Respondents Brief — Ruckelshaus v. Sierra Club

States Court

‘a appl nc oOo

eh Appeal tor the District Columbia Circuit

QUESTION PRESENTED

Whether the court below was precluded from awarding

attorneys fees to respondents under Clean Air Act § 307(f),

42 U.S.C. § 7607 (f) solely because they did not prevail on

the merits.

ii

TABLE OF CONTENTS

Question presented

Statement

Introduction

22 ———

Attorneys fees awarded e

Summary of argument

The statutory language supports the court’s construc-

tion

A. This Court is bound by the statute, as written

B. The common law doctrines concerning attorneys

fees and sovereign immunity do not apply in

1136 SES a ee

II

The legislative history of Clean Air Act 5 307 (f) shows

that Congress intended to allow the courts to award

fees to non-prevailing parties in appropriate cir-

cumstances

III

Judicial construction has unanimously approved fees

for non-prevailing parties

IV

The government's public policy arguments are inaccu-

rate; in any event, they should be addressed to Con-

gress, not this court

Conclusion

3

10

12

13

13

13

18

19

27

2

ili

TABLE OF AUTHORITIES CITED

Cases

Page

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (1982) ........ 28

Alyeska Pipeline Service Co. v. Wilderness Society,

CK EEE 18, 23

American Petroleum Institute v. Costle, 615 F.2d 1176

(D.C. Cir. 1981), cert. den. 102 S. Ct. 1737 (1982) ...... 30

Citizens Association of Georgetown v. Washington,

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

grounds, 535 F.2d 1318 (D.C. Cir. 1977 26

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F. R. C. 353 (D. Del. 197477 26

Diamond v. Chakrabarty, 447 U.S. 303 (1980) 16, 17

Environmental Defense Fund v. EPA, 672 F.2d 42

e .. 28, 29, 30

Lehman v. Nakshian, 453 b. 3 — 19

Metropolitan Washington Coalition for Clean Air v.

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

1981) 26, 27, 28

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

F. ad 1331 (Ist Cir. 1973)........................ 21, 22, 23, 26, 27, 29

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

neue 28

Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d

654 (D.C. Cir. 1975) 3

Rubin v. United States, 449 U.S. 421 1 note 8 (1981) ...... 16

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

2, 3, 4, 5, 6, 7, 8, 9, 10

Sierra Club v. Gorsuch, 672 F.2d at 40. 4, 5, 10, 11, 12, 31

Sierra Club v. Gorsuch, 684 F.2d 972 (D.C. Cir. 1982). 31

Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978) 14, 15, 16, 17

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ... 16

iv

Tanlx or AuTHorities CrTep

Cases

Page

United States v. Testan, 424 U.S. 392 (1976 19

Universities Research Ass'n. v. Coutu, 450 U.C. 754

REGRET AS ae 16

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

(1978) — 9, 30

Village of Kaktovik v. Watt. a (D.D.C.

No. 81-1752, October 1, 1982) ....................-..0----cs-ee-e-ee 28, 30

Wallach v. Van Riswich, 92 U.S. 202 (18757 18

Statutes

Clean Air Act:

Section 111, 42 U.S.C. 7401 122 2, 4, 7

r 22, 23, 24

Section 304 (a 23

Section 304 (d), 42 U.S.C. 7604 (d) 12, 22, 23, 24, 25, 26, 27

Section 307 = 1, 6, 13, 22, 23, 24, 25, 30

Section 307 (d) (8), 42 U.S.C. 7607 (d) ( 8

Section 307 (f), 42 U.S.C. 760766V9P7 passim

Employment Act of 1967, 29 U.S.C. § 621-34 (1970) 19

Endangered Species Act of 1973:

Section 7 of that Act, 16 U.S.C.:

——ͤͤ ͤ—— .

15406804) ———— 30

Outer Continental Shelf Lands Act (43 U.S.C. § 1349

r 30

28 U.S.C. Section 2412. a 18

*

Tasie or Autuorities Crrep

Other Authorities

Conference Committee, December 18, 1970, reprinted

in “A Legislative History of the Clean Air Act

Amendments of 1970,” 93rd Cong., 2nd Sess., vol. 1,

of Es 25

Conference Report, H.R. Rep. No. 95-564, 95th Cong., Ist

MG EE = 23

H.R. Rep. No. 94-294, 95th Cong., Ist Sess., p. 337 (1977) 20

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

1 ͤͤ 18, 19

H.R. Rep. No. 95-564, 95th Cong., Ist Sess., p. 130

— oe 4

Legislative History:

. — 20

. — 21

Sen. Committee on Environment and Public Works,

“A Legislative History of the Clean Air Act Amend-

ments of 1977,” 95th Cong., 2nd Sess., vol. 3, p. 688

(Committee Print 1978) ...... 1 20

S. Rep. No. 91-1196, 91st Cong., 2nd Sess. (1970):

p. 38 24

p. 65 . 25, 26

SS — 24

S. Rep. No. 95-127, 95th Cong., Ist Sess., p. 1473 (1977) 23

36 Fed. Reg. 24876, December 23, 1971 3

42 “ed. Reg. 42154, 42160, col. 3 (September 19, 1978) — 5

44 Fed. Reg. 33580, June 11, 1979 6

44 Fed. Reg. at 33608, Table 3 (June 11, 19797 3

44 Fed. Reg. at 33609, Table 5 (June 11, 1979) 5

No. 82-242

In the Supreme Court

United States

Octroser Term, 1982

Awne M. Gorsucu, ApMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

Sunn Cius and EnvironMENTAL Derense Funp,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT SIERRA CLUB

STATEMENT

Introduction

The issue in this case is whether a court is precluded

from awarding attorneys fees to a non-prevailing party

under any circumstances pursuant to Clean Air Act

§ 307(f), 42 U.S.C. § 7607 (f). That section authorizes the

Court of Appeals to award fees in any case brought under

Clean Air Act § 307 “whenever it determines that such an

award is appropriate.” The court below ruled that the

Sierra Club and Environmental Defense Fund should be

awarded fees, even though they did not prevail on the

merits in an extremely close case. Although awards to non-

prevailing parties are rare, the court concluded, in this

case, because of the importance, complexity and novelty of

the issues raised, the substantial nature of the contribu-

tions of the Sierra Club and Environmental Defense Fund,

and th. exemplary character of their work, an award would

be justified. The government objects, asserting that the

Court of Appeals is absolutely precluded from awarding

fees to non-prevailing parties.

In order to appreciate the factors which led the court to

award fees here, it is necessary to review the underlying

litigation. Accordingly, a brief summary follows.

