Petition for Writ of Certiorari — Environmental Protection Agency v. Sierra Club

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03 5090cT 3 2003

No.

In the Supreme Court of the Gnited States

ENVIRONMENTAL PROTECTION AGENCY, ETAL.,

PETITIONERS

VU.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

LISA M. JAEGER General

Acting General Counsel CHRISTOPHER S. VADEN

JAN M. TIERNEY DAVID J. KAPLAN

Attorney Attorneys

Environmental Protection Department of Justice

Agency Washington, D.C. 20530-0001

Washington, D.C. 20460 (202) 514-2217

QUESTION PRESENTED

Whether Section 307(f) of the Clean Air Act, which

authorizes an award of attorney’s fees against the gov-

ernment “whenever [the court] determines that such

award is appropriate,” 42 U.S.C. 7607(f), authorizes a

court to award attorney’s fees to a party that has failed

to obtain a judgment on the merits of its claims or a

consent decree granting judicially approved reiief.

(I)

PARTIES TO THE PROCEEDING

Petitioners are the Environmental Protection Agency

and Marianne L. Horir ko, the Acting Administrator of

the Environmental Pr...ction Agency. Respondents

are the Sierra Club and the New York Public Interest

Research Group, Inc.

TABLE OF CONTENTS

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STITUTE vibtenscicieiciternensinncipntahiensesseninnsosinntsenianesnsenneeseacasanntsoesiereene

A. The relevant provisions of the Clean Air Act ...........

B. EPA’s challenged regulatory action 20.0...

C. The request for attorney’s fees .........cccssscecseeseeeceeeees

Reasons for granting the petition .........ccscsscsssscseeceseseeeeeseceeees

A. The court of appeals erred in holding that Section

307(f) authorizes attorney’s fee awards under

ee se * Oe

B. The court of appeals’ decision conflicts with

decisions of this Court and presents an important

issue warranting this Court’s review .........ccscseseeeees

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TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Co. v. Wilderness Society, 421 U.S.

EE ee ean ee

Amigos Bravos v. EPA, 324 F.3d 1166 (10th Cir.

IIIT cheep heetidrtnsameightccaensasesshvennnnansnannecenatonee

Ardestani v. INS, 502 U.S. 129 (1991) uu... eccsesessseeseees

Bennett v. Spear, 520 U.S. 154 (1997) ........sssssssssssscseseseesees

(III)

Cases—Continued: Page

Buckhannon Bd. & Care Home, Inc. v. West

Virginia Dep’t of Health & Human Res., 532 US.

Se saciciesinesticinscinessiniiasritnaretieiineaiatesaiateneeininiaann passim

Burlington v. Dague, 505 CB, BF CAGE ecersesccnicrrseresnsses 18

Department of the Army v. Blue Fox, Inc., 525 U.S. ;

Be COED cinccecsssninnninnenatiionesnninniinasimninaiainipnininnunnmninemacitin 13

Eastern Transp. Co. v. United States, 272 U.S. 675

CRIED secvesincesennirnscsiuicinctnimasienitiatnntleninataninaniuniniitiaieianiiatin 13

Gaylor v. United States, 74 F.3d 214 (10th Cir.),

cert. denied, 517 U.S. 1211 (1906) ......c.ccscccssessscecessscesseseseoes 23

Hensley v. Eckerhart, 461 U.S. 424 (19838) ......cecscsseeeees 22

Key Tronic Corp. v. United States, 511 U.S. 809

ERED sessccisissnsintisensohininsgesciiedesiiiiiehiesebddiiashenananinisailenininsesininimiintin 12

Lane V. Pena, 518 U.S. 187 (1996) .....ccccccrcressssocssssesserecessees 17

Lehman v. Nakshian, 453 U.S. 156 (1981) .......ccceeseeeeee 17

Loudermill v. Cleverland Bd. of Educ., 844 F.2d

304 (6th Cir.), cert. denied, 488 U.S. 941 and 946

CU IITUID seinhinsiscivniieiteleiistabimicianinsibieitahenietiiaiieiiaiasemsdaaielatintanaiednie 21-22

McMahon v. United States, 342 U.S. 25 (1951) ......... 13

Rodriquez de Quijas v. Shearson/Am. Express, Inc.,

BR Tee Ge cteiccitsininniesceniineantianiennininniinniiins 11

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

Texas State Teachers Ass'n v. Garland Indep.

, SIE. Se Tic Se CD detectnsidegrinectenitintinvinninnnens 18, 19

United States v. King, 395 U.S. 1 (1969)... cseesecseessenees 7

United States v. Mitchell, 445 U.S. 535 (1980) ............ 6-7

United States v. Nordic Village, Inc., 503 U.S. 30

CRIED oececnnnnsnesenvensnsntinnnmenveenenistiemannanetisbanssanssasemanennemenntns 17

United States v. Oakar, 111 F. 3d 146 (D.C. Cir.

SU <iuniniesassicesecetieniisaenininacensiae ening hihaabeniamaiaeidabiuaabiinidinnnn 10, 15

United States v. United States Fid. & Guar.

Co., 309 U.S. 506 (1940) ....... ettieliaiaininieanaiininatienininianineion 7

Whitman v. American Trucking Ass’ns, 531 U.S.

ae Se Siiincitnscinenniiien a 21

Statutes: Page

Clean Air Act, 42 U.S.C. 7401 e€ seq. ..........sscssssssesesssssesesees 2

SS eh Fee elcetiiin 8, 16

S SUG SG. Te eeceertnicension 8, 10, 16

§ 307(b), 42 U.S.C. T607() ......c.ssssssesesseseesees 3, 5, 17, 21, 50a

; § 307(f), ee Rees TED cintectinecialtciesscianeininiia passim, 5la

$§ 501-507, 42 U.S.C. T6G61-TEGIE ...........ccscccrssssssssssecsseeeees 3

§ 502(d)(2)(A)-(C), 42 U.S.C. 7661a(d)(2)(A)-(C) .......... 4

§ 502(d)(8), 42 U.S.C. 766 1a(d)(8) ......ccsecscssesceesssseeseees 4

GSU), GR UC, TER eD weicectceeciscicereeresnssrnenenene 4, 52a

$ 502(IN4), 42 U.S.C. TEBLalin(4) ......sccccccssccrsrccsssssrsescereees 4

Endangered Species Act, 16 U.S.C. 1540(g)(4) ......sssesssseees 20

Marine Protection, Research, and Sanctuaries Act,

BB USS, EI cttiecercintcenitnssntsnnininerarsnivnannanininiainsiont 20

Noise Control Act, 42 U.S.C. 4911(d) ........eecccscessessesseeseeeees 20

Safe Drinking Water Act, 42 U.S.C. 300j-8(d) ......cseseeeees 20

Surface Mining Control and Reclamation Act, 30 U.S.C.

SITTIN vnccvincuiieinessinscsesileniiticitibiitiitemaipaitiiiinicsticsinitaaniaiiinn 20

Toxic Substances Control Act, 15 U.S.C. 2618(d) ............... 20

Miscellaneous:

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GR Fed, Tat, GE TE CURED socesecnereeesienrercoeneniecnsenonnescttiemmaninns 5

GE Fe, te: BOE CRG ceveccesseresniseresnenrerernsenimesitniiciamignisin 5

65 Fed. Reg. (2000):

i aia a ae a 2,5, 19

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ID cccnnerieneesceneniesnneseneseninnninninsiciennniinnninainnsimnnmissin 19

S. Rep. No. 1196, 9ist Cong., 2d Sess. (1970) .........cscssseseeees 16

In the Supreme Court of the Gnited States

No.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

Vv.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Environmental

Protection Agency, et al. (EPA), respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINION BELOW

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

20a) is reported at 322 F.3d 718.

JURISDICTION

The decision of the court of appeals was entered on

March 18, 2003. A petition for rehearing and a petition

for rehearing en banc were denied on June 5, 2003

(App., infra, 23a-26a). On August 25, 2003, Chief Jus-

tice Rehnquist extended the time within which to file a

petition for writ of certiorari to and including October 3,

2003. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 307(f) of the Clean Air Act provides:

In any judicial proceeding under this section, the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) whenever

it determines that such award is appropriate.

42 U.S.C. 7607(f). Section 307(f) and other relevant

sections of the Clean Air Act, 42 U.S.C. 7401 et seq., are

set forth at App., infra, 50a-53a.

STATEMENT

Respondents Sierra Club and the New York Public

Interest Research Group, Inc., petitioned the court of

appeals to review a final EPA rule under the Clean Air

Act (CAA), 42 U.S.C. 7401 et seq., that extended the

agency’s “interim approvals” of certain state and local

permit programs. See 65 Fed. Reg. 32,035 (2000).

Rather than litigate that dispute, EPA and respondents

reached an out-of-court settlement agreement, App.,

infra, 27a-44a, which led to the dismissal of the action at

the parties’ joint request, id. at 2la-22a. The court of

appeals later directed EPA to pay respondents’ attor-

ney’s fees notwithstanding the fact that the court

awarded no relief on the merits. Jd. at 2a. The court

concluded that Section 307(f) of the Clean Air Act,

which authorizes an award of attorney’s fees when

“appropriate,” allows an award under the same “cata-

lyst theory” that this Court rejected in Buckhannon

Board & Care Home, Inc. v. West Virginia Department

of Health & Human Resources, 532 U.S. 598 (2001).

The court of appeals reached that conclusion even

though this Court had previously ruled in Ruckelshaus

v. Sierra Club, 463 U.S. 680, 694 (1983), that, unless a

party “prevailed” in the sense that it achieved “some

degree of success on the merits by the claimant, it is not

‘appropriate’ for a federal court to award attorney’s

fees under § 307(f).”

A. The Relevant Provisions Of The Clean Air Act

The Clean Air Act establishes a comprehensive pro-

gram, based on principles of cooperative federalism, for

controlling air pollution. The Act directs EPA to

undertake a wide variety of regulatory initiatives,

which are subject to judicial review. See, e.g., CAA

§ 307(d), 42 U.S.C. 7607(d). It authorizes individuals to

petition the courts of appeals for judicial review of

specified EPA administrative actions and additionally

provides that a petition for review of “nationally ap-

plicable regulations” may be filed “only in the United

States Court of Appeals for the District of Columbia.”

CAA § 307(b), 42 U.S.C. 7607(b). Section 307(f) further

provides that, in such a proceeding, “the court may

award costs of litigation (including reasonable attorney

and expert witness fees) whenever it determines that

such award is appropriate.” 42 U.S.C. 7607(f).

This case arises from respondents’ challenge to

EPA’s nationally applicable regulations respecting the

Clean Air Act’s “Title V permit program.” In 1990,

Congress directed EPA to issue regulations establish-

ing the minimum requirements for operating permit

programs, which are administered by EPA and State or

local air pollution control agencies. See CAA §§ 501-

507, 42 U.S.C. 7661-7661f. Those permit programs con-

solidate all applicable requirements for each major

stationary source of air pollution into a single compre-

hensive permitting document. See CAA § 502, 42

U.S.C. 766la.

Under the Title V permit program, States (or local

governments within a State) submit to EPA proposed

permit programs based upon state law that implement

Title V within their borders. CAA § 502(d), 42 U.S.C.

766la(d). After notice-and-comment rulemaking proce-

dures, EPA either approves or disapproves the pro-

grams. Ibid. If EPA finds that a State’s program

“substantially meets the requirements of the [CAA],

but is not fully approvable,” EPA may grant “interim”

approval to that State’s program for a period of up to

two years, during which time the State would have the

opportunity to correct any deficiencies in its program

and obtain full EPA approval. CAA § 502(g), 42 U.S.C. ~

766la(g). Ultimately, if EPA does not fully approve a

State’s program, EPA must promulgate, administer,

and enforce a permit program for the State, CAA

§ 502(d)(8) and (i)(4), 42 U.S.C. 7661a(d)(3) and (i)(4),

and the State is subject to prescribed sanctions for its

failure to develop its own permitting program, CAA

§ 502(d)(2)(A)-(C), 42 U.S.C. 7661a(d)(2)(A)-(C).

B. EPA’s Challenged Regulatory Action

Numerous States submitted Title V permit programs

that “substantially” met EPA’s requirements, and EPA

issued interim approvals for those programs. See, ¢.g.,

59 Fed. Reg. 55,813 (1994). During the period that

those interim approvals were in effect, EPA was con-

sidering whether to modify its regulatory requirements

for an approvable Title V permit program. Those

modifications, once finalized, would require States to

make corresponding changes to their permit programs.

