Petition — Save The Valley, Inc. v. Environmental Protection Agency

Office - Supreme Court, U.S.

82-637 FILED

Me. 0012 1982

—

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

SAVE THE VALLEY, INC.,

Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN L. OBERDORFER

J. GORDON ARBUCKLE

DUANE A. SILER

RUSSELL V. RANDLE

PATTON, Boccs & BLOW

2550 M Street, N.W.

Washington, D.C. 20087

(202) 457-6000

Attorneys for Petitioner

Save The Valley, Inc.

WILSON - Eres Printine Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

May the court of appeals, without explanation, deny all

attorney’s fees sought under section 307(f) of the Clean

Air Act, 42 U.S.C. § 7607 (f), where the party seeking

such fees achieved, through litigation against the Environ-

mental Protection Agency, modifications to a permit for

an electric power plant which protect the air and ground

water better than the challenged permit would have.

PARTIES

The parties involved in this attorney’s fees litigation

are Save The Valley, Inc. (STV) an environmental group

organized as an Indiana non-profit corporation, and the

Environmental Protection Agency (EPA). Louisville Gas

& Electric (LG&E), intervenor below, was not involved

in the dispute over attorney’s fees.

(i)

TABLE OF CONTENTS

Page

Opinions below 1

8 — 2

1 2

—6—— . 2

Reasons for granting the petition ................................... 8

Z cianecemeenesettiinnntapsbnitansiiiititeenecndanenyiennapenimegtennineion 19

Z 1a

TABLE OF AUTHORITIES

Cases:

Church of Scientology v. Cazares, 638 F.2d 1272

Comm'rs Court of Medina County, Texas v. United

e WRI

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

n ra ra

Florida Power & Liyht Co. v. Costle, 683 F.2d 941..

Hameed v. Int'l Ass’n of Bridge, Structural &

Ornamental Iron Workers, Local 396, 637 F.2d

Keith v. Volpe, 501 F. Supp. 408...

Kimbrough v. Arkansas Athletic Ass’n, 574 F.2d

Lamphere v. Brown University, 610 F.2d 44

Maher v. Gagne, 448 U.S. 122

Manchester Environmental Coalition v. EPA, peti-

tion for certiorari pending, No. 82-247ʒ̃7ʒ7

Metropolitan Washington Coulition for Clean Air

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

Miller v. Carson, 628 F.2d 34

Murphy v. Kolovitz, 635 F.2d 662 6

Natural Resources Defense Council v. EPA, 484

r..

iv

TABLE OF AUTHORITIES—Continued

Page

Northern Plains Resources Council v. EPA, 670

SERA Eee eee eo ee 15, 16

Northern Plains Resources Council v. EPA, 645

TEE CTT IA AC a ATR a 15

Sargeant v. Sharp, 579 F.2d 64 18

Save Our Sound Fisheries v. Callaway, 429 F.

///. 12

Seals v. Quarterly County Court of Madison

County, Tennessee, 562 F.2d 390 1 11

Seth v. Alameda County Water District, 602 F. 2d

894, cert. denied, 444 U.S. 104d 18

Sierra Club v. Gorsuch, 672 F.2d 33, petition for

certiorari pending, No. 82-2422 15

Southeast Legal Defense Group v. Adams, 657 F.2d

1 RS Am Soe E EE Oe nS wom 11

Statutes:

Civil Rights Attorney’s Fee Award Act of 1976, 42

EF /! 11

Clean Air Act, 42 U.S.C. §§ 7401-7622 (Supp. III

1979):

Section 165 (e) (3) (B), 42 U.S.C. § 7475 (e)

(8) (B) (Supp. III 1979999 9

Section 169 (3), 42 U.S.C. 5 7479 (3) (Supp.

D SSS ene oe ae 9

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

RSE See eee 14, 16

Section 307 (f), 42 U.S.C. 5 7607 (f) (Supp.

rr eee passim

Clean Water Act, 33 U.S.C. §§ 1251-1376 (1976

ed. & Supp. II 1978):

Section 402, 38 U.S.C. § 134ꝶ 22 3

Section 505 (d), 33 U.S.C. § 1365(d) —........... 15

Section 509, 33 U.S.C. § 139999 4,9

Section 511(c), 38 U.S.C. § 1371 (e797 3

Marine Research, Protection. and Sanctuaries Act,

33 U.S.C. §§ 1401-1444 (1976 ed. & Supp. II

1978) n 12

*

TABLE OF AUTHORITIES—Continued

Page

National Environmental Policy Act of 1969, 42

ER 10

Section 102, 42 U.S.C. § 4332922 3

Miscellaneous:

