Petitioners Reply Brief — Save The Valley, Inc. v. Environmental Protection Agency

In THE

Supreme Court of the

OcTOBER TERM, 1982

Save THE VALLEY, INC.,

Petitioner

V.

ENVIRONMENTAL PROTECTION AGENCY

PETITIONER’S REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION

JOHN L. OBERDORFER

J. GORDON ARBUCKLE

DUANE A. SILER

RUSSELL V. RANDLE

PATTON, Boccs & BLow

2550 M Street, N.W.

Washington, D.C. 20037

(202) 457-6000

Attorneys for Petitioner

Save The Valley, Ine.

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

TABLE OF AUTHORITIES

Cases: Page

Alabama Power Co. v. Gorsuch, 672 F. 2d Ii 5n.1

American Petroleum Institute v. Gersuch, 665

F.2d 1176 (unreported order denying fees en-

1K en 5 n. 1

City of Seabrook, Texas v. EPA, 659 F.2d 1349

(unreported order denying fees entered Oct. 15,

1981) — 5 n. 1

Consolidated Freightways Corp. v. Kassel, No.

79-1618 (Feb. 23, 1982) 3

Florida Power & Light Co. v. Costle, 683 F.2d 941. 5 n. 1

Gorsuch v. Sierra Club, cert. granted, No. 82-242

eee . 1, 2, 3, 4, 7

Manchester Environmental Coalition v. EPA, 672

F.2d 998 (unreported order denying fees en-

tered April 9, 1982), cert. denied, No. 82-247

1 —— . 5 n.1

National Association of Concerned Veterans v.

Secretary of Defense, 675 F.2d 13199 7 n.3

Natural Resources Defense Council v. EPA, 539

EEE .. 4

Natural Resources Defense Council v. EPA, 512

re 4

Natural Resources Defense Council v. EPA, 484

EES ENC 0 eee 4

Newman v. Piggie Park Enterprises, Inc., 390

114 — 3

Northern Plains Resources Council v. EPA, 670

ZK—õœ— 7 ˙ 3, 4, 5 n. 1

Sierra Club v. Gorsuch, 672 F. 2d 33, cert. granted,

No. 82-242 (Oct. 18, 1982222i202);20;0 3,5n.1

Town of Brookline v. Gorsuch, 667 F.2d 215 (un-

reported order denying fees entered Jan. 13,

eee 5 n. 1

Statutes :

Clean Air Act, 42 U.S.C. § 7401 et seq.:

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

KK a eee passim

In THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-637

SAVE THE VALLEY, INC.,

* Petitioner

ENVIRONMENTAL PROTECTION AGENCY

PETITIONER’S REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION

The United States Brief in Opposition (received De-

cember 17, 1982), raises several points warranting sum-

mary reply. First, the Court’s grant of certiorari in Gor-

such v. Sierra Club, No. 82-242, on October 18, 1982, a

case involving the corollary statutory issue of the proper

standard for attorney’s fee awards under the Clean Air

Act favors consolidation of this case with Sierra Club or

deferral of a decision on certiorari until Sierra Club is

decided. Second, the failure of the U.S. Court of Appeals

for the Sixth Circuit to explain its denial here warrants

review because section 307(f) of the Clean ir Act will

not function as Congress intended without such explana-

tions. Failure to explain fee denials has a chilling effect

on citizen suits and makes it far more difficult for Con-

gress to oversee the operation of the Clean Air Act’s fee

provisions and amend them as needed. Third, the tech-

nical objections to review raised by the United States,

Brief in Opp. at 9-15, are not valid and do not detract

from the merit of this petition. Petitioner was forced to

raise its clean air complaints in the Clean Water Act con-

text because of the government’s concededly improper at-

tempt to impose air pollution controls in an environmental

impact statement (EIS) concerning the Clean Water Act

permit. The United States should not now be allowed to

argue that EPA’s unlawful attempt to shift permit con-

ditions into an EIS bars the award of fees or precludes

certiorari. Finally, the United States makes several mis-

taken assertions of fact about documentation of fees sub-

mitted in the court below. The record before the court of

appeals is appropriate for review.

1. The United States concedes, as it must, that the

proper standard for the award of attorney’s fees under

the Clean Air Act is an issue wrrranting review by this

Court. That issue is squarely presented by this case as

well as Gorsuch v. Sierra Club, supra. Under the cir-

cumstances, the Court should either delay decision on the

writ of certiorari until it decides Sierra Club or consoli-

date this case with Sierra Club for argument.