The underlying litigation

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

perhaps the most momentous decision ever in the field of

environmental law. The opinion had enormous significance

in terms of economic, environmental, health and energy

impacts. Sierra Club v. Costle, supra, 657 F. 2d at 313. The

issues litigated concerned the degree of air pollution con-

trol that would be required at all new coal-fired steam elec-

tric power plants to be built in the United States. Such

plants account for 48% of the electricity produced in

America, and burn 68% of the coal mined in this country.

Sierra Club v. Costle, supra, 657 F.2d at 313. They also

produce immense amounts of pollution—13.6 million tons of

sulfur dioxide (SO:) in 1975. This constituted 64% of the

total nationwide sulfur dioxide emissions the following

year.’ Sierra Club v. Costle, supra, 657 F.2d at 313.

Under Clean Air Act 5 111, 42 U.S.C. § 7401, the Envi-

ronmental Protection Agency is required to establish stan-

dards of performance for major new sources of air pollu-

80, “at the very least is “known to cause or contribute to

respiratory illnesses. Sierra Club v. Costle, supra, 657 F.2d at 11 and

references cited at note 10.

tion, such as coal-fired power plants, which reflect the use

of the best available control technology, taking into ac-

count costs, health and environmental impacts, and energy

requirements. Purportedly acting pursuant to the statute

as it then read, EPA originally promulgated a new source

performance standard (NSPS) for coal-fired power plants

of 1.2 Ibs. of sulfur dioxide per million BTU (36 Fed. Reg.

24876, December 23, 1971). This first NSPS, in effect, al-

lowed power plants burning low sulfur coal, located mainly

in the western United States* to comply without using any

pollution control equipment, whatsoever. Oljato Chapter

of the Navajo Tribe v. Train, 515 F.2d 654, 656 (D.C. Cir.

1975). It would have permitted a 23% total national annual

increase in SO. emissions by 1995. Sierra Club v. Costle,

supra, 657 F.2d at 414.

The Sierra Club and two local government units of the

Navajo Tribe were concerned about this vast projected in-

crease in SO: emissions, which would be especially severe

in the west.’ They were disturbed that Western power

plants could get away without using any SO: pollution

abatement methods, at all, despite the availability of tech-

nology to reduce those emissions by at least 90%. Accord-

ingly, they requested EPA to revise the standard to

require at least 90% SO: removal at all power plants, re-

gardless of the sulfur content of the coal they burned. The

agency refused to consider revising the standard and the

petitioners sought review. In Oljato Chapter of the Navajo

Tribe v. Train, supra, 515 F.2d 654, 667, the Court of Ap-

*Ninety percent of western coal reserves are low sulfur. See

Sierra Club v. Costle, supra, 657 F.2d at 348, note 179.

80, emissions in the western United States would almost be cut

in half if maximum controls are applied. See 44 Fed. Reg. at 33608,

Table 3 (June 11, 1979).

4

peals held that the agency was required to consider the

petitioners’ request seriously and provide e substantive

response. The court instructed them to file a formal, de-

tailed petition with EPA to initiate the process.

Accordingly, the Sierra Club and the Navajo groups filed

a petition for a revision of the NSPS to require uniform

90% SO: removal in August, 1976. The filing of the petition

attracted tremendous attention nationwide as it became

widely known that SO: emissions from new Western power

plants were not being regulated. The matter quickly came

before Congress and, as part of the comprehensive 1977

amendments, it added a requirement to Clean Air Act § 111

that EPA must promulgate a specific percentage reduction

standard, as well as an emission limitation requirement.

Thus, actual, technological means of emission control would

have to be used at all power plants. The Conference Com-

mittee report indicated that the percentage reduction was

to be uniform nationwide, although departures from a uni-

form standard based on varying fuel characteristics would

be allowed under limited circumstances. H.R. Rep. No.

95-564, 95th Cong., Ist Sess., p. 130 (1977).

The rule making proceeding on the Sierra Club petition

lasted almost three years and amassed an unbelievably

large and complex record, including 120 studies prepared

by EPA, 400 technical papers, and 1,400 public comments.

There was a total of 2,520 items in the official administra-

tive record. The Joint Appendix in Sierra Club v. Costle,

which contained only a small fraction of the record, con-

sisted of 5,620 pages. See Sierra Club v. Gorsuch, 672 F.2d

at 40. The major issues involved—the efficacy and relia-

bility of various SO, control methodologies, econometric

modeling of the impact of various standards on utility be-

5

havior, and the impact of alternative standards on usable

coal reserves—involved a staggering degree of technical

complexity. See Sierra Club v. Gorsuch, 672 F.2d at 39.

Sierra Club v. Costle, supra, 657 F.2d at 410.

Because of the huge economic“ and environmental conse-

quences of EPA’s decision, the “conflicting interests

play[ed] fiercely for enormous stakes. (Sierra Club v.

Costle, supra, 657 F.2d at 410). Health and environmental

groups urged the agency to implement a “full control”

strategy—requiring 90% SO, removal at all power plants.

The utility industry, concerned over the immense costs

involved, advocated a “sliding scale” standard. Under this

concept, the industry suggested, plants burning the lowest

sulfur coal would be subject only to a 20% (later 50%)

removal requirement. The percentage removal requirement

would increase proportionally for higher sulfur content

coals, to a maximum of 85%. Sierra Club v. Costle, supra,

657 F.2d at 354°.

The agency first proposed a “full control” alternative,

similar to that advocated by the Sierra Club, 42 Fed. Reg.

42154, 42160, col. 3 (September 19, 1978). However, the

final rule, adopted June 11, 1979, opted for “variable con-

trol”, a variation on the utilities’ “partial control” sugges-

EPA estimated full control would cost $45 billion and the least

stringent alternative standard would cost $31 billion. See 44 Fed.

Reg. at 33609, Table 5 (June 11, 1979).

The coal industry was interested in making sure that the 1.2

Ibs./MBTU emissions limitation was not lowered, as some EPA

trial balloons indicated it might be. See Sierra Club v. Costle, supra,

657 F.2d at 386. That industry feared that a lower emission limita-

tion might mean that certain high sulfur coals would no longer be

suitable for burning at power plants. See Sierra Club v. Costle,

supra, 657 F. 2d at 384-86.

tion, in which the percentage reduction would decrease for

lower sulfur coals down to a minimum of 70%. 44 Fed. Reg.

33580, June 11, 1979. See Sierra Club v. Costle, supra, 657

F.2d at 316.