40 C. F. R. §§ 122, 123, 124 (1981 ed.) 10

9 Env. Rep. (BNA) 871, 72 . 10

13 Env. Rep. (BNA) 492, 5499 15, 17

EPA Petition for Certiorari in Gorsuch v. Sierra

e ...... 8, 13, 17

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

7 EEE S 2 Tien 9,14

National Commission on Water Quality, Staff

, 10

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) 14

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977) 9

In THE

Supreme Court of the United States

OCTOBER TERM, 1982

No.

SAVE THE VALLEY, INC.,

Petitioner

V.

ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Save The Valley, Inc. (STV), an environmental group

with several hundred members in Indiana, Kentucky, and

Ohio, petitions for a writ of certiorari to review the de-

cision of the United States Court of Appeals for the

Sixth Circuit.

OPINIONS BELOW

The court of appeals denied petitioner’s motion for

attorney’s fees and costs in an unreported order and

issued no opinion on that aspect of the case. Two earlier

orders of the court of appeals are unreported (Appen-

dix, infra, 2a, 4a), as is the opinion of the Administra-

tive Law Judge modifying the challenged water pollution

discharge permit.

2

JURISDICTION

The judgment order of the court of appeals was entered

on July 14, 1982. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f)

(Supp. III 1979), provides in relevant part as follows:

In any judicial proceeding under this section the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) whenever

it determines that such an award is appropriate.

STATEMENT OF THE CASE

This case arises from a dispute about the environ-

mental requirements to be imposed on a proposed coal-fired

power plant. Petitioner litigated the substantive and pro-

cedural validity of the Environmental Protection Agency’s

decisons to grant air and water pollution discharge per-

mits to the plant, and eventually obtained an order caus-

ing EPA to modify the water pollution discharge permit

in order to protect air quality from periodic breakdowns

of the plant’s air pollution control equipment, and ground

water quality from the improper disposal of sludge from

that equipment.

On the basis of this partial but tangible success, pe-

titioner moved for attorney’s fees and costs pursuant to

section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f)

(Supp. III 1979). The court of appeals denied the motion

in a two-sentence order. A brief description of the merits

of the litigation will place that denial in context.

1. In 1975, Louisville Gas & Electric (LG&E) began

to seek various environmental and other permits neces-

sary to construct a large coal-fired electric power plant

along the Ohio River in Trimble County, Kentucky.

LG&E sought two permits from EPA, one for a National

Pollutant Discharge Elimination System (NPDES) per-

mit pursuant to section 402 of the Clean Water Act, 33

U.S.C. § 1342 (1976 ed.), and the second for a Preven-

tion of Significant Deterioration (PSD) permit pursuant

to the Clean Air Act and then-applicable EPA regula-

tions. EPA was required to prepare a comprehensive en-

vironmental impact statement (EIS) pursuant to section

102 of the National Environmental Policy Act (NEPA),

42 U.S.C. § 4332 (1976 ed.), and section 511(c) of the

Clean Water Act, 33 U.S.C. § 1371 (e), (1976 ed.), as part

of its decisionmaking process on the NPDES permit ap-

plication.

LG&E proposed to use flue gas desulfurization scrub-

bers in order to meet air pollution control requirements.

This choice of control equipment raised concerns about

air pollution during periodic scrubber breakdowns, break-

downs which EPA permitting officials considered “in-

evitabie.” This choice also raised questions about ground

water pollution from on-site scrubber sludge disposal in

an area noted for sinkholes and dependent on local wells

for drinking water. EPA initially proposed to include a

PSD permit condition requiring maintenance of a 30-day

supply of low-sulfur coal for use during scrubber mal-

functions, and an NPDES permit condition requiring the

monitoring of ground water quality and a conversion to

off-site sludge disposal in the event ground water con-

tamination were detected.

The final PSD and NPDES permits contained neither

condition. Instead, EPA chose to include a “stipulation”

in the Final EIS Appendix, whereby LG&E purported to

bind itself to such conditions. Petitioner objected to these

and other aspects of the permits and impact statement,

contending, inter alia, that the stipulation was unenforce-

able, and that EPA’s reliance on it rendered the EIS and

permits invalid.

