# Petitioners Reply Brief — Ruckelshaus v. Sierra Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 680

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0785%3A10. Public record. Not legal advice.