The agency advanced two principal arguments for its

choice of variable, rather than full control. First, it devel-

oped and utilized an econometric computer model to pre-

dict utilities’ reactions to various alternative standards

and hence to derive estimates of the costs, energy require-

ments, and environmental impact associated with each of

those standards. Sierra Club v. Costle, supra, 657 F.2d 321-

27. EPA’s model predicted that the variable standard would

yield best results in all three categories.

Second, the agency asserted that a less stringent, 70%

removal requirement was necessary in order to encourage

an emerging and potentially superior new technology for

removing SO, from low sulfur coals—dry scrubbing. EPA

claimed that since it was unclear whether dry scrubbing

was capable of going beyond 70% removal, utilities would

not choose to employ the new methodology if the standard

were greater than 70%. See Sierra Club v. Costle, supra,

657 F.2d at 343.

The Sierra Club thereupon filed a petition for review in

the D.C. Circuit Court of Appeals pursuant to Clean Air

Act § 307, contending that EPA should not have deviated

from the uniform full control requirement it had originally

proposed. It objected to EPA’s regulatory analysis, which

attempted to predict long-term national trends for alterna-

tive levels of control. In any event, the Sierra Club argued,

the econometric computer model used by EPA to make

those predictions was flawed by improper assumptions and

methodology.

7

It also argued that the dry scrubbing rationale relied

upon by the agency was improper, since dry scrubbing had

not yet been “adequately demonstrated”, and so could not

serve as the basis for a NSPS. Furthermore, the Sierra

Club asserted, the administrative record refuted EPA’s

contention that dry scrubbing could not achieve more than

70% SO, removal and that utilities would not use that

technology if the removal requirement were any higher.

Finally, the Sierra Club objected to EPA’s introduction of

the dry scrubbing rationale and the “variable control” op-

tion after the public comment period had expired and only

days before the final rule was issued.“

The Court of Appeals turned down these arguments in

Sierra Club v. Costle, supra, 657 F.2d 298. First, it con-

strued Clean Air Act § 111 to permit the agency to assess

national, regional, and long-term economic, environmental,

and energy impacts, rejecting our contention that the Act

excluded consideration of those factors. Sierra Club v.

Costle, supra, 657 F.2d at 329-332. The court was “more

sympathetic to the Sierra Club’s complaint about the re-

liability of EPA’s econometric model.” 657 F.2d at 332.

Nonetheless, it reasoned, computer modeling offers the only

realistic method of making immensely complex analysis

demanded by the statute. 657 F. 2d at 332-33. In a landmark

holding, the court concluded that, because of the dangers

that a modeling format may “improperly skew” an agency’s

analysis, it must employ certain “safety valves“: public

notice and the acceptance and consideration of public

The “variable control” standard was also attacked by the utility

industry on the ground that the 90% maximum removal standard

was too stringent. The Environmental Defense Fund sought review

of EPA’s reaffirmation of the 1.2 Ibs./ MBTU emission limitation.

8

comment on the assumptions and data incorporated in the

model; the admission of uncertainties; and the acceptance

of ultimate responsibility for the decision by the agency,

itself, rather than the computer. 657 F.2d at 334.

On the dry scrubbing controversy, the court agreed that

the Sierra Club had shown that “dry scrubbing can achieve

significantly better than the 70% floor adopted by EPA”,

(657 F.2d at 348, esp. note 179) and also that removal effi-

ciencies of higher than 70% would still be economical. 657

F.2d at 350, note 184. After a detailed summary of the

record, the court conceded that “the support in the record

for selecting 70% as the magic percentage for encourage-

ment of dry scrubbing is less than overwhelming.” 657 F.2d

at 351. The court also agreed that “given the state of this

record we would have been reluctant to uphold EPA’s dis-

cretion to vary the standard solely on the basis of dry

scrubbing . . .” 657 F. 2d at 351. Nevertheless, since vari-

able control” was sufficiently justified under the “regu-

latory analysis” discussed above, the court concluded it

could not overturn the agency decision. 657 F.2d at 351-52.

Finally, the Court of Appeals acknowledged that “Sierra

Club’s criticism of the procedural history of the variable

standard is not unwarranted .. .” 657 F.2d at 353. It also

conceded that “this rule making was by no means a neat and

tidy proceeding, and it might well have been the wiser

course if EPA had chosen to publish a new proposal for

another round of comments.” Id. at 356. But the Court of

Appeals found it was constrained to uphold the EPA action

because of the special, “rigorous” standard for judicial re-

view of procedural errors contained in Clean Air Act

§ 307(d)(8), 42 U.S.C. § 7607(d)(8): “The procedural er-

ror must be ‘of central relevance to the outcome of the

9

rule,’ and ‘the errors were so serious and related to matters

of such central relevance to the rules that there is a sub-

stantial likelihood that the rule would have been signifi-

cantly changed if such errors had not been made.“ 657

F.2d at 391.

The lower court also recognized another limitation on

its authority to review the EPA’s decision—this Court’s

opinion in Vermont Yankee Nuclear Power Corp. v. Natu-

ral Resources Defense Council, Inc., 435 U.S. 519 (1978).

In that case, the lower court noted, this Court “unambig-

uously cautioned” it “against imposing its own notions of

proper procedures upon an administrative agency en-

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

at 183.“

The court summed up its encyclopedic opinion“ as fol-

lows:

We reach our decision after interminable record

searching (and considerable soul searching). We have

read the record with as hard a look as mortal judges

can probably give its thousands of pages. We have

adopted a simple and straight-forward standard of re-

view, probed the agency’s rationale, studied its ref-

erences (and those of appellants), endeavored to un-

derstand them where they were intelligible (parts were

simply impenetrable), and on close questions given the

agency the benefit of the doubt out of deference for

the terrible complexity of its job. We are not engi-

neers, computer modelers, economists or statisticians,

although many of the documents in this record require

such expertise—and more.

The lower court also rejected the challenges presented by

Environmental Defense Fund and the utilities.

*The opinion was 132 pages long and contained 540 footnotes.

10

We cannot redo the agency’s job; Congress has told

us, at least in proceedings under this Act, that it will

not brook reversal for small procedural errors; Ver-

mont Yankee reinforces the admonition. So in the end

we can only make our best effort to understand, to see

if the result makes sense, and to assure that nothing

unlawful or irrational has taken place. In this case, we

have taken a long while to come to a short conclusion:

the rule is reasonable. 657 F.2d at 410.

Attorneys fees awarded

The Sierra Club and the Environmental Defense Fund

moved for attorneys fees for their participation in the

Costle case, pursuant to Clean Air Act § 307(f), 42 U.S.C.