2. STV filed this action in the court of appeals on

January 17, 1979, pursuant to section 307 of the Clean

4

U.S.C. § 7607, and section 509 of the Clean

Act, 33 U.S.C. § 1369 (1976 ed.), and challenged

of the PSD and NPDES permits. STV con-

tended that the NPDES permit was invalid because (1)

EPA had denied STV’s request for an adjudicatory hear-

ing to consider the adequacy of the EIS on which the per-

mit decision was based, and (2) because the EIS was

legally insufficient in its consideration of important clean

air issues, including the enforceability of the “stipula-

tion,” and the failure to conduct modeling of the plant’s

effects on overall air pollution in the Ohio River Valley

and on acid rain. STV also contended that the PSD per-

mit was invalid because EPA did not provide an oppor-

tunity for comment on the final permit.

Following LG&E’s intervention, the parties attempted

to settle the case, and to that end, STV and LG&E sub-

mitted lengthy briefs to EPA’s General Counsel on the

issue of STV’s right under EPA regulations to an ad-

judiciary hearing on the NPDES permit. In August

1979, the General Counsel ruled that EPA erred in deny-

ing STV an adjudicatory hearing, but refused to stay

the permit or order EPA to conduct such a hearing.“

In September 1979, STV unsuccessfully moved in the

court of appeals for a stay pending appeal, after which

the parties submitted their briefs to the court on the

merits. STV contended (1) that it was entitled to its

adjudicatory hearing (a point LG&E contested) ; (2) that

the EIS was facially invalid because of its reliance on

the unenforceable stipulation, its failure to consider the

facility’s cumulative air pollution effects, and its reliance

on excessively high demand projections; and (3) that the

STV expended 232 hours of attorney time through August 1979.

together with more than 100 hours of law clerk time, and disburse-

ments of $1,590.21, at a total cost of $31,576.25.

PSD permit had been issued in violation of the procedural

requirements of the Clean Air Act.“

In July 1980, a month after oral argument, the court

of appeals affirmed the procedural adequacy of the PSD

permit and “adjourned” the proceeding in order to await

the outcome of the adjudicatory hearing EPA had finally

ordered in April 1980. The court required EPA to file

monthly status reports on the progress of the adjudica-

tory hearings.

3. In the ensuing adjudicatory hearings, the admin-

istrative law judge (ALJ) ruled against STV on sev-

eral issues but agreed with STV’s contention that the EIS

stipulation was unenforceable and did not provide the

air quality and ground water quality protection assumed

by the EIS. The ALJ found that:

(1) EPA would not have issued the permit absent

the stipulation, (2) EPA believed the stipulation to

be a binding and enforceable commitment by LG&E,

and (3) EPA relied on the stipulation as a means

ALJ Opinion at 19. In the face of EPA’s belated admis-

sion that the stipulation was not enforceable, the ALJ

observed :

To now argue that no one really needed [the stipula-

tion] in the first place simply will not wash. .. . It

was used to allay public fears about potential ad-

verse impacts. Either the EPA and LG&E knew at

the outset that the stipulation was unenforceable and

merely used it as a device to con the public or they

really felt it would cure future environmental prob-

lems with the project and was a necessary element

of permit issuance. The first if true is reprehensible

2 STV expended 253.75 hours of attorney time from September

1979 to March 1980, preparing briefs and for oral argument. The

cost of this phase, with disbursements of $4,036.63, was $29,786.63.

and the latter an honest mistake which nevertheless

casts grave doubts on the adequacy of the EIS. (em-

phasis supplied).

Id. at 18-19. Based upon these findings, the ALJ ordered

the terms of the stipulation incorporated into the NPDES

permit. As a result, LG&E is now required pursuant to

its permit (1) to keep a 30-day supply of low-sulfur coal

on hand for use in the event any of the Trimble County

facility’s scrubbers fail for an extended period of time

and (2) to undertake on-going monitoring for ground

water pollution from the facility’s scrubber sludge dis-

posal pond. In the event such pollution is detected, the

permit requires LG&E to take steps to dispose of its

sludge in a safer fashion. Thus, these crucial environ-

mental protection measures are now enforceable by EPA,

affected states, and interested citizens.*

4. In its order of March 4, 1982, the court of appeals,

upon STV’s motion, affirmed the Administrator’s deci-

sion to approve the modified permit. At the same time,

the court denied EPA’s and LG&E’s joint motion for dis-

missal.

