ver-

sions, Congress expressly considered whether there was “any need to

modify the existing judicial practice of awarding fees based on the

individual circumstances of each case.” EDF Br. in Opp. 13. This

consideration, however, says nothing about an intent to award fees to

parties that do not succeed in any respect. For, when Congress purport-

edly endorsed the “existing judicial practice.” no court had ever

awarded fees to such a party. As explained, infra, at pages 4-5, attor-

neys’ fees had only been awarded under Section 304(d) of the Clean Air

Act, 42 U.S.C. (Supp. IV) 7604(d), to parties that had in some tangible

way furthered implementation of the statute. Indeed, the courts had

expressly refused to award fees to parties that had not achieved any such

success. Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical

Co., 62 F.R.D. 353 (D. Del. 1974), aff'd, 510 F.2d 969 (3d Cir. 1975).

4

EDF also relies on language from the House Report,

quoted in our petition at page 24, that rejected a “prevailing

party” standard. From this passage, read in conjunction

with NRDC v. EPA, 484 F.2d 1331, 1338 (Ist Cir. 1973),

EDF concludes that Congress intended to allow the award

of fees to a party who was not successful in any way, so long

as the lawsuit was “constructive and reasonable.” EDF Br.

in Opp. 14-15

Congress’ rejection of a “prevailing party” standard,

however, cannot be so broadly construed. The “prevailing

party” standard is a term of art, and in 1970, when Congress

authorized fees “whenever appropriate” under Section

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

the “prevailing party” standard required that fees be denied

to any party that had not actually prevailed in final judg-

ment. Pet. 20 n.15. Even by 1977, when Congress amended

Section 307 to parallel Section 304, the “prevailing party”

standard still required a party to prevail formally, either

through settlement or litigated judgment. Thus, for exam-

ple, in the cases cited by EDF, fees were awarded on the

explicit grounds that the plaintiffs had actually prevailed on

the legal merits of their claims, although the courts con-

cluded that the relief requested was no longer necessary.°

And even in decisions involving settlements rather than

litigated judgments, fees were allowed only where the plain-

tiff actually established liability. See Williams v. General

Food Corp., 492 F.2d 399, 408 (7th Cir. 1974). Thus,

5In Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 430

(8th Cir. 1970), the court specifically held that: “[h]aving prevailed in his

contentions of racial discrimination * * * Parham is entitled to reason-

able attorney's fees * * * ."In Richards v. Griffith Rubber Mills, 300 F.

Supp. 338, 340-341 (D. Or. 1969), the district court held that Richards

had established a violation of the statute, and thus had formally pre-

vailed. The relief sought was not granted because it had already been

obtained by the defendant.

5

Congress's rejection of a “prevailing party” test does not

demonstrate congressional intent to allow attorneys’ fees to

parties that were not successful in any way.

This conclusion is not altered by the 1977 House Com-

mittee’s reliance on NRDC v. EPA.In NRDC v. EPA, the

First Circuit found that Congress authorized attorneys’ fees

“whenever appropriate” in order “to encourage the

achievement of statutory goals.” 484 F.2d at 1338. In

awarding fees to NRDC, the court noted that NRDC’s

challenges, “even those not sustained, were mainly con-

structive and reasonable” (ibid.). Seizing on the court’s

observation that NRDC’s challenges were “constructive

and reasonable,” EDF argues that no more is required: a

party is entitled to attorneys’ fees if its argumer«.. are “con-

structive and reasonable,” even if it is not successful in any

respect. EDF Br. in Opp. 15. EDF ignores the fact that

NRDC prevailed on most of its claims. Thus, it is not clear

that the First Circuit's reasoning supports EDF's expansive

interpretation of the “whenever appropriate” standard; nor

is there reason to believe that such an interpretation was

endorsed by Congress. As EDF appears to concede, NRDC

v. EPA provided for the award of attorneys’ fees “to

encourage the achievement of statutory goals.” EDF Br. in

Opp. 15. In adopting the “whenever appropriate” standard

for Section 307, therefore, Congress was simply rejecting

the technical and formalistic requirements of the “prevail-

ing party” standard in favor of a more direct concern for the

goals of the statute.

