Petitioners Brief — Ruckelshaus v. Sierra Club

5 ; Smerra CLUB and ENVIRONMENTAL DEFENSE FUND

=

LA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

S APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

‘+

A if

Ee BRIEF FOR THE PETITIONER

*

2 REx E. Lee

1 8. x 5 By f Av 5 ie : 5 7 Solicitor General 1 .

2 4 * Be a . rm bane g

6 “ye hy ee * Ns A

1 *

QUESTION PRESENTED

Whether it was “appropriate,” within the meaning

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

(Supp. IV) 7607(f), to award over $90,000 in at-

torneys’ fees and costs to parties who failed to prevail

on any aspect of their challenge to rulemaking action

taken by the Administrator of the Environmental

Protection Agency.

TABLE OF CONTENTS

Argument:

I.

II.

III.

Cases

Alabama Power Co. . Gorsuch, 672 F.2d 1. 7, 18, 21, 84

Section 307(f) of the Clean Air Act does not,

on its face, contain the requisite waiver of sov-

ereign immunity to support an award of attor-

neys’ fees to losing litigants _................ 3

The legislative history of Section 307 (f) shows

that Congress intended some measure of tangi-

ble success as a threshold — for an

award of attorneys’ fees

A. The 1970 legislative history ............................

B. The 1977 legislative history ...........................

Respondents were improperly awarded attor-

neys’ fees for mere participation in judicial re-

view proceedings under the Clean Air Act and

not for furthering the goals of that statute...

TABLE OF AUTHORITIES

Alyeska Pipeline Service Co. vy. Wilderness So-

clety, 421 US. 240 11, 18-14

American Federation of Government Employees v.

SS A S

Army & Air Force Exchange Service vy. Sheehan,

No. 80-1487 (June 1, 1982) 02... ceeeceencenne

(m)

eon NK =

11

IV

Cases—Continued Page

Best Medium Publishing Co. v. National Insider,

SE See ee 20

Carpenter v. Andrus, 499 F. Supp. 97 23, 30

Citizens Association of Georgetown v. Washing-

ton, 383 F. Supp. 136, rev’d on other grounds,

e .. 23

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

Feen 21

Cuneo v. Rumsfeld, 558 F.2d 130 21

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 358, aff d, 510 F.2d

% eT Rees Ue ries Ree 13, 24

Eastern Transportation Co. v. United States, 272

r 12

Environmental Defense Fund, Inc. v. EPA, 672

rr NE EN 7, 29, 34

Fleischmann Distilling Corp. v. Maier Brewing

RS Fs eens 13

Foster v. Boise- Cascade, Inc., 420 F. Supp. 674 21

ZI 13

Indian Towing Co. v. United States, 350 U.S. 61 12

Kaye v. Burns, 411 F. Supp. 89 21

Kopet v. Esquire Realty Co., 523 F. 2d 100 29

Lehman v. Nakshian, 453 U.S. 15600 12, 22

McMahon v. United States, 342 U.S. 2 11

Natural Resources Defense Council, Inc. v. EPA,

EATS SE ae 16, 23, 26, 27, 28, 37

Naturai Resources Defense Council, Inc. v. EPA,

r “Ä 0... 16-17

Naturat Resources Defense Council, Inc. v. EPA,

Ee 16

Northeross v. Memphis Board of Education, 412

AMET: DATE ⅛—— ee 25

Parham v. Southwestern Bell Telephone Co., 433

ccc 20, 29

Parker v. Mathews, 411 F. Supp. 1059 21

Peterson, Ex parte, 258 US. 300 _.... 20

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

1 EN phe I MR SN 29

Richardson v. Civil Service Commission, 420 F.

Supp. 64 21

Cases—Continued Page

Serrano v. Priest, 20 Cal. 3d 25, 569 P.2d 1303,

I - 14

Sierra Club v. Costle, 657 F.2d 298 2, 3-5, 6, 32-33, 24

Thomas v. Honeybrook Mines, Inc., 428 F.2d 981.. 29

United States v. Kubrick, 444 U.S. 111 11

United States v. Mitchell, 445 U.S. 535 11

United States v. Sherwood, 312 U.S. 544 11

United States v. Testan, 424 U.S. 3922 11

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

No. 80-827 (Jan. 12, 1982) —.......--..----.2.-ccccccccceeeees 37

Vermont Low Income Advocacy Council, Inc. v.

, ——— 21

Woodland Hills Residents Association, Ine. v. City

Council, 23 Cal. 3d 917, 593 P.2d 200, 154 Cal.

kT Ane oe ne 14

Statutes :

Civil Rights Act of 1964, 42 U.S.C. (& Supp. IV)

1981 et seq.:

Section 204 (b), 42 U.S.C. 2000a-3(b) .......... 20

Section 706 (k), 42 U.S.C. 2000e-5(k) .......... 20

Clean Air Act, 42 U.S.C. (Supp. IV) 7401 et seq.:

Section 1 (b), 42 U.S. C. (Supp. IV) 7401

r 30

Section 101 (b) (1), 42 U.S. C. (Supp. IV)

EE ELE SS: Sa. 10, 30

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

Section 304, 42 U.S.C. (Supp. IV) 7604 ..16, 17, 18,

24, 25

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

n 9, 15, 16, 17, 19, 21, 23, 25, 28

Section 307, 42 U.S.C. (Supp. IV) 7607 9, 15-16,

17, 23, 24, 25, 31

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

r 3

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

— passim

Clean Water Act, Section 506 (d). 33 U.S.C. 1365

% ˙ AA A SY Cee 28, 29

Statutes—Continued Page

Endangered Species Act of 1973, 16 U.S.C. 1540

1 23

Equal Access to Justice Act, Pub. L. No. 96-481.

F SEERA TERE See ee Owe 14

Freedom of Information Act, 5 U.S.C. 552(a) (4)

111 ²˙ A —— oC 20

Safe Drinking Water Act, 42 U.S.C. 300-8 (d) 29

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. IV) 1270 (dp) 29

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

2601 et seq.:

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

Section 7 (e) (4) (A) (i), 15 U.S. C. 2605 (e)

D 35

Section 90d), 15 U.S.C. 2618 (dd)) 29

Cal. Civil Proc. Code § 1021.5 (West 1980) 14

Miscellaneous:

122 Cong. Rec. (1976) :

(„ 29

00 29

Equal Access to Courts: Hearing on S. 2354 Be-

fore the Senate Subcomm. on Improvements in

Judicial Machinery of the Comm. on the Judi-

ciary, 95th Cong., 2d Sess. (197) 14

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) 28

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. (1977) .. 29

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

EERE 20 cae nee eee 15, 23, 25, 26

H.R. 3361, 95th Cong., Ist Sess. (1977) 35

Public Participation in Agency Proceedings: Hear-

ings on H.R. 3361 and Related Bills Before the

House Subcomm. on Administrative Law and

Governmental Relations of the Comm. on the

Judiciary, 95th Cong., Ist Sess., Pt. 2 (1977)

S. 4858, 91st Cong., 2d Sess. (1970

S. 270, 95th Cong., Ist Sess. (1977) —..................

vn

Miscellaneous Continued Page

S. 2354, 95th Cong., 2d Sess. (197) 14

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) ..18, 20,

21, 22, 31

S. Rep. No. 92-414, 92d Cong., 2d Sess. (1972) 28

S. Rep. No. 93-231, 98d Cong., Ist Sess. (1973) 29

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977).. 17, 23

In the Supreme Cuurt of the United States

OcTOBER TERM, 1982

No. 82-242

ANN M. GoRSUCH, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

V.

SIERRA CLUB and ENVIRONMENTAL DEFENSE FUND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals Pet. App. la-

20a) holding the Administrator liable for attorneys’

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

of the court of appeals (Pet. App. 23a-38a) deter-

mining the amount of attorneys’ fees and costs to be

awarded respondents is reported at 684 F.2d 972.