EPA therefore extended, through several administra-

tive actions, the time for States to address the existing

deficiencies in programs with interim approvals under a

schedule that also would allow the States to make

changes in response to EPA’s anticipated program

modifications. See, e.g., 62 Fed. Reg. 45,732 (1997); 63

Fed. Reg. 40,054 (1998). EPA encountered delays,

however, in issuing modified program requirements.

EPA concluded that it could not extend the interim

approvals indefinitely and therefore issued a final

extension of its interim approvals, from June 1, 2000, to

December 1, 2001, for more than 36 States to submit

the necessary changes so that EPA could fully approve

their permit programs. See 65 Fed. Reg. at 32,035; id.

at 32,036-32,037.

The Sierra Club filed a petition for review in the

United States Court of Appeals for the District of

Columbia Circuit, pursuant to Section 307(b) of the

Clean Air Act, challenging EPA’s final extension of its

interim approvals on the ground that the States’

submissions were already overdue. The parties entered

into an out-of-court settlement agreement to resolve

the dispute. See App., infra, 27a-44a. The settlement

agreement left EPA’s extension in place, and provided,

among other things, that if EPA issued no additional

time extensions and modified its regulations that might

have allowed extensions of interim approvals in certain

other, limited circumstances, then the parties would

stipulate to dismissal of the petition for review. Id. at

28a-33a (paras. 1-11). The petition for review was held

in abeyance pending EPA’s taking action that com-

ported with the settlement terms, and once EPA met

those terms, the court of appeals granted the parties’

joint motion to dismiss the petition. See id. at 21a-22a.

The settlement agreement and the court’s order of dis-

missal preserved respondents’ right to seek attorney’s

fees and the government’s right to oppose that request.

See 7d. at 21a, 32a (para. 5).

C. The Request For Attorney's Fees

Respondents filed a motion for attorney’s fees under

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

The government objected to the fee request on the

ground that Section 307(f) does not authorize an award

of fees in the absence of a favorable judgment on the

merits or a court-ordered consent decree. To facilitate

resolution of the dispute, the parties stipulated to the

amount of the attorney’s fee award that would be paid

to respondents if they were successful in establishing

their entitlement to fees. See App., infra, 45a-49a.

The government argued that the question whether

Section 307(f) authorizes fees in the circumstances pre-

sented here depends, first, on the application of sover-

eign immunity principles. The government asserted

that it cannot be required to pay attorney’s fees in the

absence of a clear and express congressional waiver of

its sovereign immunity from such assessments. See

Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983).

The government relied on this Court’s decision in

Ruckelshaus, which stated, in an attorney’s fee dispute

involving Section 307(f) of the Clean Air Act, the same

fee-shifting provision at issue here:

Waivers of immunity must be “construed strictly in

favor of the sovereign,” McMahon v. United States,

342 U.S. 25, 27 (1951), and not “enlarge[d] .. .

beyond what the language requires.” Hastern

Transportation Co. v. United States, 272 U.S. 675,

686 (1927).

Id. at 685-686. Accord Ardestani v. INS, 502 U.S. 129,

137 (1991); United States v. Mitchell, 445 U.S. 535, 538

(1980); United States v. King, 395 U.S. 1, 4 (1969);

United States v. United States Fid. & Guar. Co., 309

U.S. 506, 513-514 (1940).

The government further argued that this Court’s

recent decision in Buckhannon, particularly when read

in conjunction with the Court’s earlier decision in

Ruckelshaus, precluded the award of attorney’s fees in’

this case. This Court ruled in Buckhannon that stat-

utes authorizing attorney’s fee awards to a “prevailing

party” do not allow a fee award to “a party that has

failed to secure a judgment on the merits or a court-

ordered consent decree.” 532 U.S. at 660. The Court

explained that private settlement agreements lack the

characteristics of judicial approval and enforceability

necessary to satisfy the “prevailing party” require-

ment. Jd. at 603-604 n.7. The Court specifically con-

cluded that statutes authorizing fee awards to a “pre-

vailing party” do not allow an award to a plaintiff who

seeks fees on the theory that his lawsuit was a

“catalyst” that brought about a voluntary change in the

defendant’s conduct. The Court categorically rejected

the so-called “catalyst theory” as a permissible basis for

awarding fees under “prevailing party” statutes. Jd. at

610.

The government additionally argued that the Court’s

ruling in Buckhannon clarified the meaning of Section

307(f). The Court’s decision in Ruckelshaus had

characterized Section 307(f).as authorizing fee awards

only to parties who “prevailed” in the sense that they

achieved “some success on the merits.” 463 U.S. at 682.

The Court reasoned that “the term ‘appropriate’ modi-

fies but does not completely reject the traditional rule

that a fee claimant must ‘prevail’ before it may recover

attorney’s fees.” Id. at 686. The government accord-

ingly argued that the Court’s rejection of the catalyst

theory in Buckhannon should also apply to fee-shifting

provisions such as Section 307(f), which grant fees to

what are, in effect, “partially prevailing parties.” See

Id. at 684, 688, 694. Taken together, the government

urged, Buckhannon and Ruckelshaus preclude a party

from obtaining attorney’s fees under a “when appropri-

ate” fee-shifting provision such as Section 307(f) unless

that party has obtained at least a partially favorable

judgment on the merits or a partially favorable court-

ordered consent decree.

The court of appeals rejected the government’s posi-

tion on the basis of footnote eight of the Ruckelshaus

opinion. The issue in Ruckelshaus was whether an

unsuccessful plaintiff could obtain fees under Section

307(f) on the theory that the losing plaintiff’s suit nev-

ertheless served some public benefit. See 463 U.S. at

682. Footnote eight addressed a passage of the legisla-

tive history of Section 304(d) of the Clean Air Act,

- which authorizes district courts to award attorney’s

fees when “appropriate” in citizen enforcement suits

brought under Section 304(a), 42 U.S.C. 7604(a). Ac-

cording to the respondents in that case, the Section

304(d) legislative history supported an award of fees to

unsuccessful plaintiffs under Section 307(f). The

footnote states in full as follows:

Respondents also rely on a single sentence from

the 1970 Senate Report:

“The Courts should recognize that in bringing

legitimate actions under this section citizens

would be performing a public service and in such

instances the courts should award costs of

litigation to such party. This should extend to

plaintiffs in actions which result in successful

abatement but do not reach a verdict. For

instance, if as a result of a citizen proceeding and

before a verdict is issued, a defendant abated a

violation, the court may award litigation ex-

penses borne by the plaintiffs in prosecuting

such actions.” S. Rep. No. 91-1196, p. 38 (em-

phasis added).

The approval of fee awards in “legitimate” actions

offers respondents little comfort: “legitimate”

means “being exactly as proposed: neither spurious

nor false,” which does not describe respondents’

claims in this case. Respondents contend, however,

that Congress intended that the term “appropriate”

to encompass situations beyond those mentioned in

the legislative history, and, therefore, that the term

reaches even totally unsuccessful actions. This is, of

course, possible, but not likely. Congress found it

necessary to explicitly state that the term appropri-

ate “extended” to suits that forced defendants to

abandon illegal conduct, although without a formal

court order; this was no doubt viewed as a some-

what expansive innovation, since, under then-con-

trolling law, see infra, some courts awarded fees

only to parties formally prevailing in court. We are

unpersuaded by the argument that this same Con-

gress was so sure that “appropriate” also would ex-

tend to the far more novel, costly, and intuitively

unsatisfying result of awarding fees to unsuccessful

parties that it did not bother to mention the fact. If

Congress had intended the far-reaching result urged

by respondents, it plainly would have said so, as is

demonstrated by Congress’ careful statement that a

less sweeping innovation was adopted.

463 U.S. at 686-687 n.8. The government argued that

this footnote was dictum and that the legislative history

of Section 304(d) discussed therein could not enlarge

the partial waiver of sovereign immunity set forth in

the text of Section 307(f). The court of appeals never-

theless expressly declined to apply the rules for con-

struing waivers of sovereign immunity and for depart-

ing from the American Rule. App., infra, 10a. Instead,

the court concluded that footnote eight controlled the

outcome of the case, stating that “carefully considered

language of the Supreme Court, even if technically

dictum, generally must be treated as authoritative.’”

Id. at 1la (quoting United States v. Oakar, 111 F.3d

146, 153 (D.C. Cir. 1997)).

The court further stated that:

Nothing in Buckhannon alters our conclusion that

Ruckelshaus’s footnote eight controls the issue now

before us. Although Buckhannon rejected the cata-

lyst theory, the statute at issue there authorizes fee

awards only to “prevailing part[ies].” By compari-

son, Ruckelshaus’s footnote eight analysis directly

applies to the issue we face here, as it interprets

section 307(f) to authorize fee awards for “suits that

forced defendants to abandon illegal conduct,

although without a formal court order.” 463 U.S. at

686 n.8.

App., infra, 13a. The court of appeals added:

In the end, we need not decide whether Buck-

hannon—which never so much as mentions Ruckel-

shaus—impliedly overrules footnote eight, for

Buckhannon’s failure to do so expressly is disposi-

tive. * * * Here, the case that “directly controls” is

Ruckelshaus. Whether Ruckelshaus “rest{s] on

reasons rejected” by Buckhannon is a matter for

the Supreme Court, not us.

Id. at 14a-15a (quoting Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).

The court then went on to conclude that respondents

qualified for attorney’s fees under a three-part catalyst

test that it derived largely from Justice Ginsburg’s dis-

senting opinion in Buckhannon. See id. at 16a-19a.

REASONS FOR GRANTING THE PETITION

This Court has set out clear principles for construing

congressional enactments that authorize courts to

award attorney’s fees. See, e.g., Buckhannon Bd. &

Care Home, Inc. v. West Virginia Dep’t of Health &

Human Res., 5382 U.S. 598 (2001); Ruckelshaus v.

Sierra Club, 463 U.S. 680 (1983). The court of appeals

in this case disregarded those principles and construed

the Clean Air Act to authorize fee payments from the

public fise to litigants who do not satisfy the prescribed

statutory requirements. The court’s decision is wrong

and cannot be sensibly reconciled with this Court’s

rulings in Buckhannon and Ruckelshaus. This Court

should accept the court of appeals’ invitation to resolve

the tension it mistakenly perceived in those cases,

which would provide crucial and needed guidance

respecting the prerequisites for obtaining attorney’s

fee awards under numerous federal statutes.

A. The Court Of Appeals Erred In Holding That Sec-

tion 307(f) Authorizes Attorney’s Fee Awards

Under The “Catalyst Theory”

This Court’s rulings in Buckhannon and Ruckel-

shaus provide the controlling principles for resolving

whether Section 307(f) authorizes an award of attor-

ney’s fees to a party who failed to obtain a favorable

judgment on the merits or a court-ordered consent

decree. The Court’s decision in Buckhannon holds that

the legal term “prevailing party” does not inciude a

litigant who obtained no judicial relief on the merits of

its claim and merely “achieved the desired result” of its

lawsuit because the suit “brought about a voluntary

change in the defendant’s conduct.” 532 U.S. at 600.

The Court’s decision in Ruckelshaus further holds that

Section 307(f) authorizes fees only to litigants who

“prevail,” at least in part, in the sense that they achieve

“some degree of success on the merits.” 463 U.S. at

686, 694. Taken together, those rulings establish that

Section 307(f) does not authorize courts to award fees

under the “catalyst theory.” A closer inspection of

those decisions reinforces that conclusion.

1. This Court explained in Ruckelshaus that Con-

gress enacted Section 307(f) against the backdrop of the

“American Rule” respecting attorney’s fees, “under

which even ‘the prevailing litigant is ordinarily not en-

titled to collect a reasonable attorney’s fee from the

loser”” Ruckelshaus, 463 U.S. at 683-684 (quoting Aly-

eska Pipeline Co. v. Wilderness Society, 421 U.S. 240.

247 (1975)). The American Rule requires “explicit

statutory authority” before fees may be awarded to a

prevailing party. Buckhannon, 532 U.S. at 602-603

(citing Key Tronic Corp. v. United States, 511 U.S. 809,

819 (1994)).

