Opposition Brief — Steel Co. v. Citizens for a Better Environment

No. 00-1146

IN THE ee

Supreme Court of the United States

COLTER ARTIC

THE STEEL COMPANY, a/k/a CHICAGO STEEL

AND PICKLING COMPANY,

Petitioner,

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

HoLLy GORDON HOWARD A. LEARNER

CuicaGo LEGAL CLINIC Counsel of Record

205 West Monroe Street ALBERT F. ETTINGER

Fourth Floor ENVIRONMENTAL LAW

Chicago, Illinois 60606 AND Po icy CENTER

(312) 726-2938 35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

(312) 673-6500

ROBERT MICHAELS

ROBINSON CURLEY & CLAYTON

300 South Wacker Drive

Suite 1700

Chicago, Illinois 60606

(312) 663-3100

Attorneys for Respondent

168906 ce}

COUNSEL PRESS

(R00) 274-3321 © (ROO) 359-6859

QUESTION PRESENTED

The Court held in Pennsylvania v. Delaware Valley

Citizens’ Council, 478 U.S. 546 (1986), and in Pennsylvania

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

that the attorney’s fee-shifting provision of the Clean Air

Act shares a “common purpose” and should be interpreted

“in the same manner” as similar provisions in the civil rights

laws. 478 U.S. at 560. In Christiansburg Garment Co. v.

Equal Employment Opportunity Comm'n, 434 U.S. 412

(1978), this Court held that prevailing civil rights plaintiffs

can obtain their attorney’s fees, but prevailing defendants

cannot charge their attorney’s fees unless a plaintiff’s lawsuit

was “frivolous.” In this case, the plaintiff’s environmental

enforcement claim was not frivolous, and the court of appeals

below has now joined another circuit and several lower courts

in applying the standard set forth in the two Delaware Valley

decisions and in Christiansburg to several environmental

laws. The question presented is:

Should the Court apply the two Delaware Valley

decisions and Christiansburg to this case brought under the

Emergency Planning and Community Right-to-Know Act of

1986, 42 U.S.C. § 11001, et seg., which is an environmental

statute that has an attorney’s fee-shifting provision similar

to and modeled after that in the Clean Air Act?

A.

B.

ll

TABLE OF CONTENTS

‘The 59906. ... 6.cia sca

History of Proceedings. ..........0s0c0e>

REASONS FOR DENYING THE PETITION .

I.

II.

If.

THERE IS NO CONFLICT AMONG

THE CIRCUITS, WHICH AGREE

THAT DELAWARE VALLEY | & Il

AND CHRISTIANSBURG APPLY TO

ENVIRONMENTAL STATUTE FEE-

SHIFTING PROVISIONS. ..............

THE COURT HAS ALREADY SETTLED

THIS ATTORNEY’S FEE ISSUE IN

DELAWARE VALLEY I & II AND

CTERISTIANGOUIG «44 veneer ea

THE SEVENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE COURT’S

DECISIONS IN DELAWARE VALLEY | & II,

CHRISTIANSBURG AND FOGERTY.

Page

tr

6

11

ili

Contents

Page

IV. PETITIONER’S UNFOUNDED POLICY

ARGUMENTS DO NOT WARRANT

GRANTING CERTIORARI. ............ 18

V. THIS CASE IS AN INAPPROPRIATE

VEHICLE FOR REVIEWING THE

QUESTIONS PRESENTED BECAUSE

THERE IS NO SUBJECT MATTER

ke | 20

nN

nN

CO Eo Gn

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Adkins vy. Briggs & Stratton Corp., 159 F.3d 306

fb AE, | Gere rrr ee rae ee 17

Atlantic States Legal Found. v. Onodaga Dept of

Drainage, 899 F. Supp. 84 (N.D.N.Y. 1995) .... 9

Bender v. Williamsport Area School Dist., 475 U.S.

| are nar oan Penge area arena 20

Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988) ... 21

Christiansburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412 (1978)

Ee Tee re PR ee rey ee ea passim

Consolidated Edison Co. v. Realty Inv. Assoc.,

524 F. Supp. 150 (S.D.N.Y. 1981) ........... 9

Equal Employment Opportunity Commission v.

Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir.

OE ere ee reer re Terr opr e reer rs: 14

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

satel ata aae aoe ators ts aE NG SRE eo ea 7,11, 12, 13, 17

General Tel. Co. v. Equal Employment Opportunity

Commission, 446 U.S. 318 (1980) ............ 14

v

Cited Authorities

Page

Lorillard v. Pons, 434 U.S. 575 (1978) .......... 17

Marbled Murrelet v. Babbitt, 182 F.3d 1091

(9th Cir. 1999), cert. denied, 528 U.S. 1115 (2000)

DP rr en PE 4,6, 7, 8, 9, 13

Morris-Smith v. Moulton Niguel Water Dist.,

Nos. 99-55350, 99-55865, 2000 U.S. App. Lexis

21502 Gu Ciz., Aum. 21, FUG) occ ese 4,9

National Wildlife Fed. v. Consumers Power Co.,

729 F. Supp. 62 (W.D. Mich. 1989) .......... 9

Pennsylvania v. Delaware Valley Citizens’ Council,

476 (3.5. SAB (TGS) «cag lvcreee ee passim

Pennsylvania v. Delaware Valley Citizens’ Council,

AS31055. TER CTS és vee este ee passim

Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995)