JURISDICTION

The judgment order of the court of appeals (Pet.

App. 39a-40a) was entered on July 16, 1982. The pe-

tition was filed on August 11, 1982, and granted on

October 18, 1982. The jurisdiction of this Court rests

on 28 U.S.C. 1254(1).

(1)

STATUTE INVOLVED

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

(Supp. IV) 7607(f), provides in pertinent part as

follows:

In any judicial proceeding under this section,

the court may award costs of litigation (includ-

ing reasonable attorney and expert witness fees)

whenever it determines that such award is ap-

propriate.

STATEMENT

Following a totally unsuccessful challenge to regu-

lations promulgated by the Environmental Protection

Agency (EPA), respondents Sierra Club and En-

vironmental Defense Fund (EDF) sought an award of

attorneys’ fees and costs against the government

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

(Supp. IV) 7607(f). Notwithstanding respondents’

failure to prevail on a single issue, the court of ap-

peals ruled that they were entitled to fees and costs.

Before discussing the court’s ruling on attorneys’

fees, we briefly describe the underlying merits liti-

gation.

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

(Supp. IV) 7411, requires EPA to set performance

standards limiting emissions from new or modified

air pollution sources that reasonably may be antici-

pated to endanger public health or welfare. In 1979,

EPA promulgated revised new source performance

standards for coal-fired generators capable of firing

more than 250 million British thermal units (MBtu)

per hour.“ The performance standard limited sulfur

A complete history of the rulemaking is set forth in the

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

F.2d 298 (D.C. Cir. 1981), and need not be repeated here. As

dioxide (SO.) emissions to a maximum of 1.2 pounds

per MBtu. In addition, powerplants with potential,

i. e., uncontrolled, SO. emissions of greater than 0.60

pounds per MBtu were required to reduce such emis-

sions by 90% ; powerplants with potential emissions

of less than 0.60 pounds of SO. per MBtu were re-

quired to reduce them by no less than 70%.

The Sierra Club, EDF, and industry organizations

filed petitions in the United States Court of Appeals

for the District of Columbia Circuit for review of the

new source performance standards.“ Sierra Club

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

EPA lacked statutory authority to adopt a “variable”

standard for SO. emissions, i.e., a standard that al-

lowed percentage reductions in emissions ranging

from 70% to 90% (Sierra Club v. Costle, 657 F.2d

298, 316 (D.C. Cir. 1981); (2) that EPA’s standard

was not supported by the rulemaking record (id. at

316-317); and (3) that EPA failed adequately to

apprise the public ol its intention to adopt a variable

reduction strategy, thereby depriving the public of a

fair opportunity to comment on the adoption of a

described by the court of appeals, the final new source per-

formance standards regulated emissions of sulfur dioxide, par-

ticulate matter, and nitrogen oxides. Respondents, however,

challenged only certain features of the sulfur dioxide stan-

dard. Accordingly, we confine our description of the merits

litigation to that aspect of the new source performance stan-

dards.

* Jurisdiction in the court of appeals was properly predi-

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

(Supp. IV) 7607 (b) (1), which provides that judicial review

of many of the Administrator’s actions, including the promul-

gation of new source performance standards, may be had only

in the United States Court of Appeals for the District of

Columbia Circuit.

4

variable standard in the final rule (id. at 317-318).

EDF challenged the performance standards on only

one ground—the alleged procedural impropriety of

“ex parte contacts.” EDF asserted that a more strin-

gent ceiling was attainable and would have been

adopted but for an “ex parte blitz” on EPA after the

close of the comment period, during which EPA was

pressured not to adopt a more stringent standard

(id. at 386).

On April 29, 1981, the court of appeals rendered

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

657 F.2d 298, 298. The court rejected all of Sierra

Club’s claims. First, it concluded that EPA had

ample statutory authority to adopt a variable stand-

ard (657 F.2d at 318-322). Second, it rejected Sierra

Club’s charge that the variable standard was without

basis in the record. After reviewing the technical

background for the standard, the factors considered

by EPA in adopting the standard, and examining the

Agency’s stated rationale, the court held that EPA’s

action was reasonable (id. at 322-352). Finally, the

court rebuffed Sierra Club’s claim that EPA’s adop-

tion of a variable standard was procedurally defective.

The court found that the public in general and Sierra

Club in particular had fair notice of and opportunity

to comment on the Agency’s intention to adopt a vari-

able standard (id. at 353-356).

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

arated the allegedly improper ex parte contacts into

two categories for analytical purposes: (1) written

comments submitted after the close of the comment

period; and (2) meetings after the close of the com-

ment period with the President and heads of other

Executive Branch agencies, congressional representa-

tives, and private parties (657 F.2d at 386-387).

With respect to written comments received after the

close of the comment period, the court held that noth-

ing on the face of the Clean Air Act prohibited the

Agency from receiving and considering such mate-

rials as long as they were placed in the Agency’s rule-

making docket, and that all such materials had in

fact been properly docketed in this case (id. at 397-

400).

With respect to the meetings, the court again noted

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

court thought that such meetings were desirable given

the importance of openness and accessibility on the

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

court further noted that summaries of seven of the

nine contested meetings had been placed in the rule-

making docket, and held that this fully satisfied all

statutory and due process requirements (id. at 386-

410). A summary of one of the remaining two meet-

ings was omitted from the docket through inadver-

tence. The court found that this was an honest error

ing docket (id. at 404). The final meeting included

the President and members of the White House staff.

The court expressly recognized the President’s consti-

policymaking and was hesitant to fashion any new

rule that would impair the President’s ability to ful-

fill this role (id. at 405-407). In this particular in-

the court found that because EPA did not

6

Finally, the court noted that it could find no evi-

dence of impermissible congressional pressure on EPA

arising out of two meetings (both entered on the rule-

making docket) that the Administrator had with West

Virginia Senator Robert Byrd. EDF’s claim was re-

jected because it failed to present any evidence that

Senator Byrd had sought to influence the rulemaking

by injecting extraneous considerations into the Agen-

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

2. After losing every issue on the merits, Sierra

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

Clean Air Act, filed motions seeking awards of at-

torneys’ fees and costs. Although settlement discus-

sions were initiated between respondents and the Jus-

tice Department lawyer then assigned to the litiga-

tion, no agreement was ever consummated because

the Assistant Attorney General in charge of the mat-

ter declined to approve settlement. Thereafter, the

fee requests were fully briefed by respondents and

the government. Sierra Club and EDF both argued

that an award of fees and costs was “appropriate” be-

cause they had conferred certain “public benefits” by

bringing their unsuccessful lawsuits. Specifically,

tion of the ex parte contacts issue had clarified the

7

On February 5, 1982, the court of appeals issued

an opinion rejecting all the government's arguments

in opposition to the motions for fees (Pet. App. la-

20a)“ After examining the text of Section 307 (f)

and its legislative history, the court coneluded that

an award of fees was appropriate“ where the party

seeking fees had ‘substantially contributed’ ” to the

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

whether or not the litigation was actually successful.

The court further concluded that the “express” goals

of the Clean Air Act included “prompt resolution of

serious questions of statutory interpretation” (id. at

18a). A litigant could satisfy this goal, the court

ruled, by making “exemplary” presentations on “im-

portant, complex and novel” issues (id. at 12a-13a;

18a-19a).

The court then suggested that the parties resume

their negotiations over the proper amount of fees to

be awarded, and ordered a status report on the nego-

tiations within three months. In May 1982, the par-

ties advised the court that their negotiations had been

unsuccessful. Thereafter, Sierra Club and EDF filed

amended fee requests encompassing their work on the

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

That opinion was later withdrawn and a substitute opinion

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

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

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

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

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

79-1580. The principal differences between the January and

February opinions were that the February 5 opinion added a

footnote responding to Judge Wilkey’s dissent in Alabama

Power Co., supra, 672 F.2d at 8-33, and deleted a passage cau-

tioning that the amount of an award to “self-appointed repre-

sentatives of the public interest” should be closely scrutinized.