Furthermore, Section 307(f) is a partial waiver of the

United States’ sovereign immunity, which “must be

‘construed strictly in favor of the sovereign’ * * * and

not ‘enlarge[d] . . . k»yond what the language re-

quires.’”” Ruckelshaus, 463 U.S. at 685 (citations omit-

ted). “In determining what sorts of fee awards are

‘appropriate,’ care must be taken not to ‘enlarge’

§ 307(f)’s waiver of immunity beyond what a fair read-

ing of the language of the section requires.” Id. at 686

(emphasis added). Nothing in the text of Section 307(f)

provides the plain language necessary to waive

immunity from fee awards based upon the catalyst

theory.

The Court explained in Ruckelshaus that “[i]t is diffi-

cult to draw any meaningful guidance from § 307(f)’s

use of the word ‘appropriate.’” 463 U.S. at 683. Under

the applicable rules of construction, that absence of

clear textual guidance, by itself, should end the inquiry.

Under the longstanding sovereign immunity principles

cited in Ruckelshaus, the statutory text should be

construed strictly in favor of the sovereign, and because

that text does not clearly and unambiguously waive

immunity for catalyst-based fee claims, it should be

construed not to do so. See id. at 685-686; see also

Department of the Army v. Blue Fox, Inc., 525 U.S.

255, 261 (1999); McMahon v. United States, 342 U.S. 25,

27 (1951); Eastern Transp. Co. v. United States, 272

U.S. 675, 686 (1927).

The Court ultimately concluded in Ruckelshaus that

Section 307(f)’s authorization of attorney’s fees when

‘appropriate’ modifies but does not completely reject

the traditional rule that a fee claimant must ‘prevail’

before it may recover attorney’s fees.” 463 U.S. at 686.

That conclusion affirmatively precludes the award of

fees here. The Court concluded that

Section 307(f) was meant to expand the class of par-

ties eligible for fee awards from prevailing parties to

partially prevailing parties—parties achieving some

success even if not major success.

Id. at 688. By “success” the Court plainly meant suc-

cess on the merits of their legal claims. The Court sum-

marized its holding at the outset of its opinion as

follows:

We conclude that the language of [Section 307(f)],

read in the light of the historic principles of fee-

shifting in this and other countries, requires the con-

clusion that some success on the merits be obtained

before a party becomes eligible for a fee award

under § 307(f).

Id. at 682 (emphasis added). It repeated that point at

the conclusion of the opinion, stating “we hold that, ab-

sent some degree of success on the merits by the claim-

ant, it is not ‘appropriate’ for a federal court to award

attorney’s fees under § 307(f).” Jd. at 694 (emphasis

added). In short, the Court’s ruling in Ruckelshaus,

which holds that a party cannot obtain fees under

Section 307(f) unless that party “prevails” in the sense

that it achieves at least “some success on the merits,”

id. at 682, 694, establishes that a party cannot obtain

fees unless it obtains either a partially favorable

judgment on the merits or a partially favorable court-

ordered consent decree.

The Court’s subsequent decision in Buckhannon cor-

roborates that conclusion. The Court ruled that the

term “prevailing party,” as used in fee-shifting statutes,

does not include “a party that has failed to secure a

judgment on the merits or a court-ordered consent

deree.” 532 U.S. at 600. The Court reasoned that the

term “prevailing party” is a “legal term of art” that

describes “one who has been awarded some relief by

the court,” id. at 603, and its meaning is reflected in

“numerous statutes,” “Black’s Law Dictionary,” and

the Court’s “prior cases,” id. at 602-603. The term does

not include persons who resolve a dispute through a

private settlement, which “do[es] not entail the judicial

approval and oversight involved in consent decrees.”

Id. at 604 n.7.

The Court’s decisions in Buckhannon and Ruckel-

shaus use the term “prevailing party” in the same legal

sense. The Court made abundantly clear in Ruckel-

shaus that it employed the phrase as a legal term of art.

See 463 U.S. at 686 (“[W]e believe that the term ‘ap-

propriate’ modifies but does not completely reject the

traditional rule that a fee claimant must ‘prevail’ be-

fore it may recover attorney’s fees.”) (emphasis added).

See also Buckhannon, 532 U.S. at 615 (Scalia, J., con-

curring) (“[WJhen ‘prevailing party’ is used by courts or

legislatures in the context of a lawsuit, it is a term of

art.”). The Court’s decision in Ruckelshaus that parties

cannot obtain fees under Section 307(f) unless they

“prevail” by achieving “some success on the merits” ac-

cordingly precludes an award of fees to a party that

merely obtains a private out-of-court settlement.

2. The court of appeais rejected the foregoing analy-

sis. That court acknowledged that, were it “operating

on a clean slate concerning Section 307(f)’s meaning,” it

would have “accept(ed] the EPA’s invitation to apply

standard tools of statutory construction, including

Ruckelshaus’s presumptions against inferring depar-

tures from the American Rule and waivers of sovereign

immunity.” App., infra, 10a. The court of appeals con-

cluded, however, that it should instead take its direc-

tion from statements in Ruckelshaus that are plainly

dicta. See id. at 11a (stating that “carefully considered

language of the Supreme Court, even if technically

dictum, generally must be treated as authoritative”)

(quoting United States v. Oakar, 111 F.3d 146, 153

(D.C. Cir. 1997)). That approach was misguided in this

context, where the Court has already noted the danger

of following dicta that is out-of-step with the Court’s

holdings. As this Court made clear in Buckhannon, the

proper approach is “to reconcile the plain language of

the statutes with our prior holdings.” 532 U.S. at 605.

There is no serious question that the Court’s state-

ments in footnote eight of the Ruckelshaus decision are

dicta. The plaintiffs in Ruckelshaus did not obtain an

out-of-court settlement or otherwise induce a change in

the government’s position. Rather, they categorically

lost in court. See Ruckelshaus, 463 U.S. at 681 (“In a

lengthy opinion, the Court of Appeals rejected all the

claims of both EDF and the Sierra Club.”). Hence, the

Court had no occasion to rule on whether a party who

obtains an out-of-court settlement is entitled to attor-

ney’s fees. The Court’s statements in footnote eight,

appropriately submerged beneath the text of its

decision, simply responded to one of the plaintiffs’ more

peripheral arguments based on the legislative history of

a different Clean Air Act provision that was not at issue

in Ruckelshaus (or here). See id. at 686 n.8 (“Respon-

dents also rely on a single sentence from the 1970

Senate Report.”).

- Moreover, neither the Ruckelshaus dicta nor the

legislative history it discusses provides a persuasive

basis for courts to interpret Section 307(f) to authorize

catalyst-based fee awards. The Senate Report at issue

did not actually address Section 307’s provisions for

judicial review of agency action—the provision at issue

in Ruckelshaus and here. Rather, the report addressed

the fee-shifting provisions for citizen enforcement

actions under Section 304(a) of the Clean Air Act, 42

U.S.C. 7604(a), which could be brought in district courts

against, among others, private defendants. See S. Rep.

No. 1196, 91st Cong., 2d Sess. 38 (1970) (addressing fee

awards under Section 304(d) where “as a result of a

citizen proceeding and before a verdict is issued, a

defendant abated a violation”). The Senate Report’s

reference to a situation in which a “a defendant abated

a violation” plainly does not describe an out-of-court

settlement of a Section 307(b) “petition for review of

action of the Administrator.” 42 U.S.C. 7607(b). A peti-

tion for review is not an “abatement” action, the Ad-

ministrator is a respondent rather than a “defendant,”

and the court of appeals does not render a “verdict”

respecting a “violation.” See Bennett v. Spear, 520 U.S.

154, 173-174 (1997). The Court’s statements in footnote

eight are most fairly read as merely contrasting the

potential fee recipients described in the legislative

report—which included a private party seeking to

abate ongoing pollution—and the wholly unsuccessful

plaintiffs in Ruckelshaus, rather than as definitively

determining the legal significance of the statements

therein. See Ruckelshaus, 463 U.S. at 686 n.8.

The court of appeals’ reliance on an expansive read-

ing of the Ruckelshaus footnote is particularly infirm in

light of this Court’s repeated admonitions that state-

ments contained in legislative history cannot waive the

government’s sovereign immunity:

A statute’s legislative history cannot supply a

waiver that does not appear clearly in any statutory

text; “the ‘unequivocal expression’ of elimination of

sovereign immunity that we insist upon is an

expression in statutory text.”

Lane v. Pena, 518 U.S. 187, 192 (1996) (quoting United

States v. Nordic Village, Inc., 508 U.S. 30, 37 (1992)).

See Ardestani v. INS, 502 U.S. 129, 187 (1991) (fee-

shifting provision in the Equal Access to Justice Act is

a partial waiver of sovereign immunity and the legisla-

tive history may not enlarge its scope); Lehman v.

Nakshian, 453 U.S. 156, 161 (1981) (The “limitations

and conditions upon which the Government consents to

be sued must be strictly observed and exceptions

thereto are not to be implied.”) (citation omitted).

While legislative history may provide relevant support

for the conclusion that a statute does not waive the

government’s sovereign immunity—which is principally

how it was used in footnote 8 of Ruckelshaus—it does

not suffice to waive that immunity.

The court of appeals also disregarded this Court’s

admonition that courts should avoid interpreting fee-

shifting statutes in a manner that would “spawn{[] a

second litigation of significant dimension.” Buck-

hannon, 532 U.S. at 609 (quoting Texas State Teachers

Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791

(1989)). Rather, the Court has quite rightly rejected

constructions of fee-shifting statutes that would foment

litigation over fee entitlements. See Garland, 489 U.S.

at 791. The Court specifically observed in Buckhannon

that the catalyst theory “is clearly not a formula for

‘ready administrability.’”” 532 U.S. at 610 (quoting

Burlington v. Dague, 505 U.S. 557, 566 (1992)).

The court of appeals’ decision in this case would

spawn the same administrative difficulties that the

Court envisioned in Buckhannon. The court of appeals

adopted a three-part catalyst test to determine

whether a fee award was appropriate. See App., infra,

16a-18a. Under the court of appeals’ catalyst test, a

plaintiff must show that (1) the defendant provided

“some of the benefit” sought by the lawsuit; (2) “the

suit stated a genuine claim, 7.e., one that was at least

‘colorable,’not ‘frivolous, unreasonable, or groundless”;

and (3) the “suit was a ‘substantial’ or ‘significant’ cause

of defendant’s action providing relief.” Jd. at 17a.

Those “nuanced” inquiries raise precisely the same pro-

blems of “ready administrability” that the Court identi-

fied in Buckhannon. See 532 U.S. at 610.

This case illustrates the debatable questions of relief

and causation that the catalyst test would pose in the

case of out-of-court settlements. Respondents’ petition

for judicial review challenged EPA’s interim approval

extension set out in 65 Fed. Reg. at 32,035, but neither

the out-of-court settlement nor EPA’s actions in imple-

menting the settlement upset that interim approval

extension. To the contrary, the settlement preserved

that extension; respondents merely secured an agree-

ment that they could seek resumption of the litigation

im the court of appeals if EPA proposed or issued an

additional extension. See App., infra, 29a (para. 2.D.).

EPA’s concession on that point was hardly significant

since EPA had announced in the very administrative

action that respondents challenged—before the petition

for review was filed—that EPA would not grant any

further interim approval extensions. 65 Fed. Reg. at

32,038. The court of appeals nevertheless incorrectly

concluded that the out-of-court settlement was the

cause for EPA not issuing further extensions and

“bound” EPA “like any relief that this court might have

granted on the merits.” App., infra, 19a. The court’s

application of its proposed test to award fees on such a

questionable basis heralds a steady stream of fee

“litigation of significant dimension.” Buckhannon, 532

US. at 609; Garland, 489 U.S. at 791.

B. The Court Of Appeals’ Decision Conflicts With

Decisions Of This Court And Presents An Im-

portant Issue Warranting This Court’s Review

The court of appeals’ rejection of this Court’s hold-

ings in Buckhannon and Ruckelshaus in favor of the

Ruckelshaus dicta places that court’s decision in

unavoidable conflict with the decisions of this Court.

