Petitioners Reply Brief — Ruckelshaus v. Sierra Club

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‘ An the Supreme Court of the

, OctToser TerM, 1982

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

Vv.

Srerra CLus and ENVIRONMENTAL DEFENSE FUND

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

i. Rex E. Lee

. Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Alabama Power Co. v. Gorsuch,

EMT OTT TTT TT TTT TTT 2-3, 11

Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 2... 0. ccc ccc ewees 3, 15, 17

Carolina Power & Light Co. v. EPA,

No. 79-1741 (4th Cir. Nov. 30, 1980) .......... 7

Citizens Association of Georgetown v. Washington,

383 F. Supp. 136, rev'd on other grounds,

Pa BED cccccccccccccccscccccece 9, 10, 17

Community Action Research Group v. Camin,

No. 79-1940 (8th Cir. Mar. 12, 1983) ......... 7

Delaware Citizens for Clean Air, Inc. v.

Stauffer Chemical Co., 62 F.R.D. 353,

aff'd, 510 F.2d 969 2.0... cece ccc e ee eeees 9, 10

Delaware Citizens for Clean Air, Inc. v.

Stauffer Chemical Co., 367 F. Supp. 1040 ... 5-6

Environmental Defense Fund, Inc. v. EPA,

| ETE Heer TT TTTTTTT TTT Tye 1!

EPA v. Brown, 431 U.S.99 ......ccccccceeeees 7

Halperin v. Department of State,

DP PUNE Ceccbcvecdccedceccocccccocces 14

Kopet v. Esquire Realty Co.,

DEMME cevcecboedccccccccoscccccece 17

Maher v. Gagne, 448 U.S.122 .....66ccceccues 6

Metropolitan Washington Coalition for Clean

Air v. District of Columbia,

Te Wan 60 boceccesecccccccoccoes 6, 11, 17

Page

Cases—Continued:

National Cable Television Association v.

United States, 415 U.S. 336 2... 6c ccc cece eee 3

NRDC vy. EPA, 484 F.2d 1331 .......... 7, 10, 14

Northern Plains Resource Council v. EPA,

DPE éicednbodisddceetdbadecsseéese 12

Orme v. Northern Trust Co., 25 Wl. 2d 151,

DPT cdeudebécededesooosceesatts 14

Pacific Legal Foundation v. Goyan,

Dt pdeducebenadtcedsocesoetoebe 13

Pine Hill Coal Co. vy. United States,

DP asedeaddiataadegesseeeebunnt 4

Save Our Sound Fisheries Ass'n v. Callaway,

GF. BU GERD ccccccdcccccccccccces 14-15

Sierra Club v. Costle,

SPE ceccceoetéeeves 7, 14, 15, 16, 17, 19

Sierra Club v. Lynn, 364 F. Supp. 834,

rev'd in part, 502 F.2d 43... 2... ccc eee eenes 17

Union Central Life Ins. Co. v. Hamilton

Steel Products, Inc., 493 F.2d 76 ............ 14

United States v. Testan, 424 U.S. 392 .......... 4

United States v. Zazove, 334 U.S. 602 .......... 4

Valley Forge Christian College v. Americans

United For Separation of Church and State,

BR GO ee GD oct cbecsicoccscodcccccess 15

Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519 .... cece cccccccceeees 18

Page

Cases—Continued:

Village of Kaktovik v. Watt,

EPUMINEEED Géccodeoesesdoceséceccoceoces 11

White v. New Hampshire Department of

Employment Security, 455 U.S. 445 .......... 5

Statutes:

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

7401 et seq. :

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

PED adeccddgescccosanabocesooceses 7, 18

Section 113(b), 42 U.S.C. (Supp. IV)

PEED coceceéécceasecouheaseseooceces 6

Section 304, 42 U.S.C. (Supp. I'V)

ME ccngcsegndoesucesedcedinoeesce 6, 10

Section 304(d), 42 U.S.C. (Supp. I'V)

PD sedboncdnddbdmessecoecccececets 5

Section 307, 42 U.S.C. 7607 ........0045: 6,7

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

PEED woccdccccoccotensses 1, 2, 4, 5, 6,7

Section 322(b)(2)(B), 42 U.S.C. (Supp. IV)

PEED occcdwcccecedsaadecteccese 4

Clean Water Act, 33 U.S.C. 1367(c) ..........+. 9

Energy Reorganization Act of 1974, 42 U.S.C.

(Supp. IV) S5851(b) 2B) ... 2.2... c ccc eeeeeee 9

Outer Continental Shelf Lands Act, 43 U.S.C.

(Supp. IV) 1349(b)(2) 2... cc cece cece wee enees 9

Resource Conservation and Recovery Act of

SP Ge a GEPEED ccccccsoccccccsccccee 9

Safe Drinking Water Act, 42 U.S.C.

BOOj-O(IM 2M BMGI) 2. ce cece cece cece ce cceenees 4

IV

Page

Statutes—Continued:

Surface Mining Control and Reclamation Act

of 1977:

SP ED tn cccceéececesovessossoes S)

ED titi oddinooccntedaedueses S)

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

ESE a ae 4

Miscellaneous:

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

iD it¢ thins éeaquebecenseeedineseces 12

Memorandum Opinion for the Secretary of the

Interior, No. 79-5, 3 Op. Off. Legal Counsel

BE GERUED ceccecccccvceccccvccccccccsseese 19

S. 252, 95th Cong., Ist Sess. (1977) .........005- 8

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

GREED cvvcccnvccencéconcsqcecceses 5, 7, 12-13

Staff of Senate Comm. on Environment and

Public Works, 95th Cong., 2d Sess., A

Legislative History of the Clean Air Act

Amendments of 1977 (Comm. Print 1979) ..... 8

Ju the Supreme Court of the Hnited States

OcTOBER TERM, 1982

No. 82-242

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

Vv.