§ 7607(f), which was added as part of the 1977 amend-

ments. It provides:

In any judicial proceeding under this section, the court

may award costs of litigation (including reasonable

attorney and expert witness fees) whenever it deter-

mines that such an award is appropriate.

In Sierra Club v. Gorsuch, 672 F.2d at 33 (D.C. Cir.

1982) the Court of Appeals unanimously agreed that the

Sierra Club and EDF were entitled to fees, even though

they had not prevailed on the merits. In rejecting the gov-

ernment’s contention that a fee award is not “appropriate”

unless a party prevails in whole or in part, the lower court

held that while the Sierra Club and EDF did not “substan-

tially prevail”, they did “substantially contribute to the

goals” of the Clean Air Act. The issues raised were “im-

portant, complex, and novel”, the contributions of EDF

and the Sierra Club were “substantial and not duplicative”

of those of other parties, and the caliber of their presenta-

tions was “exemplary”. 672 F. ad at 39.

11

The court reviewed the supreme importance and com-

plexity of the technical and statutory construction issues

outlined above, and credited the role of the Sierra Club in

raising and helping to dispose of crucial issues under the

1977 Clean Air Act Amendments:

Although it seems almost inconceivable that a major

review of the rule could have been conducted without

questioning EPA’s authority and evidentiary basis for

promulgating a variable percentage reduction stan-

dard, an issue that the EPA Administrator had re-

ferred to at the start of the rulemaking as the “main”

issne in the proceeding, Sierra Club was the only

party to raise it. The court was thus totally dependent

upon Sierra Club to brief and advocate the opposition

to a variable standard. Without Sierra Club, an issue

conceded by EPA to be critically important would not

have been raised or decided during the first judicial

challenge to the statutory provision. The absence of

debate on the issue, moreover, could have affected the

outcome of other related issues in the case, e.g., the

proper levels of total emissions (the so-called 1.2 Ibs.

MBTU standard), since individual standards of sec-

tion 111 operate interdependently. And the argument

pressed most intensely by the utilities, that a 90%

reduction in sulfur emissions was technologically in-

feasible given the state of antipollutien technology,

would have been far less completely aired without

Sierra Club’s participation. The various parts of a

complex rule like this one do not travel alone, and the

court’s education on each part of the rule informed

its decision on other parts. 672 F.2d at 40-41.

The lower court concluded that because of their substan-

tial contributions to the resolution of the important issues

12

raised in the litigation, the Sierra Club and EDF should

be compensated:

In conclusion, we find that the express goals of the

Clean Air Act—prompt resolution of serious questions

of statutory interpretation and citizen participation

in monitoring administration of the Act through en-

forcement suits—require that substantial contribu-

tions to significant litigation in furtherance of these

goals be compensated. It was absolutely essential in a

case of this dimension that this court have expert and

articulate spokesmen for environmental as well as in-

dustrial interests. The rulemaking process not only

involved highly technical and complex data, but con-

troversial considerations of public policy. Given the

complexity of the subject matter, without competent

representatives of environmental interests, the process

of judicial review might have been fatally skewed. 672

F.2d at 41.

SUMMARY OF ARGUMENT

1. The literal language of Clean Air Act § 307(f) clearly

permits the court to award fees to non-prevailing, as well

as prevailing and substantially prevailing parties. This

Court is not at liberty to construe the statute so as to add

limitations not imposed by the statute on the lower court’s

discretion to award fees. It may not inquire into the wis-

dom of the legislature’s judgment. Common law doctrines

to the contrary must yield before the specific statutory

authorization for fees in this case.

2. The committee reports for § 307 (f) and Clean Air

Act § 304(d), a parallel attorneys fees provision, unambig-

uously endorse fees for non-prevailing parties in appro-

priate cases. Congress specifically rejected an early at-

tempt to limit the fees provision to parties who prevail in

13

whole or in part. Instead, it cited and endorsed judicial lan-

guage sanctioning fees for parties who did not prevail. This

Court should not be lulled into accepting the government’s

attempts to manufacture legislative history which contra-

dicts Congress’ clearly expressed intent.

3. Every judicial opinion which has considered this

issue has endorsed the viewpoint of the court below. This

Court should honor the principle of stare decisis and follow

those decisions. .

4. Public policy considerations do not justify a depar-

ture from Congress’ clearly expressed intent. Awarding

fees to respondents in this action will not provoke an

avalanche of unjustified lawsuits. Fee awards to non-

prevailing parties will be made only in the most excep-

tional cases and, in any event, the substantial amounts of

non-compensable time which must be expended in order to

perfect an action under Clean Air Act § 307 will discourage

potential litigants with marginal causes of action.

ARGUMENT

I

THE STATUTORY LANGUAGE SUPPORTS THE

COURT'S CONSTRUCTION

A. This Court is bound by the statute, as written

Clean Air Act § 307(f), 42 U.S.C. § 7607(f) states that a

court “may award costs of litigation (including reasonable

attorney and expert witness fees) whenever it determines

that such an award is appropriate.” [Emphasis supplied. ]

As the Court of Appeals pointed out, “on its face, the

statutory provision clearly permits the court to award

attorneys’ fees to prevailing, substantially prevailing, or

14

non-prevailing parties in ‘appropriate’ cases.” 672 F.2d

at 34.

Nonetheless, the government argues that the Court of

Appeals may not award fees to a party who does not pre-

vail in whole or in part. (See, e.g., Petition for Certiorari,

pp. 18-19; Brief, p. 15). The government asks this court to

re-write the statute, so as to restrict the courts’ discretion

to find an award of fees “appropriate” exclusively to cases

in which the party seeking fees has prevailed in whole or in

part. In short, it seeks a judicial amendment of Section

307(f) from an “appropriate” to a “prevailing party”

standard. The justification offered by the government for

this remarkable request is that the court below “has estab-

lished a precedent that threatens to impose substantial

burdens on the federal courts, administrative agencies and

the Justice Department by encouraging unproductive, ex-

pensive and time-consuming litigation.” Petition for Writ

of Certiorari, p. 8; see also Brief, pp. 36-37.

This court has emphasized time and again that it is not

empowered to amend laws enacted by Congress, even in the

face of strong evidence that the legislation in question is

highly unwise. In Tennessee Valley Authority v. Hill, 437

U.S. 153 (1978), the TVA sought to overturn an injunction

which had been issued against completion of the Tellico

Dam in Tennessee, on which more than $100 million had

already been spent, because the dam threatened to extermi-

nate the snail darter, a tiny local fish which had been listed

as an endangered species pursuant to the Endangered

Species Act of 1973. Section 7 of that Act, 16 U.S.C. § 1536,

requires all federal agencies “to ensure that actions author-

ized, funded, or carried out by them do not jeopardize the

continued existence” of an endangered species or destroy

or modify its habitat.