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

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

opinion (Pet. App. 23a-38a), in which a majority of

the panel determined that Sierra Club was entitled

to an award of $44,715 in fees and $644.60 in ex-

penses, and that EDF was entitled to an award of

$45,874.80 in fees. Although the court made modest

reductions in the number of compensable hours

claimed by respondents, the majority awarded fees

at the hourly rates respondents had requested and re-

jected the government’s argument that the awards

should be reduced to reflect respondents’ total lack of

success on the merits (Pet. App. 26a-30a, 32a-35a).

The majority stated that any such reduction could not

be squared with “the Clean Air Act’s overriding pur-

pose of encouraging constructive legal challenges

* * *” (id. at 30a). The court did, however, agree

with the government that because of their failure to

prevail respondents were not entitled to any “bonus”

in addition to their “lodestar” fees (determined by

multiplying the hours reasonably expended by a rea-

sonable hourly rate) (id. at 30a-3la). Judge Robb

dissented in part, asserting that a reduction in re-

spondents’ lodestar fees was “appropriate” because

respondents had “batted zero” and “[i]f counsel were

private practitioners their clients might well com-

plain that they could have lost the case for less

money” (id. at 36a-37a).

SUMMARY OF ARGUMENT

1. By awarding attorneys’ fees to parties who suc-

ceeded only in “airing” issues that EPA had already

properly resolved, the court of appeals’ — anges

extends far beyond any of the recognized equitable or

statutory exceptions to that rule. When examined in

light of Congress’ customary practices with respect to

attorneys’ fees, it is clear that Section 307(f) does

not, on its face, contain the requisite waiver of sov-

ereign immunity required to support a fee award to

totally unsuccessful litigants. For this reason alone,

the court’s interpretation of the statute must be re-

versed.

2. Moreover, exam ination of the legislative history

only confirms that the court of appeals has far ex-

ceeded the limited waiver of sovereign immunity in-

tended by Congress. The statutory provision at issue

in this case, enacted in 1977 as Section 307(f) of the

Clean Air Act (42 U.S.C. (Supp. IV) 7607), is

modeled on the identical provision contained in Sec-

tion 304(d) of the 1970 Clean Air Act, now recodi-

fied at 42 U.S.C. (Supp. IV) 7604(d). The legisla-

tive history of that section reveals that Congress

authorized courts to award attorneys’ fees when “ap-

propriate” so that fees would be available to a plain-

tiff who succeeded in correcting a violation of the

Act but did not obtain a final judgment. Because

the then-existing caselaw interpreting “prevailing

party” attorneys’ fee provisions would not have per-

mitted an award in such circumstances, Congress

found it necessary to substitute the “appropriate”

standard for the more customary “prevailing party”

terminology. But nothing in the legislative history

of the 1970 Act indicates that Congress anticipated

or intended that fees would be available to parties

that were not successful in any way.

In 1977, Congress added the “appropriate” attor-

neys’ fee standard to Section 307 simply to bring that

section into harmony with Section 304. But, notwith-

standing Congress’ obvious desire for uniformity, the

10

court of appeals concluded that Congress in 1977 in-

tended to adopt the “far broader policy” (Pet. App.

4a-5a n.3) of rewarding substantial contributions to

the goals of the statute, without regard to whether

the litigation was in any way successful. The court’s

conclusion thus has the anomalous effect of creating

two entirely different standards for attorneys’ fee

awards in the same statute, even though the language

of the two provisions is identical. Equally important,

the evidence cited by the court of appeals for its novel

conclusion can hardly be characterized as “unequivo-

cal.” Instead, the court’s decision rests entirely on a

strained reading of ambiguous legislative history that

is plainly insufficient to support the novel result

reached.

3. The court of appeals justified its award of at-

torneys’ fees to the Sierra Club and EDF on the

ground that, although they did not succeed in correct-

ing or improving EPA’s implementation of the Clean

Air Act in any way, they had “substantially con-

tributed” to judicial interpretation of the statute. Al-

though the court had affirmed EPA’s interpretation

of the statute in every respect, it held that judicial

review was, in itself, an “express” goal of the Clean

Air Act, and that by furthering that goal respond-

ents had earned an award of attorneys’ fees. Yet the

only “express” goal of the Clean Air Act that is con-

ceivably relevant to this case is the mandate “to pro-

tect and enhance the quality of the Nation’s air re-

sources (42 U.S.C. (Supp. IV) 7401(b)(1)).

Quite clearly, respondents’ unsuccessful litigation did

nothing to promote that goal. And there is nothing

in the statute or its legislative history to support the

conclusion that Congress meant to fund litigation for

its own sake. On the contrary, proposals for public

interest funding considered by Congress contempo-

11

raneously with passage of Section 307 (f) of the Clean

Air Act clearly demonstrate that Congress thought

the award of attorneys’ fees to totally unsuccessful

litigants would be “inappropriate.”

ARGUMENT

I

SECTION 307(f) OF THE CLEAN AIR ACT DOES

NOT, ON ITS FACE, CONTAIN THE REQUISITE

WAIVER OF SOVEREIGN IMMUNITY TO SUPPORT

AN AWARD OF ATTORNEYS’ FEES TO LOSING

LITIGANTS

In applying Section 307(f) to this case, the court

of appeals ignored the doctrine of sovereign im-

munity. That doctrine requires that Section 307(f)

be strictly construed in the government’s favor.

As sovereign, the United States is immune from

claims for attorneys’ fees, as it is immune from any

other claims, except to the extent that it has waived

its immunity. Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240, 267-268 & n.42 (1975);

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

The Court has emphasized that such a waiver “can-

not be implied but must be ‘unequivocally expressed.

Army d Air Force Exchange Service v. Sheehan,

No. 80-1437 (June 1, 1982), slip op. 6, quoting

Testan, supra; United States v. Mitchell, 445 U.S.

535, 538 (1980).

Where Congress has waived sovereign immunity,

its waiver is to be “construed strictly in favor of the

sovereign.” McMahon v. United States, 342 U.S. 25,

27 (1951); United States v. Kubrick, 444 U.S. 111,

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

584, 590 (1941). Thus, in interpreting a statute that

waives the immunity of the United States, the courts

12

should not “enlarge its liability * * * bevond what the

language requires.” Eastern Transportation Co. v.

United States, 272 U.S. 675, 686 (1927). Strict con-

struction conserves the public fise and limits recovery

to those situations in which it may confidently be con-

cluded that Congress has determined that the govern-

ment should be liable. See, e.g., Indian Towing Co. v.

United States, 350 U.S. 61, 68-69 (1955).

The question in this case, therefore, is whether Con-

gress, in authorizing attorneys’ fee awards when “ap-

propriate,” clearly provided for fee awards to totally

unsuccessful litigants. In examining the plain lan-

guage of the statute, moreover, the context and back-

ground against which the term was chosen must be

considered. As this Court concluded in Lehman v.

Nakshian, 453 U.S. 156, 161-162, 168-169 (1981), in-

terpretation of terms used in waivers of sovereign im-

munity must be informed by the usual practices of

Congress.

In Lehman, the question presented was whether a

congressional waiver of immunity authorizing “legal”

relief against the United States included the right to

trial by jury. This Court acknowledged that, in other

contexts, a statutory provision for “legal” relief may

encompass a right to a jury trial. 453 U.S. at 163.

But, when viewed in the context of a waiver of sov-

ereign immunity which historically is almost always

accompanied by denial of the right to a jury trial, the

use of the term “legal” did not convey the requisite

express consent to jury trials. Jd. at 161, 162. When

the asserted waiver of sovereign immunity represents

a radical departure from the usual practice of Con-

gress, therefore, “[t]he appropriate inquiry * * * is

whether Congress clearly and unequivocally” intended

the change. Id. at 162.