Consolidation would present the Court with a case

where petitioners obtained some clean air relief, as well as

a case—Sierra Club—where petitioner obtained none. If

the Court adopts the government’s position in Sierra

Club that one must obtain some tangible clean air relief

in order to be eligible for attorney’s fees, review of this

case would allow the Court to provide guidance as to what

kind and how much relief must be obtained to make a

party eligible for ai least some fees under section 307 (f)

of the Clean Air Act.

Consolidation would also permit the Court with cases

representative of the two types of litigation Congress in-

tended to encourage by enacting section 307(f) of the

Clean Air Act, 42 U.S.C. § 7607(f) (Supp IV 1980):

review in Sierra Club of EPA regulations, and review in

this case of individual air pollution permit decisions. Two

courts of appeals have ruled that unsuccessful or partially

successful litigants may obtain fees in such litigation.

Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982),

cert. granted, No. 82-242 (October 18, 1982) (review of

regulations) ; Northern Plains Resources Council v. EPA,

670 F.2d 847 (9th Cir. 1982) (air pollution permit chal-

lenge). The United States asks this Court to reverse this

standard for both kinds of litigation, even though the

Court has only the first kind—review of regulations—

before it. The Court would be better served by reviewing

this case and Sierra Club together.

2. The United States argues that the Court should not

grant certiorari here because the Court of Appeals issued

no opinion. In arguing that the failure to issue an opin-

ion is merely a matter of docket management, the United

States ignores the particular role Congress assigned the

courts of appeal under section 307 of the Clean Air Act.

That provision is novel in that it mandates direct review

by the courts of appeal of decisions of the Environmental

Protection Agency and thus the courts of appeal (and not

district courts) act as triers of fact on the issue of at-

torney’s fees. For this reason, a court of appeals’ decision

on such fee petitions differs substantiaily from appellate

review of fee award decisions under statutes where sum-

mary disposition might be proper. See Consolidated

Freightways, Inc. v. Kassel, No. 79-1618 (Feb. 23, 1982)

(White, J., dissenting from dismissal of certiorari) (sum-

mary disposition of 42 U.S.C. § 1988 attorney’s fee peti-

tion). The trier of fact must give some explanation when

it denies attorney’s fees, Petition for Certiorari at 18,

particularly where, as here, the fee applicant is entitled

to some fee award under statute and governing case law.

See Northern Plains Resources Council v. EPA, 670 F.2d

847 (9th Cir. 1982) (entitlement to fees in unsuccessful

eases brought under section 307(f) to review PSD per-

mits) ; Newman v. Piggie Park Enterprises, 390 U.S. 400,

402 (1968) (award or explain fee denial where otherwise

entitled under Civil Rights Act of 1964).

4

The instant facts compelled an explanation by the Court

of Appeals of its decision to deny fees under section 307

(f). The fee applicant, as a result of the litigation, has

caused actual improvements in clean air protection. As

the United States argues forcefully on the merits of Sierra

Club, Congress meant to reward “litigants who actually

aid in agency implementation by using the judicial proc-

ess to correct errors,” United States Brief at 37, and thus

further the primary goal of the Clean Air Act: “to pro-

tect and enhance the quality of the Nation’s resources

. . . „ 42 U.S.C. § 7401(b) (1). United States Brief at 30.

Unless courts of appeal explain their fee decisions in

eases like this one, the resultant uncertainty will dis-

courage meritorious suits brought under section 307(f),

and frustrate Congress’ purposes in enacting that pro-

vision. Potential litigants cannot know the standard

which will actually be applied to fee awards in their cases

unless some explanation is given. Implementation of sub-

stantive provisions of the Clean Air Act will suffer as a

result.

The United States argues that a court’s failure to

explain fee denials is unimportant. That argument ig-

nores both the special purpose of section 307(f), and the

important congressional role which such opinions play.

Failure to explain fee decisions impedes Congress’ efforts

to determine if section 307(f) is being properly imple-

mented. Congress added section 307(f) to the Clean Air

Act in 1977 to resolve a split among the circuits about

the availability of attorney’s fees in the courts of ap-

peal. Compare Natural Resources Defense Council v.

EPA, 484 F.2d 1331, 1338 (1st Cir. 1973) with Natural

Resources Defense Council v. EPA, 539 F.2d 1068 (5th

Cir. 1976) and Natural Resources Defense Council v.

EPA, 512 F.2d 1351 (D.C. Cir. 1975). The United

States has argued that Congress has “ample tools at its

command to conduct its own reevaluation of the Act.”

United States Brief in Sierra Club at 32. But it is dif-

ficult to see how Congress can reevaluate section 307 (f)

unless the courts of appeal explain how the fee provision

is applied in individual cases.