EPA and LG&E did not appeal the ALJ's order that the permit

be modified. STV, however, challenged the deferential standard of

review the ALJ had adopted and maintained that, under a proper,

i.e., de novo, standard of review, the record would demonstrate that

the EIS was further deficient by virtue of its failure to use the

best modeling techniques in evaluating the Trimble County facility's

air pollution impact, as well as its failure to take into account the

most recent electricity demand data in determining whether the

facility was really needed. The EPA Administrator agreed with

STV that the ALJ had adopted an erroneous “arbitrary and capri-

cious” standard of review, but went on to hold that the ALJ had in

fact made a de novo review of the evidence. The Administrator

therefore affirmed the ALJ’s order, including that part of the order

which modified the permit to make the provisions of the stipulation

enforceable.

STV expended 202.25 hours of attorney time in oral argument to

the court of appeals, and in presenting STV’s case to the ALJ and

the EPA Administrator. Together with $1,582.39 in disbursements,

costs totaled $22,381.49 for this phase of the case.

7

On April 19, 1982, STV filed a detailed motion for

costs and attorney’s fees pursuant to the Clean Air Act,

arguing that it had obtained important clean air results

as a consequence of the litigation. The petition sought

reimbursement for 850 hours of attorney time, an addi-

tional 156 hours spent by law clerks, and $7,438.23 in

expenses, for a total of 397,925.28.“ The petition ex-

cluded over 650 hours of additional attorney time spent

on related matters, and sought no reimbursement for sub-

stantial additional attorney time spent in administrative

proceedings prior to the filing of this action in January

1979.

On May 19, 1982, EPA filed its opposition to the fee

petition, contending inter alia that since STV obtained its

clean air relief in an NPDES permit, the Clean Water

Act governed, and that fees must be denied because that

statute had no provision for fees in this kind of litiga-

tion. EPA also attacked the amount of fees requested and

the documentation supplied. STV replied on June 1, 1982,

and moved for additional fees for the attorney time spent

on that reply. EPA opposed that further motion on June

10, 1982, and STV replied on June 21.

On July 14, 1982, the court of appeals entered an order

of denial, which stated in its entirety:

Petitioner, Save The Valley, Inc. has moved this

court to grant it attorney’s fees and costs pursuant

to section 307(f) of the Clean Air Act. 42 U.S.C.

§ 7607(f) (Supp. III, 1979). Upon the record before

us, the motion is DENIED.

The court did not award costs to either side.

*STV expended 158.25 hours of attorney time on this phase of

the case, including the motion to affirm the NPDES permit. STV

later expended 54.75 hours of additional attorney time in replying

to EPA’s May 19 and June 10, 1982 submissions. Thus, the total

sought in attorney's fees and costs was $102,526.63.

REASONS FOR GRANTING THE PETITION

This case presents a key question in the proper con-

struction of the Clean Air Act and other environmental

statutes: namely, when a citizens suit is brought which

results in tangible improvements in clean air protection,

may all attorney’s fees be denied? The court of appeals

answered that question here by denying all fees. That

answer conflicts with Congress’ clear intent in enacting

section 307(f) of the Clean Air Act, and with reported

decisions by the Ninth, District of Columbia, and First

Circuits, as well as the position taken by the United

States in Gorsuch v. Sierra Club, No. 82-242, in which a

petition for certiorari is now before this Court.’ The

Court should grant certiorari in this case to resolve this

conflict among circuits and provide necessary guidance

to the lower courts in administering the Clean Air Act

and other environmental statutes.

1. STV brought this action under the Clean Air and

Clean Water Acts and obtained two results for which

fees should be awarded under section 307(f) of the

Clean Air Act. First, STV has assured that LG&E will

maintain a 30-day supply of low-sulfur coal for use

during the inevitable breakdowns of the plant’s scrubbers.

Second, STV has assured that if the disposal of scrub-

ber sludge starts to pollute local ground water,“ LG&E

will change to a safer disposal method and move its dis-

posal facility off the plant site. Congress intended that

such side effects be considered and addressed in choosing

5 Manchester Environmental Coalition v. EPA, No. 82-247, another

petition before the Court, also raises issues similar to those in this

petition. The petitioner in that case seeks review of an unreported

decision by the Court of Appeals for the Second Circuit.