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ...14, 15

Steel Co. v. Citizens for a Better Environment,

$23 US. G2 OSS venice eee 1, 3, 20, 21

Washington Wilderness Coalition v. Hecla Mining

Co., Nos. 97-35565, 97-35754, CV-94-00233-

FVS, 1998 WL 515365 (9th Cir. 1998), cert.

denied, 526 U.S. 1004 (1999) ............... 4,7,9

vi

Cited Authorities

Page

W.G. v. Senatore, 18 F.3d 60 (2d Cir. 1994) ....... 21 |

Willy v. Coastal Corp., 503 U.S. 131 (1992) ..... 21

Statutes:

17 U.S.C. 8 SQLs. 6 kicceseb sous dene eee 13

WAtS. Lom - |. er ere 12, 13

28 UBC. § 1256). . ck ences shee eee l

28 U.S.C. § 146NG) . 3 o0cckee eee 21

28 U.S.C. § 1909)... cess icessaee eee 21

29 U.S.C. $636 so. cc cces neneeee tee 14 |

30 U.S.C. § 1270(d) ... ec cee ccccccceeeeceeess 16

33 U.S.C. § 13650G) 2 ss osctensce sesso eee 7

42 UBC. § 1963 \o svc ccscu eee eee 21

2 USC. © GGG cs sccccevtseeeueeseeee 2, 10, 11, 21

42 U.S.C. § FOGG? 6 ck ieee eee eee 14

42 U.S.C. § 20GR0-BD .... < cs-scausen anes 11

423 USAC. & FOGG 6s censueneeueeeus 2, 6, 10, 15, 16

42 USA. § TIGGL; GOR <60kccn eee eee i

|

LS

vil

Cited Authorities

Page

gtk ome Bi Mr Torn Tree oT ee 3

G2 UA. © URGED 6.6 bod ed ack cadCecesebnaws passim

Oe CSE. Oe 8 055 oo 50 2c eee 14

Rules:

ee ® , Eee re ry eevee err ee etre 21

ike Ree 8 Peerrerrerrrre Tyree 6, 9, 18, 20

U.S. Sam. Ct. Rake IG) cn a cnc tvcccsssctesas 8

U.S. Samp. Ce. Tine WS) ooo vac inc ce cssciies ees 9,11

Other Authorities:

et os SE. eer erer ere rer eer ree 2

ti ge oe sie is) rere er Pere rr ye 14

S. Rep. No. 128, 95" Cong., 1* Sess. 88 (1977) ... 16

S. Rep. No. 1196, 91% Cong., 2d Sess. 38-39

SRC viva kash ak a cheakewekexned canna 16

Altschuler, Melvoin and Glasser, L.L.P., 1999

Independent Auditors’ Report for Citizens for a

ge ee 5

Vill

Cited Authorities

Page

Dun & Bradstreet, Inc., U.S. Company Reports, The

Steel Co. Business Background Report (2001) ... 5

Judicial Business of the United States Courts,

www.uscourts.gov/news.himl ................ 19

Luke C. Hester, Environmental News, www.epa.gov/

tri/tri98/press/r-65.pdf (May 11, 2000) ........ 3

l

STATEMENT OF JURISDICTION

The judgment of the court of appeals, entered on October

17, 2000, denied Petitioner’s motion for attorney’s fees under

the Emergency Planning and Community Right-to-Know Act

of 1986 (“EPCRA”), 42 U.S.C. § 11046(f). Petitioner’s

App. la-20a. Petitioner attempts to invoke the Court’s

jurisdiction under 28 U.S.C. § 1254(1). However, there is

no subject matter jurisdiction because EPCRA’s fee-shifting

provision itself does not independently confer jurisdiction,

and the Court already determined that there is no jurisdiction

over Respondent’s underlying EPCRA claim. Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83 (1998).

STATEMENT OF CASE

A. The Issue. This case involves no novel issues

and no split among the circuits. The decision below was

a proper adjudication and application of settled law governing

the allocation of attorney’s fees. Petitioner is a steel company

that, as a defendant in the original proceedings, admittedly

violated EPCRA for eight years. It now seeks to charge

its attorney’s fees against a grassroots citizens’ organization

plaintiff that brought a non-frivolous environmental

enforcement action, which was ultimately dismissed for lack

of standing. See Steel Co., 523 U.S. at 109-10. The district

court denied Petitioner’s attorney’s fee demand for lack of

jurisdiction. On appeal, the United States Court of Appeals

for the Seventh Circuit held that the Court’s decisions in

Pennsylvania v. Delaware Valley Citizens’ Council

(“Delaware Valley I”), 478 U.S. 546 (1986), and

Pennsylvania v. Delaware Valley Citizens’ Council

(“Delaware Valley II”), 483 U.S. 711 (1987), and in

Christiansburg Garment Co. v. Equal Employment

2

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

and they preclude awarding attorney’s fees to Petitioner

because the Respondent’s claim was not frivolous.

App. 3a-Sa.

Christiansburg holds that, under § 1988, prevailing

plaintiffs can recover their attorney’s fees from defendants,

but prevailing defendants can charge their fees only if the

plaintiff’s claim was “frivolous” or brought in “bad faith.”

434 U.S. at 421. In Delaware Valley IJ, the Court held that

“[g]liven the common purpose of both § 304(d) [the Clean

Air Act’s fee-shifting provision, 42 U.S.C. § 7604(d)] and

§ 1988 [the Civil Rights Act] 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.” 478 U.S. at 560. The Court’s follow-up

decision in Delaware Valley II states that, in applying the

fee-shifting provision of the Clean Air Act, “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.

