Petition for Writ of Certiorari — Steel Co. v. Citizens for a Better Environment

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Supreme Cort 11

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001146 Jan 16 2001

OFFICE OF THE CLERK

No. 90-

IN THE

Supreme Court of the United States

THE STEEL COMPANY, a/k/a CHICAGO STEEL

AND PICKLING COMPANY,

Petitioner,

Vv.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Sanford M. Stein Daniel J. Popeo

Leo P. Dombrowski Richard A. Samp

WILDMAN, HARROLD, (Counsel of Record)

ALLEN & DIXON WASHINGTON LEGAL

225 West Wacker Drive FOUNDATION

Chicago, IL 60606-1229 2009 Massachusetts Ave, NW

(312) 201-2000 Washington, DC 20036

(202) 588-0302

Date: January 16, 2001

QUESTION PRESENTED

In Christiansburg Garment Co. v. Equal Employment

Opportunity Comm'n, 434 U.S. 412 (1978), the Court adopted

a “dual standard" with respect to fee-shifting provisions

contained in federal civil rights laws: prevailing plaintiffs in

such cases are presumptively entitled to attorney fee awards,

while prevailing defendants are entitled to fees only if they can

demonstrate that the plaintiff's suit was "frivolous,

unreasonable, or without foundation." 434 U.S. at 421. In

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the Court held

that the Christiansburg "dual standard" should not be applied

mechanistically to fee-shifting provisions contained in federal

Statutes outside the civil rights context, even when the

Statutory language is similar to the language at issue in

Christiansburg. Fogerty held that prevailing defendants

should be placed on an equal footing with prevailing plaintiffs

in determining whether an award of fees is warranted under

the fee-shifting provision of the Copyright Act of 1976, 17

U.S.C. § 505. Fogerty, 510 U.S. at 534. The question

presented is:

Whether prevailing defendants should be placed on an

equal footing with prevailing plaintiffs in determining whether

an award of attorney fees is "appropriate" under the fee-

shifting provision of the Emergency Planning and Community

Right-to-Know Act of 1986 ("EPCRA"), 42 U.S.C.

§ 11046(f), and similarly worded fee-shifting provisions of

other federal environmental statutes.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The parties to the proceeding in the court of appeais

were:

(1) The Steel Company; and

(2) Citizens for a Better Environment.

Steel Company, a/k/a Chicago Steel and Pickling Company,

states that it has no parent company, and that no publicly held

Pursuant to Supreme Court Rule 29.6, petitioner The

company holds 10% or more of its stock.

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

TABLE OF CONTENTS

B. Tee Underiyimg Statute... we eee

Sie EET octet ccc ccccscceccen

REASONS FOR GRANTING THE PETITION ......

II.

THE APPEALS COURTS ARE UNDER THE

MISTAKEN IMPRESSION THAT DELAWARE

VALLEY DIRECTS THEM TO APPLY THE

CHRISTIANSBURG DUAL STANDARD IN

ENVIRONMENTAL CITIZEN SUITS ........

THE SEVENTH CIRCUIT ERRED IN

ADOPTING A DUAL’ STANDARD _IN

DETERMINING WHETHER AN AWARD OF

FEES IS "APPROPRIATE" UNDER § 11046(f)

A. The Plain Language of § 11046(f) Indicates

That Defendants and Plaintiffs Are To Be

Treated Alike with Respect to Fee Petitions . .

et ow ye os Ie A et Oe oe OM her Bt ee OY a or

we et ow oof ne ee he! Oe Br ae tar er Go we

. 16

B. Christiansburg's Dual Standard Is Inapplicable

in This or Any Other Environmental Case ... 18

1. The Legislative History of EPCRA and

Related Environmental Statutes Does Not

Support Adoption of a Dual Standard ... 20

2. The Goals and Objectives of EPCRA

Do Not Support Adoption of a Dual

PPR PS Pe Sori ore fre 21

iil. THE DUAL FEE-AWARD STANDARD HAS

TRANSFORMED CITIZEN SUITS FROM THE

SUPPLEMENTAL ENFORCEMENT MECHAN-

ISM ENVISIONED BY CONGRESS INTO A

SYSTEM UNDER WHICH COMPANIES ARE

FORCED TO PAY TRIBUTE TO ENVIRON-

MENTAL GROUPS AS A COST OF DOING

PE a aos ano eee ae ee ee are 28

ee Pere ere Pere ere 30

APPENDIX A, Opinion of the U.S. Court of Appeals

for the Seventh Circuit, October 17, 2000......... la

APPENDIX B, Opinion of the U.S. District Court for

the Northern District of Illinois, June 8, 1999 ..... 21a

APPENDIX C, 42 U.S.C. § 11046 ............. 27a

TABLE OF AUTHORITIES

Page

Cases:

Atlantic States Legal Found. v. Buffalo Envelope

Co., 823 F. Supp. 1065 (W.D.N.Y. 1993) ........ 25

Atlantic States Legal Found. v. United Musical

Instruments, 61 F.3d 473 (6th Cir. 1995) ......... 25

Atlantic States Legal Found. v. Whiting Roll-Up Door

Mfg. Corp., 772 F. Supp. 745 (W.D.N.Y 1991) .... 25

Carson-Truckee Water Conservancy Dist. v. Secre-

tary of Interior, 748 F.2d 523 (9th Cir. 1984),

cert. denied, 471 U.S. 1068 (1985) ............ 11

Christiansburg Garment Co. v. EEOC,

Ge ae EE ew wea eee netkl passim

Citizens for a Better Environment v. Steel Co..,

90 F.3d 1237 (7th Cir. 1996), vacated,

ee I ok oh bs we 8 Se eo 7

Delaware Valley Toxics Coalition v. Kurz-Hastings,

Inc., 813 F. Supp. 1132 (E.D. Pa. 1993) ......... 25

Don't Waste Arizona v. McLane Foods,

950 F. Supp. 972 (D. Ariz. 1996).............. 25

Fogerty v. Fantasy, Inc.,

380 U.S. S47 (IO) ow. we 3, 17, 18, 19, 26-7

Friends of the Earth v. Laidlaw Environmental

Servs., Inc., 120 S. Ct. 693 (2000) ............. 29

Gwaltney of Smithfield v. Chesapeake Bay Found.,

tea hie kn ee eee 23, 27

Hallstrom v. Tillamook County

ee as PE bo Wa end vce oe ee ee 23, 26, 27

Idaho Sporting Congress v. Computrol,

952 F. Supp. 690 (D. Id. 1996) ............... 25

Marbled Murrelet v. Pacific Lumber Co..,

182 F.3d 1091 (9th Cir. 1999), cert. denied,

152 &. Ge Gr Ge a eG woh ee Ne cnses cas ye

Neighbors for Toxic-Free Community v. Vulcan

Materials Co. , 964 F. Supp. 1448 (D. Colo. 1997). . . 25

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986)... ....... passim

Pennsylvania v. Delaware Valley Citizens’ Councii

for Clean Air, 483 U.S. 711 (1987)... ........ 14-15

Ruckelshaus v. Sierra Club,

3 US. GP Geee cca c tee deecaeccen 20, 21, 28

Steel Co. v. Citizens for a Better Environment,

559 ee. GS Gee a ve aeesasneenen 1, 5, 8, 22

Williams v. Leybold Technologies,

784 F. Supp. 765 (N.D. Cal. 1992)............. 25

Statutes:

Civil Rights Act of 1964, Title VII ...... 20, 21, 24, 26

§ 706(k), 42 U.S.C. § 2000e-S(k) ........... 20

Civil Rights Attorney’s Fee Awards Act of 1976,

42 U.S. § GB: ses a len weasel 13, 15

Cigem Al AGB . 0.000.005 oe nan eee eee 12, 20, 21

§ 304(d), 42 U.S.C. § 7604(d) ........ 12, 15, 21

Clean Water Ast ..ccccecscocsesseeuseaneeeee 23

33 U.S.C. § ISG «0 sda cn secs 23

Capyrteit Ast Of S000 <.s<s-000taene ene 17, 18, 19

17 UB. § SD soc cccccceeee eeu e eee 17

vii

Emergency Planning and Community Right-to-Know

Act (EPCRA), 42 U.S.C. § 11001, ef seg. .... passim

fe Sere, tae a, 4,7

t PAP errr rrr ere. 5,7

3. ASS eee ee er ee 5, 22

PON 6 i 6 cbse ca daceeoe ti oewes 5, 22

EY waa a 46404 ooa tuned x 5, 6, 22, 23

odo ben bibs tb daa heehee 7

DO fo. cas Ga waeas eh vceu wen 5, 22

4 Ae ee be ne ane ee 6, 22

eee eee Tere CPT? passim

Resource Conservation and Recovery Act....... 23, 26

42 U.S.C. § GOT2QBM1) 0. ww cc cece 23

Miscellaneous:

Citizens for a Better Environment, Environmental

SE ee ee 6, 25

Michael S. Greve, The Private Enforcement

of Environmental Law, 65 TUL.

SS 26, 29, 30

Ross Macfarlane & Lori Terry, Citizen Suits:

Impacts on Permitting and Agency Enforcement,

11-SPG NAT. REsourcES & ENv’T (Spring 1997) . 2, 29

Samuel H. Sage and David W. Clippinger,

Holding Business Accountable, POLLUTION

PREVENTION REVIEW (Spring 1996) ........ 25-26, 30

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals from which review

is sought (App. 1a-20a) is reported at 230 F.3d 923 (7th Cir.

2000). The order of the district court denying Petitioner's

motion for an award of attorney fees (App. 21a-26a) is not -

reported. Other aspects of this case were before the Court in

1998. Steel Co. v. Citizens for a Better Environment, 523

U.S. 83 (1998).

JURISDICTION

The judgment of the court of appeals was entered on

October 17, 2000. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This petition involves the fee-shifting provision of the

Emergency Planning and Community Right-to-Know Act of

1986 ("EPCRA"), 42 U.S.C. § 11046(f):

Costs. The court, in issuing any final order in any

action brought pursuant to this section, may award costs

of litigation (including reasonable attorney and expert

witness fees) to the prevailing or the substantially

prevailing party whenever the court determines such an

award is appropriate. .. .

EPCRA's entire citizen suit provision, 42 U.S.C. § 11046, is

reproduced in the Appendix at 27a-31a.

STATEMENT OF THE CASE

A. The Issue. More than 30 federal environmental

statutes include provisions allowing private citizens, under

certain circumstances, to bring suit against entities alleged to

have violated environmental laws. The past 15 years have

witnessed an "explosion" in the number of such citizen suits.

Ross Macfarlane & Lori Terry, Citizen Suits: Impacts on

Permitting and Agency Enforcement, 11-SPG NAT.

RESOURCES & ENV'T 20 (Spring 1997).

That explosion has been fueled in no small degree by the

inclusion of a fee-shifting provision in each of the citizen suit

statutes. Because federal courts have awarded attorney fees to

prevailing plaintiffs in environmental citizen suits as a matter

of course, a cottage industry has sprung up consisting of

lawyers and affiliated environment groups dedicated almost

exclusively to -- and largely financed by fees derived from --

bringing such suits. /d. at 21.

The attorney fee provision at issue in this case, 42

U.S.C. § 11046(f), contains language that is identical to

virtually all other fee-shifting provisions in federal

environmental laws. It provides that "Whenever the court

determines . . . an award is appropriate," the court may award

"reasonable" attorney fees to "the prevailing or substantially

prevailing party" in an action brought pursuant to EPCRA's

citizen suit provision. Section 11046(f) and similar fee-

shifting statutes are written in party-neutral terms; nothing in

the language suggests that the analysis regarding whether an

attorney fee award is "appropriate" should vary depending on

whether the prevailing party is a plaintiff or a defendant.

Nonetheless, the only two federal appeals courts to have

addressed this issue directly -- the Seventh Circuit in this case

and the Ninth Circuit in Marbled Murrelet v. Pacific Lumber

Co., 182 F.3d 1091 (9th Cir. 1999), cert. denied, 112 S.Ct.

933 (2000) -- have held that fee awards in environmental citi-

zen suits ought to based on a "dual standard." Under that

standard, prevailing plaintiffs are presumptively entitled to

attorney fee awards, while a prevailing defendant is entitled to

fees only if he can demonstrate that the plaintiff's suit was

frivolous, unreasonable, or without foundation. That dual

standard is derived from Christiansburg Garment Co. v. Equal

Employment Opportunity Comm'n, 434 U.S. 412 (1978),

which held that the dual standard ought to be applied to fee

awards in suits seeking redress under the federal civil rights

statutes. |

Significantly, neither the Seventh Circuit nor the Ninth

Circuit based its holding on any sort of detailed analysis of the

environmental statutes at issue. Rather, each Court deemed

itself bound to follow a 1986 decision from this Court,

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546 (1986), which held (the Seventh and Ninth

Circuits believed) that the Christiansburg dual standard should

be engrafted onto federal environmental statutes. App. 15a;

Marbled Murrelet, 182 F.3d at 1095.