SrerRA CLuB and ENVIRONMENTAL DEFENSE FUND

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Although they claim to have achieved various “public

benefits” in the underlying merits litigation (see pages 12-

20, infra), respondents do not dispute the fact that they were

totally unsuccessful in their chalienge to EPA's rulemaking.

Nevertheless, respondents contend that the plain language

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

7607(f), makes success, or even some tangible accomplish-

ment, totally irrelevant to a court’s decision to award attor-

neys’ fees under that statute. But the literal language of the

statute offers no answer to the question presented by this

case. Instead, the Court must interpret the statute in light of

its legislative history and with reference to the usual prac-

tices of Congress in this area, bearing in mind the principles

of statutory construction that counsel against interpreting

statutes in a manner that imposes monetary liability on the

United States in the absence of clear and unambiguous

congressional intent. When all of these factors are taken

into account, it is clear that the award of attorneys’ fees in

this case cannot stand.

(1)

2

1. Respondents argue (EDF Br. 10-11; S.C. Br. 13-18')

that the plain language of Section 307(f) precludes a court

from requiring any element of success or accomplishment

as a prerequisite to an attorneys’ fee award because such a

prerequisite is not expressly mentioned. Relying on dic-

tionary definitions, EDF argues that the term “appro-

priate” should be read to permit the courts to award attor-

neys’ fees as they deem “suitable, proper or fitting” (EDF

Br. 11). This argument proves too much, however, for even

EDF acknowledges that there are limits to the courts’ dis-

cretion to award attorneys’ fees under Section 307(f) and

that such awards are therefore reviewable under an abuse of

discretion standard (ibid.).?

a. As we stated in our opening brief (at 13-14), the back-

drop of the traditional American rule against fee-shifting

counsels against an interpretation of Section 307(f) that

would authorize attorneys’ fee awards for totally unsuccess-

ful litigants. In his dissenting opinion in Alabama Power

'The Brief for Respondent Environmental Defense Fund will be cited

as “EDF Br.” and that filed by the Sierra Club will be cited as “S.C. Br.”

2Section 307(f) authorizes a court to award attorneys’ fees “whenever

it determines that such award is appropriate” (emphasis added). Read

literally, the statute would leave fee awards to the unreviewable and

unlimited discretion of the court. For example, fees could be awarded to

unsuccessful defendants or respondents, as well as to unsuccessful

plaintiffs or petitioners, depending upon the court's personal beliefs as

to the significance of the interests represented by the opposing parties.

As Judge Wilkey noted in his dissenting opinion in Alabama Power Co.

v. Gorsuch, 672 F.2d 1, 19-24 (D.C. Cir. 1982), petition for rehearing

pending, No. 78-1006, such a reading of “appropriate” raises serious

constitutional problems because, as interpreted by respondents and the

court of appeals, Congress has failed to provide the courts with any

ascertainable standards for determining the “appropriateness” of a fee

award in a particular case. Thus, even though Congress has provided

statutory authorization for fee awards, that authorization would still

embroil the courts in the same policymaking exercise of “pick{ing] and

choos[ing] among plaintiffs * * * depending on the court's assessment

of the importance of the public policies invoived in particular cases”

3

Co. v. Gorsuch, 672 F.2d 1, 17 (D.C. Cir. 1982), petition

for rehearing pending, No. 78-1006 (footnotes omitted),

Judge Wilkey made the same point:

The trouble with the [court of appeals’ decision in

this case] is that it would dramatically alter the award

structure. In the absence of some evidence that Con-

gress intended a dramatic departure, we should not

adopt such a construction. Were such an expensive and

unprecedented result contemplated, it surely would

have been mentioned. Yet in none of the myriad House

and Senate reports, committee prints, and floor debates

cited in this opinion were more than a few lines ever

devoted to these [attorneys’ fee] sections at all, let alone

any mention made of such a change. * * * If Congress

meant for “appropriate” to mean that all non-frivolous

plaintiffs would recover, it surely would have said so.

ses

Notwithstanding the court of appeals’ dramatic depar-

ture from all previously-accepted notions of fee-shifting,

EDF argues (at 27-34) that the rule requiring strict con-

struction in the government's favor of statutes waiving sov-

ereign immunity is inapplicable here. It does so by neatly

categorizing some of this Court's sovereign immunity cases

into groups that do not encompass the present case and then

asserting that there are no other situations in which the rule

of strict construction operates (id. at 28).

that the Court found objectionable in Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240, 269 (1975). In our view, however, it is

not necessary to reach the constitutional problems posed by Judge

Wilkey so long as “appropriate” is interpreted, as we urge, to encompass

an element of tangible accomplishment, even if a favorable judgment on

the merits is not required. This is a standard readily evaluated by the

courts and thus capable of consistent application. In keeping with this

Court's policy of avoiding unnecessary constitutional decisions, see,

e.g., National Cable Television Association v. United States, 415 U.S.

336, 342 (1974), our definition of “appropriate” should prevail over

respondents’ and the court of appeals’ standardiess and amorphous

formulation.

