Petition — United States Environmental Protection Agency v. Northern Plains Resource Council

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In the Supreme Court of the United States

OCTOBER TERM, [982

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

V.

NORTHERN PLAINS RESOURCE COUNCIL, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether it was “appropriate,” within the meaning of

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

7607(f), to award attorneys’ fees to a party who failed to

prevail on any aspect of its challenge to the issuance of a

permit by the Administrator of the Environmental Protec-

tion Agency.

(I)

II

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption of this

case, Montana Power Company, Washington Water Power

Company, Puget Sound Power and Light Company, Port-

land General Electric Company and Pacific Power and

Light Company were intervenor-respondents below. The

interests of these parties are not implicated by the question

presented in this petition.

TABLE OF CONTENTS

Page

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Statement. ....... fe CE ec ig ee Fe Pa 2

Reasons formpanting the petition ...........ccecses 9

Conciusial ..... EL 9

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TABLE OF AUTHORITIES

Cases:

Metropolitan Washington Coalition for

Clean Air v. District of Columbia,

Oe ih vk kc cv cic vewscss 7

Northern Plains Resource Council v. United

States Environmental Protection Agency,

OD We Pe ci vcccccuacs a, =». 6.7

Sierra Cid v. Castie. GST F.2d 298 «wc ccccccce: 4

Statutes and regulations:

Clean Air Act of 1977, 42 U.S.C. (Supp. IV)

7401 et seq.:

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

co SG Oe ee ee 4

Section 11 1(a)(2), 42 U.S.C. (Supp. IV)

Pe oo iv he teccscencccicces 4

Sections 160-169, 42 U.S.C. (Supp. IV)

TR pki vv vee tvoccns cies 2

IV

Statutes and regulations—Continued:

Section 162, 42 U.S.C. (Supp. IV)

a ee

Section 164, 42 U.S.C. (Supp. IV)

a

Section 169(2)(A), 42 U.S.C. (Supp. IV)

el

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

V.

NORTHERN PLAINS RESOURCE COUNCIL, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States

Environmental Protection Agency, petitions for a writ of

certiorari to review the decision of the United States Court

of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, la-da)

holding the Environmental Protection Agency liable for

attorneys’ fees is reported at 670 F.2d 847. The order of the

court of appeals (App. B, infra, 5a) fixing the amount of

those fees is unreported.

JURISDICTION

The judgment order of the court of appeals (App. B,

infra, 5a) was entered on March 3, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

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

7607(f), provides in pertinent part as follows:

l

2

In any judicial proceeding under this section, the

court may award costs of litigation (including reason-

able attorney and expert witness fees) whenever it

determines that such award is appropriate.

STATEMENT

Following a wholly unsuccessful challenge to the issu-

ance of a permit by the Environmental Protection Agency

(“EPA”) to a consortium of utilities headed by Montana

Power Company allowing construction of two coal-fired

steam electric generating units in Colstrip, Montana,

respondent Northern Plains Resource Council (“NPRC”)

sought an award of attorneys’ fees against the government

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

IV) 7607(f). Although it had rejected every aspect of

respondent’s challenge to the permit, the court of appeals

determined that NPRC was entitled to attorneys’ fees.

Before discussing the court’s ruling on attorneys’ fees, we

briefly describe the underlying merits litigation. As the

court of appeals noted, respondent raised “{t]wo rather

technical issues” in that proceeding. Northern Plains

Resource Council v. United States Environmental Protec-

tion Agency, 645 F.2d 1349, 1350 (9th Cir. 1981).

l.a. Part C, subpart I of the Clean Air Act, 42 U.S.C.

(Supp. IV) 7470-7479, is designed to prevent significant

deterioration (“PSD”) of air quality in areas designated as

having air quality better than that required by existing

ambient air quality standards. Areas subject to PSD regula-

tion are divided into three classes, and maximum allowable

increases (“increments”) in emissions for particulate matter

and sulfur dioxide are established for each class.! Major

'The areas are classified as Class I, Class I] and Class III (42 U.S.C.

(Supp. IV) 7472, 7474). The smallest allowable increases in pollution

apply to Class I areas and the greatest apply to Class III areas (42 U.S.C.

(Supp. IV) 7473(b)).

3

emitting facilities must secure a PSD permit prior to com-

mencement of construction of a new plant or modification

of an existing plant (42 U.S.C. (Supp. IV) 7475). Among

other things, a permit applicant must show that emissions

from operation of the new or modified plant will not cause

or contribute to a violation of the applicable maximum

allowable increase or “increment” (42 U.S.C. (Supp. IV)

7475(a)(3)). Furthermore, the facility must utilize the “best

available control technology” to limit emissions (42 U.S.C.