This differential standard fulfills Congress’ objective of

encouraging citizen enforcement of the environmental and

civil rights laws while protecting defendants from frivolous

claims.

B. History of Proceedings. Petitioner Steel Company

concedes that it violated EPCRA for eight years by failing to

provide required “community right-to-know” annual reports

that disclose the toxic chemicals stored and emitted by its

steel plant in a Chicago neighborhood, including hundreds

of thousands of pounds of hydrochloric acid, which is an

extremely hazardous substance. See 40 C.F.R. § 355 App. A.

The purpose of EPCRA is to “inform the public about the

presence of hazardous toxic chemicals” and to encourage

Tinian ini ai

3

reduction in toxic chemical hazards. Stee/ Co., $23 US.

at 86. Since 1988, EPCRA has helped to reduce toxic

chemical emissions across the nation by 45%. See Luke C.

Hester, Environmental News at www.epa. gov/tri/tri98/press/

r-65.pdf (May 11, 2000).

Respondent Citizens for a Better Environment is a

not-for-profit organization that uncovered Petitioner’s

environmental violations. Respondent filed a 60-day notice

of intent to sue letter and, then, filed a lawsuit under EPCRA’s

citizen suit provision, 42 U.S.C. § 11046. This provision is

“substantially similar” to citizen suit and fee-shifting

provisions under almost all of the federal environmental laws.

Pet. at 6; App. at 14a.

Because Petitioner had submitted the required toxic

chemical disclosure information before the complaint was

filed, the district court dismissed the original lawsuit.

The Seventh Circuit reversed the district court and ruled in

favor of Respondent. Petitioner raised, for the first time, the

argument that Respondent lacked Article III standing, and

certiorari was granted. The Solicitor General argued on behalf

of Respondent, and fifteen state attorneys general supported

Respondent’s position. The Court reversed the Seventh

Circuit and held that “respondent lacks [Article III] standing

to maintain this suit, and ... we and the lower courts lack

jurisdiction to entertain it.” Stee/ Co., 523 U.S. at 100.

The Court did not reach the merits of the case. Jd.

Petitioner then moved for attorney’s fees under the

fee-shifting provision of EPRCA. 42 U.S.C. § 11046(f).

Respondent objected on three grounds: (1) the lack of

jurisdiction over the underlying EPCRA claim necessarily

meant that there could be no jurisdiction over the fee motion;

4

(2) Petitioner was not a “prevailing party” for the purposes of

EPCRA § 11046(f) because it won on solely jurisdictional

grounds and not on the merits; and (3) Delaware Valley I & II

and Christiansburg applied to EPCRA § 11046(f) and

barred any attorney’s fees because plaintiff's claim was

not frivolous or brought in bad faith.

The district court agreed with Respondent’s first

argument and denied the fee motion for lack of jurisdiction.

On appeal, the Seventh Circuit disagreed with the first and

second arguments, but agreed with the third and, therefore,

denied the motion. The Seventh Circuit found that the

Delaware Valley I & II and Christiansburg standard is

controlling in this case because there is_no identifiable

“feature in the language or structure of § 1'046(f) [the

EPCRA fee-shifting provision] that distinguishes it from the

statute [Clean Air Act] in Delaware Valley.” App. 14a. In

so holding, the Seventh Circuit joined the Ninth Circuit in

concluding that the attorney’s fee-shifting standard should

be applied “in the same manner” for both environmental and

civil rights laws. App. 15a; see Morris-Smith v. Moulton

Niguel Water Dist., Nos. 99-55350, 99-55865, 2000 U.S.

App. Lexis 21502 (9th Cir., Aug. 21, 2000); Marbled

Murrelet v. Babbiti, 182 F.3d 1091, 1094-95 (9th Cir. 1999),

cert. denied, 528 U.S. 1115 (2000); Washington Wilderness

Coalition v. Hecla Mining Co., Nos. 97-35565, 97-35754,

CV -94-00233-FVS, 1998 WL 515365 (9th Cir. 1998), cert.

denied, 526 U.S. 1004 (1999). The Seventh Circuit then

denied the Petitioner’s motion for attorney’s fees because

the Respondent’s claim was not frivolous:

A panel of this court held that CBE [Citizens for

a Better Environment] was entitled to proceed.

The Solicitor General supported that decision

5

before the Supreme Court. A suit strong enough

to survive an appeal cannot be deemed frivolous

even if all nine Justices thought it unavailing . . .

No one suggests that CBE’s claim was frivolous

on the merits, however, for The Steel Company

concededly filed reports after the statutory

deadline.

App. 15a. _

The balance that Congress and the Court struck with the

environmental and civil rights fee-shifting provisions has

worked. It rrotects corporate defendants from frivolous

lawsuits while allowing not-for-profit organizations and

individuals with limited resources to serve as “private

attorneys general” in suing violators as Congress intended.

Contrary to Petitioner’s rhetoric, the Respondent in this case

is not “well-equipped to pursue extensive EPCRA litigation”

(Pet. at 6), and the Petitioner does have substantially more

financial resources. Petitioner The Steel Company has $31

million in annual sales revenues. Dun & Bradstreet, Inc.,

U.S. Company Reports, The Steel Co. Business Background

Report (2001). Respondent Citizens for a Better Environment

has annual revenues of less than $2 million. Altschuler,

Melvoin and Glasser, L.L.P., 1999 Independent Auditors’

Report for Citizens for a Better Environment.