4

Contrary to EDF's argument, the government has not

invented any new doctrine of sovereign immunity in this

case. The question is straightforward: what is the scope of

the waiver Congress intended when it enacted Section

307(f)? Clearly, Congress intended that the government

would be liable for fees in some circumstances. But, as

noted by Judge Wilkey, it did not address the question

presented by this case, viz., whether the government should

subsidize totally unsuccessful litigants. In principle, the

question here is no different from that presented in United

States v. Tesian, 424 U.S. 392, 405-407 (1976), in which the

Court noted that in the Back Pay Act Congress had

expressly authorized a monetary cause of action for federal

employees “subjected to a reduction in their duly appointed

emoluments or position” (id. at 407), but that the Act did

not create a damages remedy for one who had not yet been

appointed to the position he sought. Here, too, it is clear

that Congress has provided a monetary remedy in the form

of attorneys’ fees for certain classes of plaintiffs, i.e., those

who prevail or accomplish something concrete short of

judgment, but there is no evidence whatsoever to support

the notion that Congress has provided a “remedy” for

totally unsuccessful litigants. In deciding this case, there-

fore, the Court must be guided by the familiar principles of

sovereign immunity just as it was in Testan. See, e.g., Pine

Hill Coal Co. v. United States, 259 U.S. 191, 196(1922) (“A

liability in any case is not to be imposed upon a government

without clear words * * * and where, as here, the liability

would mount to great sums, only the plainest language

could warrant a court in taking it to be imposed”); United

States v. Zazove, 334 U.S. 602, 616-617 & n.24 (1948)

(same).?

JEDF also argues (at 29-30) that the rules governing construction of

waivers of sovereign immunity do not apply to substantive questions,

such as the meaning of “appropriate” in this case, but are instead limited

to “procedural” questions. This Court has never drawn such a distinc-

tion. Even if it had, however, it is fairly arguable that attorneys’ fees are

5

b. A fair reading of the legislative history underlying

development of the term “appropriate” does not support an

interpretation of Section 307(f) that authorizes fee awards

to losing litigants. Instead, “appropriate,” which Congress

first adopted in 1970 as a standard in Section 304(d) of the

Clean Air Act, 42 U.S.C. (Supp. IV) 7604(d) (see Pet. Br.

15-17), was chosen as a term of art to encompass two very

different classes of parties that Congress intended to make

eligible for attorneys’ fees. The first group inciuded success-

ful defendants subjected to “frivolous or harassing” litiga-

tion. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 38 (1970).

The second group included plaintiffs bringing “legitimate

actions,” a category that Congress meant to extend to those

whose suits “result in successful [pollution] abatement but

do not reach a verdict” (ibid.). This scheme encouraged

proper use of the Clean Air Act's citizen suit provision

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

meritorious suits and penalizing clearly unreasonable ones.

Notwithstanding Congress’ clear explanation of the twin

circumstances in which an attorneys’ fee award would be

“appropriate,” respondents contend that a single sentence

from the section-by-section analysis contained in the Senate

Report evidences Congress’ true intent in 1970. That sen-

tence provided that attorneys’ fee awards would be author-

ized “without regard to the outcome of the litigation” (S.

Rep. No. 91-1196, supra, at 65). If read literally, as respond-

ents urge, this statement is clearly at war with the carefully

limited circumstances that the Senate Report itself de-

scribed as proper for fee awards. The statement is reconcil-

able with the body of the Senate Report only if one

remembers that, in 1970, the “outcome of the litigation”

referred to the final judgment (see Pet. Br. 20-21 & n.13). If

abatement of a violation was achieved prior to judgment,

the suit would be dismissed as moot. See, e.g., Delaware

a “procedural” matter because they are collate :al to the main action.

See White v. New Hampshire Department of Employment Security,

455 U.S. 445, 451 (1982).

6

Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 367

F.Supp. 1040 (D. Del. 1973); cf. Metropolitan Washington

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

802 (D.C. Cir. 1981). Even respondents acknowledge (EDF

Br. 16) that it was not until 1980 that this Court held that a

party could “prevail” by way of settlement rather than

litigated judgment. Maher v. Gagne, 448 U.S. 122, 129

(1980). Thus, as we stated in our opening brief (at 21), the

1970 legislative history supports the view that Congress

intended to discard a favorable final judgment as a prereq-

uisite to an award of attorneys’ fees; it does not, however,

suggest that Congress intended to authorize fee awards to

litigants who did not achieve any measure of tangible

success.

Respondents assert (EDF Br. 19; S.C. Br. 22-24) that

even if Congress so limited the meaning of “appropriate” in

1970, it intended to expand the meaning of the same word in

1977, when it enacted Section 307(f). Respondents com-

pletely gloss over Congress’ clearly expressed intention to

conform Section 307 to Section 304 (see Pet. Br. 15-17).*

The Sierra Club asserts that in actions to review EPA

regulations brought under Section 307 there would be no

occasion for “abatement of pollution” prior to judgment

because EPA is not a polluter (S.C. Br. 24-25). This surely is

mere quibbling. Achievement of the desired result prior to

judgment, equivalent to abatement of pollution, is certainly

possible and, indeed, fairly common in Section 307 actions.

EPA may withdraw regulations or modify its orders after a

‘Respondents also ignore the fact that another 1977 amendment to

the Clean Air Act reinforces Congress’ intent to retain its original, 1970

formulation of the circumstances in which attorneys’ fee awards would

be appropriate. In addition to providing for fees in Section 307(f),

Congress also amended Section 113(b), 42 U.S.C. (Supp. IV) 7413(b),

to provide that defendants in federal enforcement actions are eligible

for fee awards whenever the government's enforcement actions are

“unreasonable.” The original structure for attorneys’ fee awards was

thus preserved in the 1977 Amendments: Plaintiffs could be awarded

fees if they achieved some tangible benefit, even if short of judgment,

that served the purposes of the Clean Air Act, while defendants could

obtain fees if they were subjected to “unreasonable” actions, whether

initiated by private plaintiffs or by EPA.