As Buckhannon itself makes clear, the viability of the

catalyst theory as a basis for attorney’s fees awards

turns on the “the plain language of the statutes” and

this Court’s “prior holdings.” 532 U.S. at 605. The

court of appeals erred in disregarding those holdings in

favor of “dicta in [this Court’s] prior cases.” Ibid. The

court of appeals’ rationale for its approach—that “care-

fully considered language of the Supreme Court, even if

technically dictum, generally must be treated as

authoritative” (App., infra, 1la)—is mistaken in this

context, as the Court observed in Buckhannon.

The Court’s review is ultimately warranted in this

case for the same reason it was warranted in Ruckel-

shaus. There is a compelling need for the Court to

resolve “the important question decided by the Court of

Appeals.” Ruckelshaus, 463 U.S. at 682. Most federal

fee-shifting statutes are either “prevailing party” stat-

utes, such as those involved in Buckhannon, or “when

appropriate” statutes, such as the statute involved in

this case. See id. at 682 n.1. The Court’s review in this

case would resolve the single most important attorney’s

fee issue that has arisen in Buckhannon’s wake:

whether the catalyst theory remains available under

the “when appropriate” statutes. Here, as in Ruckel-

shaus, there is no good reason to postpone resolution of

that issue, which affects attorney’s fee awards under

more than a dozen federal statutes. See ibid.; e.g.,

Endangered Species Act, 16 U.S.C. 1540(g)(4); Toxic

Substances Control Act, 15 U.S.C. 2618(d); Marine

Protection, Research, and Sanctuaries Act, 33 U.S.C.

1415(g)(4) (also known as the “Ocean Dumping Act”);

Surface Mining Control and Reclamation Act, 30 U.S.C.

1270(d); Safe Drinking Water Act, 42 U.S.C. 300j-8(d);

and Noise Control Act, 42 U.S.C. 4911(d).

The court of appeals’ decision presents a particularly

pressing call for this Court’s review because of the

central role that the District of Columbia Circuit plays

in litigation covered by Section 307(f) and other “when

appropriate” fee-shifting statutes. A number of the

“when appropriate” fee-shifting statutes authorize fee

awards under frequently litigated environmental laws,

and the District of Columbia Circuit is the locus of a

substantial amount of that litigation. For example, the

Clean Air Act requires that many judicial challenges to

EPA action, including regulations that have nationwide

application, such as the national ambient air quality

standards at issue in Whitman v. American Trucking

Ass’ns, 531 U.S. 457 (2001), can be brought only in the

District of Columbia Circuit. See CAA § 307(b), 42

U.S.C. 7607(b). The government and the public there-

fore have a strong interest in resolving the scope of the

“when appropriate” standard in this case.

Furthermore, this case presents a situation in which

the court of appeals’ decision is likely to generate

wasteful litigation, not only in the District of Columbia:

Circuit, but also in each of the other circuits where the

issue of catalyst-based fees against the government

under “when appropriate” fee-shifting provisions re-

mains an open question. If other circuits follow the

court of appeals’ ruling, then the outcome is still more

fee litigation, not only under an approaeh that conflicts

with Buckhannon and Ruckelshaus, but also under a

specific standard for awarding catalyst fees that con-

flicts with other court decisions. The court of appeals’

three-part test for awarding attorney’s fees under the

catalyst theory is inconsistent with the decisions of

other courts of appeals, which have ruled that a party is

not entitled to fees under the catalyst theory unless

that party can demonstrate that the defendant’s action

in response to the lawsuit was “required by law.” See,

e.g., Amigos Bravos v. EPA, 324 F.3d 1166, 1168, 1174-

1176 (10th Cir. 2003); Loudermill v. Cleveland Bd. of

Educ., 844 F.2d 304, 313 (6th Cir.), cert. denied, 488

U.S. 941 and 946 (1988).

As the Court observed in Hensley v. Eckerhart, 461

U.S. 424, 437 (1983), “[a] request for attorney’s fees

should not result in a second major litigation.” Liti-

gation over fees is not a productive use of judicial

resources; rather such disputes “take up lawyers’ and

judges’ time that could more profitably be devoted to

other cases.” Jd. at 455 (Brennan, J., concurring in part

and dissenting in part). A prompt resolution of the

issue would avoid the need for the government to spend

considerable financial and litigation resources on collat-

eral attorney’s fees issues in an effort to convince

another circuit to deviate from the District of Columbia

Circuit, while at the same time litigating and paying

attorney’s fees in the District of Columbia Circuit that

may prove unnecessary.

Although this Court frequently allows issues to

“percolate” in the lower courts before resolving them,

that approach has little to commend it here. As the

court of appeals itself recognized, the question whether

Section 307(f) authorizes “catalyst-based” awards turns

on the proper reconciliation of this Court’s decisions in

Buckhannon and Ruckelshaus. App., infra, 5a-6a.

Further litigation in the courts of appeals is unlikely to

provide additional insight on that question, which turns

on what significance the Court itself gives to footnote

eight of the Ruckelshaus decision. As the court of

appeals stated, reconciling Buckhannon and Ruckel-

shaus “is a matter for the Supreme Court, not us.” Jd.

at 15a.

This Court’s decision in Buckhannon emphasizes the

danger of rejecting this Court’s “prior holdings,” Buck-

hannon, 582 U.S. at 605, in favor of “misleading dicta,”

id. at 621 (Scalia, J., concurring). Notwithstanding the

Court’s admonitions, the court of appeals’ decision here

is likely to recreate the same situation that this Court

faced in Buckhannon. This Court’s potentially “mis-

leading dicta” in Ruckelshaus, revitalized by the court

of appeals’ ruling that it “directly controls” the con-

struction of “when appropriate” fee-shifting statutes,

App., infra, 14a-15a, may “nurtur[e] and preserv[e]” a

“near-unanimous,” but mistaken, interpretation of

federal law. See 532 U.S. at 621-622 (Scalia, J., concur-

ring.) See, ¢.9., Gaylor v. United States, 74 F.3d 214, 217

(10th Cir.) (“this court considers itself bound by

Supreme Court dicta almost as firmly as by the Court’s

outright holdings”), cert. denied, 517 U.S. 1211 (1996).

If the Court does not act now to correct the court of

appeals’ error, the government is likely to face substan-

tial and wasteful burdens in litigating attorney’s fees

claims, and the public treasury is likely to be improp-

erly charged with unauthorized fee awards at a time in

which federal funds are urgently needed for other

important matters.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

LISA M. JAEGER JEFFREY P. MINEAR

Acting General Counsel Assistant to the Solicitor

JAN M. TIERNEY General

Attorney CHRISTOPHER S. VADEN

Environmental Protection DAVID J. KAPLAN

Agency Attorneys

OCTOBER 2003

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1262

SIERRACLUBAND -

NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.

PETITIONERS

VU.

ENVIRONMENTAL PROTECTION AGENCY AND

CHRISTINE TODD WHITMAN, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

Argued: Jan. 23, 2003

Decided: Mar. 18, 2003

On Petitioners’ Motion for Attorney’s Fees

Before: GINSBURG, Chief Judge, and ROGERS and

TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Bills of costs must be filed within 14 days after entry of

judgment. The court looks with disfavor upon motions to file bills

of costs out of time.

(la)

TATEL, Circuit Judge: The Clean Air Act authorizes

an award of attorney’s fees “whenever [the court]

determines that such award is appropriate.” In this

case, organizations that settled their Clean Air Act suit

against the Environmental Protection Agency prior to

adjudication on the merits move for an award of fees.

The EPA opposes the motion, arguing that only parties

who obtain court-awarded relief may recover fees.

Applying relevant Supreme Court precedent, we hold

that the Clean Air Act, unlike statutes that authorize

fee awards only to “prevailing part[ies],” permits

awards to so-called catalysts—parties who obtain,

through settlement or otherwise, substantial relief

prior to adjudication on the merits. Because we find an

award of fees “appropriate” under the circumstances of

this case, we grant the motion.

Title V of the 1990 Amendments to the Clean Air

Act, 42 U.S.C. §§ 7661-7661f, establishes procedures

through which the Environmental Protection Agency

may authorize states and localities to issue stationary

air pollution source operating permits. See generally

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1017

(D.C Cir. 2000). Governors must submit proposals for

state or locally administered permit programs “[n]ot

later than 3 years after November 15, 1990,” and the

EPA must “approve or disapprove” the proposed pro-

grams within one year of receipt. 42 U.S.C.

§ 7661a(d)(1); see also 40 C.F.R. § 70.2 (specifying that

“State means any non-Federal permitting authority,

including any local agency”). If a program “sub-

stantially meets the requirements [for approval], . . .

but is not fully approvable,” the EPA may “grant the

program interim approval,” which “shall expire .. .

not later than 2 years after such approval, and may not

be renewed.” 42 U.S.C. § 7661la(g). If a state fails to

meet Title V deadlines for obtaining program approval,

however, the EPA must itself “promulgate, administer,

and enforce a program .. . for that State.” 7d.

§ 7661a(d)(3), (g), (i)(4).

In 1992, the EPA promulgated 40 C.F.R. § 70.4(d)(2),

which provided—in language virtually identical to Title

V’s—that “[i]Jnterim approval shall expire on a date set

by the Administrator (but not later than 2 years after

such approval), and may not be renewed.” Four years

later, in 1996, the EPA issued a rule that (1) appended a

second sentence to 40 C.F.R. § 70.4(d)(2) providing that

“(njotwithstandiig the previous sentence, the Admini-

strator may, through rulemaking, provide for a longer

period of time on an individual basis, but only once

per State” and (2) extended most existing interim ap-

provals by ten months. Operating Permits Program

Interim Approval Extensions, 61 Fed.Reg. 56,368,

56,368, 56,370 (Oct. 31, 1996). Twice again, in 1997 and

1998, the EPA extended existing interim approvals.

Extension of Operating Permits Program Interim Ap-

provals, 62 Fed.Reg. 45,732 (Aug. 29, 1997); Extension

of Operating Permits Program Interim Approval Ex-

piration Dates, 63 Fed.Reg. 40,054 (July 27, 1998).

Neither rule, however, cited any statutory or regula-

tory authority for the blanket extension. In fact, both

rules expressly stated that the EPA was not acting

pursuant to 40 C.F.R. § 70.4(d)(2), though the rules

reserved the agency’s purported authority to do so in

the future. Roughly a week before the 1998 blanket

interim approval would have expired, the EPA issued

yet another rule, this time extending existing interim

approvals for more than thirty states until December 1,

2001. Extension of Operating Permits Program,

Interim Approval Expiration Dates, 65 Fed. Reg.

32,0385 (May 22, 2000). Like the previous extension

rules, this rule cited neither statutory nor regulatory

authority for the blanket extension. Unlike the

previous rules, however, it not only failed to expressly

reserve the EPA’s authority to offer additional

extensions under 40 C.F.R. § 70.4(d)(2), but also gave

“notice that no additional extensions of interim

approval deadlines will be granted.” Jd. at 32,038.

Sierra Club and New York Public Interest Research

Group filed a petition in this court challenging the

EPA’s May 22, 2000 rule as coutrary to Title V. After

Petitioners had filed their opening brief and six days

before the EPA’s brief was due, the parties reached a

settlement and filed a joint motion requesting a stay of

proceedings. Under the settlement, the EPA agreed to

(1) grant no further interim approval extensions; (2)

remove the language from 40 C.F.R. § 70.4(d)(2) pur-

portedly authorizing the EPA to extend interim ap-

provals beyond two years on a case-by-case basis; (3)

initiate a ninety-day formal notice-and-comment pro-

cess for interested parties to identify deficiencies in

both fully approved and interim programs; and (4)

provide responses to all comments received through the

notice-and-comment process. The settlement agree-

ment provided that if the EPA breached any of its

promises, Petitioners could ask the court to lift the stay

and set a new briefing schedule. The settlement

agreement also obligated the parties to seek joint dis-

missal if, by December 1, 2001, the EPA had fulfilled its

promises. Dismissal, the agreement stated, would “pro-

vide an opportunity for Sierra Club to petition [this]

Court for attorneys’ fees within a reasonable period of

time, which petition EPA may oppose.”

In January 2002, after the EPA fulfilled its obliga-

tions under the settlement agreement, this court, at the

parties’ request, dismissed the case. Acting pursuant

to the settlement agreement and citing CAA section

307(f), 42 U.S.C. § 7607(f), Petitioners then filed a mo-

tion requesting attorney’s fees. Section 307(f) provides:

“In any judicial proceeding under this section, the court

may award costs of litigation (including reasonable

attorney and expert witness fees) whenever it deter-

mines that such award is appropriate.” Jd.