The Seventh and Ninth Circuits have badly misread

Delaware Valley. That decision had nothing to do with the

circumstances under which it is "appropriate" for a district

court to make a fee award to a prevailing party in an environ-

mental citizen suit and did not discuss whether a "dual stan-

dard" should be applied when making such fee-award determi-

nations. Indeed, the Court's later decision in Fogerty v. Fan-

tasy, Inc., 510 U.S. 517 (1994), makes clear that it is wary of

expanding the "dual standard” to fee-shifting provisions

contained in federal statutes outside the civil rights context.

Such widespread confusion among the lower federal

courts regarding the holding in Delaware Valley counsels

strongly in favor of granting review in this case. Appeals

courts in at least two circuits have been unwilling even to

entertain arguments regarding the impropriety of applying a

"dual standard" to environmental fee awards, because they

believe (erroneously) that Delaware Valley precludes them

from doing so. That situation is likely to continue, thereby

precluding any development of the law in this area, until such

time as the Court addresses the issue itself.

In light of the explosive growth in environmental citizen

suits, the standards applicable to fee requests from prevailing

defendants is an issue that will arise with increasing

frequency. That growth is being fueled to a considerable

extent by the economic incentives created by the "dual

standard" applied to fee awards; under that standard, potential

citizen litigants have much to gain and little to lose by filing

nonfrivolous lawsuits of even doubtful merit. Because at least

some federal appeals courts believe that they are precluded

from even considering whether fees should be awarded to

prevailing plaintiffs and prevailing defendants on an

evenhanded basis, the lower courts are unlikely -- in the

absence of intervention from this Court -- to pay serious

attention to the issue of whether Congress really intended to

create such economic incentives. Clarification of this

important issue of federal law is urgently needed.

B. The Underlying Statute. Congress adopted EPCRA

in 1986 as a means of improving the emergency response

capabilities of local communities in the event that excessive

quantities of toxic substances were suddenly released into the

environment. To ensure that local communities have the

information needed to respond quickly to such events, EPCRA

requires that users of specified toxic chemicals report annually

on the quantity of such chemicals they possess. See EPCRA

§ 312, 42 U.S.C. § 11022. Facilities from which specified

chemicals are released into the environment are required by

EPCRA § 313, 42 U.S.C. § 11023, to file annual reports

detailing such releases. '

As the Court has noted, “Enforcement of EPCRA can

take place on many fronts.” Steel Co. v. Citizens for a Better

Environment ["CBE"}, 523 U.S. 83, 87 (1998). Congress

clearly contemplated that the filing of citizen suits of the type

at issue here would be but one of several methods of enforcing

EPCRA. The “most powerful [EPCRA] enforcement arsenal”

belongs to EPA. /d. It may seek criminal, civil, or

administrative penalties against facilities that neglect their

reporting responsibilities. 42 U.S.C. § 11045. State and

local governments can also seek civil penalties, as well as

injunctive relief. 42 U.S.C. § 11046(a)(2) and (c). A third

enforcement mechanism, and the one at issue in this action, is

a citizen suit brought by “any person” against, inter alia, the

Owner or operator of a facility that fails to file inventory forms

and toxic chemical release forms required under 42 U.S.C.

§§ 11022 and 11023.

Congress imposed a number of limitations on citizen

suits that are not applicable to suits filed by federal officials.

In particular, 42 U.S.C. § 11046(d)(1) provides that no citizen

suit may be initiated against the owner or operator of a facility

“prior to 60 days after the plaintiff has given notice of the

alleged violation to [EPA], the State in which the alleged

violation occurs, and the alleged violator.” Moreover, no

such suit may be filed if EPA “has commenced and is

diligently pursuing an administrative order or civil action to

enforce the requirement concerned or to impose a civil penalty

under [EPCRA] with respect to the violation of the

' EPCRA itself imposes no limitations on such releases: Release

of chemicals into the environment is, of course, subject to regulation

under a wide range of federal environmental statutes. CBE has never

alleged that The Steel Company failed to comply with any of those

other statutes.

requirement.” 42 U.S.C. § 11046(e). Also, while the relief

available in a citizen suit includes payment of a civil penalty

(42 U.S.C. § 11046(c)), such penalties are paid to the federal

government, not to the individual initiating the citizen suit.

Congress also included a fee-shifting provision: a

district court hearing a citizen suit brought pursuant to

EPCRA “may award costs of litigation (including reasonable

attorney and expert witness fees) to the prevailing or the

substantially prevailing party whenever the court determines

that such an award is appropriate.” 42 U.S.C. § 11046(f).

Notably, the fee-shifting provision provides no indication that

fee applications from prevailing defendants and fee

applications from prevailing plaintiffs are to be subject to

different standards. EPCRA’s legislative history provides

little to no indication regarding why Congress adopted the fee-

shifting provision. The language used in the fee-shifting

provision is, however, substantially similar to language used

in fee-shifting provisions included in environmental statutes

adopted in the 15 years prior to adoption of EPCRA in 1986.

Those earlier fee-shifting provisions have generally been

viewed as designed to provide an incentive to citizens to file

meritorious citizen suits and as an incentive to defendants in

such actions to stand by meritorious defenses.

Among the private organizations that have decided to

seek an active role in EPCRA litigation is Respondent Citizens

for a Better Environment ("CBE"), a non-profit environmental

advocacy group headquartered in Chicago. CBE has filed

scores of successful suits against companies it alleged not to

be in compliance with EPCRA. Citizens for a Better

Environment, Environmental Review (Fall 1997). CBE is well

equipped to pursue extensive EPCRA litigation. In 1995

when it filed this suit, CBE had over 30,000 members and

180,000 contributors. Complaint { 6.

C. Proceedings Below. Petitioner The Steel Company

is a small, minority-owned manufacturer and pickler of steel

located in the southeast side of Chicago. Its manufacturing

processes require it to inventory and release into the

environment under permit and pursuant to various regulatory

schemes, certain chemicals covered by EPCRA.

On March 16, 1995, CBE gave notice -- pursuant to 42

U.S.C. § 11046(d) -- to The Steel Company, the Environ-

mental Protection Agency, and Illinois authorities that: (1) it

believed that The Steel Company had violated EPCRA §§ 312

and 313, 42 U.S.C. §§ 11022 and 11023, by failing to file

inventory forms and toxic chemical release forms required by

those provisions; and (2) it contemplated filing suit against

The Steel Company for those alleged violations. On August

7, 1995, CBE filed its complaint in the District Court for the

Northern District of Illinois. It is uncontested that as of

August 7, 1995, The Steel Company had filed all forms

required of it by EPCRA.

The district court thereafter ‘eiiciiais The Steel Com-

pany’s motion to dismiss for failure to state a claim upon

which relief could be granted; the Steel Company had also

alleged absence of subject matter jurisdiction. The district

court held that the EPCRA citizen-suit provision did not

concern itself with historical reporting-requirement violations.

On appeal, the Seventh Circuit reversed and remanded

for further proceedings. CBE v. Steel Co., 90 F.3d 1237 (7th

Cir. 1996), vacated, 523 U.S. 83 (1998). The court held that

EPCRA authorizes citizen suits not only for failure to

complete and submit forms, but also for failure to do so in a

timely manner. /d. at 1243. The court did not address the

issue of whether CBE had Article III standing and thus

whether the federal courts had subject matter jurisdiction to

consider the merits of CBE’s claims.

In March 1998, this Court unanimously vacated the

Seventh Circuit’s judgment and remanded with instructions to

direct that the complaint be dismissed. Steel Co. v. CBE, 523

U.S. 83 (1998). Six justices held that CBE lacked Article Ii

standing because its requested relief would not redress the

injuries CBE claimed to have suffered. /d. at 105-09; id. at

111-12 (Breyer, J., concurring in part and concurring in the

judgment). The other three justices stated that EPCRA does

not permit citizen suits for wholly past violations and would

have reversed on that ground without reaching the standing

issue. Jd. at 131-33 (Stevens, J., joined by Souter, J.,

concurring in the judgment); id. at 134 (Ginsburg, J.,

concurring in the judgment).

Following the district court’s entry of a judgment of

dismissal, The Steel Company on December 29, 1998 filed a

motion pursuant tc 42 U.S.C. § 11046(f) for an award of

attorney fees and non-taxable expenses.? CBE responded to

the motion by asserting that, in view of the Supreme Court's

determination that CBE lacked Article III standing and thus

that the federal courts lacked subject matter jurisdiction to

decide the merits of CBE’s EPCRA claims, the district court

lacked subject matter jurisdiction to consider The Steel

Company’s fee request. CBE’s response also asserted that the

fee request should be denied for two other reasons: (1) The

Steel Company was not a “prevailing party” within the

meaning of 42 U.S.C. § 11046(f), because it prevailed only on

a jurisdictional issue, not on the merits of CBE’s EPCRA

claims; and (2) a prevailing defendant in an EPCRA action is

entitled to a fee award only if the lawsuit was “frivolous,” and

CBE’s suit was not frivolous.

> Before the motion was filed, the parties -- as a result of the

negotiations process mandated by local court rules -- stipulated that The

Steel Company's reasonable attorney fees amounted to $250,567.04,

and reasonable non-taxable costs amounted to $19,641.57, for a total

of $270.208.61.

In its June 8, 1999 Memorandum and Opinion, the

district court held that it lacked jurisdiction to consider the fee

petition. App. 21la-26a. The court held that once a federal

court determines that a suit was improperly filed because the

court lacks subject matter jurisdiction over the case, its

authority over the parties ceases and it has no power to award

attorney fees. /d. The court did not address CBE's other two

arguments: that fees were unwarranted because The Steel

Company was not a "prevailing" party and because CBE's suit

was not frivolous.

In its appeal, The Steel Company requested the Seventh

Circuit to address all three issues. The appeals court did so,

siding with The Steel Company on the first two issues but with

CBE on the third -- and thereby affirming the district court's

denial of the fee petition. The appeals court held initially that

the trial court erred in determining that its lack of jurisdiction

over CBE's claim deprived it of jurisdiction over The Steel

Company's fee petition. App. 3a-1la. The appeals court

explained, "[A] court may lack authority to resolve the merits

of a claim yet have jurisdiction to award costs and attorneys’

fees to the prevailing party." App. 3a.

The appeals court next determined that The Steel

Company was the prevailing party in this action. App. 11a-

13a. The court said that The Steel Company should be

deemed to have "prevailed" in this suit because:

[T]he Supreme Court's decision in this case .. .

terminated this suit and barred all others like it, for as

long as [EPCRA] retains its current language. It was a

triumph in the war, not just in a battle or even a

campaign.

App. 12a.

The appeals court nonetheless affirmed the district

court's decision because it determined that prevailing EPCRA

defendants may not obtain fee awards under § 11046(f) unless

they can show that "the suit was frivolous, unreasonable, or

pursued in bad faith." App. 15a. The court held that The

Steel Company failed to meet that standard: "Misconceived

this suit was. Frivolous it was not." /d. The court explained

that its adoption of a “frivolous, unreasonable, or pursued in

bad faith" standard was mandated by this Court's decision in

Pennsylvania v. Delaware Valley Citizens' Council for Clean

Air, 478 U.S. 546 (1986). Id.

According to the appeals court, Delaware Valley held

that issues arising under environmental fee-shifting laws in all

instances should be treated "in the same manner" and "should

be governed by the same principles as fee shifting under [civil

rights laws]." Jd. at 14a. Because this Court held in

Christiansburg that a dual standard should be applied in civil

rights cases and that prevailing defendants in such cases

should be awarded fees only when the suit was frivolous,

unreasonable, or pursued in bad faith, the appeals court felt

itself bound by Delaware Valley to apply that same standard

to environmental cases. /d. at 15a. The appeals court

concluded, "Until the Supreme Court suggests otherwise, this

court must read ‘in the same manner’ to mean just that." /d.

REASONS FOR GRANTING THE PETITION

This case presents an issue of exceptional importance to

- the thousands of businesses that each year find themselves the

target of citizen suits filed under the federal environmental

laws: under what circumstances are they permitted to recover

their attorney fees when they prevail in such cases?

According to the Seventh Circuit, the answer to that question

is, "virtually never." If that answer is correct, companies will

continue to be placed under enormous pressure to settle such

suits by succumbing to the plaintiffs’ financial demands --

regardless how lacking in merit they judge a lawsuit to be.

Yet, the Seventh Circuit arrived at its answer without

examining The Steel Company's arguments. The Seventh

Circuit stated that its answer -- that prevailing defendants in

environmental citizen suits may recover fees only where the

suit was "frivolous, unreasonable, or pursued in bad faith" --

was mandated by this Court's precedent. The only other

appeals court to address the issue directly, the Ninth Circuit,

deemed itself similarly constrained by this Court's precedents.