The United States also suggests that there is no need

to grant certiorari where there is no showing that the

courts of appeal have abused the use of such summary

dispositions. That argument ignores the fact that there

have been summary denials in five of the nine decisions

on fee applications under section 307(f) during the year

before this petition was filed.“ Furthermore, the United

States cited two such cases to the court below as au-

thority for the proposition that the court of appeals could

deny fees without opinion. United States Brief at 33-34

(May 14, 1982). The courts of appeal appear to be

developing two standards which govern fee awards un-

der section 307(f), one for published cases under which

unsuccessful or partially successful parties recover fees,

and another for unreported cases, where such parties do

not. Use of summary denials by five circuits in five of

the nine recent cases concerning fees under section

307(f) indicates that the practice is common and, given

its conflict with the special purpose of section 307 (f)

of the Clean Air Act, important for the Court to review.

8. The United States’ argument, Brief in Opp. at 9-13,

that this was “really” a Clean Water Act case ignores

1 Compare Save The Valley v. EPA, No. 82-637 (filed Oct. 13,

1982); Manchester Environmental Coalition v. EPA, 672 F.2d 998

(2d Cir. 1982) (unreported order denying fees entered April 9,

1982), No. 82-247, cert. denied (Nov. 29, 1982) ; Town of Brookline

v. Gorsuch, 667 F.2d 215 (Ist Cir. 1981) (unreported order denying

fees entered Jan. 13, 1982); American Petroleum Institute v. Costle,

665 F.2d 1176 (D.C. Cir. 1981) (unreported order denying fees en-

tered Oct. 27, 1981) ; City of Seabrook, Texas v. EPA, 659 F.2d 1349

(5th Cir. 1981) (unreported order denying fees entered Oct. 15,

1981) with Florida Power & Light Co. v. Costle, 683 F.2d 941 (5th

Cir. 1982) ; Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982), No.

82-242, cert. granted (Oct. 18, 1982); Alabama Power Co. v. Gor-

such, 672 F.2d 1 (D.C. Cir. 1982); Northern Plains Resources

Coancil v. EPA, 670 F.2d 847 (9th Cir. 1982).

one key fact: EPA’s illegal attempt to control air pollu-

tion by stipulation instead of enforceable permit condi-

tions forced petitioner into the lengthy proceedings to

obtain the enforceable clean air relief to which it was

legally entitled. EPA first publicly proposed putting

proper conditions in the air pollution permit,“ then in-

dicated that such enforceable conditions would be placed

in the water pollution permit, and finally shunted them

into the unenforceable EIS stipulation. Petitioner pur-

sued the clean air issues under the framework EPA had

established for review of the permits for the involved

power plant and eventually obtained enforceable clean

air protections. The Court should consider a case where

petitioner obtained enforceable clean air relief as an ap-

propriate one to review on the issue of the standard for

attorney’s fees under the Clean Air Act.

The United States argues that petitioner failed to

support its fee request adequately. The United States’

assertion that petitioner spent most of its time in ad-

ministrative proceedings is demonstrably wrong. Peti-

tioner spent more than 1,000 hours on this case, Peti-

tion at 7 n.4, of which only 202.5 were in the adjudica-

tory proceedings conducted under the court of appeals’

continuing supervision. Petition at 6 n.3. The United

States’ other complaints about rates and documentation

were equally unfounded.“

2 EPA proposed the standby use of low-sulfur coal in the air

permit. Petition for Certiorari at 3.

After examining Petitioner’s verified billing sheets, the EPA

questioned the documentaticn for 12.75 out of over 1,000 hours,

United States Brief at 41-42 (May 14, 1982) and complained that

rates were insufficiently documented, even though these were the

market rates charged numerous commercial clients for environ-

mental law work. United States Brief at 37-38 (May 14, 1982).

Petitioner further explained these hours and rates in its reply

brief and supplemental affidavits. Petitioner’s Reply Brief at 16-22

(May 27, 1982); Second Affidavit of Duane A. Siler. Petitioner

7

CONCLUSION

This case should be consolidated for decision with

Gorsuch v. Sierra Club, supra, or, alternatively, de-

ferred pending the Court’s decision in that case.

JOHN L. OBERDORFER

J. GORDON ARBUCKLE

DUANE A. SILER

RUSSELL V. RANDLE

PATTON, Boccs & BLow

2550 M Street, N.W.

Washington, D.C. 20037

(202) 457-6000

Attorneys for Petitioner

Save The Valley, Inc.

December 1982

met its burden of proof under National Association of Concerned

Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982),

and EPA offered no evidence of its own (and sought none) to show

that the time, rates, or documentation were improper.