Because the parties have agreed on the amount that

the EPA will pay if this court rules for Petitioners, the

only question before us is whether a fee award is

appropriate in the first place. The EPA argues that

section 307(f)’s “whenever . . . appropriate” standard

does not authorize fee awards to parties, such as

Petitioners, whose litigation produces no court-awarded

relief. According to Petitioners, their role as a catalyst

in halting the EPA’s practice of serially extending

interim approvals makes a fee award “appropriate.”

Il.

Whether Petitioners’ role as a catalyst permits fee

awards under section 307(f) turns on the meaning of

two Supreme Court decisions. In Ruckelshaus v.

Sierra Club, 463 U.S. 680 (1983), the Supreme Court

held that section 307(f)’s “whenever . . . anprupriate”

standard prohibits awards to parties who lose on the

merits. In Buckhannon Board & Care Home, Inc. v.

West Virginia Department of Health & Human Re-

sources, 582 U.S. 598 (2001), the Court held that a dif-

ferent statutory standard, one that authorizes fee

awards to “prevailing part{ies],” prohibits awards to

catalyst parties, defined as those who “achieve [ ] the

desired result[s] because the lawsuit{s] brought about

. voluntary change[s] in the defendant[s’] conduct.”

Id. at 601. Because Ruckelshaus did not involve a

catalyst party, and because Buckhannon, which did,

concerned a different statute, neither case addresses

the precise issue we face here. Even so, the parties,

though they read Ruckelshaus and Buckhannon quite

differently, agree that the two cases are dispositive, as

do we.

Ruckelshaus began when this court found a fee

award to be “appropriate” because the parties request-

ing fees, though having lost on the merits, had served

as “expert and articulate spokesmen for environmental

. interests” without whom “the process of judicial

review might have been fatally skewed.” Sierra Club v.

Gorsuch, 672 F.2d 33, 41 (D.C. Cir. 1982). The Supreme

Court reversed, explaining that “(i]t is difficult to draw

any meaningful guidance from § 307(f)’s use of the word

‘appropriate,’ which means only ‘specially suitable: fit,

proper.” Ruckelshaus, 463 U.S. at 683 (citation

omitted). “Our basic point of reference,” the Court said,

“is the ‘American Rule,’” under which parties bear

their own attorney’s fees. Jd. at 683-84. The Court

explained that although Congress has often departed

from the American Rule by shifting fees from the “pre-

vailing,” “substantially prevailing,” or “successful”

party to the losing party, the additional departure of

“shifting fees from the losing party to the winning

party” would require “a clear showing that this result

was intended.” Jd. at 684-85. Moreover, the Court

explained, because section 307(f) “affects fee awards

against the United States, as well as against private

individuals,” it triggers the interpretive canon that

“{wlaivers of immunity must be construed strictly in

favor of the sovereign” and “not enlarged beyond what

the language requires.” Jd. at 685 (internal quotation

marks and citations omitted). Applying these two

interpretive presumptions, tie Court concluded that

“the term ‘appropriate’ modifies but does not com-

pletely reject the traditional rule that a fee claimant

must ‘prevail’ before it may recover attorney’s fees.”

Id. at 686.

The Court found support for this conclusion in its

analysis of the statute’s legislative history. The Court

began by quoting from a 1977 House Report stating

that, “[iJn the case of the section 307 judicial review

litigation, the purposes of the authority to award fees

are not only to discourage frivolous litigation, but also

to encourage litigation which will assure proper imple-

mentation and administration of the act or otherwise

serve the public interest.” Jd. at 687 (quoting H.R.

Rep. No. 95-294, at 337 (1977)). The Report goes on to

explain, in language italicized by the Court, that “/t/he

committee did not intend that the court’s discretion to

award fees under this provision should be restricted to

cases in which the party seeking fees was the ‘pre-

vailing party.’” Id. Seeking to “determin[e] the mean-

ing of [Congress’s] rejection of the ‘prevailing party

standard,” the Court then surveyed lower court de- -

cisions that had applied the “prevailing party” standard

“in a variety of «ither narrow ways,” concluding that

“{sJection 307(f) was meant to expand the class of

parties eligible for fee awards from prevailing parties to

partially prevailing parties—parties achieving some

success, even if not major success.” Jd. at 687-88

(emphases in original).

sar aaa iia.

The Court also quoted from the 1970 Senate Report

on CAA section 304(d), upon which section 307(f) was

modeled, noting that “[bJecause . . . §§ 304(d) and

relevant to a construction of § 307(f).” Jd. at 692 n.13.

The quoted Senate Report explains that “(t]he Courts

should recognize that in bringing legitimate actions

under this section citizens would be performing a public

service and in such instances the courts should award

costs of litigation to such party.” Jd. at 686 n.8 (quoting

S. Rep. No. 91-1196, at 38 (1970)) (emphasis in original).

The Report then explains that fee awards “should ex-

tend to plaintiffs in actions which result in successful

abatement but do not reach a verdict. For instance, if

as a result of a citizen proceeding and before a verdict is

issued, a defendant abated a violation, the court may

award litigation expenses borne by the plaintiffs in

prosecuting such actions.” Jd. Analyzing the Senate

Report, the Court concluded in footnote eight—a pass-

age central to our view of the instant case—that

Congress found it necessary to explicitly state that

the term appropriate “extended” to suits that forced

defendants to abandon illegal conduct, although

without a formal court order; this was no doubt

viewed as a somewhat expansive innovation, since,

under then-controlling law, some courts awarded

fees only to parties formally prevailing in court. We

are unpersuaded by the argument that this same

Congress was so sure that “appropriate” also would

extend to the far more novel, costly, and intuitively

unsatisfying result of awarding fees to unsuccessful

parties that it did not bother to mention the fact. If

Congress had intended the far-reaching result urged

by respondents, it plainly would have said so, as is

demonstrated by Congress’ careful statement that a

less sweeping innovation was adopted.

Id. (internal citation omitted) (emphases in original).

Buckhannon involved a motion for fees under the

Fair Housing Amendments Act and the Americans

with Disabilities Act, both of which authorize courts to

grant “the prevailing party . . . a reasonable

attorney’s fee.” 42 U.S.C. §§ 3613(c)(2), 12205. The

plaintiff brought a preemption challenge to a state law,

but the action became moot after the state legislature

repealed the allegedly preempted law. Even though

the court never ruled on the merits, the plaintiff sought

an award of attorney’s fees, arguing that its suit was

the catalyst for the repeal.

The Supreme Court began its analysis by observing

that “the term ‘prevailing party’ “ is “a legal term of

art.” Buckhannon, 532 U.S. at 608. Quoting from

Black’s Law Dictionary, the Court explained that “pre-

vailing party” means “[a] party in whose favor a judg-

ment is rendered.” Jd. Surveying its own precedents

involving “prevailing party” fee-shifting statutes, the

Court observed that it had never approved an award of

attorney’s fees without some degree of formal success,

concluding:

A defendant’s voluntary change in conduct, although

perhaps accomplishing what the plaintiff sought to

achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change. Our precedents thus

counsel against holding that the term “prevailing

party” authorizes an award of attorney’s fees with-

out a corresponding alteration in the legal relation-

ship of the parties.

10a

Id. at 605 (emphasis in original). Turning to legislative

history, the Court found it “at best ambiguous as to

the availability of the ‘catalyst theory’ for awarding

attorney’s fees.” Id. at 608. Although the Court also

briefly discussed the parties’ various policy arguments,

it concluded that, “[gljiven the clear meaning of ‘pre-

vailing party’ in the feeshifting statutes, we need not

determine which way these various policy arguments

cut.” Jd. at 610. At no point in the opinion did the

Court discuss Ruckelshaus, much less cite it.

It is on the field of Ruckelshaus and Buckhannon

that the parties in this case do battle. According to the

EPA, section 307(f)’s plain language and legislative

history, interpreted in light of the canons of con-

struction employed in Ruckelshaus, require that, to be

eligible for a fee award, a party must have received

some form of court-awarded relief. Ruckelshaus’s foot-

note eight discussion of the catalyst theory, the EPA

insists, is dictum. The EPA also contends that because

Ruckelshaus says that section 307(f) applies only to

fully and “partially prevailing parties,” 463 U.S. at 688,

Buckhannon’s rejection of the catalyst theory for “pre-

vailing party” statutes applies to section 307(f) as well.

Petitioners have a very different view of these two

cases. They argue that Ruckelshaus’s footnote eight

interpretation of section 307(f) controls. Buckhannon,

they insist, applies only to “prevailing party” fee-

shifting provisions.

Were we operating on a clean slate concerning

section 307(f)’s meaning, we would accept the EPA’s

invitation to apply standard tools of statutory construc-

tion, including Ruckelshaus’s presumptions against

inferring departures from the American Rule and

waivers of sovereign immunity. Our slate, however,

lla

is far from clean, for in resolving the issue before it

in Ruckelshaus, the Supreme Court engaged in an

analysis of section 307(f) and its legislative history that

determines the outcome of the catalyst issue we face

here. Specifically, Ruckelshaus interprets the 1970

Senate Report as demonstrating that Congress did in

fact authorize fee awards under section 307(f) for “suits

that forced defendants to abandon illegal conduct,

although without a formal court order.” 463 U.S. at 686

n.8. The Court explained that the “less Sweeping inno-

vation” (recovery without formal court order) “was

adopted,” while the more “far-reaching result” (re-

covery by parties losing on the merits) was not. Id.

(emphases in original). The EPA resists this inter-

pretation, but neither in its brief nor at oral argument

—where we spent considerable time on the topic—was

it able to offer any interpretation of the “less sweeping

innovation” that Congress adopted other than the cata-

lyst theory. Id.

At bottom, the EPA’s only real argument against

treating footnote eight as controlling authority is to

dismiss it as dictum. For this “inferior Court[ ],” U.S.

CONST. art. III, § 1, cl. 1, however, that argument car-

ries no weight since “carefully considered language of

the Supreme Court, even if technically dictum, gen-

erally must be treated as authoritative.” United States

v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (internal

quotation marks and citation omitted); see also Bangor

Hydro-Elec. Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir.

1996) (“It may be dicta, but Supreme Court dicta tends

to have somewhat greater foree—particularly when

expressed so unequivocally.”).

Moreover, we are not at all certain that footnote

eight is dictum. The footnote’s logic is this: (1) We

12a

know Congress authorized catalyst fee recoveries be-

cause it said so; therefore (2) we assume Congress

rejected losing party recoveries because it remained

silent on the issue. To reject the validity of the first

proposition—as the EPA urges—would pull the rug

from under footnote eight. To be sure, footnote eight is

only one among several justifications that Ruckelshaus.

gives for its ultimate holding, but we “cannot ignore the

unmistakable import of [a Supreme Court decision’s]

analysis.” Oakar, 111 F.3d at 153.

Our understanding of Ruckelshaus also comports

with the Supreme Court’s conclusion, this time in true

dictum, that nearly-identical “whenever . . . appro-

priate” language in the pre-1987 Clean Water Act

authorizes fee awards in cases where the plaintiff ob-

tains no court-awarded relief. In Gwaltney of Smith-

field, Ltd. v. Chesapeake Bay Foundation, Inc., 484

U.S. 49 (1987), the Court held that citizens may sue

under the Clean Water Act only for present, not past,

statutory violations. Discussing the possibility that

statutory violators could strategically moot enforce-

ment actions by complying with the statute after the

actions had been filed, the Court observed not only that

mootness doctrine provides plaintiffs with certain pro-

tections against game-playing violators, but also that

Under the Act, plaintiffs are . . . protected from

. . suddenly repentant defendant(s] by the author-

ity of . . . district courts to award litigation costs

“whenever the[y] . . . determine[ ] such award[s]

[are] appropriate.” 33 U.S.C. § 1865(d). The legis-

lative history of this provision states explicitly that

the award of costs “should extend to plaintiffs in

actions which result in successful abatement but do

not reach a verdict. For instance, if as a result of a

13a

citizen proceeding and before a verdict is issued, a

defendant abated a violation, the court may award

litigation expenses borne by the plaintiffs in prose-

cuting such actions.” S. Rep. No. 92-414, p. 81

(1971), 2 Leg. Hist. 1499.