15

TVA argued that Section 7 was not intended to stop

operation of a project, such as the Tellico Dam, which was

near completion when an endangered species was discov-

ered in its path. The agency also pointed to Congressional

appropriations earmarked for completion of the dam sub-

sequent to discovery of the snail darter and to committee

reports stating that the Endangered Species Act should not

apply to the Tellico Dam. See 437 U.S. at 170-171.

The Chief Justice, speaking for this Court, conceded that

“it may seem curious to some that the survival of a rela-

tively small number of three-inch fish among all the count-

less millions of species extant would require the permanent

halting of a virtually completed dam for which Congress

has expended more than $100 million.” 437 U.S. at 172. But,

he emphasized, this Court was not empowered to act upon

the “common sense” suggestion of TVA that “the burden on

the public through the loss of millions of unrecoverable

dollars would greatly outweigh the loss of the snail

darter.” 437 U.S. at 157. The opinion pointed out that it

would be extremely difficult for a court to balance these two

factors “even assuming we have the power to engage in

such a weighing process, which we emphatically do not.”

437 U.S. at 188. The TTA opinion disposed of a plea, much

like that of the government in the present case, to construe

the Endangered Species Act “reasonably”:

Here we are urged to view the Endangered Species

Act “reasonably”, and hence shape a remedy “that

accords with some modicum of common sense and the

public weal.” .. . But is that our function? We have no

expert knowledge on the subject of Endangered

Species, much less do we have a mandate from the

people to strike a balance of equities on the side of the

Tellico Dam. .

16

Our individual appraisal of the wisdom or unwisdom

of a particular course consciously selected by the Con-

gress is to be put aside in the process of interpreting a

statute. Once the meaning of an enactment is discerned

and its constitutionality determined, the judicial pro-

cess comes to an end. We do not sit as a committee of

review, nor are we vested with the power of veto.

* * * *

[I]n our constitutional system, the commitment to the

separation of powers is too fundamental for us to pre-

empt Congressional action by judicially decreeing what

accords with “common sense and the public weal.” Our

constitution vests such responsibilities in the political

branches. 437 U.S. 194-95.

This court has continued to adhere strongly to the prin-

ciple that the judiciary may not usurp Congress’ legisla-

tive function, regardless of how ill-advised it may consider

a particular piece of legislation. In Touche Ross d Co. v.

Redington, 442 U.S. 560, 578 (1979), it noted that “The

ultimate question is one of Congressional intent, not one of

whether this court thinks it can improve upon the statutory

scheme that Congress enacted into law.” The court noted

that the plaintiffs “. . . contend that the result we have

reached sanctions injustice. But even if that were the case,

the argument is made in the wrong forum, for we are not

at liberty to legislate.” See also Universities Research

Ass'n. v. Coutu, 450 U.C. 754, 770 (1981); Rubin v. United

States, 449 U.S. 421, 431, note 8 (1981).

In Diamond v. Chakrabarty, 447 U.S. 303 (1980), the

issue was whether a patent could be obtained upon a new

micro-organism produced in the laboratory by genetic en-

gineering. The commissioner of patents and trademarks

. argued that living things, such as micro-organisms, could

17

not be patented. This court refused to be swayed by a

“gruesome parade of horribles,” set forth by the patent

office and a number of Nobel laureates on the dangers of

genetic research, which would presumably be encouraged

by a decision in favor of patentability. This court refused

to consider these assertions:

[Wie are without competence to entertain these argu-

ments—either to brush them aside as fantasies gen-

erated by fear of the unknown, or to act on them...

whatever their validity, the contentions now pressed

on us should be addressed to the political branches of

the Government, the Congress and the executive, and

not to the courts. 447 U.S. at 317.

The court went on to quote from TVA v. Hill for the

proposition that it could not decide on the wisdom of a

particular statute. “Our task, rather, is a narrow one of

determining what Congress meant by the words it used in

the statutes; once that is done our powers are exhausted.”

447 U.S. at 318. Congress is free to change the law, it con-

tinued, “but, until Congress takes such action, this court

must construe the language of [the patent statute] as it

is.” Ibid.

Here, as in Diamond, the government presents a parade

of horribles’”—“unproductive, expensive and time-consum-

ing litigation”’—as a justification for this Court to ignore

the unmistakable intent of Congress and change Clean Air

Act §307(f) by imposing a “prevailing party” require-

ment. As we show in Point II, Congress specifically re-

18

jected such a limitation. This Court may not now re-

instate it.

B. The common law doctrines concerning attorneys fees

and sovereign immunity do not apply in this case

The government maintains that the lower court’s ruling

“is inconsistent with certain fundamental considerations

underlying the doctrine of sovereign immunity and the

traditional rules governing the allocation of attorneys’

fees.” (Brief, p. 13). But in this case, the Court of Ap-

peals acted pursuant to a specific statutory authorization,

not the common law. As this Court has recognized for over

a century, . . . a common law maxim. . . must yield to

statutory provisions inconsistent with it. Wallach v.

Van Riswich, 92 U.S. 202, 212 (1875).

The Sierra Club does not quarrel with the government’s

assertion that Congressional consent to waive statutory

immunity must be “unequivocally expressed.” (Brief, p.

13). In Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240, 261 (1975), this court recognized that Con-

gress may provide for attorneys fees, thereby overriding

the common law rule, and has done so, “in a variety of

circumstances.” The Court also noted that attorneys fees

may be awarded against the government only if “expressly

provided for by statute.”

Congress specifically stated it intended to meet the

Alyeska test in this instance. The House Report on § 307

(f) referred to the Alyeska decision as follows: “In adopt-

ing this provision concerning fees, the committee intended

to meet the requirement for a specific authorization im-

posed by 28 U.S.C. § 2412 and by the Supreme Court’s rul-

ing in Alyeska . . .” H.R. Rep. No. 95-294, 95th Cong., Ist

19

Sess., p. 337 (1977). There could hardly be a more emphatic

statement of legislative intent; indeed, the government

concedes that “Congress meant to waive the government’s

traditional immunity and to overcome the presumption of

the ‘American Rule’ against fee shifting.” (Petition for

Certiorari, p. 15).

Thus, its reliance on such cases as United States v.