* This area of Kentucky is known geologically as a karst region,

with numerous sinkholes allowing polluted water rapidly to con-

taminate underground water supplies. Local residents and the

nearby town of Bedford, Kentucky rely on wells in the immediate

vicinity of the plant site for drinking water.

air pollution control standards and equipment for par-

ticular plants. Clean Air Act, §§ 165 (e) (3) (B) (anal-

ysis of terrain and soils at plant site); 169 (3) (consid-

eration of other environmental effects in setting air pol-

lution standards for plant); 42 U.S.C. §§ 7475(e) (3)

(B), 7479(3) (Supp. III 1979). The legislative history

of the 1977 Clean Air Act Amendments shows that

scrubber sludge was one of the side effects Congress

wanted addressed in setting standards for new power

plants, both collectively and individually. H.R. Rep. No.

294, 95th Cong., Ist Sese. 190 (1977) reprinted in

[1977] U.S. Cope, Conc. & Ab. News 1077, 1269 (“land

disposal of sludge”); S. Rep. No. 127, 95th Cong., Ist

Sess. 31 (1977) (condition PSD permit application to

take other environmental effects into account).

Although these essential clean air protections were first

proposed or considered for inclusion in the PSD and

NPDES permits, EPA finally placed them in an obscure

appendix to the EIS, making them unenforceable. As

a result of this litigation, and over EPA’s and LG&E’s

opposition, these protections now appear in an enforce-

able permit, a permit affirmed by the court of appeals

on STV’s motion.

Although the ALJ found that EPA had substantially

erred in placing these essential permit conditions into the

unenforceable stipulation, EPA argued to the court of

appeals that STV’s fee petition was governed by the form

of permit modified and not by the substance of the relief

obtained. That is, EPA argued that STV should be

denied fees because this action was brought in part under

the Clean Water Act which does not authorize attorney’s

fees for actions brought in the court of appeals. 33 U.S.C.

§ 1369 (1976 ed.)

EPA’s argument, if allowed to stand, would severely

undermine the attorney’s fee and citizen suit provisions

of the Clean Air Act and other environmental statutes

governing the siting of industria! facilities such as power

10

plants. Construction of such installations normally re-

quires several permits or approvals under environmental

statutes. Some of these statutes, including section 307 (f)

of the Clean Air Act, provide for attorney’s fees in sub-

sequent litigation. Others, such as the National Environ-

mental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 (1976

ed.), do not. As a result, the Agency would be able to

insulate itself from the attorney’s fee provisions of the

Clean Air Act in siting disputes by placing controversial

clean air measures in a plant’s NPDES permit or EIS.’

Without the prospect of attorney’s fees in subsequent

litigation, meritorious suits under section 307 of the

Clean Air Act will be strongly discouraged, contrary to

Congress’ intent in enacting section 307(f) in 1977. See

Part 2, infra. EPA thus will have managed to erect an

artificial barrier between the clean air measures it adopts

for a controversial facility and persons who would seek

review of those measures.

The potential difficulties arising from EPA’s position are in-

creased by EPA's consolidation of permit proceedings involving a

particular installation. 40 C.F.R. §§ 122, 123, 124 (1981 ed.). EPA’s

opportunities to selectively place conditions in a permit other than

the one to which they most logically relate and so to insulate itself

from attorney's fees in later litigation are thus increased.

EPA's argument may also have undesirable side effects on the

consolidated permit proceedings. These proceedings were intended

to expedite siting decisions and to encourage the tradeoffs and

bargaining necessary to settle siting disputes. See NATIONAL CoM-

MISSION ON WATER QUALITY, STAFF DRAFT REPORT, at V-30 (1975)

(water pollution control permitting a bargaining process). EPA

has ‘a fact used NPDES permits as a vehicle to make agreed trade-

offs enforceable. For example, in proposing the NPDES permit for

a major new oil refinery at Eastport, Maine, EPA included condi-

tions in the NPDES permit requiring special air quality and ground

water quality monitoring. 9 ENv. Rep. (BNA) 371, 372 (1978).

These conditions are quite similar to those won by STV in this

case. If EPA can deprive siting opponents of attorney’s fees in

subsequent litigation by shuffling permit conditions in this fashion,

appropriate tradeoffs will become much harder to make.

ll

EPA’s argument for form over substance is also con-

trary to the teachings of this Court and others concern-

ing attorney’s fees in cases involving pendent claims.