In addition, Petitioner’s repeated contentions that the

applicable fee standard has caused an “explosion” in the

number of environmental citizen suits is incorrect; in fact,

they have steadily declined over the past six years.’ Petitioner

States that “citizen suits brought under EPCRA against

1. See infra at 18 and n.4.

6

non-governmental defendants have resulted in reported

decisions in nine cases.” Pet. at 25. Only nine court decisions

in the fifteen years since EPCRA was enacted in 1986 is

barely a “pop,” and certainly not an “explosion.”

Respondent’s EPCRA claim was reasonable and not

frivolous. Petitioner’s attempt to charge its attorney’s fees

against this grassroots not-for-profit group would chill

responsible citizen enforcement of the environmental laws,

and it should be denied.

REASONS FOR DENYING THE PETITION

Supreme Court Rule 10 states that certiorari should be

“granted only for compelling reasons” and establishes three

basic criteria for reviewing petitions from federal appellate

court decisions: (1) whether the decision creates or deepens

a conflict among circuits; (2) whether the decision addresses

“an important question of federal law that has not been, but

should be, settled by this Court;” and (3) whether the decision

“conflicts with relevant decisions of this Court.” None of

these criteria is present in this case, and there are no other

“compelling reasons” for granting certiorari.

The Seventh Circuit’s decision is a straightforward

application of settled Supreme Court precedent, and

it is completely consistent with the Ninth Circuit’s and several

district courts’ decisions involving the attorney’s fee-shifting

provisions for citizen enforcement of the Clean Air Act, Clean

Waiter Act, Endangered Species Act and other environmental

laws. See, e.g., Marbled Murrelet, 182 F.3d at 1094-95

(Endangered Species Act). The attorney’s fees provisions in

all of these statutes are virtually identical to the language in

EPCRA. Compare EPCRA, 42 U.S.C. § 11046(f) with Clean

Air Act, 42 U.S.C. § 7604(d), and Clean Water Act,

Pea See a

7

33 U.S.C. § 1365(d). The legislative history of these

environmental laws, as explained below, likewise confirms

that Congress intended that the same standards apply to fee-

shifting provisions in environmental citizen suits as in civil

rights actions.

Petitioner nevertheless asks the Court to ignore the

settled law of Delaware Valley I & II for environmental cases

and limit Christiansburg to civil rights cases. Petitioner

would instead substitute an approach allowing prevailing

defendants to charge attorney’s fees when the plaintiff’s

enforcement claims are unsuccessful, even though not

frivolous. This approach draws from the Court’s decision on

an attorney’s fee petition under the Copyright Act in Fogerty

v. Fantasy, Inc., 510 U.S. 517 (1994). Petitioner relies on

the same arguments made in the two unsuccessful certiorari

petitions from the Ninth Circuit’s recent decisions in Marbled

Murrelet and Washington Wilderness Coalition, but still

insists that the question of which standard should govern

environmental fee-shifting provisions demands the Court’s

attention. As explained below, it does not:

* There is no split among the circuits on this issue.

* The Court settled the question in Delaware Valley I & II.

* Fogerty does not compel a different answer.

The factors supporting the differential standard in

Christiansburg, which Fogerty found inapplicable to

copyright cases, are fully present in environmental cases.

* Petitioner’s policy claims lack merit and are more

appropriately raised with Congress, rather than before

the Court.

8

Finally, even if the Court were inclined to revisit

Delaware Valley I & II and Christiansburg, this case would

be a poor vehicle. Because the Court determined that there

was no jurisdiction over Respondent’s EPCRA claim, there

cannot be jurisdiction to consider Petitioner’s motion under

EPCRA’s attorney’s fee provision. Moreover, because

Petitioner did not prevail on the merits, but solely on

jurisdictional grounds, it is not a “prevailing party” for fee

purposes.

I. THERE IS NO CONFLICT AMONG THE

CIRCUITS, WHICH AGREE THAT DELAWARE

VALLEY I & II AND CHRISTIANSBURG APPLY TO

ENVIRONMENTAL STATUTE FEE-SHIFTING

PROVISIONS.

The decision below does not “conflict with the decision

of another United States court of appeals on the same

important matter.” Sup. Ct. Rule 10(a). Petitioner admits that

the only two courts of appeals to address the question

presented — the Seventh Circuit and the Ninth Circuit — agree

that the Delaware Valley I & I] and Christiansburg standard

governs attorney’s fee awards in environmental cases.

Pet. at 2-3.

The Seventh Circuit’s decision in this case is completely

consistent with the Ninth Circuit’s decision in Marbled

Murrelet under the Endangered Species Act. 182 F.3d at 1091.

The Ninth Circuit held that because “the Supreme Court

indicated [in Delaware Valley] that attorney’s fees provisions

in environmental statutes with similar language and purpose

as the attorney’s fees provision in the Civil Rights Act should

be interpreted in the same way, ... the Christiansburg

standard for prevailing defendants applies in this case.”

9

Id. at 1096. The Ninth Circuit reaffirmed its prior holding in

Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995), in

which it “adopted for RCRA [Resource Conservation and

Recovery Act] and the CWA [Clean Water Act] the

Christiansburg civil rights standard” for determining when

defendants can charge attorney’s fees. Marbled Murrelet,

182 F.3d at 1094; see also Morris-Smith, 2000 U.S. App.

Lexis 21502 at *5-6; Washington Wilderness Coalition, 1998

WL 515365 at *1. Numerous district courts have likewise

applied the Christiansburg standard to the fee-shifting

provisions of environmental statutes. See, e.g., Atlantic States

Legal Found. v. Onodaga Dept of Drainage, 899 F. Supp.