(Supp. IV) 7475(a)(4)). Although best available control

technology determinations must take into account energy,

economic and other factors, emissions may not exceed the

emissions limitations incorporated in any new source per-

formance standard (“NSPS”) promulgated by EPA that is

applicable to the industrial Category to which the source

belongs (42 U.S.C. (Supp. IV) 7475(a)(3)).2

Whether any given major emitting facility is subject to the

PSD provisions of the Act turns on whether it “commenced

construction,” as defined in Section 169(2)(A) of the Act, 42

U.S.C. (Supp. IV) 7479(2)(A), prior to the effective date of

those provisions. PSD review is required unless the owner

or operator of the facility is able to demonstrate that (1) all

permits under federal, state and local air pollution laws

have been received and a continuous program of physical

on-site construction has begun or (2) the owner or operator

has entered into binding agreements or contractual obliga-

tions that cannot be cancelled or modified without substan-

tial loss (42 U.S.C. (Supp. IV) 7479(2)(A)). In contrast to

the definition of “commenced construction” for purposes

of new source performance standards, discussed below, the

Statutory definition of that term for PSD purposes applies

to the entire plant rather than to particular pieces of equip-

ment within a plant.

The provisions of the Act pertinent to new source performance

standards are explained at pages 4-5, infra.

4

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

7411, requires EPA to set performance standards limiting

emissions from new or modified air pollution sources that

reasonably may be anticipated to endanger the public

health or welfare. Section 111(a)(2), 42 U.S.C. (Supp. IV)

7411(a)(2), defines a “new source” as any Stationary source

the construction or modification of which commenced after

the publication of regulations (or, if earlier, proposed regu-

lations) prescribing a standard of performance that is appli-

cable to such source. Unlike the PSD provisions, however,

the new source provisions of the Act contain no statutory

definition for the term “commenced construction.” Accord-

ingly, EPA promulgated regulations providing that con-

struction will be deemed to have commenced if the owner or

operator of the source has entered into a “contractual obli-

gation to undertake and complete, within a reasonable

time, a continuous program of construction * * *” (40

C.F.R. 60.2).

In 1971, EPA promulgated new source performance

standards for fossil-fuel fired steam electric generators.

EPA published proposed revisions to those standards on

September 19, 1978, and adopted final revised standards on

June 11, 1979. The final standards imposed more stringent

emission limitations than those contained in the 1971

standards.3

New source performance standards apply to specific ele-

ments of process equipment, defined as “affected facilities,”

40 C.F.R. 60.40(a), 60.41, and, in the case of fossil-fuel

steam electric generating units, the “affected facility” is the

boiler. Thus, for NSPS Purposes, boilers on which con-

struction commenced, in accordance with the regulatory

’The 1979 regulations were upheld in Sierra Club v. Costle,657 F.2d

298 (D.C. Cir. 1981).

5

definition of that term, 40 C.F.R. 60.2, before September

19, 1978 (the date of publication of the proposed NSPS

revisions), are subject to the 1971 NSPS.

2. In July 1976, a consortium of electric utilities headed

by Montana Power Company applied to EPA fora permit

to construct Units 3 and 4 of a four-unit steam electric

generating complex in Colstrip, Montana.4 On September

11, 1979, EPA granted a permit for Units 3 and 4.5 Shortly

thereafter, respondent filed a petition for review in the

Ninth Circuit, and the utility consortium intervened on

EPA’s side to defend the permit.°

Respondent challenged EPA’s issuance of a PSD permit

to the consortium on two grounds. First, it claimed that the

units would not utilize the “best available control technol-

ogy” as required by the PSD provisions. Respondent

argued that because actual on-site construction for Units 3

and 4 had not “commenced” before September 18, 1978, the

units were required to comply with emission standards

established by the 1978 proposed NSPS regulations instead

of the 1971 regulations. Therefore, according to respond-

ent, EPA’s decision to allow the units to emit pollutants in

excess of the 1978 proposed standards was unlawful.

Respondent also claimed that EPA’s decision to accept the

‘Colstrip Units | and 2 were completed in 1976. See NPRC v. EPA,

supra, 645 F.2d at 1351.

‘As described by the court of appeals, the permit proceedings, in

which respondent participated, were protracted, in part because of

intervening changes in the law. See NPRC v. EPA, supra, 645 F.2d at

1351-1352.