Thus, the courts do have discretion to award fees if the

plaintiffs have “ ‘substantially contributed’ to the goals of

the Clean Air Act” (Pet. App. 20a n.10), even though they

did not technically “prevail.” But this standard clearly

entails some element of success, some tangible contribution

that alters the course of EPA implementation of the Clean

Air Act, thereby furthering the goals of the statute. In this

6

case, the court awarded fees for mere participation in judi-

cial review. While such participation may have value, it

does not necessarily further any goal of the Clean Air Act.®

And neither respondent has offered any evidence that mere

litigation was within the scope of the goals that Congress

intended to further through the award of fees.’

c. Sierra Club contends that the court of appeals’ inter-

pretation of Section 307 is reinforced by recent congres-

sional action.* S.C. Br. in Opp. 8-9. In a mark-up session on

a bill to amend the Clean Air Act, the Senate Committee on

Envire«ment and Public Works adopted a proposal by

Senaic Simpson aliowing fee awards only to prevailing

parties. S.C. Br. in Opp. App. 1-4. Sierra Club argues that,

by this action, the Senate Committee implicitly confirmed

the court of appeals’ interpretation of the existing statute.

The amendment, however, can as easily be read as emphatic

repudiation of the court of appeals’ decision. And, indeed,

when he first introduced the proposal, Senator Simpson

*Participation in the rulemaking process may help to ensure that the

Administrator's decision is based upon a full exposition of the facts, and

thus may further the goals of the statute. Participation in a totally

unsuccessful judicial challenge to that decision, however, makes no

discernible contribution to the goals of the statute, since it has no effect

on the Agency's implementation of the statute.

"Indeed, when Congress intended to fund participation for its own

sake, it has done so explicitly. See Pet. 27 n.18. Thus, for example,

Congress has expressly authorized EPA to award attorneys’ fees for

participation in rulemakings under the Toxic Substances Control Act,

1S U.S.C. 2605(c)(4(A). Such funding is rare, however, and it can

hardly be inferred that, by providing for attorneys’ fees “whenever

appropriate,” Congress intended, sub silentio, to extend such extraor-

dinary benefits to unsuccessful litigants. Certainly, such an intent has

not been “unequivocally expressed.”

®The speculative possibility that such legislation might be enacted

should not deter the Court from considering the important question

presented by this case. See Bryant v. Yellen, 447 U.S. 352, 380 n.32

(1980).

5

indicated that the court of appeals’ decision was contrary to

Congress’“ original intent.” Thus, the committee's action is

of no help to respondents.

2. Recognizing their total lack of success on the merits,

respondents nevertheless find “public benefits” from this

litigation because, in affirming EPA’s implementation of

the statute, the court articulated procedures for the use of

computer models (S.C. Br. in Opp. 2) and for receipt of oral

communications after the comment period has closed (EDF

Br. in Opp. 2-3). Respondents do not emphasize the fact

that the court of appeals explicitly found that EPA was

already implementing these procedures (Sierra Club v.

Costle, 657 F.2d 298, 332-345, 400-410 (D.C. Cir. 1981)).

Judicial articulation of these rules is therefore of little more

than scholarly interest. Certainly, it does not in any sense

further the goals of the Clean Air Act.

While conceding that EPA had complied with all of these

procedures in implementing the Clean Air Act, EDF asserts

that it is entitled to attorneys’ fees because the court of

appeals’ decision caused the Office of Management and

Budget to “alter” procedures for rulemaking in the entire

%In the mark-up session on July 27, 1982, Senator Simpson described

his proposal as follows:

Senator Simpson: * * * And then, Mr. Chairman, there were two

other items, and | will certainly submit those to the committee.

Each of them were [sic] something | have discussed before. One

was the venue amendment, and that is probably on the list.

Another was one attorneys’ fees for prevailing parties. That was

the original intent and now we have seen several instances where

there have been attorneys’ fees granted to nonprevailing parties.

and that was another area. * * *”

Mark-Up Session on the Clean Air Act Amendments of 1982: Hear-

ings Before the Senate Comm. on Environment and Public Works, 97th

Cong.. 2d Sess. 6 (1982). (Stenographic Transcript of Milton Report-

ing. Inc., Washington, D.C.).

Executive Branch.'° EDF Br. in Opp. 3. This bold claim is

based entirely on a memorandum of David Stockman,

dated June 11, 1981. EDF Br. in Opp. la-2a. The memo-

randum outlines the roles of the Presidential Task Force on

Regulatory Relief and the Office of Management and

Budget in agency rulemakings. As EDF points out, the

memorandum explains that the procedures therein de-

scribed will be consistent with the court of appeals’ decision

in this case. There is no indication anywhere in the memo-

randum, however, that that decision in any way “altered”

the procedures previously employed. And, considering that

the court below found that EPA and OMB were already

complying with these requirements, there is no reason to

believe that any change was effected by this memorandum.

Respondents lastly justify the fee awards by asserting that

the litigation benefited EPA. Sierra Club suggests that,

while the court concluded that EPA’s rulemaking had ful-

filled the requirements of the Clean Air Act, Sierra Club

“ ‘aided agency implementation’” of that statute “by

instructing EPA on a better (albeit not mandatory) way of

conduct rule-makings * * * .” S.C. Br. in Opp. 2. No

attempt is made to argue that Congress intended to award

attorneys’ fees to anyone undertaking such admittedly

superfluous instruction.