84, 87 (N.D.N.Y. 1995) (Clean Water Act); National Wildlife

Fed. v. Consumers Power Co., 729 F. Supp. 62, 63-64 (W.D.

Mich. 1989) (Clean Water Act); Consolidated Edison Co. v.

Realty Inv. Assoc., 524 F. Supp. 150, 153 (S.D.N.Y. 1981)

(Clean Air Act).

There is no split among the circuits, and Petitioner

candidly acknowledges that the current “situation is likely

to continue.” Pet. at 4. This prospect of an expanding

consensus among the circuits is a reason for denying

certiorari, not granting it.

Il. THE COURT HAS ALREADY SETTLED THIS

ATTORNEY’S FEE ISSUE IN DELAWARE VALLEY

I & II AND CHRISTIANSBURG.

The second relevant criterion in Rule 10 — whether the

lower court “has decided an important question of federal

law that has not been, but should be, settled by this Court” —

is also absent here. Sup. Ct. Rule 10(c). The Court already

settled this issue in Delaware Valley I & II, which the

10

Seventh Circuit correctly interpreted as allowing defendants

to charge their attorney’s fees against citizen suit plaintiffs

only if the claims were frivolous. App. 15a. Delaware Valley

I & I] involved the Clean Air Act, but as the Seventh Circuit

stated, “(t]he Steel Company has not identified any feature

in the language or structure of [EPCRA] § 11046(f) that

distinguishes it from the statute [Clean Air Act] in Delaware

Valley.” App. 14a. Petitioners concede that the language in

EPCRA “is identical to virtually all other fee-shifting

provisions in federal environmental laws.” Pet. at 2.

Seeking to escape this settled law, Petitioner insists that

the Seventh Circuit, Ninth Circuit and other lower courts

have all been “confused” by what it wrongly dismisses as

“dictum” in Delaware Valley I & II. Pet. at 13. The courts

are not the confused parties here.

In Delaware Valley I, the Court held that “[g]iven the

common purpose of both § 304(d) [the Clean Air Act’s fee

shifting provision, 42 U.S.C. § 7604(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.” 478 U.S. at 560.

The Court supported this conclusion with legislative history

indicating that Congress enacted § 304(d) “specifically to

encourage ‘citizen participation in the enforcement of

standards and regulations established under this Act’ and ‘to

afford... citizens... very broad opportunities to participate

in the effort to prevent and abate air pollution’.” /d. (internal

citations omitted).

The Court reaffirmed its holding in a follow-up decision,

stating that “[l]ast term ... we agreed with the Court of

Appeals that in awarding attorney’s fees under § 304(d) the

1]

courts should follow the principles and case law governing

the award of such fees under 42 U.S.C. § 1988.” Delaware

Valley IT, 483 U.S. at 713 n.1. One of the central principles

governing fee awards under § 1988 is the Christiansburg

standard that prevailing plaintiffs may recover attorney’s fees,

but prevailing defendants may not do so unless a plaintiff's

claim was frivolous. That explains why, in F ogerty, Justice

Thomas recognized that Delaware Valley “impose[d] [the]

‘dual’ standard of recovery” in environmental cases. 510 U.S.

at 538. (Thomas J., concurring) (citing Delaware Valley II).

Delaware Valley I & II are not “confusing” at all. They

state the straightforward legal conclusion that environmental

fee-shifting provisions should be applied in the same manner

as in § 1988. The Seventh Circuit correctly held that this

conclusion “formed the basis of the Court’s disposition and

therefore cannot be treated as dictum.” App. 14a.

Ill. THE SEVENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE COURT’S DECISIONS

IN DELAWARE VALLEY I & II, CHRISTIANSBURG

AND FOGERTY.

The Seventh Circuit’s decision also does not “conflict

with relevant decisions of this Court.” Sup. Ct. Rule 10(c).

Delaware Valley I & II are directly on point. Furthermore,

even if Delaware Valley I & II did not exist, Christiansburg

would still compel the same standard for attorney’s fees in

this case, and Fogerty would not thange that result.

In Christiansburg, the prevailing defendant filed a

petition under the fee-shifting provision of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (“in its

12

discretion, [the court] may allow the prevailing party a

reasonable attorney’s fee”). This civil rights fee-shifting

provision closely resembles EPCRA § 11046(f). The Court

rejected defendant’s argument, also made by Petitioner here

(Pet. at 17), that the statute’s facial neutrality required use

of the same fee-shifting standard for both prevailing plaintiffs

and defendants: “the permissive and discretionary language

of the statute does not even invite, let alone require, such a

mechanical construction.” Christiansburg, 434 U.S. at 418.

The Court instead adopted the differential standard

allowing plaintiffs to recover their fees as a matter of course,

but restricting defendants to charging their attorney’s fees

against plaintiffs only in cases that are “frivolous” or brought

in “bad faith.” /d. at 418-21. The Court stated that civil rights

plaintiffs are “the chosen instrument of Congress to vindicate

a policy that Congress considered of the highest priority,”

and recognized that a plaintiff’s fees are awarded “against a

violator of federal law.” Jd. at 418 (internal citations omitted).

Moreover, the legislative history indicates that the fee

provision was meant to facilitate plaintiffs’ claims while still

protecting defendants from “frivolous suits.” /d. at 420.

