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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1104

## Text

| F . -preme Court, U.S.
‘ai SR ILES

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)

Il

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
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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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ITI ai cliteidiastvianansistdeeeninessaesphtaerninnieananninanonensentennananaintinens

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)

11

IV

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

© BI Se UC, Fee terricrieninnintiiiceniimmiionn 3

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

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

© GOD, GB B.C. FOG I a onccrersscqsscccersctorenicaneons ancien 4, 52a, 58a

© GRRE, Ga UK, Fee iteeetriitmionn 4, 52a

§ 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:
BD Pad, Bc: GEIB TIO secccensseesecensvscninennninnvnviimnifitinlaniaes 4
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,

2

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

3

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-

4

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

5

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

6

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

7

(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

8

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

9

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

10

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.

11

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

12

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

13

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-

14

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

15

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.

16

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

17

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).

18

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

19

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

20

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

21

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

22

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

23

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.

D4

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)

2a

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.

I.

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 .. .

3a

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,

4a

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]

5a

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

6a

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

Ta

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.

8a

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
©07(f) have similar meanings, the history of § 304 is
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

9a

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.

ER

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,
NW

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
section 1857c-10(c)(2)(A), (B), or (C) of this title (as in ©
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2226%3A1. Public record. Not legal advice.