Marbled Murrelet v. Pacific Lumber Co., 182 F.3d 1091 (9th

Cir. 1999), cert. denied, 112 S.Ct. 933 (2000).°

As The Steel Company will demonstrate below. the

Court's precedents impose no such constraints; the Court has

never previously considered whether courts should apply a

dual standard or an evenhanded standard in fee requests

arising under federal environmental statutes. But because, for

whatever reason, the appeals courts do not feel at liberty to

address the issue themselves, this Court is the only possible

source of guidance on the issue.‘ That guidance is urgently

needed, both because of the large increase in environmental

citizen suits in recent years and because application of a dual

standard to fee-shifting issues has transformed such suits from

the supplemental enforcement mechanism envisioned by

Congress into a shakedown system under which companies

must pay tribute to environmental groups as a cost of doing

business.

* Indeed, prior to Delaware Valley, the Ninth Circuit had adopted

an evenhanded standard for awarding fees in environmental citizen

suits. Carson-Truckee Water Conservancy Dist. v. Secretary of

Interior, 748 F.2d 523 (9th Cir. 1984), cert. denied, 471 U.S. 1068

(1985). Marbled Murrelet held that Carson-Truckee had been over-

ruled sub silentio by Delaware Valley and thus was no longer good law

within the Ninth Circuit. Marbled Murrelet, 182 F.3d at 1095.

* Indeed, the Seventh Circuit appeared to invite the Court's

intervention, stating that it would apply Christiansburg's dual standard

to environmental fee-shifting statutes "[uJntil the Supreme Court

Suggests otherwise." App. 15a.

ERSRIUEE ROT! SS

I. THE APPEALS COURTS ARE UNDER THE

MISTAKEN IMPRESSION THAT DELAWARE

VALLEY DIRECTS THEM TO APPLY THE

CHRISTIANSBURG DUAL STANDARD _IN

ENVIRONMENTAL CITIZEN SUITS

Review of this case is warranted because the federal

appeals courts have been confused by this Court's decision in

Delaware Valley. The appeals courts have interpreted

Delaware Valley as precluding them from considering any

arguments against application of the Christiansburg dual stan-

dard in environmental citizen suits. That misinterpretation has

prevented the appeals courts from examining the significant

differences between federal laws authorizing individuals to sue

to enforce civil rights statutes and laws authorizing citizen

suits to enforce federal environmental laws.

Delaware Valley provides no support for a dual fee-

award standard and never even discussed awards to prevailing

defendants. The case involved an effort by prevailing plain-

tiffs in a Clean Air Act citizen suit (brought pursuant to

§ 304(d) of the Act, 42 U.S.C. § 7604(d)) to recover attorney

fees. Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986). The district court's decision

that the plaintiffs were entitled to a fee award was not before

this Court; the case dealt solely with the proper size of the

award.

One issue before the Court was whether the district judge

erred in awarding fees to the plaintiffs for work done in post-

trial administrative proceedings. The Court rejected

arguments by Pennsylvania that fees incurred in administrative

proceedings were not properly awardable because such fees

were not “costs of litigation" within the meaning of § 304(d)

of the Act and were not part of the “action” for which fees

were awardable. In arriving at that conclusion, the Court

explained, "[T]he work done by counsel in these two [post-

trial] phases was as necessary to the attainment of adequate

relief for their client as was all of their earlier work in the

courtroom which secured Delaware Valley's initial success in

obtaining the consent decree." Jd. at 558. The Court added,

"In a case of this kind, measures necessary to enforce the

remedy ordered by the District Court cannot be divorced from

the matters upon which Delaware Valley prevailed in securing

the consent decree." /d. at 558-59.

Only after determining that post-trial administrative work

was indistinguishable -- for fee-award purposes -- from work

performed at trial did the Court look for support to case law

decided under civil rights fee-shifting statutes. The Court

noted that several cases decided under the Civil Rights Attor-

ney's Fee Awards Act of 1976, 42 U.S.C. § 1988, held that

prevailing civil rights plaintiffs are entitled to recover, as part

of their "reasonable" fee, time devoted to the post-judgment

monitoring of a consent decree. /d. at 559. The Court Said

that those cases supported its view that the respondent was

entitled to recover fees for its post-trial work. The Court

said, "Given the common purpose of both § 304(d) and § 1988

to promote citizen enforcement of important federal policies,

we find no reason not to interpret both provisions governing

attorney's fees in the same manner." /d. at 560.

The Seventh Circuit seized upon Delaware Valley's use

of the phrase "in the same manner” to rule that it was bound

by that decision to apply Christiansburg's dual standard to fee

requests in environmental citizen suits. App. 15a. Its conclu-

sion in that regard was wholly unwarranted. We note initially

that, contrary to the appeals court's conclusion (App. 14a),

Delaware Valley's discussion of similarities between civil

rights suits and environmental citizen suits was purely dictum.

The Court did not begin that discussion until after it had

rejected Pennsylvania's argument that work performed by

Delaware Valley in post-trial administrative proceedings could

be distinguished meaningfully from work performed in the

trial court. Id. at 557-59.

More importantly, nothing in Delaware Valley suggests

that the Court had examined all of the purposes of civil rights

fee-shifting statutes and determined that they were identical to

all of the purposes of environmental citizen suit fee-shifting

Statutes. Rather, the Court merely determined that they

shared at least one common purpose: to encourage citizens to

bring meritorious suits that they might not otherwise be in a

position to bring. /d. at 560-61. In particular, the Court did

not discuss Congress's purpose in permitting prevailing civil

rights and environmental defendants to obtain fee awards in

“appropriate” cases.

Accordingly, the Court's decision to supply a uniform

interpretation to environmental and civil rights fee-award

provisions in this single instance says nothing about whether

the Court would also provide a uniform interpretation in the

totally unrelated context of fee requests by prevailing

defendants. Such fee requests raise a significantly different

set of considerations. As we demonstrate below, the purposes

underlying fee-shifting provisions in environmental statutes

are different in several key respects from the purposes

underlying civil rights fee-shifting provisions. Nothing in

Delaware Valley suggests that the Court intended to prohibit

Courts from taking those differences into consideration when

determining the proper standards for awarding fees to

prevailing defendants.°

> Delaware Valley returned to the Court a second time in 1987,

when it was asked to determine the circumstances under which fees

could be awarded at a rate above the “lodestar fee” (i.e., the fee

determined by multiplying the attorneys’ reasonable hourly rates times

the number of hours reasonably devoted to the case). Pennsylvania v.

Delaware Valley Citizens' Council for Clean Air [Delaware Valley II],

(continued. ..)

Both the Seventh Circuit and the Ninth Circuit clearly

misread Delaware Valley and Delaware Valley II when they

determined that those decisions require them to apply the

Christiansburg dual standard to fee requests from prevailing

defendants in environmental cases, without regard to the

differing purposes underlying civil rights fee-shifting statutes

and fee-shifting statutes in environmental citizen suits. The

Court should grant review in order to correct that error and to

make clear that it has not foreclosed lower courts from taking

such differences into consideration.

*(...continued)

483 U.S. 711 (1987). Before addressing that issue, the Court said the

following in a footnote at the end of the initial paragraph of its decision:

Last term in Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986), we agreed with the Court of

Appeals that in awarding attorney's fees under § 304(d) [of the

Clean Air Act] the courts should follow the principles and case

law governing the award of such fees under 42 U.S.C. § 1988,

which provides that in the actions specified in that section “the

court, in its discretion, may allow the prevailing party, other than

the United States, a reasonable attorney's fee as part of the costs."

Delaware Valley II, 483 U.S. at 713 n.1. Although the remainder of

the Court's discussion of the fee “enhancement” issue includes several

Citations to civil rights cases, there is no i dication in Delaware Valley

II that any of those cases played a decisive role in either the plurality

opinion or the concurring opinion. Nor is there any indication that

either party thought that differences between fee-shifting provisions

under environmental laws and fee-shifting provisions under civil rights

laws were relevant to the fee "enhancement" issue before the Court.

Accordingly, Delaware Valley II's extremely brief discussion of what

Delaware Valley had said about parallels between environmental citizen

suits and private suits brought under civil rights laws cannot be deemed

to have created any new law.

Il. THE SEVENTH CIRCUIT ERRED IN ADOPTING

A DUAL STANDARD IN DETERMINING

WHETHER AN AWARD OF FEES IS

"APPROPRIATE" UNDER § 11046(f)

A. The Plain Language of § 11046(f) Indicates ‘That

Defendants and Plaintiffs Are To Be Treated

Alike with Respect to Fee Petitions

The most basic issue that a court must face in addressing

a fee petition is whether the standards for making an award

differ depending on whether the prevailing party is a

defendant or a plaintiff. The plain language of § 11046(f)

makes clear that the answer to that question is no, it makes no

difference -- the same standards ought to come into play in

making a fee determination whether the prevailing party is a

defendant or a plaintiff. Section 11046(f) provides that "costs

of litigation (including reasonable attorney and expert witness

fees)" may be awarded to "the prevailing or the substantially

prevailing party whenever the court determines such an award

is appropriate." Congress's use of the term prevailing "party"

is an unmistakable indication that Congress intended to permit

fee awards to prevailing defendants and plaintiffs alike.

Moreover, the standard established by Congress for such

awards is precisely the same for all prevailing "part[ies]" --

such awards are called for whenever the district judge

determines that "such an award is appropriate."

Despite the plain language of § 11046(f), the Seventh

Circuit nonetheless adopted a dual standard in EPCRA fee-

award cases. App. 15a. The appeals court did so without

examining the language of § 11046(f). Rather (as noted

above), the appeals court held that a dual standard was

mandated by Delaware Valley. The Court should grant

review to correct the Seventh Circuit's clear error of federal

statutory interpretation. Review is particularly warranted

because this issue is one that will recur with increasing

frequency, in light of the increasing number of environmental

citizen suits being filed in the federal courts.

The appeals court's decision is inconsistent with a recent

decision of this Court involving the fee-shifting provision of

the Copyright Act of 1976, 17 U.S.C. § 505. In Fogerty v.

Fantasy, Inc., 510 U.S. 517 (1994), a songwriter prevailed in

a copyright infringement suit brought against him. Applying

the Christiansburg dual standard, the lower courts denied the

songwriter's subsequent attorney fee request.

This Court unanimously reversed, finding that the Copy-

right Act required fee petitions from prevailing defendants and

fee petitions from prevailing plaintiffs to be placed on equal

footing. Jd. at 534.° In arriving at that conclusion, the Court

focused principally on the language employed in the Act's fee-

shifting provision:

The statutory language -- "the courts may also award a

reasonable attorney's fee to the prevailing party as part

of the costs" -- gives no hint that successful plaintiffs are

to be treated differently from successful defendants.

Id. at 522.’ The language employed by § 11046(f) is identical

in all relevant respects to the language employed by the

"gives no hint that successful plaintiffs are to be treated

differently from successful defendants." Accordingly, Fogerty

* The Court referred to that standard as an "evenhanded

standard," and a standard that gives preference to prevailing plaintiffs

over prevailing defendants as a “dual standard." /d. at 534 & n.19.

The Steel Company employs that same terminology herein.

” The Court indicated that district courts would be afforded

considerable latitude in the factors they consider in making fee awards,

"so long as such factors are faithful to the purposes of the Copyright

Act and are applied to prevailing plaintiffs and defendants in an

evenhanded manner." Id. at 534 n.19 (emphasis added).

seinem iinet

mandates that § 11046(f) -be interpreted as adopting an

"evenhanded standard," whereby The Steel Company's fee

petition is to be treated no differently than if The Steel

Company had happened to be a prevailing plaintiff. The

Court should grant review in order to resolve the conflict

between Fogerty and the decision below.

B. Christiansburg's Dual Standard Is Inapplicable in

This or Any Other Environmental Case

The Court has adopted a dual standard in civil rights

cases: prevailing plaintiffs in civil rights cases are presump-

tively entitled to fee awards, while prevailing defendants are

entitled to fees only if they can demonstrate that the plaintiff's

suit was "frivolous, unreasonable, or without foundation."

Christiansburg, 434 U.S. at 421. Moreover, the Court has

done so based on fee-shifting provisions whose language is

virtually identical to the provision at issue in Fogarty and to

the fee-shifting provision contained in nearly every

environmental statute. This case ultimately boils down to the

following issue: should construction of fee-shifting provisions

in EPCRA and other environmental statutes be guided by

Christiansburg or by Fogerty? The Steel Company |

respectfully submits that this case has far more in common

with Fogerty than with Christiansburg and thus that

application of an evenhanded fee standard is appropriate. |

Review is warranted in order to resolve this important issue,

an issue that this Court has not previously addressed.

In declining to expand the Christiansburg dual standard

outside the context of civil rights cases, Fogerty acknowledged

that the Copyright Act fee-shifting provision is nearly identical

to the fee-shifting provision contained in virtually all civil

rights statutes. The Court gave two reason for its decision not

to apply Christiansburg in Copyright Act cases.

First, it determined that the legislative history of the civil

rights statutes indicated that Congress intended to create a dual

standard for fee awards, while no such indication appeared in

the Copyright Act's legislative history. Jd. at 523-24.