Petitioner insists that Christiansburg is not controlling,

arguing that the standard adopted by the Court for the

fee-shifting provision of the Copyright Act (17 U.S.C. § 505)

in Fogerty should apply instead. Petitioner’s argument is

incorrect. Fogerty rejected the differential or “dual standard”

because “the factors relied upon in our Christiansburg

opinion ... are absent in the case of the Copyright Act.”

510 U.S. at 523 (footnote omitted). In particular, the Court

stressed that “the policies served by the Copyright Act are

13

more complex [and] more measured” than those of civil rights

laws, which principally aim to discourage unlawful

discrimination. /d. at 526.2

In the environmental law context, however, all of the

Christiansburg factors are present, and they require use of

the differential standard here. Regarding the first factor, just

like the civil rights laws, the environmental laws have a

straightforward policy goal: to protect public health and the

environment. As Delaware Valley I makes clear, the

environmental and civil rights laws’ fee-shifting provisions

have the “nearly identical” and “common purpose” of

allowing citizens to serve as “private attorneys general” in

enforcing the statutory policies. 478 U.S. at 559-60; see also

Marbled Murrelet, 182 F.3d at 1095 (noting “similarity in

language and purpose between the attorney’s fees provisions

of the Civil Rights Act and the ESA [Endangered Species

Act]”).

Petitioner argues that citizens are supposedly not the

“chosen instrument” of Congress to enforce environmental

laws, and the first Christiansburg factor is absent here.

2. Fogerty also emphasized that section 501 was largely

imported from the 1909 Copyright Act and thus could not have been

modeled on civil rights fee-shifting provisions. 510 U.S. at 524 &

n.9 (noting that “Congress, in enacting § 505 of the 1976 Copyright

Act could not have been aware of the Christiansburg dual standard

as Christiansburg was not decided until 1978”). By contrast, most

environmental fee-shifting provisions were directly or indirectly

modeled on their civil rights counterparts. Also, EPCRA § 11046(f)

and many other environmental statutes were adopted after

Christiansburg and even Delaware Valley I were decided, and thus

Congress had no reason to expect that the differential standard would

apply.

14

Pet. at 22. However, just as with many civil rights statutes,

the enforcement regimes of EPCRA and most other

environmental statutes involve complementary government

action and private citizen suits. Under EPCRA, Respondent

was obligated to first file a notice of intent to sue letter with

the United States Environmental Protection Agency and the

state in which the violation occurred. Although either could

have then brought an enforcement action, they instead

allowed the citizen enforcement suit to go forward.

Similarly, most civil rights plaintiffs must first file a

charge with the Equal Employment Opportunity Commission

(“EEOC”), which can prosecute the case on its own,

or, instead, allow the private action to go forward. See, e.g.,

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

5(f)(1); Americans with Disabilities Act, 42 U.S.C.

§ 12117(a); Age Discrimination in Employment Act,

29 U.S.C. § 626. The EEOC can prosecute civil rights cases

even without employee charges or after such private charges

are dropped. See, e.g., EEOC v. Johnson & Higgins, Inc.,

91 F.3d 1529, 1536 (2d Cir. 1996); see also General Tel. Co.

v. EEOC, 446 U.S. 318, 326 (1980) (“EEOC is not merely a

proxy for victims of discrimination [but is] ... guided by

‘the overriding public interest in equal employment

opportunity ... asserted through direct Federal

enforcement’”) (quoting 118 Cong. Rec. 4941 (1972)).

Petitioner’s argument that “chosen instrument,” as used in

Christiansburg, essentially means “exclusive instrument” is

wrong.

Petitioner also quotes Ruckelshaus v. Sierra Club, 463

U.S. 680 (1983), out of context, to argue that promoting

citizen enforcement is somehow not a primary purpose of

citizen suit and fee-shifting provisions. Ruckelshaus held that

15

the Clean Air Act’s fee-shifting provision, which on its face

has no “prevailing party” requirement, nevertheless requires

some success on the merits for a fee award. 463 US. at

493-94. At the end of its analysis, the Court noted that

§ 304(d) can “check the multiplicity of potentially meritless

| suits,” but, in context, that language does not define the

| principal purpose of environmental fee-shifting provisions.

Id. at 692-93 (internal quotation omitted). Instead, it simply

| acknowledges that preventing “meritless” suits was

| sufficiently important to warrant finding a “prevailing party”

| requirement in § 304(d). Jd. Ruckelshaus also quotes

| legislative materials that define “meritless” to mean

| “frivolous” or “harassing,” thus making it clear that the Court

was not suggesting that environmental plaintiffs should pay

fees for bringing reasonable, but ultimately unsuccessful,

enforcement actions. /d. at 692 n.13.

| Moreover, Delaware Valley I was decided after

Ruckelshaus. The Court looked to the legislative history of

§ 304(d) and found that Congress enacted it “specifically to

| encourage ‘citizen participation in the enforcement of

| standards and regulations established under this Act’ and

‘to afford ... citizens ... very broad opportunities to

participate in the effort to prevent and abate air pollution’.”

Delaware Valley I, 478 U.S. at 560 (internal citations

omitted).

Petitioner ignores the second Christiansburg factor: that

a prevailing civil rights plaintiff receives its attorney’s fees

from a defendant that has violated federal law. This likewise

applies to plaintiffs filing citizen suits against defendants,

such as the Petitioner, that have violated EPCRA or other

environmental laws.