13

This rule counsels special caution in reviewing the

court of appeals’ decision in this case. In general, at-

torneys’ fees are not available to parties that do not

prevail on any claim.* Indeed, the traditional Amer-

ican Rule “has long been that attorney’s fees are not

ordinarily recoverable” even by prevailing parties.

Fleischmann Distilling Corp. v. Maier Brewing Co.,

386 U.S. 714, 717-718 (1967). This practice has fre-

quently been contrasted to the rule in England, where

the prevailing party, plaintiff or defendant, custom-

arily recovers attorneys’ fees. Id. at 717 & n.10.

Over the years, the courts have developed certain

limited exceptions to the American Rule, permitting,

for example, a fee award “to a successful party when

his opponent has acted ‘in bad faith, vexatiously, wan-

tonly, or for oppressive reasons’” (Hall v. Cole, 412

U.S. 1, 5 (1973) (citations omitted) ), or to spread

the cost of “successful litigation” proportionately

among the members of a benefitted class (id. at 5-6).

In addition, as this Court noted in Alyeska Pipeline

Service Co., supra, 421 U.S. at 260, Congress has

made “specific and explicit provisions for the al-

lowance of attorneys’ fees under selected statutes

* Cf. Alyeska Pipeline Service Co., supra, 421 U.S. at 247;

Hall v. Cole, 412 U.S. 1, 4-7 (1978); Delaware Citizens for

Clean Air, Inc. v. Stauffer Chemical Co., 62 F. R. D. 353, 354-

355 (D. Del. 1974), aff'd, 510 F.2d 969 (3d Cir. 1975). As

Judge Wilkey stated in his dissenting opinior in Alabama

Power Co. v. Gorsuch, 672 F.2d 1, 13 (D.C. Cir. 1982), peti-

tion for rehearing pending, No. 78-1006:

All precedent and statute points to the fair conclusion

that there is a general presumption against one side (par-

ticularly the winner) paying the other’s attorneys’ fees.

Thus, when in doubt, no award will be made. Dramatic

deviations from the American rule will be construed

against. Similarly, there is a presumption that non-

prevailing parties are not entitled to costs.

14

** **”* Such statutes, however, generally address

the concept of “fee-shifting” as it has always been

understood, that is, transferring the burden of litiga-

tion costs from the successful party to the losing liti-

gant. See id. at 261-263. Although these statutes

“differ considerably among themselves” (id. at 261),

the court of appeals in this case did not cite, and

we have not found, any previous case, interpreting

any of these statutes, in which attorneys’ fees were

awarded to a party that did not succeed in any way.“

Thus, the meaning of the term “appropriate” must

be determined against the background of the Ameri-

can Rule and the various equitable and statutory ex-

ceptions which permit the burden of fees to be shifted

to the losing party. Here, it is undeniable tit,

5 Contrary to the federal rule established in Alyeska, 421

U.S. at 263, 269, the California courts have awarded fees to

“private-attorney[s]-general” deemed by the courts to have

accomplished a public service. See, e.g., Serrano v. Priest, 20

Cal. 3d 25, 569 P.2d 1303, 141 Cal. Rptr. 315 (1977). This

judicially created doctrine has now been codified in California.

Cal. Civ. Proc. Code § 1021.5 (West 1980); see Woodland

Hills Residents Association, Inc. v. City Council, 23 Cal. 3d

917, 598 P.2d 200, 154 Cal. Rptr. 503 (1979). The threshold

requirement for such awards, however, is and always has been

success on the merits.

* Indeed, an early version of the bill that was to become the

Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325,

contained an explicit provision authorizing losing litigants to

collect attorneys’ fees from the government so long as the

court found such awards to be “in the interest of justice.”

S. 2354, 95th Cong., 2d Sess. (1978). This provision was

deemed a “radical” and “unacceptable” departure from cur-

rent law (Equal Access to Courts: Hearing on S. 2354 Before

the Senate Subcomm. on Improvements in Judicial Machinery

of the Comm. on the Judiciary, 95th Cong., 2d Sess. 31

(1978) ), and was eliminated from the bill prior to the hearing

(id. at 50).

15

through Section 307(f), Congress has authorized

some attorneys’ fee awards against the government.

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

(1977) (“In adopting this provision concerning fees,

the committee intended to meet the requirement for

specific authorization imposed by 28 U.S.C. sec. 2412

and by the Supreme Court’s ruling in Alyeska

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

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

does not mean that it has consented to awards for

totally unsuccessful parties. Clearly, the language of

Section 307(f) does not on its face specify that at-

torneys’ fees may be assessed against the government

in favor of losing litigants. Indeed, it seems most un-

likely that such a radical departure from the Ameri-

can Rule against fee-shifting could have passed Con-

gress with nary a mention, let alone a clear exposi-

tion of Congress’ intent. And the legislative history

of Section 307(f), to which we now turn, does not

support the construction placed on the term “appro-

priate” by the court of appeals.

THE LEGISLATIVE HISTORY OF SECTION 307(f)

SHOWS THAT CONGRESS INTENDED SOME MEAS-

URE OF TANGIBLE SUCCESS AS A THRESHOLD

REQUIREMENT FOR AN AWARD OF ATTORNEYS’

FEES

Although it was not until 1977 that Congress pro-

vided for attorneys’ fees in actions under Section 307,

Congress first formulated the “appropriate” standard

in Section 304(d) of the 1970 amendments to the

Clean Air Act, 42 U.S.C. (Supp. IV) 7604(d). The

events leading to the 1977 amendment to Section 307,

and the legislative history of that amendment, dem-

16

onstrate that Congress simply intended to provide for

Section 307 litigants the same entitlement to attor-

neys’ fees that it had provided for Section 304 liti-

gants in the 1970 Act. The legislative history of the

1970 Act, therefore, is critical to a proper under-

standing of Congress’ intent.

In 1970, Congress provided for the award of attor-

neys’ fees, when “appropriate,” in citizens’ suits to

enforce the Act, brought under Section 304. Congress

did not provide, however, for awards of attorneys’ fees

in actions brought under Section 307, which authorizes

direct review in the courts of appeals of the Admin-

istrator’s actions in promulgating regulations and ap-

proving state implementation plans. In Natural Re-

sources Defense Council, Inc. v. EPA, 484 F.2d 1331

(1973), the First Circuit relied upon Section 304(d)

to award attorneys’ fees in an action brought under

Section 307.“ This extension of Section 304(d) was

subsequently rejected by the Courts of Appeals for the

Fifth and District of Columbia Circuits. Natural Re-

sources Defense Council, Inc. v. EPA, 539 F.2d 1068

(5th Cir. 1976) ; Natural Resources Defense Council,

™ The court found that that portion of Section 304 permit-

ting suits against the Administrator for failure to perform a

nondiscretionary duty would aptly cover the case before it,

where the essence of the claim was that the Administrator

failed to perform his duty with respect to the review and ap-

proval of state implementation plans. The court’s problem,

however, was that Section 304 citizens’ suits may only be

brought in district courts, whereas the case before the court

had to be filed in the court of appeals under Section 307. The

court concluded that Section 307 did no more than specify the

forum, and that a suit brought under Section 307 was really

an action pursuant to Section 304. Accordingly, the court

concluded that Congress had given the necessary authoriza-

tion for an award of attorneys’ fees in actions brought under

Section 307. 484 F. ad at 1335-1338.

17

Inc. v. EPA, 512 F.2d 1351 (D.C. Cir. 1975).* It was

to overcome these latter rulings that Congress amended

Section 307 in 1977, adding express authorization for

the award of attorneys’ fees in cases brought under

that section whenever, as under Section 304(d), the

court deemed such awards to be “appropriate.” As

the Senate Report explained (S. Rep. No. 95-127, 95th

Cong., Ist Sess. 99 (1977)):

The purpose of the amendment to section 307

is to carry out the intent of the committee in

1970 that a court may, in its discretion, award

costs of litigation to a party bringing a suit under

section 307 of the Clean Air Act.