Second, the Court determined that the "goals and objectives"

of the Copyright Act are not similar to those of the civil rights

statutes. Jd. at 524. The Court noted, for example, that many

civil rights plaintiffs are "impecunious" and that Congress

intended to "redress the balance in part" between poor

plaintiffs and "defendants with more resources" "by treating

successful plaintiffs more favorably than successful defendants

in terms of the award of attorney fees" -- and thereby

encourage the filing of more civil rights suits. Jd. In

contrast, the Court noted, Copyright Act plaintiffs are far less

likely than civil rights plaintiffs to be poor; "[e]ntities which

sue for copyright infringement as plaintiffs can run the gamut

from corporate behemoths to starving artists." Jd. Also, the

Court noted that while the overriding goal of the civil rights

Statutes is to maximize the number of meritorious suits filed

by injured plaintiffs, "the policies served by the Copyright Act

are more complex, more measured." /d. at 526. The Court

said that the Act “ultimately serves the purpose of enriching

the general public through access to creative works," and that

that purpose is best served not by encouraging numerous

infringement suits but by ensuring that "the boundaries of

end, defendants who seek to advance a variety of meritorious

the same extent that plaintiffs are encouraged to litigate

meritorious claims of infringement." Jd. at 527.

The rationales that led Fogerty to decline to apply the

Christiansburg dual standard in Copyright Act cases are

equally applicable in the environmental law context. First, the

legislative history of EPCRA contains no suggestion that

Congress -- despite its clear statutory language suggesting an

evenhanded approach -- intended to adopt a dual standard in

fee awards. Indeed, the legislative history of related environ-

mental laws suggests just the opposite. Second, the goals and

objectives of the citizen suit provisions of EPCRA and other

environmental statutes are not at all similar to those of the

civil rights statutes; those goals and objectives are not compat-

ible with the dual standard adopted by the appeals court.

1. The Legislative History of EPCRA and Related

Environmental Statutes Does Not Support

Adoption of a Dual Standard

The fee provision at issue in Christiansburg was 706(k)

of Title VII of the Civil Rights Act of 1964, which permits

district courts in their discretion to "allow the prevailing party

. . . a reasonable attorney's fee." The Court relied on

§ 706(k)'s legislative history to conclude that § 706(k) --

despite its seemingly neutral language -- mandated a dual fee-

award standard. Christiansburg, 434 U.S. at 420. Noting

that Congress adopted § 706(k) to encourage the filing of

meritorious Title suits, the Court stated that granting attorney

fees to prevailing Title VII defendants on a routine basis

would undercut that purpose because it "would substantially

add to the risks inherent in most litigation." Jd. at 422.

CBE has been unable to point to any provision in

EPCRA's legislative history indicating that EPCRA's fee-

shifting provision was similarly designed to maximize the

number of citizen suits. The legislative history of other envir-

onmental statutes suggests that fee-shifting provisions were

added as a means of assisting prospective defendants, not

prospective plaintiffs. Indeed, in Ruckelshaus v. Sierra Club,

463 U.S. 680 (1983), the Court arrived at precisely that

conclusion regarding the fee-shifting provision of the Clean

Air Act Amendments of 1970, the first environmental statute

to include a fee-shifting provision. After reviewing the

legislative history of the Clean Air Act, the Court concluded:

The central purpose of § 304(d) [the Clean Air Act's fee-

shifting provision] was to check the multiplicity of

potentially meritless suits, that Congress feared would

follow the authorization of [citizen] suits under the Clean

Air Act, which was seen as an unprecedented

innovation.

Ruckelshaus, 463 U.S. at 692-93 (internal quotations omitted).

Because the "central purpose" of fee-shifting provisions

in environmental statutes is to cut down on the number of

meritless citizen suits being filed, such provisions cannot

fairly be interpreted as favoring plaintiffs over defendants. As

the Court has noted, "One might well imagine the surprise of

the legislators who voted for this section as an instrument for

deterring meritless suits upon learning that instead it could be

employed to fund such suits." Jd. at 693.

2. The Goals and Objectives of EPCRA Do Not

Support Adoption of a Dual Standard

Christiansburg's determination that a dual standard

should be applied to fee awards in civil rights cases was based

in large measure on the goals and objectives of the civil rights

laws. The goals and objectives of the EPCRA citizen suit

provision and other environmental law citizen suit provisions

are far different from those of Title VII and other civil rights

laws, and do not provide any basis for incorporating

Christiansburg's dual standard into the environmental sphere.

The Court's principal justification for adopting a dual

fee-award standard in cases brought by individuals under Title

VII was its perception that the plaintiff in such suits "is the

chosen instrument of Congress to vindicate a policy that

Congress considered of the highest priority." Christiansburg,

434 U.S. at 418 (citation omitted). The Court explained that

the special role filled by Title VII plaintiffs justified adoption

of a dual standard on fee-award issues as a means of

encouraging suits by all plaintiffs with meritorious Title VII

claims. Id. at 416-19.

That rationale for adopting a dual fee-award standard is

inapplicable to plaintiffs bringing citizen suits under EPCRA

or other environmental statutes. Such plaintiffs are not

Congress's "chosen instrument[s]" for enforcing EPCRA.

Rather, Congress placed primary enforcement responsibility

on the federal government, which was given the power to seek

criminal, civil, or administrative penalties against facilities

that neglect their reporting responsibilities. 42 U.S.C.

§ 11045. Steel Co. v. CBE, 523 U.S. at 87 (the "most power-

ful [EPCRA] enforcement arsenal" belongs to the federal gov-

ernment). States and local governments also have significant

enforcement powers. 42 U.S.C. § 11046(a)(2) and (c).

Citizen suits were assigned a secondary role in the

EPCRA enforcement matrix -- as evidenced by a statutory

provision barring citizen suits if the federal government

decides to bring its own enforcement action. Indeed, anyone

contemplating an EPCRA citizen suit must provide 60 days'

advance notice of the suit to the federal government, the State

in which the alleged violation is occurring, and the alleged

violator. 42 U.S.C. § 11046(d)(1). That notice requirement

provides the federal government an opportunity to investigate

the complaint and to decide whether to bring its own

enforcement action. If after investigating the complaint, the

federal government decides to pursue EPCRA enforcement

action, the prospective citizen-plaintiff is barred from bringing

suit. 42 U.S.C. § 11046(e).

Many other federal environmental statutes contain 60-day

notice provisions and _ exclusive-federal-enforcement

provisions similar to EPCRA's. Such provisions have been

' interpreted by the Court on at least two occasions as evidence

both that Congress viewed the federal government as the

principal enforcer of the environmental law at issue and that

Congress wished to avoid excessive numbers of citizen suits.

In Gwaltney of Smithfield, Inc. v. Chesapeake Bay Found.,

484 U.S. 49 (1987), the Court relied on the 60-day notice

requirement and the exclusive-federal-enforcement mandate in

the citizen suit provision of the Clean Water Act, 33 U.S.C.

§ 1365(f), to hold that individuals could not sue for wholly

past violations of the Act. The Court explained:

The bar on citizen suits when governmental enforcement

action is under way suggests that the citizen suit is meant

to supplement rather than to supplant governmental

action. .. . Permitting citizen suits for wholly past

violations of the Act could undermine the supplementary

role envisioned for the citizen suit.

Gwaltney, 484 U.S. at 60. Similarly, the Court held that the

60-day notice requirement of the citizen suit provision of the

Resource Conservation and Recovery Act (RCRA), 42 U.S.C.

§ 6972(b)(1), imposes an absolute bar to suit by individuals

who have failed to comply with its terms. Hallstrom v.

Tillamook County, 493 U.S. 20 (1989). The Court held that

requiring compliance with the 60-day notice requirement

"allows Government agencies to take responsibility for

enforcing environmental regulations, thus obviating the need

for citizen suits," and thereby serves Congress's intent "to

strike a balance between encouraging citizen enforcement of

environmental regulations and avoiding burdening the federal

courts with excessive numbers of citizen suits." Id. at 29

(emphasis added).

Moreover, Congress declined to give private citizens any

personal monetary stake in their EPCRA enforcement actions.

While prevailing plaintiffs in civil rights actions are eligible

for substantial damage awards, Congress specified that any

civil penalty imposed on the defendant in an EPCRA citizen

suit would be paid to the federal government, not the plaintiff.

42 U.S.C. § 11046(c). The absence of any "bounty"

provision in EPCRA is inconsistent with a claim that citizen-

suit plaintiffs are Congress's "chosen instrument(s]" for

EPCRA enforcement.

In sum, while encouraging meritorious EPCRA citizen

suits was obviously one reason that Congress provided for the

award of attorney fees to prevailing parties in such suits, the

principal factor that led the Supreme Court in Christiansburg

to adopt a dual fee-award standard in Title VII cases -- a

recognition that Title VII plaintiffs are Congress's "chosen

instrument" for eradicating invidious discrimination in the

workplace -- is wholly absent from EPCRA citizen suits.

Another consideration that animated Christiansburg's

decision to adopt a dual fee-award standard was a recognition

that most civil rights plaintiffs are individuals of limited means

(Christiansburg, 434 U.S. at 420) who would face financial

disaster if forced to pay attorney fees to a prevailing defen-

dant. The Court recognized that, due to those potential finan-

cial consequences, placing prevailing defendants’ fee petitions

on an equal footing with those of prevailing plaintiffs would

largely negate the intent of fee-shifting provisions to

encourage the filing of meritorious civil rights claims:

To take the further step of assessing attorney's fees

against plaintiffs simply because they do not finally

prevail would substantially add to the risks inherent in

most litigation and would undercut the efforts of

Congress to promote the vigorous enforcement of the

provisions of Title VII.

Id. at 422.

The impoverished-plaintiff scenario envisioned by

Christiansburg as the rationale for a dual fee-award standard

in civil rights cases is of little relevance in environmental

citizen-suit litigation, where the typical plaintiff is a well-

established environmental group that brings numerous such

actions. CBE fits that description precisely. In 1995, CBE

had over 30,000 members and 180,000 contributors.

ie Nha ee

bin aril. wig ie Negi lye lial

Complaint 6. According to one of its publications, CBE has

successfully prosecuted numerous suits under EPCRA and

other federal environmental statutes. Citizens for a Better

Environment, Environmental Review (Fall 1997).

An examination of reported decisions under environ-

mental citizen-suit statutes demonstrates that virtually no

plaintiffs in such cases are individuals. For example, citizen

suits brought under EPCRA against non-governmental defen-

dants have resulted in reported decisions in nine cases. In

eight of those cases, the plaintiff was an environmental

organization.* Only one of those cases was filed on behalf of

an individual.’ One environmental group, the Atlantic States

Legal Foundation, brought three of the nine cases.'° An EPA

* In addition to this case, the other seven are Atlantic States Legal

Found. v. United Musical Instruments, 61 F.3d 473 (6th Cir. 1995);

Neighbors for Toxic-Free Community v. Vulcan Materials Co., 964 F.

Supp. 1448 (D. Colo. 1997); Idaho Sporting Congress v. Computrol,

952 F. Supp. 690 (D. Id. 1996); Don't Waste Arizona v. McLane

Foods, 950 F. Supp. 972 (D. Az. 1996); Atlantic States Legal Found.

v. Buffalo Envelope Co., 823 F. Supp. 1065 (W.D.N.Y. 1993);

Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp.

1132 (E.D. Pa. 1993); and Atlantic States Legal Found. v. Whiting

Roll-Up Door Mfg. Corp., 772 F. Supp. 745 (W.D.N.Y. 1991).

* Williams v. Leybold Technologies, 784 F. Supp. 765 (N.D. Cal.

1992).

'° A Westlaw party search revealed that 45 of the citizen suits

brought by Atlantic States Legal Foundation (ASLF) under a variety of

environmental statutes since 1984 have resulted in reported court

decisions. ASLF claims to have litigated "hundreds of successful

EPCRA and Clean Water Act cases." Samuel H. Sage and David W.

Clippinger, Holding Business Accountable, POLLUTION PREVENTION

REVIEW (Spring 1996) at 65. It also claims, "ASLF pioneered citizen

enforcement of EPCRA in 1989 and remains the only public interest

group in the country that routinely and systematically pursues EPCRA

(continued...)

study of intent-to-sue letters filed under the Clean Water Act's

citizen suit provision between May 1984 and September 1988

revealed that two-thirds were filed by large environmental

organizations; between 1982 and April 1984, five national

organizations accounted for 80% of all such notices. Michael

S. Greve, The Private Enforcement of Environmental Law, 65

TUL. L. Rev. 339, 353-54 (1990). As the Supreme Court

noted in Hallstrom, “While the initial charge in a Title VII

proceeding is normally filed by an aggrieved individual, . . .

citizen suits under RCRA are like any other lawsuit generally

filed by trained lawyers who are presumed to be aware of

Statutory requirements." Hallstrom, 493 U.S. at 28.

The possibility that an adverse judgment could result in

such organizations having to pay the opposing party's attorney

fees is unlikely to deter them from filing meritorious

environmental lawsuits.'' To illustrate the point, assume that

continued)

violators." Jd. at 64.