Id. at 67 n.6; see also Save Our Cumberland Moun-

tains, Inc. v. Hodel, 826 F.2d 43, 51 (D.C. Cir. 1987)

(reviewing the district court’s award of attorney’s fees

under another “whenever . . . appropriate” fee-

shifting provision and concluding that “as the decisions

under other fee statutes indicate, to permit a fee award

a party’s litigation efforts need not be the demonstrably

exclusive cause of the relief it sought; rather, the party

may receive an award for time spent on activities that

served as a ‘catalyst’ or contributing factor to that

result”).

Nothing in Buckhannon alters our conclusion that

Ruckelshaus’s footnote eight controls the issue now

before us. Although Buckhannon rejected the catalyst

theory, the statute at issue there authorizes fee awards

only to “prevailing part[ies].” By comparison, Ruckel-

shaus’s footnote eight analysis directly applies to the

issue we face here, as it interprets section 307(f) to

authorize fee awards for “suits that forced defendants

to abandon illegal conduct, although without a formal

court order.” 463 U.S. at 686 n.8.

The most one can say of Buckhannon is that it im-

pliedly casts doubt on footnote eight. The EPA takes

just this position. Reading Buckhannon’s conclusion

that “prevailing” means being “awarded some relief by

the court,” 532 U.S. at 608, in light of Ruckelshaus’s

statement that “[s]ection 307(f) was meant to expand

the class of parties eligible for fee awards from pre-

vailing parties to partially prevailing parties,” 463 U.S.

14a

at 688 (emphasis omitted), the EPA argues that section

307(f) requires some court-awarded relief. Even sett-

ing aside footnote eight, however, we think this in-

ference quite dubious. The fact that the Supreme Court

held in the context of a fully adjudicated claim that the

“whenever .. . appropriate” standard expands the

class of eligible parties to those who partially prevail on

the merits does not address the status of parties who

obtain significant success without adjudication. Even

were we to accept the EPA’s interpretation of “par-

tially prevailing parties,” the passage from Ruckel-

shaus that the EPA relies on is entirely consistent with

the possibility that section 307(f) expands the class

from prevailing parties to “partially prevailing parties”

and to parties achieving no formal court-awarded suc-

cess (a possibility footnote eight later confirms). More-

over, because the Supreme Court has warned against

“dissect[ing] the sentences of the United States

Reports as though they were the United States Code,”

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993),

we think it inappropriate to read a “prevailing party”

requirement into section 307(f) just because the

Ruckelshaus Court, not Congress, used that term.

In the end, we need not decide whether Buck-

hannon—which never so much as mentions Ruckel-

shaus—impliedly overrules footnote eight, for Buck-

hannon’s failure to do so expressly is dispositive. If “a

precedent of [the Supreme Court] has direct application

in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving

to [the Supreme] Court the prerogative of overruling

its own decisions.” Rodriguez de Quijas v. Shearson/

Am. Express, Inc., 490 U.S. 477, 484 (1989). Here, the

15a

case that “directly controls” is Ruckelshaus. Whether

Ruckelshaus “rest[s] on reasons rejected” by Buck-

hannon is a matter for the Supreme Court, not us.

Our two sister circuits to have addressed the re-

lationship between Ruckelshaus and Buckhannon have

reached the same conclusion. In Loggerhead Turtle v.

County Council, 307 F.3d 1318 (11th Cir. 2002), the

Eleventh Circuit relied on Ruckelshaus for the pro-

position that catalyst recoveries are permitted by

“whenever . . . appropriate” statutes and distin-

guished Buckhannon as applying only to “prevailing

party” statutes, specifically noting that “Buckhannon

makes no reference whatsoever to Ruckelshaus or to

the ‘whenever . . . appropriate’ class of fee-shifting

statutes.” Id. at 1326. In Center for Biological Diver-

sity v. Norton, 262 F.3d 1077, 1080 n.2 (10th Cir. 2001),

although the parties did not raise the issue, the Tenth

Circuit distinguished Buckhannon as applying only to

“prevailing party” statutes.

The EPA’s two remaining arguments require little

discussion. The agency claims that allowing catalyst

recoveries under section 307(f) will “create an unneces-

sary patchwork among fee-shifting statutes,” since

Buckhannon prohibits such recoveries under the “pre-

vailing party” standard. Respondents’ Br. at 13. The

simple and dispositive answer to this argument is

Ruckelshaus, which tells us that Congress enacted

section 307(f)’s “whenever . . . appropriate” language

for two reasons: to “reject{ ] . . . the ‘prevailing

party’ standard,” 463 U.S. at 687, and to authorize fee

awards to parties “that forced defendants to abandon

illegal conduct, although without a formal court order,”

id. at 686 n.8. It was thus Congress that created the

“patchwork.”

16a

The EPA’s other argument suffers essentially the

same defect. The agency claims that the catalyst

theory would “embroil courts in a second major litiga-

tion” over whether plaintiffs caused defendants’

changes in conduct. Respondents’ Br. at 14. It is true

that Buckhannon notes that one policy argument

against the catalyst theory is that it might “spawn[ ] a

second litigation of significant dimension.” 532 U.S. at

609 (internal quotation marks and citation omitted).

Yet in the very next paragraph, Buckhannon points

out that, in light of clearly expressed Congressional

intent, “we need not determine which way these vari-

ous policy arguments cut.” Jd. at 610. The same is true

here. Ruckelshaus establishes that Congress, by enact-

ing section 307(f), intended for courts to decide when

fee awards, even in the catalyst context, are “appropri-

ate.”

Ill.

Having held that the “whenever . . . appropriate”

standard authorizes recovery under a catalyst theory,

we turn to the question of whether such an award is

“appropriate” in this case. On this issue, Buckhannon

provides useful guidance. Though the Court split five

to four on the propriety of catalyst recovery under the

“prevaluing party” standard, all nine Justices agreed,

albeit in dictum, on the correct standard for whether a

lawsuit qualifies as a catalyst. In a passage arguing

that the majority should have given greater weight to

lower court decisions approving catalyst recoveries, the

dissent synthesized decisions that had articulated the

standard:

The array of federal court decisions applying the

catalyst rule suggested three conditions necessary

17a

to a party’s qualification as “prevailing” short of a

favorable final judgment or consent decree. A

plaintiff first had to show that the defendant pro-

vided “some of the benefit sought” by the lawsuit.

Under most Circuits’ precedents, a plaintiff had to

demonstrate as well that the suit stated a genuine

claim, i.e., one that was at least “colorable,” not

“frivolous, unreasonable, or groundless.” Plaintiff

finally had to establish that her suit was a “sub-

stantial” or “significant” cause of defendant’s action

providing relief. In some Circuits, to make this

causation showing, plaintiff had to satisfy the trial

court that the suit achieved results “by threat of

victory,” not “by dint of nuisance and threat of ex-

pense.” One who crossed these three thresholds

would be recognized as a “prevailing party” to

whom the district court, “in its discretion,” could

award attorney’s fees.

Id. at 627-28 (Ginsburg, J., dissenting) (citations

omitted). Not only did the majority express no dis-

agreement with this statement of the law, but, citing

the dissent, it said that it did “not doubt the ability of

district courts to perform the nuanced ‘three thres-

holds’ test required by the ‘catalyst theory’—whether

the claim was colorable rather than groundless;

whether the lawsuit was a substantial rather than an

~ insubstantial cause of the defendant’s change in con-

duct; whether the defendant’s change in conduct was

motivated by the plaintiff's threat of victory rather

than threat of expense.” Jd. at 610 (emphasis added).

Although the majority summarized the three thres-

holds somewhat differently—failing to mention the

“some of the benefit sought” element and treating

“causation” and “threat of victory rather than threat of

18a

expense” as separate elements rather than two aspects

of the same element-—-nothing suggests that the major-

ity disagreed with the dissent’s position that only a

plaintiff achieving “some of the benefit sought” is

entitled to fees.

Judged against this so-called three thresholds test,

Petitioners’ fee motion is easily resolved. Nowhere

does the EPA suggest that Petitioners’ motion fails to

satisfy the second and third thresholds, and for good

reason: Petitioners’ claim was obviously colorable and

their suit quite clearly caused the EPA to accept the

settlement’s terms. Cf. Save Our Cumberland Moun-

tains, 826 F.2d at 51 (“(T)]he temporal sequence of

plaintiff’s litigation followed by defendant’s remedial

activity is strong evidence of a causal relationship.”).

Thus, we need only consider the first threshold: Did

the settlement provide Petitioners “some of the benefit

sought”? Buckhannon, 532 U.S. at 627 (Ginsburg, J.,

dissenting) (internal quotation marks and citation

omitted).

Answering no, the EPA points out that the settle-

ment agreement did not require it to withdraw the May

22, 2000 rule, but instead allowed the interim approvals

to lapse in December 2001, just as the rule provided.

Although this is true, it establishes only that Peti-

tioners failed to achieve all the relief sought, not that

they achieved none. By arguing that Title V expressly

forbade interim approval extensions lasting more than

two years, Petitioners necessarily sought more than

just invalidation of the EPA’s specific rule. A court

order invalidating the EPA’s May 22 rule based on Pe-

titioners’ interpretation of Title V would also—whether

expressly or impliedly—have invalidated any regula-

tion or other rule permitting extensions lasting more

19a

than two years. Thus, since the settlement agreement

(1) prohibited the EPA from granting additional

interim approvals past December 2001 and (2) required

the EPA to amend 40 C.F.R. § 70.4(d)(2), Petitioners

unquestionably achieved some of the relief they sought.

The EPA’s arguments to the contrary are unper-

suasive. The agency contends that the settlement

agreement’s prohibition against further interim ap-

proval extensions was redundant because the May 22

rule gave notice that the EPA would offer no further

interim approvals. As the record demonstrates, how-

ever, the EPA’s promise was not binding. For exam-

ple, in 1995 the agency granted Title V interim ap-

proval extensions in Delaware and Wisconsin, subject

to the caveat that the extensions would “not be re-

newed.” Title V Clean Air Act Final Interim Approval

of Uperating Permits Program; State of Delaware, 60

Fed. Reg. 62,032, 62,033 (Dec. 4, 1995); Clean Air Act

Final Interim Approval of the Operating Permits

Program; Wisconsin, 60 Fed. Reg. 12,128, 12,136 (Mar.

6, 1995). Yet the 1997, 1998, and 2000 blanket exten-

sions did just that. In contrast, the settlement agree-

ment, like any relief that this court might have granted

on the merits, bound the EPA.

Finally, the EPA argues that requiring it to amend

40 C.F.R. § 70.4(d)(2) does not constitute relief that

Petitioners sought because the regulation “was not the

basis for the May 22, 2000 extension challenged in this

case.” Respondents’ Br. at 5 n.2; see also id. at 15. Not

so. The EPA could have used the regulation, if left

unchanged, to authorize further interim approval ex-

tensions, thereby frustrating Petitioners’ basic goal of

ending the agency’s serial interim approval extensions.

20a

IV.

Because we hold that CAA section 307(f) authorizes

awards of attorney’s fees to catalyst parties, and find-

ing an award “appropriate” under the circumstances of

this case, we grant Petitioners’ motion.

So ordered.

———

2la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2001

No. 00-1262

SIERRA CLUB AND

NEW YORK PUBLIC INTEREST RESEARCH GROUP,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY AND

CAROL M. BROWNER, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY, ;

RESPONDENTS

Filed: Jan. 25, 2002

ORDER

Upon consideration of the stipulation for dismissal of

the petition for review, it is

ORDERED that the Clerk note on the docket that this

case is dismissed. No mandate will be issued. Pursuant

to the parties’ stipulation, petitioners may file a motion

for attorneys’ fee on or before April 2, 2002.

22a

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Mark Butler

Deputy Clerk

a ee ee ee ee eT

23a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2002

No. 00-1262

SIERRA CLUB AND

NEW YORK PUBLIC INTEREST RESEARCH GROUP,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY AND

CHRISTINE TODD WHITMAN, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

Filed: June 5, 2003

ORDER

Before: GINSBURG, Chief Judge, and ROGERS and

TATEL, Circuit Judges

Upon consideration of respondents’ petition for

rehearing filed May 12, 2003, it is

ORDERED that the petition be denied.