7

Section 307 action is initiated (see, e.g., EPA v. Brown.

431U.S. 99 (1977); Carolina Power & Light Co. v. EPA,

No. 79-1741 (4th Cir. Nov. 30, 1980); Community Action

Research Group v. Camin, No. 79-1940 (8th Cir. Mar. 12,

1983)), or it may settle the litigation (see, e.g., Chemical

Manufacturers Association v. EPA, No. 79-1112 (D.C.

Cir.)). In these situations, the petitioner “succeeds” in its

suit in the sense of achieving the desired result, even though

the official disposition on the court dockets may be dismis-

sal of the petition for review. Cf. EPA v. Brown, supra, 431

U.S. at 104.

Respondents also claim (S.C. Br. 21; see also EDF Br.

17-18) that the 1977 House Report's endorsement of NRDC

v. EPA, 484 F.2d 1331 (Ist Cir. 1973), shows that Congress

intended to expand eligibility for attorneys’ fees to unsuc-

cessful litigants whose challenges were “constructive and

reasonable.” We have dealt at length with the First Circuit's

decision (Pet. Br. 26-28). We note here only that the First

Circuit awarded attorneys’ fees to NRDC because NRDC

succeeded in substantial part (i.e., it brought a “legitimate

action”), and furthered the public interest in proper imple-

mentation of the Clean Air Act in so doing.* Thus, the First

Circuit's decision represents a direct application of the

standards for attorneys’ fees articulated by Congress in

1970. See S. Rep. No. 91-1196, supra, at 38.

Finally, respondents claim that Congress evidenced an

intent not to “limit” attorneys’ fees to successful parties by

rejecting a proposal that fees be awarded automatically toa

’The court also reasoned that if NR DC's challenge had been “wholly

or in substantial part frivolous,” EPA, not NRDC, should be awarded

attorneys’ fees (484 F.2d at 1338). Under this standard, it is at least

arguable that EPA, not Sierra Club, would be entitled to an award of

attorneys’ fees for the underlying litigation in this case. In Sierra Club v.

Costle, 657 F.2d 298, 318-322 (D.C. Cir. 1981), the court quickly

disposed of Sierra Club’s arguments concerning the proper interpreta-

tion of Section 111 of the Clean Air Act, 42 U.S.C. (Supp. IV) 7411.

During the course of its discussion, the court confessed that it was

“frankly at a loss to understand” Sierra Club's arguments (657 F.2d at

320). The court found the text of the statute “relatively clear” and held

that Sierra Club's contrary interpretation was not “warranted by a fair

reading of the Act or the underlying legislative history” (id. at 321).

8

“prevailing party”(S.C. Br. 20; EDF Br. 19-20). The Senate

proposal, contained in S. 252, 95th Cong., Ist Sess. (1977),

however, would not have created a limitation on the pre-

existing standards for attorneys’ fees. To the contrary, it

would have expanded substantially the government’s liabil-

ity for attorneys’ fees. Gone, for example, would have been

the requirement that the litigation be in the public interest,

i.e., assist in the proper implementation of the Clean Air

Act. Instead, even if a party prevailed, but frustrated the

goals of the Clean Air Act, an award of attorneys’ fees

would have been mandated. Polluter defendants who pre-

vailed would have been granted fees no matter how techni-

cal their victory or how substantial the enforcement proceed-

ing.

The Senate Staff Report discussing this proposal, upon

which respondents rely, was directed at the automatic char-

acter of the attorneys’ fee awards, not at the requirement of

success or accomplishment in the litigation. The staff wrote

(Staff of Senate Comm. on Environment and Public

Works, 95th Cong., 2d Sess., A Legislative History of the

Clean Air Act Amendments of 1977, at 37 (Comm. Print

1979)):

Is there any need to modify the existing judicial prac-

tice of awarding fees based on the individual circum-

stances of each case?

The clear import of this passage is that each case must be

studied to determine whether it furthered the goals of the

Clean Air Act, not that totally unsuccessful litigants may be

granted fees.°

*EDF suggests (at 12, 23-24 n.35) that Congress’ use of other stand-

ards for awards of attorneys’ fees in other statutes and in different

sections of the Clean Air Act itself means that the “appropriate” stand-

ard must be interpreted to authorize fees for totally unsuccessful par-

ties. But the fee provisions cited by EDF are part of make-whole

remedies for individuals personally injured by statutory violations. For

example, employee protection provisions in numerous statutes author-

ize the Secretary of Labor to include an award of fees and expenses ina

reinstatement order directed to an employer found guilty of discrimina-

tion against an employee for cooperating in the enforcement of various

)

The report's reference to “the existing judicial practice”

does not alter this analysis. At the time the report was

written, there were only three decided cases interpreting the

“appropriate” standard, and it is clear that those cases

cannot support fee awards to parties who do no more than

air losing claims. One of the three cases, NRDC vy. EPA,

supra, 484 F.2d at 1331, has already been adequately dis-

cussed. The other two cases are Delaware Citizens for Clean

Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353 (D.Del.

1974), aff'd, 510 F.2d 969 (3d Cir. 1975) (table), and 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).

In Delaware Citizens, an admitted violation of the Clean

Air Act was abated after the filing of suit when the defend-

ant obtained a variance from the otherwise applicable

pollution control requirements. Nevertheless, because it

found that plaintiff's suit had not altered the defendant's

conduct nor “in any other tangible or direct way contributed

to achievement of the objectives of the Clean Air Act,” 62

F.R.D. at 355, the court rejected plaintiff's request for fees.