'' Fogerty cited the absence of the impoverished-plaintiff scenario

in the typical copyright action as a reason for refusing to expand Chris-

tiansburg's dual fee-award standard to copyright actions. The Court

explained:

Oftentimes, in the civil rights context, impecunious “private

attorney general” plaintiffs can ill afford to litigate their claims

against defendants with more resources. Congress sought to

redress this balance in part, and to provide incentives for the

bringing of meritorious lawsuits, by treating successful plaintiffs

more favorably than successful defendants in terms of the award

of attorney's fees. . . . In the copyright context, it has been noted

that entities which sue for copyright infringement as plaintiffs can

run the gamut from corporate behemoths to starving artists; the

same is true of prospective copyright infringement defendants.

(continued...)

a plaintiff concludes that his contemplated lawsuit has an 80%

chance of success, and that the statute under which he plans to

sue has a fee-shifting provision. A suit with that high a

likelihood of success clearly would qualify as one that

Congress intended to encourage. But if a civil rights plaintiff

of modest means faced the prospect that he would have to pay

the defendant's legal bills if he lost the case, he might well

decide not to sue -- he would be reluctant to risk his life

savings no matter how strongly he believed in his case. On

the other hand, an environmental group that regularly litigates

is able to spread the risk of an adverse fee award over a large

number of cases. If an evenhanded fee-award standard were

adopted in environmental cases, then an environmental group

that only brought cases it accurately judged to have an 80%

chance of success would likely have at least four fee awards

go in its favor for every one that went against it.

Thus, if an evenhanded standard were adopted, the fee-

shifting provisions of EPCRA and other environmental laws

would still provide a substantial monetary incentive for the

filing of meritorious citizen suits. Of course, an evenhanded

standard would eliminate all incentive to file suits that the

plaintiff calculates as having a less-than-50-percent chance of

success; but there is nothing in EPCRA or its legislative

history to suggest that Congress intended to encourage such

suits. In fact, limiting citizen suits to those with a better-than-

50% chance of success advances the congressional goal that

citizen suits "supplement" federal enforcement and not "overly

burden" the federal judiciary, as articulated by the Court in

Gwaltney and Hallstrom, respectively.

In sum, the Christiansburg Court's fear that adoption of

an evenhanded fee-award standard would discourage would-be

"(. continued)

Fogerty, 510 U.S. at 524 (citation omitted).

civil rights plaintiffs of limited means has no bearing on

environmental cases -- where virtually all plaintiffs are

environmental groups that can spread the risk of loss over a

large number of cases. The Court should grant review in

order to address whether these stark differences between civil

rights cases and environmental citizen suits mandate adoption

of differing fee-award standards.

Ill. THE DUAL FEE-AWARD STANDARD HAS

TRANSFORMED CITIZEN SUITS FROM THE

SUPPLEMENTAL ENFORCEMENT MECHANISM

ENVISIONED BY CONGRESS INTO A SYSTEM

UNDER WHICH COMPANIES ARE FORCED TO

PAY TRIBUTE TO ENVIRONMENTAL GROUPS

AS A COST OF DOING BUSINESS

As noted above (supra 5-6, 21-24), Congress placed

primary responsibility for enforcement of EPCRA in EPA's

hands, with citizen plaintiffs relegated to a much smaller,

secondary role. Indeed, as the Court explained in

Ruckelshaus, Congress added attorney fee provisions to

environmental citizen suit statutes at the behest of those who

feared that companies might become overwhelmed by

environmental citizen suits; attorney fee provisions were seen

as a means of reducing the number of unmeritorious suits.

Ruckelshaus, 463 U.S. at 692-93.

Adoption of a dual fee-award standard has had precisely

the opposite effect from that intended by Congress. The

standard has provided environmental groups with financial

incentives to file numerous suits of even doubtful merit.

Under the dual standard, those groups can rest assured that

they will never be assessed fees for filing unmeritorious

lawsuits, provided only that they can demonstrate that the suit

was not "frivolous"; and they stand to be handsomely

rewarded if they prevail. Defendants in such actions face a

vastly different set of financial incentives. If they contest

what they view as unmeritorious citizen suits, they will incur

substantial fees with little hope of recovering them even if

they ultimately prevail. Moreover, there is always some risk

that they will not prevail; accordingly, contesting the suits also

risks the possibility that they will have to pay a substantial fine

to the government as well as the environmental group's

mounting fees. Thus, the dual standard places enormous

pressure on defendants to settle environmental citizen suits,

regardless how unmeritorious they view the suits to be. See

Friends of the Earth, Inc. v. Laidlaw Environmental Servs.,

Inc., 120 S. Ct. 693, 719 (2000) (Scalia, J., dissenting) (“The

availability of civil penalties vastly disproportionate to the

individual injury gives citizen plaintiffs massive bargaining

power--which is often used to achieve settlements requiring

the defendant to support environmental projects of the

plaintiffs’ choosing.”).

Numerous commentators have recognized that the

environmental citizen suit regime has ceased being the

supplemental enforcement mechanism envisioned by Con-

gross. See, e.g., Greve, supra at 339-45; Ross Macfarlane &

Lori Terry, Citizen Suits: Impacts on Permitting and Agency

Enforcement, 11-SPG NAT. RESOURCES & ENv'T 20 (Spring

1997). Rather, there has been an "explosion" in the number

of citizen suits over the past 15 years, fueled in no small

degree by the dual fee-award standard that has resulted in the

award of fees to prevailing plaintiffs as a matter of course. Jd.

As a result, a cottage industry has sprung up consisting of

lawyers and affiliated environmental groups dedicated almost

exclusively to -- and largely financed by fees derived from --

bringing such suits. Jd.

The financial incentives created ~ the dual fee-award

system has operated as one would expect: the great majority

of environmental citizen suits are settled relatively quickly,

with corporate defendants agreeing to make some form of

payment. Greve, at 355. Such payments generally include

not only the plaintiff's attorney fees but also a cash payment

to an environmental project of the plaintiff's choosing. fd. at

356." While environmental groups, to avoid appearances of

impropriety, have been unwilling to specify that the cash

payment be made to the plaintiff, they have generally specified

that the payments be made to an allied environmental group.

Id. at 358-59."°

The Steel Company submits that the citizen suit regime

outlined above -- which amounts to a large transfer payment

from private industry to environmental groups with little

evidence of benefit to the environment -- is not the one

envisioned by Congress. There is considerable evidence that

the current state of affairs has been brought about in large

measure by judicial adoption of the dual fee-award system.

Review is warranted in this case to determine whether

adopting an evenhanded fee-award standard would correct the

imbalance.

CONCLUSION

The petition for a writ of certiorari should be granted.

2 Citizen suit defendants have generally been willing to make

such payments as an alternative to the fine they would be required to

pay to the federal government if found by the court to have violated an

environmental statute. Jd. at 356-57. Such payments generally are an

attractive alternative because in practice they are considerably smaller

than the potential fine and because, unlike a fine, they are tax

deductible. Id.

'? For example, the Atlantic States Legal Foundation, in reporting

on its successful settlement of an EPCRA citizen suit against Silgan

Containers Corp., stated that one of the settlement terms required

Silgan to make a cash payment to Respondent Citizens for a Better

Environment “for further pollution prevention work." Sage and

Clippinger at 66.

Respectfully submitted,

Sanford M. Stein ‘Daniel J. Popeo

Leo P. Dombrowski Richard A. Samp

WILDMAN, HARROLD, (Counsel of Record)

ALLEN & DIXON WASHINGTON LEGAL

225 West Wacker Drive FOUNDATION

Chicago, IL 60606-1229 2009 Massachusetts Ave, NW

(312) 201-2000 Washington, DC 20036

(202) 588-0302

Dated: January 16, 2001

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2709

Citizens for a Better Environment,

Plaintiff-Appellee,

Vv.

The Steel Company, also known as

Chicago Steel and Pickling Company,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 4534--George M. Marovich, Judge.

Argued February 9, 2000--Decided October 17, 2000

Before Bauer, Easterbrook, and Ripple, Circuit Judges.

Easterbrook, Circuit Judge. The Steel Company

missed reporting deadlines established by the Emergency

Planning and Community Right-To-Know Act, 42 U.S.C.

§§ 11001-50. Notified of its default by Citizens for a Better

Environment (CBE), The Steel Company quickly furnished

all required documents. Nonetheless CBE filed suit under

the Act’s citizen-suit provision. 42 U.S.C. § 11046(a)(1).

The Act authorizes a civil penalty of $25,000 per day per

report for tardiness, 42 U.S.C. § 11045(c), and by the

SR A PR EY

complaint’s calculations The Steel Company could have

owed more than $537 million. The Steel Company replied

that CBE is not entitled to pursue such a claim. A panel of

this court rejected this argument without discussing CBE’s

standing, 90 F.3d 1237 (7th Cir. 1996), but the Supreme

Court unanimously reversed. Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83 (1998). Six Justices

concluded that, even if delay in disclosure injured CBE, that

injury could not be redressed given that any civil penalty

would be paid to the United States rather than a private

plaintiff; CBE therefore lacks a justiciable controversy with

The Steel Company. 523 U.S. at 102-10. Three Justices

concluded that Congress has authorized citizen suits only if

the litigation begins before the firm files all required

reports; these three did not decide whether CBE has

standing. Jd. at 131-34 (Stevens, J., joined by Souter &

Ginsburg, JJ.).

It took three years and $270,000 in attorneys’ fees for

The Steel Company to convince the federal judiciary that

CBE was whistling in the dark. After the Supreme Court’s

decision, we know that this suit never should have been

filed. Now The Steel Company wants to be placed in the

pecuniary position it would have occupied but for the suit.

Accordingly, it moved in the district court for an award of

attorneys’ fees under § 11046(f), only to be told "no

jurisdiction." 1999 U.S. Dist. Lexis 9042 (N.D. Ill. June

8, 1999). Though those words were music to its ears when

sung by the Supreme Court, The Steel Company insists that

this repeat is not in the score.

The district court thought that, if CBE lacks standing

to seek c.vil penalties from The Steel Company, then The

Steel Company must lack standing to seek attorneys’ fees

from CBE. A court either has jurisdiction or it doesn’t, the

district judge believed, and the Supreme Court has put this

case in the no-jurisdiction cubbyhole. Yet "[cJourts that

lack jurisdiction with respect to one kind of decision may

have it with respect to another. See Szabo Food Service,

Inc. v. Canteen Corp., 823 F.2d 1073, 1077-79 (7th Cir.

1987). A court, for example, always has jurisdiction to

consider its own jurisdiction". Muthig v. Brant Point

Nantucket, Inc. , 838 F.2d 600, 603 (1st Cir. 1988) (Breyer,

J.). See also Yang v. INS, 109 F.3d 1185, 1192-94 (7th

Cir. 1997). In particular a court may lack authority to

resolve the merits of a claim yet have jurisdiction to award

costs and attorneys’ fees to the prevailing party. We held

this in Szabo Food Service, and the Supreme Court agreed

in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393-98

(1990), and Willy v. Coastal Corp. , 503 U.S. 131 (1992).

In this very case the Supreme Court granted certiorari, held

a hearing, and considered whether federal courts had

jurisdiction to entertain the suit. The Court said no, and it

had jurisdiction to say no. Article III of the Constitution

authorized the proceedings in which the Court gave its

answer. Article III allowed this court on remand to direct

that the district court dismiss the suit. Article III allowed

taxation of costs against CBE pursuant to 28 U.S.C. § 1919

in the Supreme Court and here on remand. Article II

allows an award of other costs of litigation, including

attorneys’ fees, incurred in the proceedings. Although CBE

lost because the judiciary could not redress any injury it

suffered from The Steel Company’s delay in filing the

required reports, The Steel Company’s injury (the costs of

defending this litigation) assuredly may be redressed by an

order requiring CBE to reimburse those expenses. That

satisfies Article III. The Steel Company has only to

establish that federal law authorizes the district court to

make the award.

The district court’s conviction that it may not award

attorneys’ fees reflects a misunderstanding of what the

Supreme Court said in this litigation about Article III. The

Court concluded that CBE’s prospect of recovering costs

and legal fees if it prevailed on the merits could not justify

adjudicating the question whether The Steel Company had

violated the Act. "[A] plaintiff cannot achieve standing to

litigate a substantive issue by bringing suit for the cost of

bringing suit." 523 U.S. at 107. But a fee award is the

substantive issue in The Steel Company’s motion. It has

been injured in fact to the tune of $270,000 and counting.

CBE’s suit inflicted that injury, which can be redressed by

an award in The Steel Company’s favor. Malicious

prosecution and abuse of process are very old torts that

reflect a defendant’s entitlement to be made whole following

wrongful litigation--including litigation so baseless that it

does not even come within the jurisdiction of the court in

which it was filed. Suppose a federal statute established the

right to recover for loss caused by "wrongful invocation of

federal jurisdiction," affording compensatory damages to

defendants who have been dragged pointlessly through

federal court. The constitutionality of such a provision

could not be doubted, nor would anyone deny that the

aggrieved former defendant has standing to avail itself of the

federal right so created. Cf. 28 U.S.C. §§ 1495, 2513

(granting such a remedy to a criminal defendant who can

establish innocence). That the aggrieved litigant invoked its

entitlement by counterclaim rather than by an independent

suit would not deprive the district court of authority to

supply the remedy.