16

Regarding the third Christiansburg factor, the legislative

history of environmental fee-shifting provisions shows that

Congress intended that fees be charged only against those

plaintiffs who have brought frivolous or harassing suits.

For example, the Senate Report on the Clean Air Act, which

provides for fee awards to “any party, whenever the court

determines such award is appropriate” (Section 304(d);

42 U.S.C. § 7604(d)), explains that this section allows courts

to award fees “to defendants where the litigation was

obviously frivolous and harassing. This should ...

discourag[e] abuse of this provision, while at the same time

encouraging the quality of the actions that will be brought.”

S. Rep. No. 1196, 91% Cong., 2d Sess. 38-39 (1970).

The legislative history of nearly every subsequent

environmental statute reveals the same intent, such as the

following Senate Report language on the fee-shifting

provision of the Surface Mining Control and Reclamation

Act, 30 U.S.C. § 1270(d):

The provision is not meant to deter citizens from

bringing good faith actions to insure the Act is

being enforced by the prospect of having to pay

their opponent’s counsel fees should they lose.

Under this section, a defendant can be awarded

reasonable fees from the citizen only if he can

show that the citizen brought the action in “bad

faith.” This is similar to other citizen suit

provisions involving the award of attorney’s fees.

S. Rep. No. 128, 95" Cong., 1% Sess. 88 (1977).

Petitioner argues that EPCRA’s legislative history

provides no similar guidance, but then concedes that the

language in EPCRA § 11046(f) is “substantially similar to

cele OE

Wei am RIN wt aL ln tn nas A aia ot

17

language used in fee-shifting provisions included in

environmental statutes adopted in the 15 years prior to

adoption of EPCRA in 1986.” Pet. at 6. When “Congress

adopts a new law incorporating sections of a prior law,

Congress normally can be presumed to have had knowledge

of the interpretation given to the incorporated law, at least

insofar as it affects the new statute.” Lorillard v. Pons, 434

U.S. 575, 581 (1978) (Age Discrimination in Employment

Act). Furthermore, Congress passed EPCRA in late 1986 after

the Court had already decided Delaware Valley I, and nothing

in EPCRA’s legislative history indicates that this decision

should not govern the statute’s fee-shifting provision.

All of the three primary factors identified in

Christiansburg supporting the differential standard are

thus present in the environmental context, and nothing

in Fogerty changes that conclusion. Petitioner then reaches

to suggest a new factor: that the typical environmental

plaintiff supposedly has substantial financial resources.

Pet. at 24-30. First, Christiansburg did not rest on the relative

disparity of resources between plaintiffs and defendants

and, in fact, specifically recognized that civil rights

defendants could be impecunious. 434 U.S. at 422 n.20.°

Second, Petitioner does not and cannot offer any real evidence

to support its “Goliath” environmental group rhetoric.

Pet. at 24-25, 27. For example, in this case, Respondent

Citizens for a Better Environment is a not-for-profit

3. The Court added that the fee-shifting provision at issue gave

courts sufficient flexibility to address such inequities in other ways.

Christiansburg, 434 U.S. at 422 n.20. In addition, a defendant’s

inability to pay, as well as other equitable issues, can and should be

part of any fee-shifting determination. See, e.g., Adkins v. Briggs &

Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998) (considering such

factors in awarding fees under the Americans with Disabilities Act).

18

grassroots organization with under $2 million of annual

revenues, and Petitioner The Steel Company has $31 million

in annual sales revenues. Respondent is the “David” here,

and Petitioner is the “Goliath,” not the other way around.

IV. PETITIONER’S UNFOUNDED POLICY

ARGUMENTS DO NOT WARRANT GRANTING

CERTIORARI.

Even though none of the Ruie 10 criteria is present here,

Petitioner argues that the Court should still grant review

because, as a policy matter, the settled law is supposedly

inflicting widespread hardship on the business community,

among other things. These policy arguments lack merit and,

in any event, are more appropriately directed to Congress.

First, Petitioner repeatedly claims that there is an

“explosion” of environmental citizen suits. Pet. at 2,

4, 29. Those claims are undermined by Petitioner’s

acknowledgment that there have been only nine reported

decisions in “citizen suits brought under EPCRA against non-

governmental defendants” since the statute was enacted in

1986. Pet. at 25. Nine reported cases in fifteen years amounts

to less than one case per year — hardly an “explosion.”

Statistics compiled by the Administrative Office of the United

States Courts show that the number of citizen suits under a//

environmental statutes has steadily and significantly declined

from 653 in 1994 to 403 in 1999.4

4. In 1994, 653 environmental citizen suits were filed against

private corporations, state governments and municipalities; the

Statistics do not break out the lesser number of suits filed against

private corporations. The combined number of suits fell to 623 in

1995, 616 in 1996, 469 in 1997, 427 in 1998 and 403 in 1999.

(Cont'd)

19

Second, Petitioner argues that the differential standard

somehow gives plaintiffs an incentive to bring dubious and

harassing suits, while its preferred approach would not

unduly chill citizen enforcement. Pet. at 26-30. Not so.

As Petitioner acknowledges, environmental plaintiffs, unlike

civil rights plaintiffs, generally cannot obtain damage

awards, and any civil fines are paid to the federal treasury.

Pet. at 23. Environmental plaintiffs must compensate their

own attorneys and incur other costs every time they bring a

citizen suit, as attorney’s fees are only available if they

prevail. Therefore, environmental plaintiffs have a strong

incentive to avoid weak lawsuits, and Christiansburg

already provides a safeguard against frivolous claims.