Testan, 424 U.S. 392, 399 (1976) and Lehman v. Nakshian,

453 U.S. 156 (1981) is completely misplaced. In Testan,

this Court refused to imply the existence of a cause of ac-

tion against the government for a wrongful civil service

classification in the absence of a specific statute authoriz-

ing such a proceeding. In Lehman it held that absent a

specific statutory authorization, there was no right to a

jury trial in an action against the federal government un-

der the Age Discrimination in Employment Act of 1967,

29 U.S.C. § 621-34 (1970). But neither of those cases nor

any others cited by the government involved a specific au-

thorization such as we have here.

THE LEGISLATIVE HISTORY OF CLEAN AIR ACT

§ 307(f) SHOWS THAT CONGRESS INTENDED TO

ALLOW THE COURTS TO AWARD FEES TO NON-

PREVAILING PARTIES IN APPROPRIATE CIR-

CUMSTANCES

The House Report on Clean Air Act § 307(f) specifically

rejected the concept of limiting fees to prevailing parties:

“In the case of section 307 judicial review litigation,

the purposes of the authority to award fees are not

only to discourage frivolous litigation, but also to

encourage litigation which will assure proper imple-

mentation and administration of the act or otherwise

serve the public interest. The committee did not intend

that the court’s discretion to award fees under this

provision should be restricted to cases in which the

party seeking fees was the “prevailing party”. In fact,

such an amendment was expressly rejected by the

committee, largely on the grounds set forth in NRDC

v. EPA, 484 F.2d 1331, 1388 (Ist Cir. 1973)” H.R. Rep.

No. 94-294 95th Cong., Ist Sess., p. 337 (1977).

The Senate, too, specifically rejected a provision that

would have limited fees to prevailing or substantially pre-

vailing parties. The rejected language would have required

the court to award fees to a prevailing party and would

have given it discretion to award fees “in any case in which

such party prevails in part . . .” See Sen. Committee on

Environment and Public Works, “A Legislative History of

the Clean Air Act Amendments of 1977,” 95th Cong., 2nd

Sess., vol. 3, p. 688 (Committee Print 1978), hereinafter

cited as “Legislative History”. The rejected language was

taken from 8252, a bill passed by the Senate in the previous

session, but never enacted. See Legislative History, pp.

3856, 3893.

Congress was well aware that the new fees provision

marked a significant expansion of the previous language. A

section-by-section analysis of 8252 prepared by the Senate

Subcommittee on Environmental Pollution noted that there

was an area of “controversy” concerning the need to pre-

vail in order to be awarded fees. It raised the question,

“Should the basis for an award of fees be need, rather than

the judicial disposition of the suit?” Legislative History,

p. 3893. That Subcommittee was also advised by the law

firm of Hunton & Williams (who represented the utility

industry in the underlying litigation in this case), on behalf

of the Edison Electric Institute that the language of 8252 is

21

“less sweeping” than the new “appropriate” standard.

Legislative History, pp. 4146-47.

The language in Natural Resources Defense Council, Inc.

v. EPA, 484 F.2d 1331, 1338 (1st Cir. 1973), which was

specifically endorsed by the House Report on §307(f),

further supports the view that attorneys fees may be

awarded to a non-prevailing party:

We are at liberty to consider not merely “who won”

but what benefits were conferred. The purpose of an

award of costs and fees is not mainly punitive. It is to

allocate the costs of litigation equitably, to encourage

the achievement of statutory goals. When the govern-

ment is attempting to carry out a program of such vast

and unchartered dimensions, there are roles for both

the official agency and a private watchdog. The legisla-

tion is itself novel and complex. Given the implementa-

tion dates, its early interpretation is desirable. It is our

impression, overall, that petitioners, in their watchdog

role, have performed a service.

The government (Brief, pp. 27-28) seeks to avoid the

force of the quoted language by pointing out that the peti-

tioners in the NRDC case prevailed on some of their issues.

Thus, it is claimed, the court’s rationale departs from a

“prevailing” requirement only to the extent that it endorses

fees for a partially prevailing party.

But that is not what the court said, nor what it held.

The court said it need not be bound by “who won” or lost

the case and it held that the petitioners were entitled to

fees even on their losing issues:

“But the challenges here, even those not sustained,

were mainly constructive and reasonable. And peti-

tioners were successful in several major respects; they

should not be penalized for having also advanced some

point of lesser weight.” 484 F. 2d at 1338.

In any event, the House Report on Section 307(f) endorsed

the generalized “grounds” set forth in the NRDC opinion,

not the holding under the particular facts of that case.

The government seeks to avoid the clearly-expressed

legislative intent to abandon the “prevailing party” require-

ment in Clean Air Act § 307 (f) by labeling it “tenuous

inferences”, based on “ambiguous explanations.” (Brief,

p. 28). Instead, it contends, Congress added § 307 (f) in 1977

solely for the purpose of conforming it to 5 304 (d), 42

U.S.C. § 7604(d). That section, added in 1970, authorizes

awards of attorneys fees in “appropriate” cases brought

under Clean Air Act § 304. Section 304(d), it is argued

(Brief, pp. 17-22), does not allow fees to non-prevailing

parties; therefore, § 307(f) should not be construed to do

so, either.

This analysis is flawed in three major respects. First, the

1977 legislative history reveals that Congress intended to

do more by adding § 307(f) than merely to conform attor-

neys fees practice under §307 with that under § 304.

Second, actions under the two sections are fundamentally

different in nature and scope, so that the considerations

governing the appropriateness of fee awards under each of

them are distinct. Finally, both Congress and the courts

agree that fees may be awarded to non-prevailing parties

under § 304(d), as well as § 307(f).

As the government correctly points out, in the 1970 Clean

Air Act Amendments, attorneys fees in “appropriate”

cases were specifically authorized for actions brought under

§ 304, but not under § 307. With the exception of Natural

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

Cir. 1973), discussed above, the courts refused to allow fees

in actions brought under § 307 in the absence of a specific

‘

23

statutory authorization. The Senate Report on § 307(f) did

indicate that its purpose was specifically to authorize fees

in actions under § 307, as originally intended in 1970, and

noted that & 304 already specifically authorizes fees. S. Rep.

No. 95-127, 95th Cong., Ist Sess., p. 1473 (1977). But that

hardly supports a conclusion that the only purpose of the

change was to “conform” the two sections. Indeed, as we

show below, actions under the two sections are fundamen-

tally different and cannot readily be “conformed”.