The law has been interpreted otherwise. Sec-

tion 304 of the Clean Air Act specifically autho-

rizes courts to award costs; however, section 307

did not contain a specific authorization. Courts

have construed the absence of such authorization

in section 307 to indicate congressional intent to

prohibit a discretionary award of fees in section

307 suits.

It is thus clear that the purpose of the 1977

amendment to Section 307 was to conform that sec-

tion to Section 304(d). The Court must therefore look

to the history of Section 304(d) to determine the in-

tended scope of the “appropriate” standard.

A. The 1970 Legislative History

In the 1970 Act, Congress authorized courts to

award attorneys’ fees in “appropriate” cases under

Section 304(d), 42 U.S.C. (Supp. IV) 7604(d)—the

Those cours concluded that Sections 304 and 307 contem-

plated distinct groups of cases and that Section 304’s attor-

neys’ fee provision could not be engrafted onto Section 307

actions.

so-called citizens’ suit provision of the Act. Section

304 allows citizens to bring enforcement actions di-

rectly against persons or entities alleged to be in vio-

lation of the Act or against the EPA Administrator

for failure to perform a nondiscretionary duty. Its

purpose was to supplement government enforcement

efforts and motivate government agencies to take more

vigorous enforcement actions themselves.

Through Section 304, Congress sought to enlist the

aid of citizens in those situations where the govern-

ment was not living up to its responsibilities.’ It is

against this backdrop that the Senate Report’s expla-

nation of the attorneys’ fee provision in Section 304

(d) must be evaluated (S. Rep. No. 91-1196, 91st

Cong., 2d Sess. 38 (1970) (emphasis added) :

Concern was expressed that some lawyers

would use section 304 to bring frivolous and har-

assing actions. The Committee has added a key

element in providing that the courts may award

costs of litigation, including reasonable attorney

and expert witness fees, whenever the court de-

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

36-37, 38-39 (1970) :

19

termines that such action is in the public inter-

est.. The court could thus award costs of liti-

gation to defendants where the litigation was ob-

vi frivolous or harassing. This should have

the effect of discouraging abuse of this provi-

sion, while at the same time encouraging the

quality of the actions that will be brought.

The Courts should recognize that in bringing

legitimate actions under this section citizens

would be performing a public service and in such

instances the courts should award costs of litiga-

tion to such party. This should extend to plain-

tiffs in actions which result in successful abate-

ment but do not reach a verdict. For instance, if

as a result of a citizen proceeding and before a

verdict is issued, a defendant abated a violation,

the court may award litigation expenses borne by

the plaintiffs in prosecuting such actions.

In providing for attorneys’ fees, Congress was thus

focusing on two concerns. First, Congress wanted to

protect defendants against the burden of frivolous

lawsuits." Second, Congress wanted to reward legiti-

mate citizens’ suits. In this case, the court of appeals

apparently read “legitimate” to mean “important,

complex and novel” (Pet. App. 13a). But it is clear

0 The Senate Report was discussing an earlier version of

Section £04(d) that provided for attorneys’ fee awards when

the court determined that such an award would be in the

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

The bill was later changed to authorize fees where “appropri-

ate.” There is no legislative history, however, to suggest that

Congress meant anything substantive by the change.

u Thus, the first concern the “appropriate” standard was

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

case. Far from authorizing fees in favor of unsuccessful

plaintiffs, the statute was designed to provide fees for success-

ful defendants.

from a careful reading of the entire passage that

“legitimate” can only have meant successful, for the

next sentence of the report states that fee awards

should “extend to plaintiffs in actions which result in

successful abatement but do not reach a verdict” (S.

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

If a “legitimate” action need only be one that unsuc-

cessfully resolves novel questions, then quite clearly

it would not be an “extension” to authorize fee awards

to plaintiffs who accomplish a tangible pollution con-

trol benefit short of judgment.

In adop the “appropriate” standard, Congress

departed from the “prevailing party” and “substan-

tially prevailing party” terminology it had used in

other attorneys’ fee provisions. Although the court

of appeals read this departure as proof that a litigant

pretation. When —— formulated the —

ate” standard in 1970, attorneys’ fees were awarded

only to parties that had actually prevailed in court.

See, e.g., Ex parte Peterson, 253 U.S. 300, 317-318

(1920) ; Parham v. Southwestern Bell Telephone Co.,

433 F.2d 421, 430 (8th Cir. 1970) ; Best Medium Pub-

lishing Co. v. National Insider, Inc., 385 F. 2d 384, 386

(7th Cir. 1967).“ But in obviating the need for a

12 See, e.g., Civil Rights Act of 1964, 42 U.S.C. 2000a-3(b)

(“prevailing party”); 42 U.S.C. 2000e5(k) (“prevailing

party”); Freedom of Information Act, 5 U.S.C. 552(a) (4)

(E) (“substantially prevail[ing)” party).

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

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

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

21

plaintiff to “prevail” in the strictly technical sense

of obtaining a judgment, Congress clearly retained

some measure of success as the basis for an attor-

neys’ fee award—a party still had to “win” in the

sense of producing the desired result, albeit without a

verdict. As Judge Wilkey put it in his dissent in

Alabama Power Co. v. Gorsuch, 672 F.2d 1, 15, 19

(D.C. Cir. 1982), petition for rehearing pending, No.

78-1006, to be awarded attorneys’ fees a party must

at least not lose. A fair reading of the Senate Report

thus demonstrates that “abatement without final judg-

ment” represents the limits of a court’s discretion to

award fees to non-prevailing plaintiffs.“

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

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

sion, 420 F. Supp. 64 (S.D.N.Y. 1976); Parker v. Mathews,

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

Chemical Corp., 409 F. Supp. (E.D. Va. 1976). And it

was not until 1976 that the courts awarded attorneys’ fees to

FOIA plaintiffs who “prevailed” or “substantially prevailed”

simply because the government rendered their cases moot by

releasing the documents in question. See, e.g., Cuneo v. Rums-

feld, 553 F.2d 1360 (D.C. Cir. 1977); Vermont Low Income

Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976);

American Federation of Government Employees v. Rosen, 418

F. Supp. 205 (N. D. Ill. 1976) ; Kaye v. Burns, 411 F. Supp. 897

(S.D.N.Y. 1976). Thus, in 1970, Congress had to abandon the

“prevailing party” and “substantially prevailing party” stand-

ards to ensure that attorneys’ fees would “extend to plaintiffs

in actions which result in successful abatement but do not

reach a verdict.” S. Rep. No. 91-1196, supra, at 38.

™ The report states that fee awards under Section 304(d)

fee award is proper when a litigant merely raises novel but

unsuccessful contentions (S. Rep. No. 91-1196, supra, at 38).

The summary “section-by-section” analysis of the Senate Re-

Although the court of appeals recognized the limits

of the language in the Senate Report, it nevertheless

stated that it did “not read the Report as ruling out

all other instances where attorneys’ fees would be ap-

propriate” (Pet. App. 4a n.3). Against the backdrop

of sovereign immunity that should have informed the

court’s approach, however, it was not necessary for

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

Congress must clearly and affirmatively “rule in”

those situations in which it meant to authorize fee

awards.” At least as of 1970, therefore, there is no

support for the lower court’s expansive reading of the

“appropriate” attorneys’ fee provision.