Although the court observed in dicta that “ultimate suc-

cess” in a citizen's suit under Section 304 might not be a

statutes. See, e.g., Clean Air Act, 42 U.S.C. (Supp. IV) 7622(b)(2)(B);

Toxic Substances Control Act, 15 U.S.C. 2622(b)(2)(B); Surface Min-

ing Control and Reclamation Act of 1977, 30 U.S.C. (Supp. V) 1293(c);

Clean Water* Act, 33 U.S.C. 1367(c); Safe Drinking Water Act, 42

U.S.C. 300j-9(i)(2 B\ii); Energy Reorganization Act of 1974, 42

U.S.C. (Supp. IV) 5851(b)(2)(B); Resource Conservation and Recovery

Act of 1976, 42 U.S.C. 6971(c). In two other statutes cited by EDF,

Congress authorized private damages actions for persons injured in

body or property by operators acting in violation of the statutes;

attorneys’ fees and expenses are included in the definition of damages

that may be awarded in such actions. See Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. (Supp. V) 1270(f); Outer Continen-

tal Shelf Lands Act, 43 U.S.C. (Supp. IV) 1349(b)(2).

That Congress included attorneys’ fees and expenses as part of make-

whole remedies in provisions dealing with the adjustment of private

rights sheds little light on its intent with respect to standards for the

award of attorneys’ fees in those situations in which the object is to

promote the public interest in proper implementation of the Clean Air

Act.

10

prerequisite to an attorneys’ fee award (62 F.R.D. at 355),

the court also stated that fee awards to a losing party should

be reserved for those cases in which the litigation “serves the

objectives of the Act in some substantial way or in which

other exceptional circumstances tip the balance of the equi-

ties decidedly in the losing party’s favor” (ibid.). This hardly

constitutes an endorsement of fee awards to parties whose

“contribution” to the goals of the statute was an unneces-

sary validation of the agency’s actions. Indeed, elsewhere in

the opinion the court questioned whether fees would be

“appropriate” when, as here, state and federal pollution

control agencies are already actively engaged in fulfilling

their statutory duties (id. at 357).

The decision in Citizens Association is of no precedential

value in light of the court of appeals’ reversal (535 F.2d 1318

(D.C. Cir. 1976)). But even the district court's reasoning on

the merits shows that plaintiffs in that case accomplished

more than the airing of novel issues. The court made it clear

that plaintiffs lost their case to enjoin construction of two

buildings primarily because the District of Columbia

government had failed to enact the regulatory framework

contemplated by the Clean Air Act (383 F.Supp. at 145).

The court thus saw the suit as a helpful and necessary effort

to galvanize the District to action (id. at 145-146). On

appeal, the court of appeals vacated the award of attorneys’

fees upon finding that Section 304 of the Clean Air Act did

not provide the district court with jurisdiction to remedy the

District of Columbia's failure to implement the Act (535

F.2d at 1322-1323). Thus, the district court in Citizens

Association had overstepped its authority to award fees

because of its concern for conduct thought to be impeding

proper implementation of the Clean Air Act. By contrast,

the court of appeals in the present case found that EPA had

already acted properly.

The “existing judicial practice” cited by the Senate Staff,

therefore, consisted only of fee awards to partially prevail-

ing parties whose losing contentions were not frivolous or

harassing, NRDC v. EPA, supra, 484 F.2d at 1338-1339.

Accordingly, there is no reason to read into the affirmation

11

of “the existing judicial practice” a congressional intent to

authorize attorneys’ fee awards to totally unsuccessful

parties.

2. Respondents also argue that the result below is con-

sistent with that reached by “[e]very federal court to con-

sider the issue” (EDF Br. 22; see also S.C. Br. 27-28).

Respondents are building upon a strawman because nearly

every case has been decided by the District of Columbia

Circuit. Even more to the point, however, the District of

Columbia Circuit itself has not awarded fees to totally

unsuccessful litigants in any case but the present. In A/a-

bama Power Co. v. Gorsuch, supra, and Environmental

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

tion for rehearing pending, No. 79-1580, both decided the

same day as the instant case, the petitioners were largely

successful. Thus, language in those opinions concerning fee

awards to non-prevailing parties is merely dicta. In Village

of Kaktovik v. Watt, 689 F.2d 222 (D.C. Cir. 1982), the

court acknowledged, as it had to under controlling circuit

precedent, that “‘success’’ was not required

for a fee award, but it then declined to award any fees upon

finding that plaintiffs’ contribution to the goals of the sta-

tutes at issue in that litigation did not merit compensation;

again, therefore, the court's observations about awards to

losing parties were dicta. Finally, in Metropolitan Washing-

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

F.2d 802 (D.C. Cir. 1981), it was at least arguable that

plaintiffs accomplished something. At the time plaintiffs

filed suit in that case, and for three years thereafter, the

District of Columbia was in clear violation of its implemen-

tation plan under the Clean Air Act. Plaintiffs never

obtained a favorable final judgment, however, because the

District modified the plan, and EPA approved the revision,

in such a way as to render the case moot. This anomalous

situation, in which plaintiffs lost their case only because of

an intervening change in the law, hardly qualifies as support

for the decision below. Moreover, as the court noted in

awarding fees (639 F.2d at 804), even an “unsuccessful” suit

12

in such circumstances may produce a tangible accomplish-

ment by displaying to the public a record of inaction or

action delayed on the part of responsible government agen-

cies. Respondents here cannot claim even this limited con-

tribution to the public interest.’