Jurisdiction in the court of appeals was properly predicated on

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(b)(1),

which provides that judicial review of “final action of the Adminis-

trator * * * which is locally or regionally applicable may be filed only in

the United States Court of Appeals for the appropriate circuit.”

6

control system proposed by the company to limit particu-

late emissions was without a rational basis because other

available control technologies could achieve greater emis-

sion reductions.

The second aspect of respondent's challenge related to

EPA’s failure to “validate” the air quality dispersion model,

used to predict the impacts of emissions from Units 3 and 4.

with certain monitoring data proferred by respondent.

Respondent argued that consideration of its data would

have shown that emissions from the units would violate the

applicable Class I PSD increment for sulfur dioxide at the

nearby Northern Cheyenne Reservation.

The court of appeals rejected respondent's argurnents

and upheld EPA’s decision in its entirety. VWPRC v. EPA,

supra. First, as to respondent's technological arguments,

the court ruled that the applicable new source performance

standard for Units 3 and 4 was that published in 1971. This

conclusion was based on a finding that, with respect to

Units 3 and 4, construction of the boilers had “commenced”

in 1974, well before proposed revisions to the new source

performance standards were published in 1978. See 40

C.F.R. 60.2, 60.40(a). Relying on the structure of the Clean

Air Act and its legislative history, the court agreed with

EPA that the applicable definition of “commenced con-

struction” was the new source definition, which applies to

“affected facilities,” i.e., the boilers, and rejected respond-

ent’s argument that the broader PSD definition of that term

controlled (645 F.2d at 1355-1357).

As for EPA’s approval of the emissions control technol-

ogy for the units, the court agreed with EPA's position that

the Act requires such determinations to be made on case-

by-case basis. NPRC v. EPA, supra, 645 F.2d at 1359.

Accordingly, the court held that even though another con-

trol technology might provide greater emissions reductions,

7

EPA's approval of the proposed system was not irrational

in view of all the factors the agency is required to consider

when making a technological judgment of that sort (645

F.2d at 1361-1362).

Finally, the court rejected respondent’s challenge to the

model utilized by EPA to predict emissions from the pro-

posed units, holding that EPA’s rejection of the monitoring

data proferred by respondent was not irrational(NPRC v.

EPA, supra, 645 F.2d at 1362-1363); indeed, the court noted

that respondent's data was “completely irrelevant” (id. at

1363) to EPA’s model.

3. After losing on every aspect of its challenge to the

PSD permit, respondent moved for an award of fees’ under

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

7607(f). In support of its motion, respondent argued that it

was entitled to fees because, although it had not prevailed

on any issues, the suit was of the type Congress sought to

encourage, i.e., it had been brought with the objective of

protecting air quality and it had aided in the construction

and implementation of the Act.

The court of appeals agreed with respondent’s position

(App. A, infra, la-4a). The court found that Congress

“sought to facilitate challenges of EPA decisions in order to

insure that EPA fulfilled its designated function of preserv-

ing air quality” (id. at 2a). Relying on Metropolitan

Washington Coalition for Clean Air v. District of Colum-

bia, 639 F.2d 802, 804 (D.C. Cir. 1981), the court stated

“that in determining whether a party—prevailing or non-

prevailing—can recover attorneys’ fees under § 307(f) from

the Government, the test is whether in light of what was

known * * * when the action was instituted, the action was

’Respondent did not indicate the amount of fees it sought.

8

of the type Congress sought to encourage when it autho-

rized awards of attorneys’ fees” (App. A, infra, 2a). The

court concluded that respondent's action presented issues

important to the construction of the Act and was, therefore,

precisely the type of suit Congress wished to encourage in

enacting Section 307(f) (App. A, infra, 3a).

The court allowed respondent 14 days in which to specify

the size of its requested fee award and allowed EPA a like

period of time in which to file an opposition. In April 1982,

EPA and respondent ultimately agreed that $15,000 was a

reasonable fee for respondent's unsuccessful litigation

efforts. The parties stipulated, however, that EPA reserved

its right to seek further review on the underlying question of

entitlement to fees and moved the court to enter a final

order to that effect.

The court took no immediate action on the parties’ stipu-

lation and motion.8 By letter dated July 12, 1982, counsel

for respondent inquired about the status of the matter

(App. C, infra, 6a-7a), but the court did not respond. By

October 18, 1982, the date on which this Court granted the

government's petition for a writ of certiorari in Administra-

tor, Environmental Protection Agency v. Sierra Club, No.