Per Curiam

24a

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk -

25a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2002

No. 00-1262

SIERRA CLUB AND

NEW YORK PUBLIC INTEREST RESEARCH GROU P,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY AND

CHRISTINE TODD WHITMAN, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

Filed: June 5, 2003

ORDER

Before: GINSBURG, Chief Judge, and EDWARDS,

SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL

and GARLAND,” Circuit Judges

Upon consideration of respondents’ petition for re-

hearing en banc, and the absence of a request by any

member of the court for a vote, it is

ORDERED that the petition be denied.

* Circuit Judge Garland did not participate in this

matter.

26a

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

27a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1262

SIERRA CLUB AND

NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.,

PETITIONERS

ae cea VU.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

CAROL BROWNER, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

SETTLEMENT AGREEMENT

WHEREAS Petitioners Sierra Club and the New

York Public Interest Research Group, Inc. (collectively

“Sierra Club”) filed the above captioned petition for

review challenging the final action taken under the

Clean Air Act (“CAA”) by the Environmental Protec-

tion Agency (“EPA”), entitled “Extension of Operating

Permits Program, Interim Approval Expiration Dates,”

65 Fed. Reg. 32,035 (May 22, 2000) (“Interim Approval

Extension”);

WHEREAS EPA does not intend to grant an addi-

tional extension to the state permit programs operating

under interim approval that received the extension

under the Interim Approval Extension, and EPA in-

tends to take the steps necessary to ensure that an

operating permit program under 40 C.F.R. Part 71 is in

28a

effect by December 1, 2001, in each area for which EPA

has not issued a full program approval by December 1,

2001.

WHEREAS EPA and Sierra Club (collectively the

“Parties”) wish to implement this Settlement Agree-

ment (“Agreement”) to avoid protracted and costly

litigation and to preserve judicial resources;

NOW, THEREFORE, the Parties, intending to be

bound by this Agreement, hereby stipulate and agree

as follows:

1. Within three days after this Agreement is

executed by the Parties (i.e., signed), but before

finalization pursuant to paragraph 8 of this Agreement,

the Parties shall file a joint motion with the Court

notifying it of this Agreement and requesting that the

briefing schedule in this case be vacated, and that this

petition for review be held in abeyance pending

implementation of, and subject to, the terms of this

Settlement Agreement.

2. The Sierra Club shall have the right to request

that the Court lift the stay of proceedings referred to in

paragraph 1 above and to establish a schedule for

briefing and oral argument, and EPA shali not oppose

such a request to lift the stay, if and only if any one of

the following events occur:

A. If EPA fails to sign no later than December

15, 2000, a notice of proposed rulemaking that pro-

poses to make amendments to 40 C.F.R. § 70.4(d)(2)

that are the same in substance as set forth in Attach-

ment C to this Agreement. |

B. If EPA fails to sign no later than June 1, 2001,

a notice of final action that adopts amendments to 40

29a

C.F.R. § 70.4(d)(2) that are the same in substance as

set forth in Attachment C to this Agreement.

C. If EPA fails to send, within 10 days of the date

that the Parties execute this Settlement Agreement,

letters to the permitting authority for each of the -

areas listed in Attachment A that provide notifica-

tion to such areas the same in substance as that set

forth in Attachment D.

D. If EPA signs a proposed or final rule to

extend the interim approval of the title V permit pro-

gram for one or more of the areas listed in Attach-

ment A.

E. If EPA fails to sign, within 10 days of the date

that the Parties execute this Settlement Agreement,

a notice for publication in the Federal Register in-

forming the public of a 90-day opportunity to identify

any programmatic and/or implementation deficien-

cies in State Title V Permit Programs that have been

granted full or interim approval that were not raised

at the time of the interim or full approval of the Title

V Permit Program for a specific permitting author-

ity, which notice provides for the same in substance

as that set forth in Attachment E.

F.. If for the notices described in paragraphs 2.A.,

2.B, and 2.E above, EPA fails to deliver such notices,

within 5 business days of signing such notices, to the

Office of the Federal Register for publication.

G. If EPA withdraws the notices referred to in

paragraph 2.A or in paragraph 2.E (including the 90-

day comment period referred to in paragraph 2.E), or

modifies said notices in such a manner that they do

30a

not provide for the same in substance as that set

forth in Attachments C or E, respectively, or if EPA

withdraws the final action referred to in paragraph

2.B, or modifies said final action in such a manner

that it does not provide for the same in substance as

that set forth in Attachment C.

H. If EPA fails to provide Sierra Club beginning

120 days from the date this Agreement is executed

by the parties, and at 120-day intervals thereafter,

with a status report on the Agency’s progress and

the status of implementation of this Agreement.

I. If EPA fails to notify Sierra Club in writing |

that EPA has signed any notice or letter described in

paragraphs 2.A, 2.B, 2.C, 2.D, 2.E, and 2.G above,

within 5 business days of having signed any such

notice or letter.

J. If EPA has not notified the Sierra Club within

120 days of executing this Agreement that this

Agreement is final in accordance with paragraph 8

below.

Before Sierra Club may move to lift the stay of this

case pursuant to subparagraphs A, B, C, E, F, H, I, and

J above, on the basis that EPA failed to take a refer-

enced action by the specified date in those subpara-

graphs, Sierra Club shall notify EPA in writing of its

intent to move to lift the stay 3 business days before

filing such a motion. If EPA takes the referenced

action within 3 business days of having received such

notice, Sierra Club may not move to lift the stay on that

basis. The terms of this paragraph under which Sierra

Club may lift the stay of this case shall apply during

(but not limited to) the time EPA considers whether to

3la

finalize this Agreement in accordance with paragraph 8

below.

3. Sierra Club shall not challenge in any court or

administrative proceeding the validity of any EPA re-

vision to 40 C.F.R. § 70.4(d)(2) that, in accordance with

paragraph 2.B. above, provides for the same in sub-

stance as that contained in Attachment C to this Agree-

ment, provided that Sierra Club reserves any rights it

may have to challenge in any court or administrative

proceeding any portion of such revision that is not the

same in substance as that contained in Attachment C to

this Agreement.

4. For purposes of this Agreement, if any EPA

action in accordance with paragraphs 2.C and 2.E above

does not include the actual dates or time periods set out

in Attachments D and E, then such EPA action shall

not be considered to be the same in substance as that

set forth in said Attachments. The Parties agree that

the preceding sentence does not set out the exclusive

bases on which such EPA actions may be considered

not to provide for the same in substance as that set

forth in said Attachments.

5. Notwithstanding any other provision of this

Agreement, within 20 days of December 1, 2001, the

Parties shall file a joint stipulation of dismissal of

petition for review No. 00-1262 in accordance with Rule

42 of the Federal Rules of Appellate Procedure, if, by

December 1, 2001, (a) for each area in Attachment A,

EPA has either taken final action fully approving the

Title V Permit Program or the federal Title V permit

program has taken effect, (b) EPA has not extended the

interim approval of the State Title V Permit Programs

for one or more of the areas listed in Appendix A, (c)

the stay of litigation has not been lifted in accordance

32a

with paragraph 2 above, and (d) a motion by Sierra

Club to lift the stay in accordance with paragraph 2 has

not been pending before the Court for more than 60

days. At Sierra Club’s request, EPA shall provide the

Sierra Club with verification that the terms of pro-

visions (a) and (b) of this paragraph for a stipulated dis-

missal have been met. Such stipulation of dismissal

shall provide an opportunity for Sierra Club to petition

the Court for attorneys’ fees within a reasonable period

of time, which petition EPA may oppose, and for the

Court to resolve the merits of any such contested peti-

tion. This paragraph sets out the terms for a stipulated

dismissal only, and neither party concedes that all or

any portion of such terms necessarily establish either

necessary or sufficient grounds for the dismissal of

petition for review No. 00-1262, where the claim for

dismissal is contested.

6. The dates for any EPA action under this Agree-

ment, unless otherwise provided, shall be the date of

signature by the Administrator or her delegate.

7. The Parties in their joint motion referred to in

paragraph 1 shall request that EPA provide the Court

with status reports at 120-day intervals to inform the

Court of the status of the Agency’s implementation of

the Settlement Agreement.

8. The Parties agree and acknowledge that before

this Agreement is final, EPA must provide notice in the

Federal Register and an opportunity for comment

pursuant to Clean Air Act section 113(g), 42 U.S.C.

§ 7413(g). EPA shall submit said notice of this Agree-

ment to the Federal Register for publication as expedi-

tiously as possible. After this Agreement has under-

gone an opportunity for notice and comment, the Ad-

ministrator and/or the Attorney General, as appropri-

33a

ate, shall promptly consider any such written comments

in determining whether to withdraw or withhold her

consent to the Agreement, in accordance with section

113(g) of the Clean Air Act. This Agreement shall

become final on the date that EPA notifies such parties

in writing of such finality to the Parties.

9. Nothing in this Agreement shall be construed to

limit or modify the discretion accorded EPA by the

Clean Air Act or by general principles of administrative

law. In addition, nothing in this Agreement shall be

construed to limit or modify EPA’s discretion to alter,

amend or revise any regulations, guidance, or

interpretations EPA may issue in accordance with this

Agreement from time to time or to promulgate or issue

superseding regulations, guidance, or interpretations.

10. Except as set out in this Agreement, the parties

retain ail rights they may otherwise have.

11. The undersigned representatives of each party

certify that they are fully authorized by the party that

they represent to bind that respective party to the

terms of this Agreement.

Respectfully submitted,

LOIS J. SCHIFFER

Assistant Attorney General

ls) DAVID J. KAPLAN /s/ DAVID BARON

DAVID J. KAPLAN, Attorney DAVID BARON

Environment and Natural Earthjustice Legal

Resources Division Defense Fund

U.S. Department of Justice 1625 Massachusetts Ave.,

P.O. Box 23986 N.W.

Washington, D.C. 20026-3986 Washington, D.C. 20036-2212

(202) 514-0997 (202) 667-4500

For Respondent For Petitioners

Dated: November 21, 2000 Dated: November 20, 2000

35a

ATTACHMENT A

STATE AND LOCAL OPERATING PERMITS

PROGRAMS WITH INTERIM APPROVAL

Alabama

Huntsville, AL

Jefferson County, AL

Alaska

Arizona

Maricopa County, AZ

Pima County, AZ

Pinal County, AZ

Arkansas

Amador County APCD, CA

Bay Area AQMD, CA

Butte County APCD, CA

Calaveras County APCD, CA

Colusa County APCD, CA

El Dorado County APCD, CA

Feather River AQMD, CA

Glenn County APCD, CA

Great Basin Unified APCD, CA

Imperial County APCD, CA

Kern County APCD, CA

Lake County AQMD, CA

Lassen County APCD, CA

Mariposa APCD, CA

Mendocino County APCD, CA

Modoc County APCD, CA

Mojave Desert AQMD, CA

Monterey Bay Unified APCD, CA

North Coast Unified AQMD, CA

36a

Northern Sierra AQMD, CA

Northern Sonoma County APCD, CA

Placer County APCD, CA

Sacramento Metropolitan AQMD, CA

San Diego APCD, CA

San Joaquin Valley Unified APCD, CA

San Luis Obispo County APCD, CA

Santa Barbara County APCD, CA

Shasta County AQMD, CA

Siskiyou County APCD, CA

South Coast AQMD, CA

Tehama County APCD, CA

Tuolumne County APCD, CA

Ventura County APCD, CA

Yolo-Solano AQMD, CA

Connecticut

Delaware

District of Columbia

Florida

Hawaii

Idaho

Illinois

Indiana

Kentucky

Maine

Maryland

Massachusetts

Michigan

37a

Minnesota

Montana

' Nevada

Washoe County, NV

Clark County, NV

New Hampshire

New Jersey

New York

North Carolina

Western North Carolina

Mecklenburg County, NC

Oklahoma

Rhode Island

Tennessee

Memphis-Shelby County, TN

Texas

Vermont

Virgin Islands

Virginia

Washington

Benton County, WA

Northwest AP Authority, WA

Olympic AP Control Authority, WA

Puget Sound, WA

Southwest AP Control Authority, WA

38a

Spokane County, WA

Yakima County, WA

West Virginia

Wisconsin

39a

ATTACHMENT B

STATE AND LOCAL OPERATING PERMITS

PROGRAMS WITH FULL APPROVAL

Colorado

Georgia

Iowa

Kansas

Louisville-Jefferson County, KY

Louisana

Mississippi

Missouri

Nebraska

Lincoln-Lancaster County, NE

Omaha-Douglas County, NE

New Mexico

Albuquerque, NM

Forsyth County, NC

North Dakota

Ohio

Oregon

Lane Regional, OR

Pennsylvania

Puerto Rico

South Carolina

South Dakota

40a

Nashville-Davidson County, TN

Hamilton County, TN

Knox County, TN

Utah

Wyoming

4la

ATTACHMENT C

Proposed Revised Text for the first taree sentences

of 40 C.F.R. § 70.4(d)(2):