Until 1875 federal courts did not award either

attorneys’ fees or any other costs in cases that had been

dismissed for want of jurisdiction. The reason lay in the

common law, not the Constitution, the Court explained in

Mansfield C. & L.M. Ry. v. Swan, 111 U.S. 379, 386-87

(1884). In considering the power conferred on circuit

courts by the Act of March 3, 1875, 18 Stat. 470, 472, to

award costs secured by a bond when remanding a suit to

state court, the Court observed: "These provisions were

manifestly designed to avoid the application of the general

rule, which, in cases where the suit failed for want of

jurisdiction, denied the authority of the court to award

judgment against the losing party, even for costs." Jd. at

387. Mansfield applied the new statute and held that costs

may be awarded even when the court to which the action is

removed lacks jurisdiction to decide the merits. The law

applied in Mansfield is still on the books, now split into two

and modified. One part appears in 28 U.S.C. § 1919:

Whenever any action or suit is dismissed in any district

court, the Court of International Trade, or the Court of

Federal Claims for want of jurisdiction, such court

may order the payment of just costs.

The other survives as 28 U.S.C. § 1447(c):

If at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case

shall be remanded. An order remanding the case may

require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the

removal.

We applied this statute in Garbie v. DaimlerChrysler Corp..,

211 F.3d 407 (7th Cir. 2000), stating that attorneys’ fees

should be normal incidents of remands for lack of juris-

diction; none of the parties suggested that § 1447(c) violates

Article III, and such a contention would have been unten-

able. Use of this fee-shifting power has been uncontrover-

sial. See, e.g., Morgan Guaranty Trust Co. v. Republic of

Palau, 971 F.2d 917 (2d Cir. 1992); Mints v. Educational

Testing Service, 99 F.3d 1253 (3d Cir. 1996); W.H. Avitts

v. Amoco Production Co., 111 F.3d 30 (Sth Cir. 1997);

Stallworth v. Greater Cleveland RTA, 105 F.3d 252 (6th

Cir. 1997).

Willy noted that statutes such as § 1919 and 1447(c)

permit awards of litigation expenses in suits that federal

courts are not authorized to decide on the merits. Cooter &

Gell held that Fed. R. Civ. P. 11 permits such awards in

cases originally within the court’s jurisdiction but voluntarily

dismissed by plaintiffs before defendants seek fees. Then

Willy generalized that approach by holding that attorneys’

fees may be awarded under Rule 11 even if the case never

came within the district court’s subject-matter jurisdiction.

The district court sought to distinguish these decisions:

[A] court’s authority to award attorney’s fees or sanc-

tions under Rule 11 is drawn not from the Constitu-

tion’s Article III jurisdictional requirements, but rather

congressional authority under Article I, § 8, cl. 9 to

establish laws regulating the conduct of the courts.

Willy, 503 U.S. at 136. The imposition of Rule 11

sanctions therefore is a procedural matter that is not

restricted by Article III standing requirements. Here,

the procedural concerns regarding abuse of the judicial

system present in both Willy and Cooter & Gell are

notably absent. As such, the Supreme Court’s Rule 11

jurisprudence is not germane.

This passage confuses two concepts--legislative authority to

create rights and remedies (located in Article I), and

adjudicative authority (located in Article III). Article I

conferred on Congress authority to enact not only 28 U.S.C.

§§ 1919-and 1447(c), but also the Rules Enabling Act, 28

U.S.C. §§ 2071-77, which underpins Rule 11. That laws

are enacted under Article I does not justify dispensing with

standing requirements under Article III; courts possess no

more authority to issue advisory opinions (or otherwise

exceed their jurisdiction) in "procedural matters" than in

other matters. Still, a motion seeking an award under any

of these rules or statutes is a case or controversy that may

be adjudicated to the extent the movant has suffered at its

adversary’s hands an injury [that] may be redressed by a

decision in its favor. Steel Co., 523 U.S. at 102-04.

Article III therefore presents no obstacle to fee-shifting,

whether or not the fees were incurred in proceedings that

were cases or controversies under Article III. To see this,

consider costs and attorneys’ fees incurred in proceedings

before administrative agencies. That the agency proceedings

were not conducted under Article III does not preclude

awards of costs and fees to the prevailing party, when

legislation authorizes litigation to recoup those outlays. See

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)

(federal suit to recover legal expenses of state administrative

and judicial proceedings enforcing Title VII of the Civil

Rights Act of 1964); Brown v. Griggsville Community Unit

School District No. 4, 12 F.3d 681 (7th Cir. 1993) (federal

suit to recover attorneys’ fees necessitated by state

administrative proceedings under the IDEA). Not all

statutes authorize claims of this kind; North Carolina

Department of Transportation v. Crest Street Community

Council, Inc., 479 U.S. 6, 13-15 (1986), held that 42

U.S.C. sec.1988, unlike Title VII, does not support a suit

whose sole object is to recover legal expenses incurred in

nonjudicial proceedings. But this is a matter of statutory

meaning, not of power to adjudicate, a distinction that the

Supreme Court emphasized in this very case. 523 U.S. at

89-90.

The district court drew comfort for its position from

decisions of other circuits. Ass’n for Retarded Citizens v.

Thorne, 68 F.3d 547, 552 (2d Cir. 1995) (relying on W.G.

v. Senatore, 18 F.3d 60 (2d Cir. 1994)); Keene Corp. v.

Cass, 908 F.2d 293, 298 (8th Cir. 1990); and Branson v.

Nott, 62 F.3d 287, 292-94 (9th Cir. 1995), hold that

defendants cannot obtain awards of fees under § 1988 if the

district court lacked subject-matter jurisdiction. Branson

conceded that "there are some circumstances in which

attorney’s fees or costs may be imposed even where the

court proves to be without subject matter jurisdiction" (62

F.3d at 293 n.10, citing 28 U.S.C. §§ 1919 and 1447(c))

but did not attempt to distinguish those provisions from

§ 1988. The other two decisions have even less reasoning.

Yet before Thorne, Branson, and Keene, this circuit had

reached a contrary conclusion. See Charles v. Daley, 846

F.2d 1057 (7th Cir. 1988). In Charles the Supreme Court

concluded that a would-be appellant lacked standing,

knocking out jurisdiction over an appeal. Diamond v.

Charles, 476 U.S. 54 (1986). Then we ordered the party

who had caused the unnecessary proceedings to pay the

other side’s costs and attorneys’ fees under § 1988. Thorne,

Branson, Keene and the district court all neglected Charles

and its predecessors, including Sanders v. CIR, 813 F.2d

859 (7th Cir. 1987), and Moten v. Bricklayers International

Union, 543 F.2d 224 (D.C. Cir. 1976). Sanders concluded

that because a court has jurisdiction to determine its own

jurisdiction, the Tax Court may award attorneys’. fees in a

proceeding that it is not authorized to decide on the merits;

Moten reached a similar conclusion under the fee-shifting

provision in 42 U.S.C. § 2000e-5(k). Although the district

court in Charles had jurisdiction, as the district court here

did not, the award of fees dealt with proceedings on appeal,

proceedings that were not properly initiated because the

appellant lacked standing, and there was accordingly no case-

presented for decision on the merits. If an award of fees

was within the court’s jurisdiction in Charles, it is equally

within the court’s jurisdiction here. Nothing in Thorne,

Branson, Keene, or the district court’s opinion persuades us

that Charles or Sanders should be limited or overruled.

The final appellate decision on which the district court

relied does not support its decision. Cliburn v. Police Jury

Association of Louisiana, Inc., 165 F.3d 315 (Sth Cir.

1999), held that the language of a particular fee-shifting

provision, properly construed, does not authorize awards to

defendants when the underlying suit is outside federal

jurisdiction. The provision at issue reads:

In any action under this subchapter (other than an

action described in paragraph (2)) by a participant,

beneficiary, or fiduciary, the court in its discretion

may allow a reasonable attorney’s fee and costs of

action to either party.

29 U.S.C. § 1132(g)(1). The fifth circuit concluded (165

F.3d at 316):

10a

The district court’s dismissal of Cliburn’s claims for

lack of subject matter jurisdiction is inconsistent with

an award of fees and costs under a statute which

requires “any action under this subchapter." In

dismissing Cliburn’s suit, the district court determined

that there was no ERISA "action." Furthermore, given

that ERISA is inapplicable to Cliburn’s claims, it is

inconsistent to conclude that either Cliburn or the

Police Jury Association is "a participant, beneficiary,

or fiduciary" eligible to invoke § 1132(g)(1). Given

that the district court lacked jurisdiction to hear

Cliburn’s claims under ERISA, it logically follows that

the court lacked jurisdiction to entertain the Police Jury

Association’s request for fees, costs, and expenses

under ERISA.

We have no quarrel with this conclusion, but it does not

shed light on the application of 42 U.S.C. § 11046(f), which

provides:

The court, in issuing any final order in any action

brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert

witness fees) to the prevailing or the substantially

prevailing party whenever the court determines such an

award is appropriate.

Does this cover The Steel Company’s request? CBE has not

advanced an argument along Cliburn’s lines that The Steel

Company’s motion for fees did not ask the district court for

an award "in issuing any final order in any action brought

pursuant to this section". CBE’s action was “brought

pursuant to" § 11046; it could not have been brought under

any other law, and the suit’s failure did not make it the less

lla

one "brought pursuant to" § 11046. See Steel Co., 523

U.S. at 92-93. CBE does, however, make two other statu-

tory arguments against application of § 11046(f), the first of

which focuses on the words "prevailing party". Has The

Steel Company "prevailed" in this litigation?

Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 792 (1989),

concluded that a plaintiff prevails for purposes of 42 U.S.C.

§ 1988 only if "at a minimum . . . the plaintiff [can] point

to a resolution of the dispute which changes the legal

relationship between itself and the defendant." Alterna-

tively, the Court wrote, the "touchstone of the prevailing

party inquiry must be the material alteration of the legal

relationship of the parties" (489 U.S. at 792-93). We may

assume that § 11046(f) uses "prevailing party" in the same

way. If a plaintiff prevails by securing a change in legal

relations, then a defendant prevails by securing an

entitlement not to have any change in legal relations. If a

plaintiff prevails by an award of damages or an injunction,

the defendant prevails by securing a declaration that it need

not pay damages or alter its behavior. Defeating a plaintiff

on the merits is one way to obtain such assurance, but

hardly the only way. A declaration that the plaintiff and

others like it are not even entitled to sue accomplishes the

same end, and more. The Steel Company could have "pre-

vailed" by obtaining a declaration that it need not pay a

penalty for this particular delay; instead it obtained from the

Supreme Court much more--a decision foreclosing any pri-

vate plaintiff from suing about this delay or any other. This

is the most sweeping victory for which it could have hoped.

Sometimes victory on a jurisdictional point merely

prolongs litigation. A defendant may persuade the court

that the plaintiff has sued too soon, or in the wrong court,

or failed to jump through a procedural hoop. Then the

dispute will continue later, or elsewhere, and it remains to

be seen who will prevail. Such a victory is like persuading

a judge to deny summary judgment, a step that transfers

decision to a jury but does not end the litigation in defen-

dant’s favor and therefore does not make it a prevailing

party. See Hanrahan v. Hampton, 446 U.S. 754 (1980); cf.

Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). But the

Supreme Court’s decision in this case did not just put off the

evil day for The Steel Company. It terminated this suit and

barred all others like it, for as long as the statute retains its

current language. It was a triumph in the war, not just in

a battle or even a campaign.

The alternative of limiting "prevailing" to "prevailing

on the merits" has nothing to recommend it under either the

text of the statute or the considerations that lie behind

fee-shifting statutes. Although this approach has found

favor in some other circuits--see, e.g., Figueroa v.

Buccaneer Hotel Inc., 188 F.3d 172, 183 n.15 (3d Cir.

1999); Keene, 908 F.2d at 298; Branson, 62 F.3d at 293

(contra Elks National Foundation v. Weber, 942 F.2d 1480,

1485 (9th Cir. 1991)); GHK Exploration Co. v. Tenneco Oil

Co., 857 F.2d 1388, 1391 (10th Cir. 1988)--this court has

long been of the view that success on a fundamental

jurisdictional point can make a litigant a "prevailing party".

Charles is again our leading case.

Plaintiffs who had successfully challenged the consti-

tutionality of a state law sought to recover attorneys’ fees

under § 1988 not only from governmental defendants but

also from three private intervenors. The district court

directed two of the intervenors to reimburse plaintiffs for

13a

attorneys’ fees they had incurred as appellees before the

Supreme Court. The Court dismissed an appeal initiated by

those intervenors after concluding that they lacked standing.