82-242 (argued Apr. 25, 1983), the court of appeals still had

not entered any order in response to the parties’ stipulation

and motion. Accordingly, by motion dated October 2,

1982, the government asked the court of appeals to stay the

entry of final judgment pending this Court's decision in

Sierra Club. On March 3, 1983, the court denied the motion

and ordered EPA to pay $15,000 in attorneys’ fees to

respondent (App. B, infra, Sa).

‘Even if the government had decided against seeking review in this

Court, a final judgment from the court of appeals would have been

required before the General Accounting Office would pay respondent's

fee award. See 28 U.S.C. 2414. Thus. the case remained in limbo while

the parties awaited the entry of final judgment by the court of appeals.

9

REASONS FOR GRANTING THE PETITION

This case raises precisely the same issue that is now

pending before the Court in Administrator v. Sierra Club,

supra, No. 82-242.9 We have set forth our arguments

against the construction of Section 307(f) adopted by the

United States Court of Appeals for the District of Colum-

bia Circuit in our briefs in Sierra Club, and the same argu-

ments are fully applicable here.!° Accordingly, this case will

be controlled by the Court’s decision in Sierra Club.

CONCLUSION

The petition for a writ of certiorari should be held and

disposed of in light of this Court’s decision in Administrator

v. Sierra Club, No. 82-242.

Respectfully submitted.

Rex E. LEE

Solicitor General

May 1983

9In the court below, the government also argued that, in the event any

fee award was made, the intervenor-respondents should be required to

share the costs of that award with EPA. The court of appeals rejected

this argument (App. A, infra, 3a n.4). We doubt the correctness of the

court’s ruling, but we do not now seek this Court’s review of that

subsidiary issue.

'OWe are furnishing respondent's counsel with copies of our opening

and reply briefs in Sierra Club, in which those arguments are set forth.

DOJ-1983-05

la

APPENDIX A

NORTHERN PLAINS RESOURCE

COUNCIL, Petitioner,

¥,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Respondent,

The Montana Power Company, the Washington

Water Power Company, Puget Sound Power

and Light Company, Portland General

Electric Company, and Pacific Power and

Light Company, Intervenors.

No. 79-7618

United States Court of Appeals,

Ninth Circuit.

March 1, 1982.

Before TANG, SCHROEDER and NELSON, Circuit

Judges.

ORDER

In Northern Plains Resource Council v. EPA, 645 F.2d

1349 (9th Cir. 1981), we affirmed the decision of the EPA.

Subsequent to our decision, Northern Plains Resource

Council (NPRC) filed for an award of attorney’s fees pur-

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

307(f)). EPA opposes this request, primarily arguing that

under the circumstances of this case an award of attorney’s

fees would be inappropriate. !

'EPA also argues that NPRC’s motion is defective because it was

filed 55 days after judgment and because it does not specify the amount

of fees sought. The costs of litigation covered by § 307(f) are not the

same costs this court is authorized to award under Fed. R. App. Pro. 39.

Therefore, Rule 39’s 14-day time limit for filing costs bills does not

2a

DISCUSSION

Section 307(f) provides that “in any judicial proceeding

under this section, the court may award costs of litigation

(including reasonable attorney's and expert witness’s fees)

whenever it determines that such an award is appropriate.”

As EPA recognizes, Congress, by adopting this section of

the Clean Air Act, did not intend to limit the award of

attorney’s fees to the “prevailing party.”? Instead, Congress

sought to facilitate challenges of EPA decisions in order to

insure that EPA fulfilled its designated function of preserv-

ing air quality. See Metropolitan Washington Coalition for

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

Cir. 1981). We agree with the D.C. Circuit that in determin-

ing whether a party—prevailing or nonprevailing—can

recover attorney’s fees under § 307(f) from the Government,

the test is “whether in light of what was known. . . when the

action was instituted, the action was of the type Congress

sought to encourage when it authorized awards of attor-

neys’ fees.” Jd.

apply to motions for attorney's fees filed pursuant to § 307(f). Because

prior to October I, 1981, there was no prescribed time limit for filing a

motion for attorney's fees, NPRC’s motion was not untimely. Cf Local

Rule 14(g) (effective October 1, 1981, requests for attorney’s fees must

be filed within 30 days of entry of judgment); cf also Local Rule

13(b)(1)(E) (effective October 1, 1981, party must indicate in brief if

attorney’s fees will be sought).

We also refuse to reject NPRC's motion on the ground that it does

not specify the amount of attorney’s fees requested. Although the

amount of attorney’s fees requested should generally be included in a

motion for attorney’s fees, failure to specify the amount requested does

not require denial of the motion.