3.a. Despite their total lack of success on the merits of

the underlying litigation, the court of appeals held that

respondents were entitled to attorneys’ fees because their

litigation substantially contributed to the achievement of

two goals of the Clean Air Act: “prompt resolution of

serious questions of statutory interpretation and citizen

participation in monitoring administration of the Act

through enforcement suits” (Pet. App. 18a). The court of

appeals offered no support for its assertion that these objec-

tives are goals of the statute; EDF, however, attempts to

bolster the court’s opinion by arguing (at 35-36) that the

language of the statute and its legislative history support the

court's conclusion. In the context of this case, EDF's argu-

ments are erroneous.

EDF cites (at 36) those portions of the Act providing

strict time limits on judicial challenges to EPA regulations

for the proposition that “prompt resolution of serious ques-

tions of statutory interpretation” is an express goal of the

statute justifying attorneys’ fee awards. But, as we pointed

out in our opening brief (at 31-32 n.20), Congress provided

“prompt” judicial review provisions not for the sake of

encouraging fee-generating litigation but rather in recogni-

tion of the inescapable fact that judicial challenges to EPA

regulations were inevitable and that, absent complete pre-

clusion of review, the best Congress could do to maintain

the Act's strict compliance deadlines was to limit judicial

review in time and place. The legislative history of the Clean

Air Act makes Congress’ purpose clear (see H.R. Rep. No.

95-294, 95th Cong., Ist Sess. 322 (1977); S. Rep. No. 91-

7One other court of appeals has awarded fees to losing plaintiffs,

relying on Metropolitan Washington, supra. Northern Plains Resource

Council v. EPA, 670 F.2d 847 (9th Cir. 1982). The government has not

yet decided whether to seek rehearing or review by this Court in that

case.

13

1196, supra, at 40-41). Thus, far from evincing an intent to

encourage judicial challenges, the statutory structure and

legislative history show an intent to minimize the interfer-

ence with achievement of the Act’s substantive goals that

would necessarily be occasioned by unrestrained judicial

review; it is impossible to understand how EDF can trans-

form this congressional purpose into a desire for the pay-

ment of attorneys’ fees to unsuccessful litigants.

EDF also argues (at 35-36) that citizen participation is an

express goal of the Act. But the statutory provisions it cites

all relate to citizen participation in agency rulemakings,

EDF does not cite any statutory provision (nor are we

aware of any) that seeks to encourage citizen-initiated lit-

igation once the rulemaking proceedings have been con-

cluded. As we noted in our opening brief (at 35-36 & nn.23-

24), citizen participation in agency rulemakings can inure to

the benefit of the public by leading to better informed

decisionmaking, whether or not the citizens’ views are ulti-

mately adopted. Comparable benefits are not reaped, how-

ever, by citizen participation in judicial review, and thus

Congress has consistently differentiated between participa-

tion before the agency and in the courts (see ibid.; see also

Pacific Legal Foundation v. Goyan, 664 F.2d 1221, 1225

(4th Cir. 1981)). Contrary to EDF's argument (at 36), there-

fore, one cannot fairly transmute Congress’ solicitude for

public participation in the rulemaking process into a con-

gressional mandate for the federally-subsidized presenta-

tion of nonmeritorious legal positions in court.

b. The Sierra Club does not point to any specific “public

benefits” conferred by its litigation efforts, relying instead

on the court of appeals’ assertion that “prompt resolution of

the important and complex issues” (Pet. App. 8a) involved

in this case is sufficient to justify an award of attorneys’ fees

(S.C. Br. 29).* We have already demonstrated that Congress

*Notably, the Sierra Club has abandoned the contention advanced in

its Brief in Opposition (at 2) that it aided agency implementation of the

Clean Air Act “by instructing EPA on a better (albeit not mandatory)

way to conduct rule-makings * * *.” The contention was dropped, no

14

did not intend to award fees for this purpose (see pages

12-13, supra), and thus we need not further discuss the

Sierra Club’s argument. EDF, on the other hand, contends

(at 34-49) that its litigation advanced the goals of the Clean

Air Act in four specific ways. As we demonstrate below, it is

clear that none of these purported “public benefits” is suffi-

cient, either alone or in combination, to justify the court of

appeals’ award of attorneys’ fees in this case.

(1) EDF claims that its unsuccessful challenge to EPA's

procedures in this rulemaking “clarified” the applicable law

to be followed in future rulemakings (EDF Br. 38-43).° But

such “clarification” is in any event the normal result of all

litigation.'® Clarification of the governing law serves a pur-

pose when it results in the correction of an agency error or

mistake, as was true in three of the cases cited by EDF (at

41-42) (Halperin v. Department of State, 565 F.2d 699

(D.C. Cir. 1977); NRDC v. EPA, 484 F.2d 1331 (ist Cir.

1973); Save Our Sound Fisheries Assn v. Callaway, 429

doubt, because there is not the slightest evidence that Congress intended

to award attorneys’ fees to anyone undertaking such admittedly super-

fluous instruction. Similarly, EDF no longer argues, as it did in its Brief

in Opposition (at 15), that fees may be awarded to a totally unsuccessful

litigant so long as the underlying lawsuit was “constructive and

reasonable.”

*%EDF'’s claim (at 39) that it not only “clarified” the law but actually

triumphed over EPA in connection with the handling of interagency

communications is puzzling. EDF asserts (ibid.) that the court “indi-

cat{ed] that [such communications] are included by the Act in the

record for judicial review.” To the contrary, the court stated that

“[t]}hese materials, although docketed, are excluded from the ‘record for

judicial review’ ” (657 F.2d at 404 n.519; emphasis added).