In holding that appellees were prevailing parties in the

Supreme Court proceedings, our panel observed that such

parties should not be forced to "absorb the costs of

defending lawsuits the appealing party lacked proper

standing to bring." 846 F.2d at 1073. We see no reason in

principle why a defendant that gets everything it desires

after three tiers of litigation ending in a proclamation of "no

jurisdiction" should have less entitlement to prevailing-party

status than did the equivalently-successful appellees in

Charles, who used a jurisdictional shield to retain what they

had won in the district court. Moten, which we have

already mentioned, also holds that a litigant may become a

prevailing party by securing a jurisdictional victory of

sufficient scope. And of course since 1875 courts have

awarded costs to litigants that prevail on jurisdictional

grounds, and did so in this very case--though under Fed. R.

Civ. P. 54(d)(1) only a "prevailing party" recovers costs.

We hold that when a dismissal for want of jurisdiction

forecloses the plaintiff's claim, the defendant is the

"prevailing party."

So much for CBE’s first statutory argument. Its

second is that The Steel Company is not entitled to fees,

even as a "prevailing party," because § 11046(f) should be

read to incorporate the standard of Christiansburg Garment

Co. v. EEOC, 434 U.S. 412 (1978). According to Chris-

tiansburg, prevailing plaintiffs in civil-rights cases

presumptively recover attorneys’ fees, but an award should

be made in favor of a prevailing defendant only if the suit

was frivolous, unreasonable, or pursued in bad faith. CBE

contends that the same standard should be used in environ-

CO Oe

l4a

mental statutes, including § 11046(f). The statute at issue

in Christiansburg, 42 U.S.C. § 2000e-5(k), provides that a

court may "in its discretion . . . allow the prevailing party

. . . a reasonable attorney’s fee"; Christiansburg prescribes

how district judges must exercise that discretion. Because

§ 11046(f) also includes language conferring discretion on

the judge (the "appropriate" phrase), CBE contends that

discretion should be exercised with the same thumb on the

scale in plaintiffs’ favor. Borrowing from Christiansburg is

far from inevitable. Fogerty v. Fantasy, Inc., 510 U.S. 517

(1994), holds that another fee-shifting statute, one with

language materially identical to § 2000e-S(k), must be

applied to treat prevailing plaintiffs and prevailing defen-

dants equally. Fogerty warns courts not to extend Chris-

tiansburg mechanically. See Stomper v. Amalgamated

Transit Union, 27 F.3d 316 (7th Cir. 1994). But with

respect to environmental laws the Court itself did this before

Fogerty, and its approach controls here.

Pennsylvania v. Delaware Valley Citizens’ Council,

478 U.S. 546, 560 (1986), says that the fee-shifting

provisions of environmental statutes that promote private

enforcement should be applied "in the same manner" as

§ 1988, a statute covered by Christiansburg’s asymmetric

approach. Although the issue in Delaware Valley was

whether plaintiffs could recover for post-judgment expenses

of monitoring compliance with a consent decree, the

proposition that environmental fee-shifting laws should be

governed by the same principles as fee-shifting under

§ 1988 formed the basis of the Court’s disposition and

therefore cannot be treated as dictum. The Steel Company

has not identified any feature in the language or structure of

§ 11046(f) that distinguishes it from the statute in Delaware

Valley. Indeed, in a follow-up decision, Pennsylvania v.

15a

Delaware Valley Citizens’ Council, 483 U.S. 711 (1987),

the Court stated that its initial opinion had decided that "in

awarding attorney’s fees under § 304(d) [of the Clean Air

Act] the courts should follow the principles and case law

governing the award of such fees under 42 U.S.C. § 1988".

483 U.S. at 713 n. 1. A concurring opinion by Justice

Thomas in Fogerty, 510 U.S. at 538, cited this passage as

establishing that "we have construed similar attorney’s fee

provisions to impose a ‘dual’ standard of recovery". Until

the Supreme Court suggests otherwise, this court must read

"in the same manner" to mean just that. The Steel Com-

pany therefore is entitled to recover its legal expenses only

if CBE’s suit was frivolous, groundless, pursued in bad

faith, or maintained after its baselessness became apparent.

Misconceived this suit was. Frivolous it was not. A

panel of this court held that CBE was entitled to proceed.

The Solicitor General supported that decision before the

Supreme Court. A suit strong enough to survive an appeal

cannot be deemed frivolous, even if all nine Justices thought

it unavailing. We recognize that CBE did not win in this

court; all it secured was the right to litigate on the merits.

(The district court had dismissed its suit for want of

jurisdiction.) No one suggests that CBE’s claim was

frivolous on the merits, however, for The Steel Company

concededly filed reports after the statutory deadlines. That’s

why The Steel Company needed to pitch its defense on

jurisdictional grounds. Thus although we do not agree with

the district court’s reasons, we agree with its judgment:

The Steel Company’s request for fees was properly denied.

One last matter. The parties have squabbled over the

content of The Steel Company’s brief, and a motions judge

ordered that CBE’s motion to strike passages be taken with

16a

the case. The Steel Company depicts itseif as a small and

struggling manufacturer and asserts that CBE is a

well-heeled environmental juggernaut, while CBE asserts

that this is not supported by the record and that it is David

to The Steel Company’s Goliath. This dispute is irrelevant

to our decision. We have no wish to encourage parties to

answer emotional appeals with demands that we scrutinize

those passages for details. If CBE feared that an exercise in

statutory interpretation would be subverted by

misconceptions about the parties’ relative wealth, it was free

to reply in its own brief without asking us to take a red

pencil to its adversary’s. Day v. Northern Indiana Public

Service Corp., 164 F.3d 382 (7th Cir. 1999). Better still,

litigants should give the judges some credit for ability to

resolve legal issues in compliance with the oaths all of us

have taken to "administer justice without respect to persons,

and do equal right to the poor and to the rich" (28 U.S.C.

§ 453). The motion to strike is denied.

AFFIRMED.

RIPPLE, Circuit Judge, concurring. This case presents

two intertwined, yet independent, issues that we must

address: 1) whether the district court had jurisdiction to

award attorneys’ fees to The Steel Company; and 2) whether

The Steel Company was entitled to attorneys’ fees as a

"prevailing party" under the Emergency Planning and

Right-To-Know Act, 42 U.S.C. §§ 11001-50. My col-

leagues present a thoughtful analysis of these two issues.

We are not in disagreement with respect to the result or

with respect to the basic analysis. I agree that the district

court had jurisdiction to award attorneys’ fees, that The

Steel Company meets the requirements for a prevailing party

under the Act, but that fees are not appropriate in the

present action by virtue of the rule set forth in

17a

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

(1978). I write separately simply to emphasize how our

decision today squares with our earlier precedent.

In my view, our court’s analysis in Szabo Food Service

v. Canteen Corporation, 823 F.2d 1073 (7th Cir. 1987), is

especially helpful in understanding the scope of today’s

holding and in distinguishing it from other recent cases. In

Szabo Food Service, this court identified the different

meanings of "lack of jurisdiction." The first Category we

identified was "the image of subject matter jurisdiction."

We stated:

If one citizen of Illinois files a suit based on state law

against another citizen of Illinois, a federal court lacks

jurisdiction over the subject matter; so too if a plaintiff

files a specious civil rights suit, for an absurd

complaint does not even invoke federal question juris-

diction. Yet a court has jurisdiction to determine its

jurisdiction and therefore may engage in all the usual

judicial acts, even though it has no power to decide the

case on the merits. It may supervise discovery, hold

a trial, and order the payment of costs at the end. If

the complaint is indeed too silly to create subject

matter jurisdiction, attorneys’ fees should be an

ordinary incident of the award of costs.

Id. at 1077-78 (citations omitted). The second sense of

“lack of jurisdiction" was when a court "has lost [its] power

to proceed, even though the case is within the federal

judicial power." Jd. at 1078. This second jurisdictional

category most often comes into play when a court has

entered a final judgment; in those circumstances, a court

loses its ability to consider the merits of the action, but does

18a

"not also lose power to award attorneys’ fees that may be in

order as a result of what happened before the final deci-

sion." Jd. at 1078. Finally, we discussed "a third

‘jurisdictional’ analogy [that] rests on the case or

controversy requirement of Article III." Jd. "When the

plaintiff packs up his portfolio and goes home," we stated,

"the case goes home with him. . . . Courts occasionally sum

up the effect of the missing plaintiff by stating . . . : ‘It is

as if the suit had never been brought.’ A court could not

award attorneys’ fees in a case that had never begun... ."

Id. (citations omitted).

Our case law since Szabo Food Service has adhered to

these categories. For example, in Board of Education v.

Nathan R., 199 F.3d 377 (7th Cir.), cert. denied, 68

U.S.L.W. 3775 (Oct. 2, 2000), we held that we could not

consider an award of fees against a school corporation for

deprivation of special education services when the action

had been mooted by the student’s graduation from high

school. In those circumstances, "[b]ecause we would need

to consider the merits to determine whether the Parents are

prevailing parties, we agree[d] that we [could] not decide

whether the Parents would be entitled to attorneys’ fees

from the proceedings in the district court." Jd. at 381. In

essence, we determined that a mooted case. most closely

resembles the third Szabo Food Service category; because

we no longer had a controversy to decide, we could not

determine issues, such as attorneys’ fees, that were

dependent upon our having decided the underlying

controversy. See Lewis v. Continental Bank Corp., 494

U.S. 472, 480 (1990); see also Rhodes v. Stewart, 488 U.S.

1 (1988).

19a

The situation in the present case is more Closely akin

to the first Szabo Food Service category. Here, there is no

question that the district court, this court, and the Supreme

Court, had the authority to receive briefs, to hear argument,

and to consider the issue of whether there was federal juris-

diction to resolve the merits of the underlying controversy;

the courts involved had jurisdiction to determine their

jurisdiction. From the authority to determine its jurisdiction

necessarily flows the power of the court to award attorneys’

fees based on the actions properly before it. Consequently,

the district court had the authority to award fees arising

from the actions of the parties in the course of resolving the

jurisdictional issue. As my colleagues point out, this court’s

decision in Charles v. Daley, 846 F.2d 1057 (7th Cir.

1988), points the way.

The question remains, however, whether attorneys’

fees are available to The Steel Company. This inquiry

requires that we decide whether it has prevailed for purposes

of the Act. With respect to this issue, as my colleagues

point out, the decision of the Supreme Court in Texas State

Teachers Association v. Garland Independent School

District, 489 U.S. 782 (1989), is instructive. In that case

the Court addressed the issue of when a plaintiff might be

considered a "prevailing party" for purposes of 42 U.S.C.

§ 1988. The -Court stated that "[i]f the plaintiff has

succeeded on ‘any significant issue in litigation which

achieve[d] some of the benefit the parties sought in bringing

Suit,’ the plaintiff has crossed the threshold to a fee award

of some kind." /d. at 791-92; see also Hewitt v. Helms,

482 U.S. 755 (1987). Here, CBE brought suit to collect

fees from The Steel Company for failure to make required

disclosures under the Act. The Steel Company, for its part,

sought to prevent CBE from collecting those fees; one of the

20a

bases upon which it defended the action was to challenge

CBE’s standing to bring the action. The Supreme Court

agreed with The Steel Company that CBE lacked standing;

its decision therefore foreclosed CBE’s recovery of fees. In

the words of the Supreme Court, The Steel Company

prevailed on a "significant issue in litigation"--CBE’s

standing, which achieved for The Steel Company the only

benefit that it could derive in defending the action.

Consequently, The Steel Company is a prevailing party for

purposes of the Act.

As my colleagues hold, however, our analysis does not

end here. I agree with my colleagues that § 11046(f)

incorporates the standard of Christiansburg Garment Co. v.

EEOC, 434 U.S. 412 (1978), and that standard precludes

The Steel Company from recovering in the present action.

ee ae

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APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CITIZENS FOR A BETTER

ENVIRONMENT,

Plaintiff,

95 C 4534

)

v. )

) Judge George M.

THE STEEL COMPANY, ) = Marovich

aka CHICAGO STEEL AND )

PICKLING COMPANY, )

)

Defendant.

MEMORAND PIN R

On March 4, 1998, the United States Supreme Court

determined conclusively that the federal courts lacked juris-

diction over Plaintiff Citizens for a Better Environment’s

("CBE") Complaint against Defendant The Steel Company

("TSC") which alleged certain violations of the Emergency

Planning and Community Right-To-Know Act of 1986

("EPCRA"), 42 U.S.C. § 11046(a)(1). TSC has now filed

a motion for attorney’s fees and non-taxable expenses

against CBE pursuant to § 326(f) of EPCRA, 42 U.S.C.

§ 11046(f). In response, CBE asserts that this Court lacks

jurisdiction to consider TSC’s motion. This Court agrees

22a

and, therefore, denies TSC’s motion for attorney's fees and

non-table expenses.'