B. The 1977 Legislative History

As already explained, when, in 1977, Congress pro-

vided for attorneys’ fees whenever “appropriate”

under Section 307(f), its purpose was to conform

port, however, states that a “court may award costs of litiga-

tion to either party whenever the court determines such an

award is in the public interest without regard to the outcome

of the litigation.” S. Rep. No. 91-1196, supra, at 65. There is

no elaboration on the meaning of “without regard to the

outcome of the litigation” but, in light of the more complete

explanation of congressional intent at page 38 of the Senate

Report, there is no reason to believe that Congress intended

any radical departure from the concept of awards to plaintiffs

who accomplished something concrete, such as abatement of

a pollution violation, yet failed to secure a favorable final

judgment.

The court of appeals thus used precisely the same type of

legal analysis rejected by this Court in Lehman, supra. There,

the Court held that the district court had erroneously relied

on the absence of an “explicit refusal” by Congress to author-

ize jury trials in suits against the government. Lehman,

supra, 453 U.S. at 159.

Section 307 to the standard established in Section

304(d) in 1970. S. Rep. No. 95-127, 95th Cong., Ist

Sess. 99 (1977). Ignoring this legislative history,

however, the court of appeals held that the 1977

amendment established a new and “far broader”

standard for attorneys’ fee awards (Pet. App. 4a

n.3). To reach this conclusion, the court relied en-

tirely on the 1977 House Report (H.R. Rep. No. 95-

294, 95th Cong., Ist Sess. (1977)).“ That report

provides, in pertinent part (id. at 337):

1% In a footnote, the court pointed to two other portions of

the 1977 legislative history to support its conclusion: the

Senate’s rejection of 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“; and a Senate

Committee staff analysis that asked whether it was necessary

to “modify existing judicial practice” (Pet. App. 5a n.3).

The “prevailing party” proposal considered by the Senate

was inflexible: it would have required an award of fees to

whatever party prevailed, without regard to whether that

party had furthered or frustrated the goals of the Act. Com-

pare Carpenter v. Andrus, 499 F. Supp. 976, 978-979 (D. Del.

1980) (denying attorneys’ fees to a successful plaintiff under

the Endangered Species Act’s “whenever * * * appropriate”

provision, 16 U.S.C. 1540(g) (4), because the suit failed to

“advance the statutory purpose”). The Senate’s rejection of

this proposal thus sheds little light on the proper interpreta-

tion of the provision ultimately adopted.

The Senate’s apparent conclusion that “existing judicial

practice” did not need to be “modified” also does not support

the court’s interpretation of Section 307(f). For, when Con-

gress adopted Section 307 (f), no court had ever awarded fees

to a party that did not succeed in any way. See Natural

Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (Ist

Cir. 1978) (petitioners had prevailed on most issues) ;

Citizens Association of Georgetown v. Washington, 383 F.

Supp. 136 (D.D.C. 1974), rev’d on other grounds, 535 F.2d

1318 (D.C. Cir. 1976) (district court awarded fees because

The committee bill also contains express au-

thority for the courts to award attorneys fees

and expert witness fees in two situations.* The

judicial review proceedings under section 307 of

the act when the court determines such award is

appropriate [sic].

In the case of section 307 judicial review liti-

gation, the purposes of the authority to award

fees are not only to discourage frivolous litiga-

tion, but also to encourage litigation which will

assure proper implementation and administra-

tion of the act or otherwise serve the public in-

terest. The committee did not intend that the

court’s discretion to award fees under this pro-

vision should be restricted to cases in which the

party seeking fees was the “prevailing party.”

In fact, such an amendment was expressly re-

jected by the committee, largely on the grounds

set forth in NRDC v. EPA, 484 F.2d 1331, 1388

[sic] (1st Cir. 1973).

* Such fees are already authorized to be awarded in

suits brought under Section 304 of the Act.

The court of appeals believed this language “shows

that Congress in 1977 specifically adopted the far

broader policy of rewarding substantial contributions

to the statutory goals of the Act” (Pet. App. 4a-5a

n.3). The initial paragraph of this excerpt, however,

like the 1977 Senate Report, simply demonstrates an

intent to make Section 307 parallel the existing at-

plaintiffs were denied relief largely due to the city’s failure

to implement the statute, and the lawsuit was thus a necessary

and helpful effort to galvanize the city to action). Indeed,

the courts had expressly refused to award fees to parties that

had not achieved any measure of 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. 197F).

25

torneys’ fee provision in Section 304(d). The court’s

conclusion that the 1977 amendments expanded the

scope of the “appropriate” standard must therefore

depend on the second paragraph, and that paragraph

offers little support.

To be sure, the second paragraph limits itself to

actions under Section 307, and does not mention Sec-

tion 304 actions. This was, of course, quite natural,

since Section 304 was left untouched. Yet, to con-

clude that this passage demonstrates an intent to ex-

pand the “appropriate” standard, one must find that,

although it used the same terms, Congress meant to

establish a different standard for Section 307 than it

had established in Section 304. On its face, such a re-

sult seems irrational and, indeed, it cannot be

squared with the Senate Committee’s explicit intent

to bring Section 307 into harmony with Section 304.

Cf. Northeross v. Memphis Board of Education, 412

U.S. 427 (1973).

But besides this anomaly in the court's reasoning,

the House Committee's language does not support the

conclusion that Congress sought to establish a “far

broader policy” for the award of attorneys’ fees under

Section 307. The House Report explains that attor-

neys’ fees are authorized “to encourage litigation

which will assure proper implementation and admin-

istration of the act * * *.” H.R. Rep. No. 95-294,

supra, at 337. But this phrase does not indicate that

Congress intended that unsuccessful litigation could

support an award of fees. Nor does the Committee’s

language suggest that the mere “airing” of new is-

sues serves the public interest. To the contrary, liti-

gation that promotes “proper implementation of the

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

contemplated by Congress in 1970 (see pages 19-20,

supra).

26

The lower court’s expansive reading of the “ap-

propriate” standard must thus rest upon the House

Committee’s explanation that it had rejected a “ ‘pre-

vailing party’” standard “largely on the grounds set

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

(Ist Cir. 1973).” H.R. Rep. No. 95-294, supra, at

337. In NRDC v. EPA, the First Circuit addressed a

very narrow question—should it award any fees to pe-

titioners who had prevailed on most but not all of the

claims they had raised. In resolving this issue in

1973, the court of necessity had to rely on the legis-

lative history of Section 304(d) which, as we have

noted, contemplated awards only to successful plain-

tiffs or to plaintiffs who accomplished something con-

crete short of judgment. Against this backdrop, the

court stated (484 F.2d at 1338) (emphasis added):

We are not impressed by the government’s ar-

gument that because some issues were decided

adversely to petitioners each party should bear its

own costs. * * * We are at liberty to consider

not merely “who won” but what benefits were

conferred. The purpose of an award of costs and

fees is not mainly punitive. It is to allocate the

costs of litigation equitably, to encourage the

achievement of statutory goals. When the gov-

ernment 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

complex. Given the implementation dates, its

early interpretation is desirable. It is our im-

pression, overall, that petitioners, in their watch-

dog 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

petitioners. In such cases, indeed, we reserve the

27

right to award costs and fees in favor of the

EPA. But the challenges here, even those not

sustained, were mainly constructive and reason-

able. And petitioners were successful in several

major respects; they should not be peralized for

having also advanced some points of lesser

weight.

On its face, the First Circuit’s opinion is far nar-

rower than the court of appeals here suggested.

NRDC won major portions of its case; nothing in the

First Circuit’s opinion suggests that fees would still

have been awarded had NRDC failed to prevail on a

single issue. The court’s dictum about petitioners’ use-

ful “watchdog” role cannot be considered in isola-

tion; rather, it must be examined in light of the gov-

ernment’s contention that because NRDC lost some

issues it should be denied any fee award. 484 F.2d

at 1338. Only in this limited sense can the First Cir-

cuit be said to have rejected a “prevailing party”

standard,” and there is nothing in the 1977 House

Report’s citation to NRDC v. EPA that suggests it

meant to go beyond that holding. At the least, neither

the House Report nor the First Circuit’s opinion it-

self supports the conclusion that Congress meant to

fund “watchdogs” when they raise a false alarm.