Both respondents also rely on the court’s finding that

they had “effectively supplemented” EPA’s defense of its

regulations against industry challengers. Pet. App. 7a n.5;

S.C. Br. in Opp. 3; EDF Br. in Opp. 4. But it was Congress's

clear intent that EPA and the Department of Justice should

‘EDF also claims that it was “successful” in requiring EPA to

divulge factual information relating to the allegedly improper ex parte

contacts. EDF Br. in Opp. 5. Since, upon examination by the court of

appeals, this information only confirmed the propriety of the Agency's

actions, any claim of “success” on this account borders on the frivolous.

9

defend the regulations promulgated under the Clean Air

Act. It is incongruous to assume that Congress also

intended to award attorneys’ fees to litigants who take it

upon themselves to supplement that effort.

3. Both respondents argue that the decision below is

consistent with every other federal court decision on the

same question. EDF Br. in Opp. 18; S.C. Br. in Opp. 10.

The fact is, however, that the cases cited by respondents

simply did not involve the question presented here.''

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

Chemical Co., 62 F.R.D. 353 (D. Del. 1974), the court

declined to award fees to an unsuccessful litigant. Although

the court observed in dicta that “ultimate success” in a

citizen's suit under Section 304 of the Clean Air Act might

not be a prerequisite to an attorneys’ fee award (62 F.R.D.

at 355), the court also stated that fee awards to a losing

party should be reserved for those cases in which the litiga-

tion “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”

(ibid.). This hardly constitutes an endorsement of fee

awards to parties whose “contribution” to the goals of the

statute was an unnecessary validation of the Agency's

actions. Indeed, elsewhere in the opinion the court question-

ed whether fees would be “appropriate” when, as here, state

or federal pollution control age.cies are already actively

engaged in fulfilling their statutory duties (id. at 357).

Respondents also cite the district court's decision in Citi-

zens Association of Georgetown v. Washington, 383 F.

Supp. 136(D. D.C. 1974), rev'd, 535 F. 2d 1318 (D.C. Cir.

1976). That decision, of course, is of no precedential value

''The only exception is Northern Plains Resource Council v. EPA,

670 F.2d 847 (9th Cir. 1982). That decision, like the one below, was

wrongly decided. The decision, moreover, is not final because the Ninth

Circuit has not yet fixed the amount of the award.

10

in light of the court of appeals’ ruling that the district court

had no jurisdiction to award attorneys’ fees. But even the

district court's reasoning on the merits shows that plaintiffs

in that case accomplished far more than the airing of novel

issues. The court made it clear that plaintiffs lost their case

to enjoin construction of two buildings primarily because

the District of Columbia government had failed to enact the

regulatory framework contemplated by the Clean Air Act.

383 F. Supp. at 145. The court thus saw the suit as a helpful

and necessary effort to galvanize the District to action. /d.

at 145-146. By contrast, the court of appeals in the present

case found that EPA had already acted properly.

Respondents also contend that the First Circuit's deci-

sionin NRDC v. EPA, 484 F.2d 1331 (1973), sanctions fee

awards to losing parties. As we have already explained in

our petition, however, NRDC was successful in several

major respects (see 484 F.2d at 1338), and thus the case did

not raise the question presented here. The same is true of

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

1982), relied upon by EDF (Br. in Opp. 18).

Finally, we have already addressed the decision in Met-

ropolitan Coalition for Clean Air v. District of Columbia,

639 F.2d 802 (D.C. Cir. 1981). Pet. 19 n.13. As previously

noted, the District of Columbia was indisputably in viola-

tion of the Clean Air Act when the lawsuit was filed; only a

change in the law some three years later prevented plaintiffs

. from securing a favorable final judgment. This anomalous

situation cannot qualify as support for the decision below.

The court of appeals’ decision thus represents an unwar-

ranted expansion of litigants’ rights to collect attorneys’ fees

from the government. By rewarding unsuccessful chal-

lenges to EPA’s implementation of the Clean Air Act, the

court has divorced the attorneys’ fee provision from any

discernible congressional goals, for the sake of subsidizing

assistance in the mere “refinement of jurisprudential under-

standing.” Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., No. 80-

327 (Jan. 12, 1982), slip op. 8.

CONCLUSION

For these reasons, and those stated in the petition, the

petition for a writ of certiorari should be granted.

Respectfully submitted.

Rex E. Lee

Solicitor General

OctToser 1982

DOJ-1982-10