Interim approval shall expire on a date set by the

Administrator (but not later than 2 years after such

tee Se

through-nelemaling) 2 and d may not be renewed. So

42a

ATTACHMENT D

For inclusion in the notice to permitting authorities

in an EPA letter in accordance with Paragraph 2.C. of

this Agreement:

(i) Under the Interim Approval Extension, by

June 1, 2001, States are to submit a revised Title V

Permit Program, for each area identified in Attach-

ment A, that addresses the deficiencies previously

identified at the time such area received interim

approval, in order to provide EPA sufficient time to

approve or disapprove such programs by December

1, 2001;

(ii) the federal permit program will apply auto-

matically in each area for which EPA has not issued

a full approval of the Title V Permit Program by

December 1, 2001; and

(iii) EPA does not intend to provide an additional

extension of interim approval authority for any area

listed in Attachment A

43a

ATTACHMENT E

For inclusion in a Federal Register notice providing

the public a 90-day period to identify deficiencies in

State Title V Permit Programs, in accordance with

Paragraph 2.E:

(i) | EPA intends to respond on the merits to any

such claims of deficiency raised during this 90-day

period no later than December 1, 2001 for the areas

listed in Attachment A of the Agreement (interim

approved programs);

(ii) | EPA intends to respond on the merits to any

such claims of deficiency raised during this 90-day

period no later than April 1, 2002 for the areas listed in

Attachment B of the Agreement (fully approved

programs);

(iii) EPA believes the time periods in subpara-

graphs (i) and (ii) above provide adequate time for EPA

to respond to comments raised during the afore-

mentioned 90-day comment period;

(iv) for those deficiencies identified during the 90-

day comment period with which EPA agrees, EPA

intends to issue a notice of deficiency in which EPA

specifies the timeframe for the permitting authority to

correct any program deficiencies in accordance with 40

C.F.R. § 70.4(i) and any implementation deficiencies in

accordance with 40 C.F.R. § 70.10;

(v) for those alleged deficiencies with which EPA

disagrees, EPA will explain its reasons for not making a

finding of program deficiency and will not assert that

the claims of deficiency were waived because they could

44a

have been previously raised at the time the program

initially received interim or full approval; and

(vi) in accordance with 40 C.F.R. § 70.4(i), EPA

may provide a permitting authority with no more than

two years to correct a program deficiency.

~ 45a

APPENDIX F

PARTIAL SETTLEMENT AGREEMENT ON

COSTS OF LITIGATION

Introduction

1. This Partial Settlement Agreement on Cost of

Litigation (“Settlement Agreement”) is entered into by

and between the United States, on behalf of the United

States Environmental Protection Agency (collectively,

“United States”); and Sierra Club and the New York

Public Interest Research Group (collectively, “Peti-

tioners”).

2. On June 21, 2000, Petitioners filed petition

for review No. 00-1262 (“the Litigation”) in the United

States Court of Appeals for the D.C. Circuit (court)

challenging final action of the Environmental Protec-

tion Agency (EPA) at 65 Fed Reg. 32035 et seq. (May

22, 2000), entitled “Extension of Operating Permits,

Program Interim Approval Expiration Dates.”

3. On November 21, 2000, the parties executed a

Settlement Agreement wherein the parties agreed,

inter alia: a) to stay the Litigation pending EPA per-

formance of certain specified actions; b) to jointly stipu-

late to dismissal of the Litigation after certain condi-

tions were met; and c) to provide in the stipulation of

dismissal for a opportunity for Petitioners to petition

EPA the court for attorneys’ fees within a reasonable

time, which petition EPA could oppose.

4, On January 11, 2002, the parties filed a stipulation

for dismissal pursuant to the above-cited provisions of

the November 21, 2000 Settlement Agreement. The

stipulation provided that Petitioners would have until

46a

April 2, 2002 to file a motion for attorneys’ fees. Upon

consideration of the stipulation, the court on January

25, 2002 directed the Clerk to note on the docket that

the case was dismissed, and granted Petitioners until

April 2, 2002 to file a motion for attorneys’ fees. Upon

subsequent joint motion of the parties, the court ex-

tended the deadline for Petitioners’ fee motion to May

16, 2002.

5. The parties do not agree on whether Petitioners

are entitled to attorneys’ fees with respect to the

Litigation. Petitioners contend that they are entitled to

attorney’s fees, while the United States contends that

Petitioners are not entitled to such fees. Petitioners

therefore intend to file a motion for attorneys’ fees not

later than May 16, 2002. The parties do, however, wish

to execute a partial settlement on the amount of Peti-

tioners’ costs and attorneys’ fees in the event that the

court determines that Petitioners are entitled to an

award of fees. Accordingly, the parties agree as follows:

Agreement

6. Upon a “final judicial determination” that Peti-

tioners are entitled to an award of costs of litigation,

including attorneys’ fees, (“fees”) with respect to

the Litigation, the United States shall pay $55,000 to

Earthjustice by electronic funds transfer to the

following account:. * * *, routing no. * * * , tothe

account of Earthjustice Legal Defense Fund, account

no. * * * . For purposes of this Agreement, a “final

judicial determination” occurs as follows: a) If the court

determines that Petitioners are entitled to fees (“enti-

tlement order”), a final judicial determination shall be

deemed to have occurred when all opportunities for

rehearing in the D.C. Circuit and review in the U.S.

47a

Supreme Court have expired or been exhausted with-

out material change to the court’s entitlement order; b)

If the court determines that Petitioners are not entitled

to an award of fees with respect to the Litigation, and

that determination is subsequently reversed on review

before the United States Supreme Court, a final judicial

determination shall be deemed to have occurred on date

of the decision by the Supreme Court.

7. Any obligations of the United States to obligate

or expend funds under this Settlement Agreement are

subject to the availability of appropriations in accor-

dance with the Anti-Deficiency Act, 31 U.S.C. § 1341.

This Settlement Agreement shall not be construed to

require the United States to obligate or pay funds in

contravention of said Anti-Deficiency Act.

8. If the amount agreed upon in paragraph ‘6’ is not

paid within 90 days of a final judicial determination of

Petitioners’ entitlement to fees, Petitioners may make

application to the court for an award of fees, pursuant

to Clear Air Act §307(f). The United States reserves

the right to object to the amount of costs and fees

sought in such application.

9. Petitioners agree that payment of the amount

referenced in paragraph ‘6’ will constitute full and final

payment of all fees incurred in connection with the

- Litigation, except fees incurred in litigation over Peti-

tioners’ entitlement to fees. Upon a final judicial

determination that Petitioners are entitled to fees, the

parties will attempt to negotiate a separate settlement

agreement on the amount of fees incurred in litigation

over Petitioners’ entitlement to fees. If the parties are

unable to conclude such a separate settlement agree-

ment within 90 days of the final judicial determination,

Petitioners’ may make application to the court for an

48a

award of such fees. The United States reserves the

right to object to the amount of fees sought in such

application.

10. The parties agree that Petitioners’ motion for

attorneys’ fees, due May 16, 2002, will ask the court to

resolve only the issue of Petitioners’ entitlement to

fees. The motion will notify the court that the United

States disputes Petitioners’ entitlement to attorney’s

fee in connection with the Litigation, but that parties

have reached a settlement on the fee amount that the

United States will pay in the event that the court

determines that Petitioners are entitled to fees. The

motion will further notify the court that the settlement

does not address the amount of fees that may be

incurred in litigation over Petitioners’ entitlement to

fees, but that the parties will attempt to negotiate a

settlement over such amount within 90 days of a final

judicial determination that Petitioners are entitled to

fees.

11. The parties hereby stipulate that the May 16,

2002 deadline for Petitioners’ fee motion applies only to

a motion seeking a determination of Petitioners’ entitle-

ment to fees, and does not apply to the fee applications

provided for in paragraphs 8 and 9 above. The parties

further stipulate that the deadline for any fee appli-

cations allowed by paragraphs 8 and 9 shall be 90 days

after a final judicial determination that Petitioners are

entitled to fees.

12. The undersigned representatives of each party

certify that they are fully authorized by the party or

parties they represent to enter into this Settlement

Agreement.

SO AGREED:

49a

THOMAS L. SANSONETTI

Assistant Attorney General

Environment and Natural Resources Division

Date: 5-10-02

/s/ DAVID J. KAPLAN

DAVID J. KAPLAN

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-0997

ON BEHALF OF THE USS.

ENVIRONMENTAL

PROTECTION AGENCY

Date: 5/10/02

/s/ DAVID S. BARON

DAVID S. BARON

Earthjustice Legal Defense

Fund

1625 Massachusetts Avenue,

Suite 702

Washington, D.C. 20036

(202) 667-4500

ON BEHALF OF SIERRA

CLUB AND NEW YORK

PUBLIC INTEREST

RESEARCH GROUP

50a

APPENDIX G

STATUTORY PROVISIONS INVOLVED

Section 307 of the Clean Air Act provides in relevant

part:

Administrative proceedings and judicial review

* * * * *

(b) Judicial review

(i) A petition for review of action of the Admini-

strator in promulgating any national primary or

secondary ambient air quality standard, any emission

standard or requirement under section 7412 of this

title, any standard of performance or requirement

under section 7411 of this title, any standard under

section 7521 of this title (other than a standard

required to be prescribed under section 7521(b)(1) of

this title), any determination under section 7521(b)(5)

of this title, any control or prohibition under section

7545 of this title, any standard under section 7571 of

this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nation-

ally applicable regulations promulgated, or final ac-

tion taken, by the Administrator under this chapter

may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section

7410 of this title or section 7411(d) of this title, any

order under section 7411(j) of this title, under section

7412 of this title,, [sic] under section 7419 of this title,

or under section 7420 of this title, or his action under

effect before August 7, 1977) or under regulations

5la

thereunder, or revising regulations for enhanced

monitoring and compliance certification programs

under section 7414(a)(3) of this title, or any other

final action of the Administrator under this chapter

(including any denial or disapproval by the Admini-

strator under subchapter I of this chapter) which is

locally or regionally applicable may be filed only in

the United States Court of Appeals for the appropri-

ate circuit. Notwithstanding the preceding sentence

a petition for review of any action referred to in such

sentercze may be filed only in the United States

Court of Appeals for the District of Columbia if such

action is based on a determination of nationwide

scope or effect and if in taking such action the

Administrator finds and publishes that such action is

based on such a determination. * * *

* * * * *

(f) Costs

In any judicial proceeding under this section,

the court may award costs of litigation (including

reasonable attorney and expert witness fees)

whenever it determines that such award is

appropriate.

42 U.S.C. 7607.

52a

Section 502 of the Clean Air Act provides in relevant

part:

Permit programs

* * * * -

(b) Regulations

The Administrator shall promulgate within 12

months after November 15, 1990, regulations

establishing the minimum elements of a permit

program te be administered by any air pollution

control agency. * * *

* * * * *

_(d) Submission and approval

(1) Not later than 3 years after November 15,

1990, the Governor of each State shall develop and

submit to the Administrator a permit program under

State or local law or under an interstate compact

meeting the requirements of this subchapter. * * *

* * * * *

(g) Interim approval

If a program (including a partial permit program)

submitted under this subchapter substantially meets

the requirements of this subchapter, but is not fully

approvable, the Administrator may by rule grant the

program interim approval. In the notice of final rule-

making, the Administrator shall specify the changes

that must be made before the program can receive

full approval. An interim approval under this

subsection shall expire on a date set by the

Administrator not later than 2 years after such

approval, and may not be renewed. For the period of

53a

any such interim approval, the provisions of

subsection (d)(2) of this section, and the obligation of

the Administrator to promulgate a program under

this subchapter for the State pursuant to subsection

(d)(3) of this section, shall be suspended. Such

provisions and such obligation of the Administrator

shall apply after the expiration of such interim

approval.

42 U.S.C. 7661a.

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.