If environmental plaintiffs were forced to pay defendants’

attorney’s fees in reasonable, though ultimately unsuccessful,

cases, it certainly would deter citizen suits, and Congress’

goal of encouraging private attorneys general to bring

enforcement actions would be undermined.

Finally, Petitioner’s claim that environmental groups

have unfair leverage and extract “tribute” from companies

by forcing them to generously settle meritless claims is

colorful, but incorrect. Pet. at 11, 29-30. If the lawsuit so

lacks merit that it is “frivolous,” then a plaintiff has no

leverage. Nor can environmental group plaintiffs threaten

defendants with the prospect of jury awards and punitive

damages. Citizen suits cannot result in a civil fine larger than

what a federal judge is willing to impose, and companies

will likely settle only if they believe that doing so is

preferable to paying the civil penalty warranted by their

(Cont'd)

See Judicial Business of the United States Courts, at

www.uscourts.gov/news.html. The statistics for 1994-1996 are

obtained from the Administrative Office of the United States Courts.

20

violations. In any event, all civil defendants can claim that

their inability to recover attorney’s fees under the ordinary

“American Rule” creates settlement pressure, even in cases

they might consider to be winnable.

Vv. THIS CASE IS AN INAPPROPRIATE VEHICLE

FOR REVIEWING THE QUESTIONS

PRESENTED BECAUSE THERE IS NO SUBJECT

MATTER JURISDICTION.

Even if review of this petition were warranted under

Rule 10, this case would still be the wrong vehicle because

there is no subject matter jurisdiction to consider Petitioner’s

fee motion. The Court previously held that because

Respondent lacked standing to bring its EPCRA claim,

“we and the lower courts lack jurisdiction to entertain it.”

Steel Co., 523 U.S. at 110. The district court consequently

denied Petitioner’s fee motion, finding that without

jurisdiction over any substantive EPCRA claim, it had no

jurisdiction to apply EPCRA’s fee-shifting provision.

App. at 23a. (“the fact that EPCRA authorizes courts the

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

constitute an independent grant of jurisdiction’’). The Seventh

Circuit disagreed and reasoned that because “[c]Jourts that

lack jurisdiction with respect to one kind of decision may

have it with respect to another,” the lack of jurisdiction over

Respondent’s EPCRA claim did not eliminate jurisdiction

over Petitioner’s EPCRA fee motion. App. at 3a (internal

citations omitted). Although this quoted rule may be generally

true, it does not apply here.

Federal courts have no subject matter jurisdiction over

a claim or issue unless such jurisdiction is consistent with

the Constitution and authorized by Congress. See Bender v.

Williamsport Area School Dist., 475 U.S. 534, 541 (1986).

21

Jurisdiction over Petitioner’s fee motion, however, is not

‘authorized by Congress” because EPCRA § 11046(f) does

not independently confer subject matter jurisdiction; instead,

it depends on a cognizable case “brought under” the statute’s

substantive provisions. 42 U.S.C. § 11046(f); see also WG.

v. Senatore, 18 F.3d 60, 64 (2d Cir. 1994) (‘‘fee-shifting

provisions cannot themselves confer subject matter

jurisdiction”). Because the Court has already ruled that there

is no cognizable EPCRA case here, there is no jurisdiction

to apply that statute’s fee-shifting provision. Steel Co., 523

U.S. 110.

5. This EPCRA case is distinct from non-substantive statutes

in which Congress specifically conferred jurisdiction to award fees

and costs despite the lack of jurisdiction over an underlying claim.

See, e.g., 28 U.S.C. § 1919 (court “may order payment of just costs”

upon dismissal for lack of subject matter jurisdiction); 28 U.S.C.

§ 1447(c) (court may order payment of fees and costs after wrongful

removal). Such fee awards are collateral to the merits and serve

primarily to protect the judicial system, not to reward victorious

litigants. The same is true for Federal Rule of Civil Procedure 11

sanctions, which is why the Court held that fees can be imposed

under Rule 11 without subject matter jurisdiction over the underlying

case. Willy v. Coastal Corp., 503 U.S. 131, 138 (1992).

The Seventh Circuit relied upon Charles v. Daley, 846 F.2d

1057 (7th Cir. 1988), to find jurisdiction, but that case is irrelevant.

Charles affirmed an award under § 1988 for the fees that plaintiff

incurred in defending an appeal that was dismissed for lack of

jurisdiction. The district court had jurisdiction to award those fees

because it had jurisdiction over plaintiff's underlying § 1983 claim.

In this case, the problem is not that Petitioner seeks fees incurred in

a phase of the proceedings over which a court lacked jurisdiction.

Instead, there is no jurisdiction because Petitioner is seeking fees

pursuant to a statute under which the Court has already determined

in Steel Co. that no claim exists, and no court has the power to

apply in this case.

22

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

HoL_y GORDON HowarbD A. LEARNER

CuicaGo LEGAL CLINIC Counsel of Record

205 West Monroe Street ALBERT F. ETTINGER

Fourth Floor ENVIRONMENTAL LAW

Chicago, Illinois 60606 AND Po.icy CENTER

(312) 726-2938 35 East Wacker Drive

Suite 1300

ROBERT MICHAELS

ROBINSON CURLEY & CLAYTON

300 South Wacker Drive

Suite 1700

Chicago, Illinois 60606

(312) 663-3100

Chicago, Illinois 60601

(312) 673-6500

Attorneys for Respondent

Date: March 19, 2001