EDF asserts (at 42-43 & n.48) that courts frequently award fees to

litigants who, even though unsuccessful in their own behalf, “succeed”

in clarifying ambiguous trust documents or the law governing such

documents. EDF further contends (ibid.) that this rule justifies the fee

award here. But the rule upon which EDF relies permits attorneys’ fees

and expenses to be paid from a trust fund or estate when the litigation is

reasonably necessary to interpret the governing instrument and ensure

proper administration of the fund. See, e.g., Union Central Life Ins. Co.

v. Hamilton Steel Products, Inc., 493 F.2d 76, 79 (7th Cir. 1974); Orme

v. Northern Trust Co., 25 Wl. 2d 151, 183 N.E.2d 505 (1962). In the

15

F.Supp. 1136(D.R.1. 1977)). But when, as here, the agency

has not misstepped, such “ clarification” does nothing

more than promote the mere “refinement of jurisprudential

understanding,” Valley Forge Christian College v. Ameri-

cans United For Separation of Church and State, Inc., 454

U.S. 464, 473 (1982), a point made all the more apparent by

EDF's assertion that this litigation was valuable because it

provided fodder for a symposium on informal rulemaking

(EDF Br. 40-41).

(2) EDF relies heavily on the disclosure of “Important

Ex Parte Communications” (EDF Br. 43) as conferring a

public benefit sufficient to justify the award of attorneys’

fees. A review of the proceedings concerning these “disclo-

sures” is necessary to put this claim in perspective. After the

close of the formal comment period on the rulemaking,

EPA officials orally discussed the pending NSPS proposal

in meetings with the President and other representatives of

the Executive Branch, members of the Legislative Branch

and outside interest groups, including EDF (see Sierra Club

v. Costle, 657 F.2d 298, 387-389 (D.C. Cir. 1981)). Of nine

identified meetings, seven were summarized and noted in

the rulemaking docket (see, e.g., J.A. 17). The remaining

two—a briefing for Senate staff persons and a meeting with

the President—were not entered in the rulemaking docket.

EDF filed a motion for leave to depose certain EPA offi-

cials, or to serve interrogatories, to obtain “descriptions of

present situation, of course, there is no trust fund or estate from which

fees may be awarded. Instead, EDF was awarded fees against its oppo-

nent, the federal government. But, under EDF's theory, the government

also should have been awarded fees for its participation as a necessary

party in the litigation. Such a result, which obviously was not intended

by EDF, only points out the correctness of this Court's observation that

the “common fund” exception to the American rule against fee-shifting

is not suited for use in the context of judicial review of agency action.

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,

264-265 n.39 (1975).

16

the conversations and meetings, particularly by non-EPA

participants” (J.A. 14). A motions panel of the court of

appeals referred the request for discovery to the merits

panel (J.A. 24), which ultimately denied the requested dis-

covery upon finding it neither “necessary nor appropriate”

(Sierra Club v. Costle, supra, 657 F.2d at 390 n.450). The

motions panel, however, had ordered EPA to submit affi-

davits concerning some of the meetings; the only informa-

tion required to be set forth in the affidavits was the identity

of the meeting participants, a description of how the meet-

ings came to be held, and the approximate length of each

meeting (J.A. 25). These affidavits are apparently the

“important disclosures of information” (EDF Br. 45) that

justify an attorneys’ fee award. An examination of even one

such affidavit reveals how feeble is this claim. Omitting the

purely formal parts of the affidavit, the affidavit describing

the meeting with the President provided, in its entirety, as

follows (J.A. 28):

On April 30, 1979, EPA officials briefed the Presi-

dent and Executive Branch officials on the issues and

options presented by the rulemaking. The briefing was

held on EPA's initiative, as part of the Agency's policy

of briefing the Executive Branch on major EPA

actions. It lasted about ore hour. It was attended by

the following persons: President Carter; James Schle-

singer, Secretary of Energy; Charles Schultze, Chair-

man of the Council of Economic Advisors; Charles

Warren, Chairman of the Council on Environmental

Quality; Alfred Kahn of the White House Staff; Stu

Eizenstat, Advisor to the President for Domestic Pol-

icy; Kitty Schirmer and perhaps Simon Lazarus of the

President’s Domestic Policy Staff; Jim McIntyre and

Elliot Cutler of the Office of Management and Budget;

Douglas Costle, EPA Administrator; myself; and

other employees of the offices of the above persons,

whose names I do not recall.

17

It is simply not credible to claim, as EDF does (at 44-45),

that this affidavit and others like it constitute “important

disclosures of information” sufficient to justify an award of

attorneys’ fees.'' In addition to the fact that the affidavits

contain virtually no information whatsoever, let alone

“important” information, most of the meetings had already

been disclosed in the rulemaking docket (Sierra Club v.

Costle, supra, 657 F.2d at 404; see also id. at 387-389 &

nn.429, 433-437, 439-440, 443-445, 448-449), and thus the

affidavits disclosed little if anything new. And the court of

appeals ruled that the two undocketed meetings were not of

the type that had to be disclosed in the rulemaking docket in

any event (id. at 404-408). There is no logic in awarding

attorneys’ fees for the “public service” of exposing informa-

tion that the agency was under no obligation to disclose. To

''\EDF argues (at 44-45) that other courts have awarded fees to parties

who did not ultimately prevail on the merits of their claims but did

expose to the public and the court important information. The cases

cited are all distinguishable in that the information disclosed had some

intrinsic importance. For example, in both Metropolitan Washington

Coalition for Clean Air, supra, 639 F.2d at 804, and Citizens Associa-

tion for Georgetown, supra, 383 F.Supp. at 145, the courts :ound that

the unsuccessful suits could have demonstrated to the public “a record

of inaction and action delayed on the part of the District of Columbia

government in implementing the Clean Air Act.” In Kopet v. Esquire

Realty Co., 523 F.2d 1005, 1007-1009 (2d Cir. 1975), the lawsuit

resulted in the disclosure of financial statements that revealed, for the —

first time, that certain members of a partnership had been “borrowing”

from the partnership; as a result of these and other revelations, limited

partners were able to bring suit in state court alleging breaches of

common law and statutory fiduciary duties. Finally, in Sierra Club v.