It is well settled that where a party brings several

different claims arising from “a common nucieus of

operative fact,” and prevails upon one of these claims,

courts will award attorney’s fees on the basis of one of

the related claims. Maher v. Gagne, 448 U.S. 122, 131-33

(1980); Seals v. Quarterly County Court of Madison

County, Tennessee, 562 F.2d 390 (6th Cir. 1977) ; Church

of Scientology v. Cazares, 638 F.2d 1272, 1290-91 (5th

Cir. 1981) (attorney’s fees for entire case where Federal

and pendent non-federal claims arise from same nucleus

of operative fact); Miller v. Carson, 628 F.2d 346, 348

(5th Cir. 1980); Lamphere v. Brown University, 610

F.2d 46, 47 (Ist Cir. 1979) (proper to award fees even

where counsel unsuccessfully sought to broaden remedy) ;

Lund v. Affleck, 587 F.2d 75 (Ist Cir. 1979) ; Kimbrough

v. Arkansas Athletic Association, 574 F.2d 423 (8th Cir.

1978). Thus the Court in Maher v. Gagne upheld the

award of fees under the Civil Rights Attorney’s Fee

Award, 42 U.S.C. § 1988, where plaintiff prevailed on a

Social Security Act claim pendent to the federal constitu-

tional claim which she lost. 448 U.S. at 130-33.

This rule applies equally to environmental cases in

which claims are brought under several statutes on the

basis of the same facts. Thus, where plaintiffs combine

environmental and civil rights claims, and prevail on

their environmental claim, the courts have awarded fees

under civil rights statutes. Southeast Legal Defense

Group v. Adams, 657 F.2d 1118, 1124-25 (9th Cir. 1981)

(intertwined civil rights and NEPA claims); Keith v.

Volpe, 501 F. Supp. 403, 408 (C.D. Cal. 1980) (inter-

twined civil rights and NEPA claims). Likewise where,

as here, plaintiffs have brought several environmental

statutory claims on the basis of the same facts, the courts

have awarded fees for all the work done even where some

12

of the statutes did not provide for fees, Save Our Sound

Fisheries Ass’n. v. Callaway, 429 F. Supp. 1136, 1144

(D.R.I. 1977) (claims under NEPA, Clean Water Act,

and Marine Protection, Research, and Sanctuaries Act).

These cases mandate an award of fees to STV under

the Clean Air Act. The factual basis of STV’s claims

was EPA’s legally insufficient assessment of the envi-

ronmental effects associated with the Trimble County

plant and, particularly, LG&E’s choice of air pollution

control technology for it. As discussed supra, most of the

substantive issues raised before the court of appeals and

the ALJ—the enforceability of the EIS air stipulation and

the adequacy of EPA’s air quality modeling—concerned

air pollution. STV’s procedural claims under the Clean

Water and Clean Air Acts sought an opportunity to raise

these substantive claims before construction was per-

mitted to proceed. Over the initial opposition of EPA,

and continuing opposition of LG&E, STV finally obtained

the hearing it sought before the ALJ on its substantive

clean air claims. The ALJ’s decision provided virtually

the same relief that inclusion of alternative coal supply

and other requirements in the PSD air pollution permit

would have.

EPA’s argument ia opposition to STV’s fee petition,

which the court of appeals apparently adopted, ignored

the inextricable connections between the issues involved

here. Furthermore STV raised its clean air claims in the

context of a challenge to the adequacy of the EIS only

because EPA elected to attempt to impose substantive air

pollution control standards on LG&E through the totally

inappropriate mechanism of an EIS stipulation.

Because of this strained and ultimately unlawful ap-

proach to air pollution control, the only forum in which

the validity of the stipulation could be challenged was

13

the NPDES water pollution permit hearing. STV pre-

vailed on this issue in that forum and obtained relief

which is directly related to the mitigation of th. {acility’s

air pollution impacts. Under the circumstances, a fee

award under the authority of the Clean Air Act is en-

tirely justified.

2. Although STV obtained important clean air relief

as a result of this litigation, the court of appeals denied

all attorney’s fees under the Clean Air Act, and did so

without explanation. This decision is contrary te Con-

gress’ intent in enacting section 307(f), and contrary to

the decisions by the Ninth and District of Columbia Cir-

cuits interpreting that statutory language. It also is con-

trary to the United States’ argument in its petition for

certiorari in Gorsuch v. Sierra Club, No. 82-242 (filed

August 11, 1982), now before this Court.

Section 307(f) provides that:

In any judicial proceeding under this section, the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) whenever

it determines that such an award is appropriate.