BACKGROUND

In 1995, CBE, an association of individuals interested

in environmental protection, sued TSC, a small manufac-

turing company, for past violations of EPCRA. This Court

granted TSC’s motion to dismiss CBE’s Complaint for lack

of subject matter jurisdiction, the Seventh Circuit reversed

that determination and the United States Supreme Court

subsequently agreed to review the matter. The Court

ultimately held that CBE lacked standing to maintain the

suit, and both the Supreme Court and lower courts therefore

lacked jurisdiction to consider it. See Steel Co. v. Citizens

for a Better Env't, 523 U.S. 83, 118 S. Ct. 1003, 1009-

1021 (1998). The Seventh Circuit subsequently remanded

the case back to this Court with instructions to dismiss

CBE’s Complaint, and CBE’s Complaint has _ been

dismissed.

TSC now moves for an award of $270,208.61 in attor-

ney’s fees and non-taxable expenses under EPCRA’s fee-

shifting provision. See 42 U.S.C. § 11046(f). That statute

provides that "the court, in issuing any final order in any

action brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert witness

' CBE has additionally “moved to dismiss and strike" TSC’s

motion pursuant to Fed. R. Civ. P. 12(b)(1), 12(f) & 12(h\(3). TSC

correctly notes that such a motion may only be directed at a

“pleading” and, therefore, CBE’s motion is procedurally astray.

Nevertheless, the Court has considered CBE’s jurisdictional argument

in the context of TSC’s motion.

23a

fees) to the prevailing party or substantially prevailing party

whenever the court determines such an award is appro-

priate." Jd. In response, CBE contends that because this

Court lacked subject matter jurisdiction to consider its

original Complaint, the Court similarly lacks jurisdiction to

consider TSC’s motion for attorney’s fees and non-taxable

expenses.

DISCUSSION

Federal district courts are vested with federal question

jurisdiction in “all civil actions arising under the Constitu-

tion, laws, or treaties of the United States." 28 U.S.C.

§ 1331. As the Supreme Court recently reiterated in this

case:

Without jurisdiction the court cannot proceed at all in

any cause. Jurisdiction is power to declare the law,

and when it ceases to exist, the only function

remaining to the court is that of announcing the fact

and dismissing the cause. . . . The requirement that

jurisdiction be established as a threshold matter springs

from the nature and limits of the judicial power of the

United States and is inflexible and without exception.

Steel Co., 118 S. Ct. at 1003 (quotations and citations

omitted). Consequently, this Court must address the

threshold matter of whether it has jurisdiction to consider

TSC’s motion for attorney’s fees and non-taxable expenses.

The Court finds that it does not.

Initially, the fact that EPCRA authorizes courts the

discretion to award attorney’s fees does not, by itself,

constitute an independent grant of jurisdiction. Indeed, the

24a

Supreme Court has noted in this very case that "[aJn

‘interest in attorney’s fees is . . . insufficient to create an

Article III case or controversy where none exists on the

merits of the underlying claim.’" Jd. at 1019 (quoting Lewis

v. Continental Bank Corp., 494 U.S. 472, 480 (1990)).

Although the Supreme Court addressed this matter in the

context of whether CBE’s interest in attorney’s fees could

establish jurisdiction, the Court’s reasoning is equally

applicable to TSC. In short, TSC’s purported interest in

attorney’s fees under EPCRA cannot create an Article III

case or controversy because no such case or controversy

exists over the merits of the EPCRA claim.”

TSC alternatively argues that this Court has jurisdiction

to consider the issue of attorney’s fees because it may

address the issues "collateral" to the underlying dispute. In

support of this proposition, TSC relies predominately on a

series of cases in which the Supreme Court allowed the

imposition of Rule 11 sanctions when the district courts

lacked jurisdiction over the original complaint. See Cooter

& Gell v. Hartma[r|x Corp., 496 U.S. 384 (1990); Willy v.

Coastal Corp., 503 U.S. 131 (1992).

TSC’s reliance on the Supreme Court’s Rule 11 juris-

prudence is misplaced. In Willy, the Court noted that the

? This conclusion is consistent with courts which have held that

they lacked jurisdiction to entertain motions for attorney’s fees under

fee-shifting provisions contained in other statutes where the court

lacked subject matter jurisdiction over the underlying substantive

claim. See, e.g., Cliburn v. Policy Jury Assoc. of Louisiana, 165

F.3d 315, 316 (Sth Cir. 1999) (ERISA); W.G. v. Senatore, 18 F.3d

60, 64 (2d Cir. 1994) (Individuals with Disabilities Education Act);

Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir. 1990) (§ 1988);

Branson v. Nott, 62 F.3d 287, 292 (9th Cir. 1994) (same).

25a

decision to grant Rule 11 sanctions is wholly unrelated to a

judgment on the merits but is instead concerned with the

orderly procedure of the court. As such, a court’s authority

to award attorney’s fees or sanctions under Rule 11 is drawn

not from the Constitution’s Article III jurisdictional require-

ments, but rather congressional authority under Article I,

§ 8, cl. 9 to establish laws regulating the conduct of the

courts. Willy, 503 U.S. at 136. The imposition of Rule 11

sanctions therefore is a procedural matter that is not

restricted by Article III standing requirements. Here, the

procedural concerns regarding abuse of the judicial system

present in both Willy and Cooter & Gell are notably absent.

As such, the Supreme Court’s Rule 11 jurisprudence is not

germane.’

The additional cases which TSC cites in support of its

argument for "collateral" matter jurisdiction are equally

inapposite. Pivotally, in each of the cases cited by TSC, the

court had original jurisdiction over the proceedings at some

point and retained jurisdiction to consider collateral matters

> Parenthetically, TSC argues that although both Willy and

Cooter & Gell dealt with Rule 11 sanctions, the Court’s reasoning in

those cases was not restricted to Rule 11 situations. In particular,

TSC argues that the Court in Cooter & Gell relied on cases that "had

nothing whatsoever to do with Rule 11." (See Def. Supp. Resp. at

4, citing Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939); White

v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982);

and Bray v. United States, 423 U.S. 73 (1975)). TSC, however, has

failed to explain how the cases Willy and Cooter & Gell relied on

have anything whatsoever to do with this case. In short, nothing in

those cases or this Court’s reading of Willy and Cooter & Gell

suggests that the Supreme Court intended to extend ifs jurisdictional

holding beyond the context of Rule 11 and, therefore, this Court

declines TSC’s invitation to expand the Supreme Court’s holdings in

those cases.

26a

after its jurisdiction was divested. See, e.g., Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)

(district court retained jurisdiction to consider attorney’s fees

issue after timely notice of appeal); United States v. Kusay,

62 F.3d 192, 193-94 (7th Cir. 1995) (same); Valley Dispos-

al, Inc. v. Central Vermont Solid Waste Management Dist.,

71 F.3d 1053 (2d Cir. 1995) (district court retained juris-

diction to consider attorney’s fees issue after settlement);

Stallworth v. Greater Cleveland Reg’! Transit Auth., 105

F.3d 252, 256-57 (6th Cir. 1997) (district court retained

jurisdiction to consider attorney’s fees issue under 28

U.S.C. § 1447(c) after remand). Unlike the above cases,

this Court has never had jurisdiction over this dispute and,

therefore, it cannot exercise jurisdiction "collaterally" now.

CONCLUSION

As explained above, this Court lacks jurisdiction to

consider The Steel Company’s motion for attorney’s fees

and non-taxable expenses. The Steel Company’s motion is

therefore denied. Citizens for a Better Environment’s

motion to dismiss and to strike is denied as moot.

ENTER:

GEORGE M. MAROVICH

UNITED STATES DISTRICT COURT

DATED: June 8, 1999

27a

APPENDIX C

42 U.S.C. § 11046. Civil Actions

(a) Authority to bring civil actions. (1) Citizen suits.

Except as provided in subsection (e), any person may

commence a civil action on his own behalf against the

following:

(A) An owner or operator of a facility for failure to do

any of the following:

(i) Submit a followup emergency notice under

section 304(c) [42 U.S.C. § 11004(c)].

(ii) Submit a material safety data sheet or a list

under section 311(a) [42 U.S.C. § 11021(a)].

(iii) Complete and submit an inventory form under

section 312(a) [42 U.S.C. § 11022(a)]

containing tier I information as described in

section 312(d)(1) [42 U.S.C. § 11022(d)(1)]

unless such requirement does not apply by

reason of the second sentence of section

312(a)(2) [42 U.S.C. § 11022(a)(2)].

(iv) Complete and submit a toxic chemical release

form under § 313(a) [42 U.S.C. § 11023(a)].

(B) The Administrator for failure to do any of the

following:

(i) Publish inventory forms under section 312(g)

[42 U.S.C. § 11022(g)].

(ii) Respond to a petition to add or delete a

chemical under section 313(e)(1) [42 U.S.C.

§ 11023(e)(1)] within 180 days after receipt of

the petition.

(iii) Publish a toxic chemical release form under

section 313(g) [42 U.S.C. § 11023(g)].

(iv) Establish a computer database in accordance

28a

with section 313(j) [42 U.S.C. § 11023()].

(v) Promulgate trade secret regulations under

section 322(c) [42 U.S.C. § 11042(c)].

(vi) Render a decision in response to a petition

under section 322(d) [42 U.S.C. § 11042(d)]

within 9 months after receipt of the petition.

emergency response commission, for failure to

provide a mechanism for public availability of

information in accordance with section 324(a) [42

U.S.C. § 11044(a)].

(D) A State Governor or a State emergency response

commission for failure to respond to a request for

tier II information under section 312(e)(3) [42

U.S.C. § 11022(e)(3)] within 120 days after the

date of receipt of the request.

(2) State or local suits. (A) Any State or local government

may commence a civil action against an owner or operator

of a facility for failure to do any of the follow*.g:

(i) Provide notification to the emergency

response commission in the State under

section 302(c) [42 U.S.C. § 11002(c)].

(ii) Submit a material safety data sheet or a list

under section 311(a) [42 U.S.C. § 11021(a)].

(iii) Make available information requested under

section 311(c) [42 U.S.C. § 11021(c)].

(iv) Complete and submit an inventory form under

section 312(a) [42 U.S.C. § 11022(a)]

containing tier I information unless such

requirement does not apply by reason of the

second sentence of section 312(a)(2) [42

U.S.C. § 11022(a)(2)].

(B) Any State emergency response commission or

local emergency planning committee may

29a

commence a civil action against an owner or

operator of a facility for failure to provide

information under section 303(d) [42 U.S.C.

§ 11003(d)] or for the failure to submit tier II

information under section 312(e)(1) [42 U.S.C.

§ 11022].

Administrator for failure to provide information to

the State under section 322(g) [42 U.S.C.

§ 11042(g)].

(b) Venue. (1) Any action under subsection (a) against an

owner or operator of a facility shall be brought in the

district court for the district in which the alleged violation

occurred.

(2) Any action under subsection (a) against the Admini-

strator may be brought in the United States District Court

for the District of Columbia.

actions brought under subsection (a) against an owner or

operator of a facility to enforce the requirement concerned

and to impose any civil penalty provided for violation of

that requirement. The district court shall have jurisdiction

in action brought under subsection (a) against the Admini-

strator to order the Administrator to perform the act or duty

concerned.

(d) Notice. (1) No action may be commenced under sub-

section (a)(1)(A) prior to 60 days after the plaintiff has

given notice of the alleged violation to the Administrator,

the State in which the alleged violation occurs, and the

alleged violator. Notice under this paragraph shall be

given in such manner as the Administrator shall prescribe

by regulation.

(2) No action may be commenced under subsection

(a)(i)(B) or (a)(1)(C) prior to 60 days after the date on

30a

which the plaintiff gives notice to the Administrator, State

Governor, or State emergency response commission (as the

case may be) that the plaintiff will commence the action.

Notice under this paragraph shall be given in such manner

as the Administrator shall prescribe by regulation.

(e) Limitation. No action may be commenced under sub-

section (a) against an owner or operator of a facility if the

Administrator has commenced and is diligently pursuing an

administrative order or civil action to enforce the require-

ment concerned or to impose a civil penalty under this Act

[42 U.S.C. §§ 11001 et seq.] with respect to the violation

of the requirement.

(f) Costs. The court, in issuing any final order in any

action brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert witness

fees) to the prevailing or substantially prevailing party

whenever the court determines such an award is appropriate.

The court may, if a temporary restraining order or

preliminary injunction is sought, require the filing of a bond

or equivalent security in accordance with the Federal Rules

of Civil Procedure.

(g) Other Rights. Nothing in this section shall restrict or

expand any rights which any person (or class of persons)

may have under any Federal or State statute or common law

to seek enforcement of any requirement or to seek any other

relief (including relief against the Administrator or a State

agency).

(h) Intervention. (1) By the United States. In any action

under this section the United States or the State, or both,

if not a party, may intervene as a matter of right.

(2) By persons. In any action under this section, any

person may intervene as a matter of right when such person

has a direct interest which is or may be directly affected by

the action and the disposition of the action may, as a

3la

practical matter, impair or impede the person’s ability to

protect that interest unless the Administrator or the State

Shows that the person’s interest is adequately represented

by existing parties in the action.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.