In its application of the “appropriate” standard

to this case, the court of appeals seemed to rely pri-

marily on the First Cireuit's suggestion that [wie

are at liberty to consider not merely ‘who won’ but

what benefits were conferred. The purpose of an

award of costs and fees is * * * to encourage the

* At the time of the First Circuit’s limited rejection of a

“prevailing party” standard, that standard was still being

narrowly construed by the courts. See pages 20-21 & note 13,

supra.

achievement of statutory goals.” NRDC v. EPA,

supra, 484 F.2d at 1338 (emphasis added). But a

fair reading of this passage suggests only a rejection

of the rigidities of the “prevailing party” standard,

permitting the courts flexibility to deny fees to par-

ties who, though successful, did not further the goals

of the statute. See note 16, supra. In no way does

the First Circuit’s language suggest that a party

could further the achievement of statutory goals with-

out obtaining any measure of success in the litiga-

tion.

Thus, even if one considers only the 1977 House

Report from which the court of appeals derived its

interpretation of Section 307(f), the court’s award

of attorneys’ fees to totally unsuccessful parties is

supported only by tenuous inferences from the Com-

mittee’s admittedly ambiguous explanations. And

when one considers all the available evidence of Con-

gress’ intent, in the legislative histories from both

1977 and 1970, it is clear that Congress never antici-

pated the court of appeals’ sweepingly expansive in-

terpretation of the “appropriate” standard.“ In any

18 The legislative histories of other statutes containing “ap-

propriate” attorneys’ fee provisions are fully consistent with

the government’s view of the Clean Air Act. For example,

the legislative history of Section 505(d) of the Clean Water

Act, 33 U.S.C. 1365(d), shows that Congress specifically in-

tended Section 505(d) to be interpreted similarly to Section

304(d) of the Clean Air Act. The House Report merely states

this fact. H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 132-133

(1972). The Senate Report, S. Rep. No. 92-414, 92d Cong.,

2d Sess. 81 (1972), reiterates the rationale of Section 304(d)

of the Clean Air Act in language virtually identical to the

Senate Report on the Clean Air Act. Thus, the twin purposes

of Section 505(d) of the Clean Water Act are to punish frivo-

lous or harassing litigants and to reward citizens’ suits that

circumstances, such scant support in the legislative

history would compel the conclusion that Congress had

not “unequivocally expressed“ an intent to waive sov-

ereign immunity. But that conclusion is inescapable

result in pollution abatement but fail to reach a verdict. The

attorneys’ fee provision of the Safe Drinking Water Act, 42

U.S.C. 300j-8(d), has in its legislative history no purpose ex-

cept [as] a deterrent against frivolous suits.” S. Rep. No.

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

of the attorneys’ fee provision in the Surface Mining Control

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

specifically adopts the legislative history of Section 505(d) of

the Clean Water Act. H.R. Rep. No. 95-218, 95th Cong., Ist

Sess. 90-91 (1977). The legislative history of the Toxic Sub-

stances Control Act’s attorneys’ fee provision, 15 U.S.C. 2618

(d), construed by the court of appeals in Environmental De-

fense Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982), peti-

tion for rehearing pending, No. 79-1580, is likewise fully

consistent with the government’s position herein. Although

the court of appeals in EDF relied heavily on a statement by

Senator Tunney that fee awards under TSCA would be ap-

propriate “where such award is in the public interest without

regard to the outcome of the litigation,” 122 Cong. Rec. 8301

(1976), the court of appeals failed to analyze the cases Sena-

tor Tunney cited in support of that proposition. None of the

four cases comes even remotely close to suggesting the appro-

priateness of an award for the mere airing of losing issues.

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

or by obtaining a concrete, tangible benefit for themselves or

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

the defendant’s conduct. Kopet v. Esquire Realty Co., 523

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

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

Thomas v. Honeybrook Mines, Inc., 428 F.2d 981, 985 (3d Cir.

1970) ; Richards v. Griffith Rubber Mills, 300 F. Supp. 338

(D. Ore. 1969). The court of appeals in EDF also glossed

over Senator Tunney’s statement that “the court should follow

prevailing case law which holds that a successful plaintiff

‘should ordinarily recover an [sic] attorneys’ fees *.” 122

Cong. Rec. 8300 (1976) (emphasis added).

where, as here, the asserted waiver would work a vir-

tual revolution in the tradition I doctrines of attor-

neys’ fees. For it cannot fairly ve assumed that Con-

gress effected such a revolution without a whisper of

explanation or controversy.

III

RESPONDENTS WERE IMPROPERLY AWARDED

ATTORNEYS’ FEES FOR MERE PARTICIPATION

IN JUDICIAL REVIEW PROCEEDINGS UNDER THE

CLEAN AIR ACT AND NOT FOR FURTHERING

THE GOALS OF THAT STATUTE

The court of appeals held that an award of attor-

neys’ fees to Sierra Club and EDF was “appropriate”

because those parties had “ ‘substantially contributed’

to the goals of the Clean Air Act” (Pet. App. 20a,

n.10). As we explained in the preceding section, the

courts should indeed consider whether a litigant has

contributed to the goals of the Act in determining

whether fees are “appropriate,” but such a contribu-

tion is a requirement in addition to, and not a substi-

tute for, some measure of success in the underlying

litigation. See Carpenter v. Andrus, 499 F. Supp. 976

(D. Del. 1980). In any event, the “substantial con-

tributions” rewarded by the court below did not serve

the goals of the Clean Air Act.

The Clean Air Act, in pertinent part, establishes a

single goal: “to protect and enhance the quality of

the Nation’s air resources * * *” (42 U.S.C. (Supp.

IV) 7401 (b) (1)).“ But the court of appeals did not

1 Section 101 (b) of the Clean Air Act, 42 U.S.C. (Supp.

IV) 7401(b) sets forth the purposes of the Act:

(b) The purposes of this subchapter are—

(1) to protect and enhance the quality of the Na-

tion’s air resources so as to promote the public health

31

even suggest that Sierra Club and EDF had furthered

this objective. Rather, the court found that “prompt

resolution of serious questions of statutory interpre-

tation” was also a goal of the statute (Pet. App.

18a). Because Sierra Club and EDF raised issues

that “deserved to have been aired” (id. at 16a), the

court held, they were entitled to fees.

But although the court asserted that judicial in-

terpretation was an “express goal” of the Clean Air

Act, it did not point to anything in the statute that

supports its conclusion.” And surely, unless one views

and welfare and the productive capacity of its popu-

lation ;

(2) to initiate and accelerate a national research

and development program to achieve the prevention

and control of air pollution;

(3) to provide technical and financial assistance to

State and local governments in connection with the

development and execution of their air pollution pre-

vention and control programs; and

(4) to encourage and assist the development and

operation of regional air pollution control programs.

* The legislative history of Section 307 of the Clean Air

Act completely belies the court of appeals’ conclusion that

prompt judicial interpretation is a “goal” of the statute.

Rather, the legislative history reveals that Congress did not

wish to completely foreclose judicial review of agency action.

It realized, however, that unrestrained judicial review of na-

tionwide regulations or EPA approvals of state implementa-

tion plans could seriously undermine uniformity of interpre-

tation throughout the nation and play havoc with the strict

time sequences established in the Act. See S. Rep. No. 91-

1196, supra, at 40-41. For these reasons, it established a 30-

day statute of limitations on judicial review and limited the

forums in which review might be sought. Ibid.