In any event, the House Report set forth another goal

for § 307(f): “. .. to encourage litigation which will assure

proper implementation and administration of the Act or

otherwise serve the public interest.” The House also re-

acted to two significant judicial developments which had

occurred since 1970: the allowance of fees to non-prevailing

parties as suggested in Natural Resources Defense Council,

Inc. v. EPA, 484 F.2d 1331, 1338 (Ist Cir. 1973) and the

requirement set forth in Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975) that a statute must

specifically authorize fees against the government. The

final version of § 307(f) approved both the Senate and the

House provisions. See Conference Report, H.R.Rep.No.

95-564, 95th Cong., Ist Sess., p. 557 (1977).

A closer examination of the nature and purposes of the

Clean Air Act’s two citizen suits provisions reveals im-

portant differences. Section 304(a) authorizes citizens to

bring suit in district courts against persons who violate a

standard or order issued under the Clean Air Act or

against EPA if it fails to perform a non-discretionary

duty under the Act. The legislative history of § 304 makes

it abundantly clear that Congress considered that the pri-

mary function of citizens suits under § 304 was to aid in

24

the enforcement of standards and regulations under the

Act. The purpose of suits under § 304, therefore, was to

assure abatement of illegal air pollution. Accordingly, the

Senate Report limited its discussion of when fees would

be available to non-prevailing parties to a typical situation

which might occur under § 304—abatement of a violation

before a verdict was obtained in the litigation. See S.Rep.

No. 91-1196, 91st Cong., 2nd Sess., p. 38 (1970).

Section 307 serves a different purpose. It provides an

“opportunity for judicial review of administratively de-

veloped and promulgated standards and regulations.” S.

Rep.No. 9-1196, 91st Cong., 2nd Sess., p. 440. Administra-

tive actions reviewable under § 307 are all national or re-

gional in scope. Therefore, petitioners for review under

§ 307 are to be tried in the Court of Appeals. Id. at 441.

Actions under § 307 have nothing to do with enforcement

of air pollution standards; instead, their purpose is to

challenge those standards. Accordingly, the Senate Com-

mittee’s reference to abatement before verdict under § 304

would make no sense in the context of a § 307 action.

Therefore, the government’s argument simply does not

hold water. It concedes that “success on the merits, in the

traditional sense of a favorable final judgment, is not a

prerequisite for an award of fees under [§ 307].” (Petition

for Certiorari, p. 16.) But, it asserts, an award to a non-

prevailing party is limited to a situation in which there is

pollution abatement in the absence of a final verdict for

the plaintiff. While this argument may have some surface

plausibility with respect to actions under § 304,” it makes

However, as we show below, non-prevailing parties are entitled

to fees in appropriate cases under § 304(d)..

25

no sense in the context of § 307(f). Since proceedings under

§ 307 challenge the standards, themselves, and are not

aimed at any specific source of pollution, there is no pos-

sibility of abatement of pollution without a final verdict

under § 307. Therefore, an award to a non-prevailing party

under § 307(f) must refer to something else i. e., a party

who contributes to the goals of the Clean Air Act by help-

ing to insure a proper interpretation of significant issues

under the Act.

Finally, even if sections 307(f) and 304(d) should be in-

terpreted the same, the lower court should be upheld, since

fees may be awarded to non-prevailing parties under both

sections. Section 304(d), like § 307, authorizes fees to “ap-

propriate” parties. As we noted above, the Senate Report

on § 304 (d) gives one example in which a non-prevailing

party may be awarded fees—where abatement of a viola-

tion occurs before a final verdict. But this example was

not intended to mark the limits of when fees could be

awarded under § 304(d). In the section-by-section analysis,

the Senate Report notes that: The court may award costs

of litigation to either party whenever the court determines

such an award is in the public interest without regard to

the outcome of the litigation.” [Emphasis added.] S.Rep.

No. 91-1196, supra, at 65. And Sen. Spong, a prominent

supporter of the Clean Air Act, remarked during debate

on § 304(d) : “The courts are given discretionary authority

to award costs, including reasonable attorney and witness

fees to any party.” [Emphasis added.] Senate consideration

of the report of the Conference Committee, December 18,

1970, reprinted in “A Legislative History of the Clean Air

Act Amendments of 1970,” 93rd Cong., 2nd Sess., vol. 1,

p. 147 (1974).

The government (Brief, pp. 20-21) attempts to construct,

through hindsight, a legislative history to support its view

of the switch from a “prevailing party” to an “appropri-

ate” standard in section 304(d). It claims that the sole

purpose was to obviate the need for a plaintiff to prevail

“in the technical sense of obtaining a judgment” in order

to collect fees, citing several opinions which refused to

award fees to parties who had not obtained a favorable

judgment. But there is no indication that Congress was

actually reacting to those cases, or even knew about them.

What the Senate Report does say, in the clearest possible

terms, is that fees may be awarded in the public interest

“without regard to the outcome of the litigation.” S.Rep.

No. 91-1196, supra, at 65. The government invites this court

to disregard this unambiguous statement because “there is

no elaboration” on its meaning and, instead, to rely on its

own phantom legislative history to ascertain Congressional

intent. While the search for legislative intent always in-

volves some degree of imagination, we are confident that

this Court will base its opinion on the language of Con-

gress, rather than the fiction by the Solicitor-General’s

office.

The courts have consistently construed § 304(d) to allow

fees to non-prevailing parties. See, e.g., Natural Resources

Defense Council v. EPA, supra, 484 F.2d 1331, 1338 (1st

Cir. 1973) ; Delaware Citizens for Clean Air, Inc. v. Stauf-

fer Chemical Co., 62 F.R.C. 353, 355 (D. Del. 1974) ; Citi-

zens Association of Georgetown v. Washington, 383 F.

Supp. 136 (D.D.C. 1974), reversed on other grounds, 535

F. 2d 1318 (D.C. Cir. 1976); Metropolitan Washington

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

802 (D.C. Cir. 1981). It should be remembered that the

27

House Report on 5 307 (f) specifically endorsed the con-

struction of 5 304(d) found in the Natural Resources De-

fense Council case.

JUDICIAL CONSTRUCTION HAS UNANIMOUSLY

APPROVED FEES FOR NON-PREVAILING PARTIES

As we noted in the preceding paragraph, the courts have

unanimously construed the “appropriate” standard of

§ 304(d) to allow fees to non-prevailing parties. The opin-

ion in Metropolitan Washington Coalition for Clean Air v.