2See H.R. Rep. No. 294, 95th Cong,, Ist Sess. 337 reprinted in[1977]

U.S. Code Cong. & Adm. News 1077, at 1416 (“The committee did not

intend that the court’s discretion to award fees under [§ 307(f)] should

be restricted to cases in which the party seeking fees was the ‘prevailing

party’ ”).

3a

Applying this test in the instant case, we believe NPRC is

entitled to an award of attorney’s fees. Contrary to EPA’s

argument, at least two of the issues presented in this case

had not been decided by this court prior to the institution of

this suit.3 Moreover, the interest of certain NPRC members

in preserving the value of their property which might have

been decreased if the power plants were built would not

have been sufficient incentive to encourage the expendi-

tures required by a suit of this type.

Because NPRC brought this suit to promote the quality

of air resources, and because the suit presented issues

important to the construction of the Clean Act Act, this is

precisely the type of suit Congress sought to encourage by

enacting § 307(f). An award of attorney’s fees to NPRC is

therefore appropriate under that section.4

3As we indicated in our opinion, the precise issue presented in this

case relating to “commenced construction” had not been considered by

this courtin Montana Power Co. v. EPA, 608 F.2d 334 (9th Cir. 1979).

Northern Plains, 645 F.2d at 1357 n.24. Nor had this court decided the

issue of the applicability of new source performance standards prior to

institution of this suit. The fact that other courts considered this issue

prior to the release of our decision in no way affects NPRC’s entitlement

to attorney’s fees. See Metropolitan Washingtion, 639 F.2d at 804.

‘EPA argues that if NPRC is awarded attorney’s fees, it is entitled to

contribution from intervenor Montana Power Company. However,

there is no indication that Congress sought to require a prevailing

intervening party to indemnify the party challenging an EPA decision.

Instead, § 307(f) simply evinces a willingness on the part of Congress to

have the Government bear the cost of litigation brought to promote air

quality.

4a

CONCLUSION

NPRC is entitled to attorney’s fees under § 307(f). It will

have 14 days from the entry of this order to file a motion

specifying the amount of fees sought with supporting doc-

uments justifying the request. EPA will have 14 days from

the date NPRC files its motion to file an opposition to

NPRC’s motion.

Sa

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHERN PLAINS RESOURCE

COUNCIL,

)

)

)

Petitioner, ) No. 79-7618

)

)

)

VS.

UNITED STATES ENVIRONMENTAL ) ORDER

PROTECTION AGENCY,

Respondent,

and

THE MONTANA POWER COMPANY, )

THE WASHINGTON WATER POWER )

COMPANY, PUGET SOUND POWER )

ANDLIGHT COMPANY, PORTLAND )

GENERAL ELECTRIC COMPANY, )

and PACIFIC POWER & LIGHT )

COMPANY, )

)

Intervenors. )

)

[ Filed: Mar. 3, 1983]

Before: TANG, SCHROEDER and NELSON, Circuit

Judges

Respondent’s motion to stay the award of attorney fees in

this case is denied.

Petitioner is awarded the sum of $15,000 in attorney fees

pursuant to the agreement of the parties.

6a

APPENDIX C

PATTEN & RENZ

ATTORNEYS AT LAW

LOWER LEVEL ONE

FIRST CITIZENS BANK BUILDING

2812 Ist AVENUE NORTH

BILLINGS, MONTANA 5910!

(406) 252-6782

JAMES A PATTEN OF COUNSEL

JEFFREY T RENZ FRED N DUGAN

July 12, 1982

Mr. Richard Deane

Clerk of the Court

Ninth Circuit Court of Appeals

P. O. Box 547

San Francisco, California 9410]

Re: Northern Plains Resource Council v.

EPA, No. 79-7618

Dear Mr. Deane:

On March 1, 1982 the court in the above referenced

action determined that the appellant, Northern Plains

Resource Council, was entitled to its attorney’s fees incurred

in this appeal. Subsequently a specification of attorney’s

fees was provided to the court and the Environmental Pro-

tection Agency submitted a memorandum in Opposition to

that specification. Subsequent to that, the Northern Plains

Resource Council and EPA reached an agreement with

respect to fees and the Northern Plains Resource Council

submitted an amended specification of attorney’s fees. The

amended specification was filed in mid-April 1982. Since

that date, the undersigned has not received any orders or

other approval of the fees agreed to by the parties.

7a

Would you please advise me the present status of the

request for attorney’s fees.

Sincerely yours,

James A. Patten

JAP/jrg

cc: Counsel of Record