This history does not ‘dence a congressional intent to en-

courage judicial interpretation as an end in itself. Instead,

litigation as desirable for its own sake, it is difficult

to comprehend how implementation of the Act is fur-

thered when a court finds, in the course of interpre-

ting the Act’s provisions, that the Agency was al-

ready implementing it correctly. The lower court sug-

gested that such affirmation of the Agency’s actions

yields important public benefits: “by assisting judi-

cial interpretation of the Clean Air Act, Sierra Club

and EDF aided agency implementation and Congres-

sional reevaluation of the Act” (Pet. App. 8a). Yet,

where “agency implementation” of the Act is found

to be in full accord with congressional intent, it is

difficult to appreciate how it is aided by judicial as-

sent. Surely, Congress has ample tools at its com-

mand to conduct its own reevaluation of the Act; no-

where in the legislative history is there any support

for the notion that Congress thought it needed the as-

sistance of litigants who press unsuccessful claims.

The court found that the award of fees to EDF and

Sierra Club was somehow bolstered by the “substan-

tial nature of [their] assistance” to the court’s re-

view of the regulations (Pet. App. 16a). But this ra-

tionale is, to say the least, debatable. For example,

it recognizes that, absent complete preclusion of judicial re-

view, legal challenges to agency action were inevitable and

should therefore be limited in time and place to avoid damag-

ine he structure of the Clean Air Act.

It is also worth noting that the court of appeals’ estima-

tion of respondents’ contribution to the litigation increased

markedly between the time it rendered its decision on the

merits and its opinion on fees. For example, in awarding fees,

the court praised EDF for assisting the court’s deliberations

on the ex parte contacts issue. In Sierra Club v. Costle, how-

ever, the court stated that “[t]he parties, presumably includ-

ing EDF, did not make the court’s task of identifying the ac-

tions and incidents that gave rise to EDF’s complaints “an easy

the court noted that it was “totally dependent upon

Sierra Club to brief and advocate the opposition to a

variable standard” (Pet. App. 17a). Yet, absent

Sierra Club’s ill-founded challenge, there would have

been no need for the court even to consider the var-

iable standard. And surely the fact that a litigant’s

position, though wrong, was competently presented

does not make fee-shifting somehow appropriate.

Competent representation is nothing more than every

litigant’s obligation to the courts.

Similarly, the court found that EDF’s contribu-

tions expedited and “enriched” its consideration of

the ex parte contacts issue, and allowed the court to

“resolve close questions of interpretation for future

rulemaking under the Act” (Pet. App. 18a). But, of

course, that consideration too was only necessary be-

cause EDF raised the issue in the first place. And

one.” 657 F.2d at 386 n.423. The court also stated (id. at

391):

EDF does not specify which particular features in each

of the above-enumerated communications violated due

process or constituted errors under the statute; indeed,

EDF nowhere lists the communications in a form de-

signed to clarify why any particular communication was

unlawful. Instead, EDF labels all post-comment commu-

nications with EPA—from whatever source and in what-

ever form—as “ex parte,” and claims that “this court has

repeatedly stated that ex parte contacts of substance vio-

late due process.”

As noted, the court rejected EDF's position in its entirety.

Similarly, the court had no difficulty rejecting Sierra Club’s

construction of the statute. The court found the language of

the statute itself to be relatively clear (id. at 319), and con-

cluded that it “critically undercut[]” Sierra Club’s position

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

on the legislative history no more persuasive (see generally,

id. at 319-322).

nothing in the Act suggests that Congress meant to

pay litigants to resolve questions for the benefit of

future rulemakings; to the contrary, Congress rather

clearly left that task to the Agency in the first in-

stance.”

It is thus apparent that, although the court of ap-

peals purported to reward “public benefits,” it has, in

effect, granted attorneys’ fees for mere participation

in judicial review of agency rulemakings. Although

such participation may have some value to the court,

its does not in itself further any goal of the Clean Air

Act, because it does not in any way improve the im-

plementation of that statute. And there is no evi-

tively supplemented” EPA’s defense of its regulations against

35

dence, either in the statute or in the legislative his-

tory, that Congress intended to fund such participa-

tion through the award of attorneys’ fees.

Indeed, when Congress has considered funding the

mere presentation of views, it has spoken clearly.

Thus, for example, Congress has expressly author-

ized EPA to award attorneys’ fees for participation

in rulemakings under the Toxic Substances Control

Act (TSCA), 15 U.S.C. 2605 (e) (4) (A). That stat-

ute clearly demonstrates that Congress knew how to

draft language awarding fees for the mere presenta-

tion of issues and viewpoints, whether or not those

viewpoints were ultimately adopted.“ Such funding

is rare, however, and it has never been extended to

unsuccessful participants in judicial review proceed-

ings.“ The court of appeals thus committed a funda-

Under the statute, a rulemaking participant may be

awarded fees if that participant “represents an interest which

would substantially contribute to a fair determination of the

issues to be resolved in the proceeding.” 15 U.S.C. 2605(c)

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

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

ity of such issues and the extent to which representation of

such interest will contribute to widespread public participa-

tion in the proceeding and representation of a fair balance of

interests for the resolution of such issues.” 15 U.S.C. 2605

(c) (4) (A). Clearly, these statutory directives make it ap-

propriate for EPA to compensate persons whose contribution

to the public interest lies simply in adding to the variety of

public debate on an issue. Nothing remotely comparable can

be read into the “appropriate” standard at issue in this case.

24 Contemporaneously with passage of the 1977 amendments

and H.R. 3361, 95th Cong., Ist Sess. (1977). What is striking

about these proposals is the sharp distinction drawn between

mental error in concluding that, by providing for at-

torneys’ fees in Section 397(f) of the Clean Air Act

“whenever appropriate,” Congress intended, sub silen-

tio, to extend such extraordinary benefits to unsuc-

cessful litigants. Certainly, such an intent has not

been “unequivocally expressed.” Accordingly, Section

307(f) should not be read to authorize an award of

attorneys’ fees to parties whose sole contribution to

the “goals” of the Clean Air Act was the presenta-

tion, however competent, of erroneous legal argu-

ments on the meaning of the statute.

Congress assigned to EPA the expensive, time-

consuming and important responsibility of imple-

menting the Clean Air Act. When EPA missteps,

Congress has encouraged private litigants to invoke

Agency Proceedings: Hearings on H.R. 3361 and Related

Bills Before the House Subcomm. on Administrative Law

and Governmental Relations of the Comm. on the Judiciary,

95th Cong., Ist Sess., Pt. 2, 35 (1977). These public bene-

fits are not reaped by mere participation in judicial review

proceedings that take place after final agency action has been

completed. Accordingly, in the case of judicial review, the

37

where EPA has not strayed, there is little logic in

the assumption that Congress intended to pay “self-

appointed representatives of the public interest” for

validating the agency’s fulfillment of Congress’ pur-

poses.” Respondents were, of course, free to take

their disagreements with the Agency’s approach to

court, but they should not expect the government to

pay them for having its course of action vindicated.

Rewarding litigants who actually aid agency imple-

mentation by using the judicial process to correct ad-

ministrative errors is more than sufficient incentive

for the type of citizen involvement in the implemen-

tation of the Clean Air Act contemplated by Congress.

Rewarding unsuccessful litigants who do no more than

vindicate the Agency’s approach to the statute not

only does nothing to assist implementation of the Act

but, on the contrary, frustrates that purpose by di-

verting scarce Agency resources from pressing needs.

By allowing fees in such cases, the court has divorced

the attorneys’ fee provision from any discernible con-

gressional goals, to subsidize assistance in the mere

“refinement of jurisprudential understanding.” Val-

ley Forge Christian College v. Americans United for

Separation of Church & State, Inc., No. 80-327 (Jan.

12, 1982), slip op. 8.

% Natural Resources Defense Council, Inc. v. EPA, 484

F.2d 1331, 1338-1339 (Ist Cir. 1973).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

DECEMBER 1982

Rex E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

Louis F. CLAIBOXNE

Deputy Solicitor General

KATHRYN A. OBERLY

Assistant to the Solicitor General

ANNE S. ALMY

JAMES M. SPEARS

JAMES P. LEAPE

Attorneys

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