42 U.S.C. § 7607 (f) (Supp. III 1979).

Congress added this subsection to the Act in 1977. The

legislative history shows that Congress intended to en-

courage citizen suits by awarding fees not only where

plaintiffs substantially prevail, but also in circumstances

where plaintiffs obtain partial relief or otherwise further

the purposes of the Clean Air Act. The House Report

on the 1977 Amendments states:

In the case of the section 307 judicial review litiga-

tion, the purposes of the authority to award fees are

not only to discourage frivolous litigation, but also to

encourage litigation which will assure proper imple-

mentation and administration of the act or otherwise

serve the public interest. The Committee did not in-

14

tend that the court’s discretion be restricted to cases

in which the party seeking fees was the ‘prevailing

party.’ In fact, such an amendment was expressly

rejected by the committee, largely on the grounds

set forth in NRDC v. EPA, 484 F.2d 1331, 1338 (Ist

Cir. 1973) (emphasis added).

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

reprinted in [1977] U.S. Cob, Conc. & Ap. News, 1077,

1416.

Congress drew the language of section 307(f) from

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

(Supp. III 1979), which provides for fee awards in

citizen suits brought in the district courts. The legisla-

tive history of section 304 also shows that Congress meant

the fee provision to encourage litigation to assure proper

implementation of the Clean Air Act. The Senate Report

states:

The courts should recognize that in bringing legiti-

mate actions under this section citizens would be

performing a public service and in such instances the

courts should award costs of litigation to such party.

This should extend to plaintiffs in actions which re-

sult in successful abatement but do not reach a ver-

dict. For instance, if as a result of a citizen pro-

ceeding and before a verdict is issued a defendant

abated a violation, the court may award litigation

expenses borne by the plaintiffs in prosecuting such

actions. (emphasis supplied).

S. Rep. 1196, 91st Cong., 2d Sess. 38 (1970).

The court of appeals ignored this legislative history and

denied attorney’s fees, even though the practical result

of this litigation is to protect residents around LG&E’s

Trimble County power plant from the risks of air and

ground water quality degradation associated with LG&E’s

use of scrubbers. This kind of relief—protecting health

and the environment—made this an “appropriate” case

for fees under section 307(f) of the Clean Air Act. In-

15

deed, it is inappropriate that the court of appeals denied

fees in a case which established, over EPA’s and LG&E’s

objections, clean air protections now enforceable by citizen

suit in district court,“ where fees would clearly be

awarded in any action to enforce these protections.

In denying fees the court of appeals ignored Northern

Plains Resources Council v. EPA (NPRC II), 670 F.2d

847 (9th Cir. 1982), and Sierra Club v. Gorsuch, 672

F.2d 33 (D.C. Cir. 1982), certiorari applied for, No. 82-

242 (August 11, 1982). These decisions interpreted sec-

tion 307 (f) to provide for attorney's fees even where

plaintiffs lost on all issues, because these suits furthered

the purposes of the Clean Air Act. The decision in NPRC

II is directly in point here. In Northern Plains Resources

Council v. EPA (NPRC I), 645 F.2d 1349 (9th Cir.

1981), NPRC challenged EPA’s grant of prevention of

significant deterioration (PSD) permits to two coal-fired

power plants in Montana. That challenge, like STV’s in

this case, was filed under section 307 of the Clean Air

Act. 42 U.S.C. § 7607 (Supp. III 1979). Like STV,

NPRC challenged both the adequacy of the air pollution

control equipment required by the PDS permits, NRC I,

supra, 645 F.2d at 1358-62, and the rationality of EPA’s

air quality modeling. /d. at 1362-65. The court rejected

both claims.

Despite NPRC’s loss on the merits, however, the court

awarded fees under section 307(f) of the Clean Air Act,

42 U.S.C. § 7607(f) (Supp. III 1979), holding that such

an award was “appropriate” within the meaning of

section 307(f), because Congress intended to encourage

such challenges to PSD permits. NPRC II, 670 F.2d at

Such citizen suits may be brought and fees awarded under sec-

tion 505(d) of the Clean Water Act. 33 U.S.C. § 13865(d) (1976 ed.

& Supp. II 1978).

16

848. See Metropolitan Washington Coalition for Clean

Air v. District of Columbia, 639 F. 2d 802, 804 (D.C. Cir.