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

ticularly instructive, since it puts to rest the government’s

persistent argument that a non-prevailing party must

achieve some tangible benefit, other than explication and

interpretation of the Clean Air Act. There, citizens sought

to enjoin the operation of a municipal incinerator because

it was in violation of a state air quality implementation plan

calling for it to be shut down. Ultimately, EPA approved

a revision of the plan which permitted the incinerator to

stay in operation. The district court had refused to grant

fees for two main reasons: the incinerator was never shut

down and, since EPA was already considering the proposed

plan revision, “plaintiffs’ efforts in this litigation did not

serve to expedite the administrator’s decision.” 639 F.2d

at 804.

The Court of Appeals rejected this logic:

We think the district court incorrectly focused its at-

tention on the outcome and practical effects of the

litigation, to the exclusion of a more relevant consid-

eration: whether the suit was of the type that Con-

gress intended to encourage when it enacted the citi-

zen-suit provision . . . quite obviously the legislature,

28

when it called for citizen-suits, considered a fee recov-

ery to be consonant with the public interest whenever

the underlying suit was a prudent and desirable effort

to achieve an unfulfilled objective of the Act. The

attorneys’ fee feature was offered as an inducement to

citizen-suits, which Congress deemed necessary ; and if

the hope Congress had for such suits is to become the

reality, decisions on fee-allowance cannot make whole-

sale substitutions of hindsight for the legitimate ex-

pectations of citizen plaintiffs. 639 F.2d at 804.

The court noted that, although the plaintiffs’ litigation did

not in fact yield “actual and tangible effects”, they had a

“well-founded expectation” at the time the suit was brought

that it would succeed. Thus, the lower court should not have

refused automatically to grant fees.

Several other opinions from the D.C. Circuit Court of

Appeals have endorsed the rationale of the lower court

case. See, e. ., Alabama Power Co. v. Gorsuch, 672 F.2d

1 (1982); Environmental Defense Fund v. EPA, 672 F.2d

42 (1982); Village of Kaktovik v. Patt, F. ad

(D. D.C. No. 81-1752, October 1, 1982). The Ninth Circuit,

too, agrees with the lower court’s analysis. See Northern

Plains Resources Council v. EPA, ........ F. 2d

Understandably, the government neglected to mention

any of these cases in its brief, since they all directly con-

tradict its position. On the other hand, it cannot cite a

single authority to support its view that a non-prevailing

party may never be awarded fees under 5 307(f).

29

IV

THE GOVERNMENT'S PUBLIC POLICY ARGUMENTS

ARE INACCURATE; IN ANY EVENT, THEY

SHOULD BE ADDRESSED TO CONGRESS, NOT

THIS COURT

The government argues (Brief, pp. 30-37) that judicial

interpretation of key provisions of the Clean Air Act does

not further the goals established by Congress, and hence

cannot be the basis of a fee award. But, as we noted above,

Natural Resources Defense Council v. EPA, 484 F.2d 1331,

1338, which was endorsed in the House Report, specifically

stated that the “early interpretation” of the Clean Air Act

by outside “watchdogs” is “desirable”. The court below

specifically found that the Sierra Club’s participation fa-

cilitated “the prompt resolution of the important and com-

plex issues” involved in the interpretation of a key provi-

sion of the Clean Air Act and that its participation “aided

agency implementation and Congressional reevaluation of

the Act”. 672 F. 2d at 41.

As the court below noted, the government is simply try-

ing to read the “appropriate” standard right out of § 307

(f): “Under the government’s position, there would have

been no need to abandon the ‘substantially prevailing’

standard commonly used to guide judicial awards of at-

torneys’ fees.” 672 F. 2d at 38. It is obvious that the gov-

ernment’s real purpose here is to persuade this court to

abandon the law as Congress wrote it in favor of its con-

ception of the “public good”. As we showed above, this

Court may not do that.

But we emphatically dispute the government’s insinua-

tions (see, e. 9., Petition for Certiorari, p. 8; Brief, p. 37)

that the lower court’s decision will set a precedent which

30

will encourage ill-founded, “unproductive” litigation. In

fact, awards of fees to non-prevailing parties under stat-

utes using the “appropriate” language are likely to be quite

rare. See, e. g., Village of Kaktovik v. Watt. i}

(D.C. Cir. No. 81-1752, October 1, 1982). In that case, the

Court of Appeals refused to award fees to non-prevailing

plaintiffs under provisions of the Outer Continental Shelf

Lands Act (43 U.S.C. § 1349(a)(5)) and the Endangered

Species Act (16 U.S.C. § 1540(g)(4)) which are virtually

identical to Clean Air Act § 307(f). The court found that

the plaintiffs, unlike the petitioners in this case, had not

raised critical issues of national importance, nor were the

legal issues novel or complex.

The Court of Appeals’ opinion in the present case also

emphasized that awards of fees to non-prevailing parties

would be rare, limited to “exceptional” cases. 672 F.2d at

39. Therefore, the government’s fears of a rash of fee

awards to parties who did not prevail in trivial lawsuits

is completely unfounded.

There is another, practical reason why the lower court’s

opinion will not open the floodgates to ill-conceived litiga-

tion. This Court has made it plain that, as a general rule,

a party must participate in agency rule-making and ad-

vance all of its arguments at the administrative level as

a prerequisite to judicial review. See Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense Coun-

cil, Inc., 435 U.S. 519, 553-54 (1978). This is especially true

under § 307 of the Clean Air Act. See American Petroleum

Institute v. Costle, 615 F.2d 1176, 1190-91 (D.C. Cir. 1981),

cert. den. 102 S. Ct. 1737 (1982). Such administrative ac-

31

tion, which is likely to be immensely time-consuming," is

not compensable under § 307(f). See Sierra Club v. Gor-

such, 672 F. 2d 33. Thus, potential litigants with Coubtful

claims are unlikely to be tempted into embarking upon the

long and expensive process of challenging major adminis-

trative action on the slim hope that they might recover

attorney’s fees for the judicial portion of the litigation

even if they lose.

CONCLUSION

The government does not challenge the Court of Appeals’

conclusion that the issues in this case were extraordinarly

complex and important and the calibre of the submissions

by the petitioners was exemplary. Nevertheless, it argues

that the court below erred, since fees may never be

awarded to a non-prevailing party under §307(f). This ab-

solutist view of the law flies in the face of the specific

language of the statute, the unambiguous legislative his-

tory, and a long string of judicial opinions. The Solicitor-

General asks this court to usurp the functions of Congress

by re-writing the statute to conform to his views of public

policy. This court should firmly reject this invitation to

act as a super-legislature.

Oakland, California; January 7, 1983.

Respectfully submitted,

JosePH J. BRecHER

Attorney for the Sierra Club