Lynn, 364 F.Supp. 834, 850(W.D. Tex. 1973), rev'd in part, 502 F.2d 43

(Sth Cir. 1974), the district court found that plaintiffs’ lawsuit “forc{ed]

both the government and [the private developer] to do what they should

nave done of their own initiative in the first place * * *.” Thus, plaintiffs

were awarded fees not for the mere disclosure of information but for

serving as a catalyst for the government's compliance with the relevant

statutory mandates. In any event, the award of attorneys’ fees in Sierra

Club v. Lynn, which was decided before this Court's ruling in Alyeska

Pipeline Service Co., supra, is clearly not good law because the court

awarded fees on the basis of the “private attorney general” theory

rejected in Alyeska. Anticipating this Court's ruling in Alyeska, the

Fifth Circuit reversed the attorneys’ fee award, noting in addition that it

had “never assessed attorneys’ fees against a party innocent of any

wrongdoing” (502 F.2d at 65-66; footnote omitted).

18

be sure, disclosure of the information may have been neces-

sary to litigate EDF's claims, but that fact alone is clearly

insufficient to convert the disclosures into “public benefits”

for which the government should be assessed fees.

(3) EDF also claims (at 45-47), as did the court of

appeals (Pet. App. 18a-19a), that fees were justified because

EDF's participation in this case provided “balanced repres-

entation” by environmental interests to offset the positions

advocated by the industry representatives that participated

in the litigation. In attempting to justify a fee award on this

basis, both EDF and the court of appeals betray a serious

misperception of the proper role of courts in reviewing

agency rulemakings. In judicial review proceedings, courts

may not substitute their judgment for that of the agency on

the balance to be struck between competing policy consid-

erations relevant to the rulemaking. See, e.g., Vermont

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555

(1978). Instead, the court’s function is to ensure that the

agency has complied with the substantive and procedural

requirements of the governing statutes and the Constitu-

tion. Jd. at 558. Whether EPA gave appropriate considera-

tion to the various factors identified in Section 111 of the

Clean Air Act, 42 U.S.C. (Supp. IV) 7411, is to be deter-

mined by a review of the agency's rulemaking record, and

not by the post-hoc arguments of competing interest groups

participating in judicial review. Only if it were the function

of the court to second-guess EPA's policy decisions would it

be necessary for the court to encourage the participation of

a variety of different interest groups. Of course, that is not

the proper role of the judiciary.

(4) Finally, EDF claims (at 47-49) that the government

benefitted from its challenge because the resulting court

opinion provided “important guidance to the executive

branch concerning proper informal rulemaking procedures”

(id. at 49) '? In support of this contention, EDF relies on the

"EDF has retreated somewhat from its bold claim (EDF Br. in Opp.

3) that the decision in this case caused the Office of Management and

Budget to “alter” procedures for rulemaking throughout the entire

19

so-called “Stockman Memorandum” (J.A. 30-31), which

outlines the roles of the Presidential Task Force on Regula-

tory Relief and the Office of Management and Budget in

agency rulemakings. The text of the Stockman Memoran-

dum belies EDF's exaggerated claims for it. The Memoran-

dum states that “{i]n accordance with advice provided by

the Department of Justice * * *,” certain procedures would

be followed in providing factual material for agency rule-

makings (J.A. 31). The Memorandum then notes as an

“additional” matter thai the procedures “will be consistent

with the holding” of Sierra Club v. Costle, supra, 657 F.2d

at 298. There is good reason for this consistency, because

both OMB and the court of appeals relied on the same

opinion issued by the Justice Department’s Office of Legal

Counsel. See Memorandum Opinion for the Secretary of

the Interior, No. 79-5, 3 Op. Off. Legal Counsel 21 (1979);

Sierra Club v. Costle, supra, 657 F.2d at 405 n.520.'> Thus,

far from providing the entire Executive Branch with gui-

dance for handling ex parte contacts in future rulemakings,

EDF did no more than induce the court of appeals to

endorse the government's own in-house legal advice that

predated the merits decision in this case. An attorneys’ fee

award premised on the “benefits” of the Stockman Memo-

randum, therefore, is tantamount to charging the govern-

ment for the privilege of having a court cite with approval

the Justice Department's own legal opinions.

Executive Branch, an assertion for which there was no support what-

soever. The court of appeals made much more modest claims for its

decision, stating that the opinion had “apparently provided fuel for

discussion about appropriate restrictions on ex parte comments in

other administrative proceedings” (Pet. App. 18a). As we show above,

even the court of appeals’ assessment is overstated.

')We are advised by OMB that the Stockman Memorandum's men-

tion of “advice provided by the Department of Justice” referred only to

the above-cited Office of Legal Counsel opinion, and not to any advice

given as a result of the court of appeals’ decision in this case.

20

In short, the purported “public benefits” conferred by

this litigation are wholly illusory and certainly do not rise to

the level of meaningful public contributions that Congress

intended to subsidize. Accordingly, the court of appeals’ fee

award based on these “benefits” was an abuse of discretion.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

Rex E. Lee

Solicitor General

APRIL 1983

DOJ-1983-04