1981) (losing plaintiff awarded fees in abatement case

under section 304(d)). Without such fee awards mem-

bers of citizens groups like NPRC (or STV) would not

have sufficient incentive to undertake “the expenditures

required by a suit of this type.” NPRC II, 670 F. ad at

849. See Florida Power & Light Co. v. Costle, 683 F.2d

941, 942-43 (5th Cir. 1982) (“watchdog” groups need

the financial incentive of fee awards in order to pursue

section 307 suits).

Under the rationale of the Ninth and D.C. Circuits,

STV presented an even stronger case for a fee award

than did NPRC, because STV forced EPA to make the

permit modifications necessary to assure that promised

clean air protections were in fact enforceable by a citizen

suit, the states, and EPA. This result is clearly the kind

Congress intended to encourage by adding the fee provi-

sion.

The court of appeals also ignored decisions construing

identical language in section 304(d) of the Clean Air

Act and in other environmental statutes to provide for

fees to partially prevailing or unsuccessful plaintiffs.

Metropolitan Washington Coalition for Clean Air v.

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

award to unsuccessful! plaintiff in abatement action under

section 304 (d)); Natural Resources Defense Council v.

EPA, 484 F.2d 1331, 1338 (ist Cir. 1973) (fee award

under section 304(d) to partially prevailing plaintiff) ;

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

Cir. 1982) (partially prevailing under the Toxic Sub-

stances Control Act).

Finally, the court of appeals’ decision is contrary to the

position the United States now takes in petitioning this

17

Court for certiorari in Gorsuch v. Sierra Club, No. 82-

242 (filed August 11, 1982).

It is clear that Congress intended to hold the govern-

ment liable for attorney’s fees in actions that spur

proper implementation of the Act by correcting ad-

ministrative errors.

The government agrees that success on the merits,

in the traditional sense of a favorable final judg-

ment, is not a prerequisite for an award of fees un-

der the statute. Nevertheless Section 307(f)’s legis-

lative history clearly indicates that some tangible

accomplishment is a prerequisite to eligibility for a

fee award under the statute.

United States Petition for Certiorari at 9, 16.° As the

United States further observed, unless courts reward

“litigants who actually aid Agency implementation of the

Clean Air Act by correcting administrative errors,” there

will not be “sufficient incentive for the citizen involve-

ment” Congress intended. Id. at 12.

Thus under the United States’ own “tangible accom-

plishment”’ standard, STV should be awarded attorney’s

fees, because it obtained tangible clean air relief as a

result of this protracted litigation. Unless STV’s efforts

here are rewarded, STV and citizens groups like it will

be strongly discouraged from invoking “judicial review

to put the Agency back on course . . . when it missteps.”

Id. That is especially true here, where STV has followed

the disputed permits through multiple administrative and

judicial proceedings, beginning in 1975 and continuing

until 1982.

* Opponents of attorney's fees evidently agree with the United

States that the Clean Air Act does not apply a “prevailing party”

standard for they have sought to write such languaye into pending

Clean Air Act Amendments. 13 Env. Rep. (BNA) 492, 549 (1982).

18

3. The court of appeals denied STV’s application for

costs and fees without explanation. Unlike the normal

situation where the court of appeals reviews the district

court’s findings and conclusions concerning fees, the court

of appeals was acting as the trier of fact on this fee ap-

plication. It is well established that it is an abuse of dis-

cretion to deny attorney’s fees without explanation. Com-

missioner’s Court of Medina County, Texas v. United

States, 683 F.2d 435, 439 ‘D.C. Cir. 1982); Murphy v.

Kolovitz, 635 F.2d 662, 664 (7th Cir. 1981); Hameed v.

International Ass’n of Bridge, Structural & Ornamental

Iron Workers, Local 396, 637 F.2d 506 (8th Cir. 1980) ;

Sethy v. Alameda County Water District, 602 F.2d 894,

897 (9th Cir. 1979), cert. denied, 444 U.S. 1046 (1980) ;

Sargeant v. Sharp, 579 F.2d 645, 647 (1st Cir. 1978).

The reasons for this rul we evident: it is impossible

for this Court to determine f the court acted properly

in deciding a fee application unless the court articulates

some reasoned basis for its decision.

The court of appeals’ failure to do so in this case forces

STV and this Court to guess at reasons for the denial of

inconsistency of this denial with the reported fee deci-

Unless the court of appeals is required to state its

reasons, Congress’ purpose is enacting section 307(f) may

be easily circumvented simply by denying fees without

explanation, and the Clean Air Act will become harder

to implement properly.

October 1982

Attorneys for Petitioner

Save The Valley, Inc.