Opposition Brief — Environmental Protection Agency v. Sierra Club

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i> Supreme Court. US

ei riLeDp

No. 03-509

|

DEC 5 - 2003 |

OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

a

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Petitioners,

V.

SIERRA CLUB, et al.,

Respondents.

4

On Petition For A Writ Of Certiorari

To i: he United States Court Of Appeals

For The District Of Columbia Circuit

¢

BRIEF IN OPPOSITION

¢

DAVID S. BARON

EARTHJUSTICE

1625 Massachusetts Avenue, N.W.

Suite 702

Washington, D.C. 20036

(202) 667-4500

Counsel of Record for Respondents

Sierra Club and New York Public

Interest Research Group

December 5, 2003

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Court of Appeals acted properly in

following this Court’s longstanding holding that a party

achieving success without obtaining a formal court order is

eligible for an attorneys’ fee award under §307(f) of the

Clean Air Act, a statute that does not require fee appli-

cants to ve “prevailing” parties, but rather allows for fee

awards “whenever [the court] determines such award is

appropriate.”

DISCLOSURE STATEMENT

Sierra Club and New York Public Interest Research

Group, Inc. (Nj “%G) have no parent companies, and

there are no publicly-held companies owning any stock in

Sierra Club or NYPIRG. Sierra Club is a national non-

profit organization incorporated in California and dedi-

cated to the protection and enjoyment of the environment.

NYPIRG is a nonprofit organization incorporated in New

York, and dedicated to environmental protection, con-

sumer rights, and government reform.

TABLE OF CONTENTS

Page

SFE e ee EOE R TUMEME T cnsvevssavesensessssouncsacsstcossscsnases 1

REASONS FOR DENYING THE PETITION............ 3

I.

IT.

ITI.

IV.

THE COURT OF APPEALS CORRECTLY

HELD THAT THE CLEAN A‘R ACT AL-

LOWS FEE AWARDS FOR NON-JUDICIAL

Tc bibitniatispnnvbnvinctouteseniandxsnnnesarsaaniininess

A. Ruckelshaus is Dispositive ....................0.

B. Buckhannon is Inapplicable to the Clean

Air Act’s Fee Provision ................cssscesesees

THE D.C. CIRCUITS HOLDING DOES

NOT CONFLICT WITH ANY DECISION OF

ANY OTHER COURT OF APPEALS .............

PRINCIPLES OF STARE DECISIS STRONGLY

MILITATE AGAINST GRANTING CERTIO-

NO OTHER FACTORS MAKE THIS CASE

WORTHY OF THE COURT'S ATTENTION...

I Se scieisnilatebecshyehenienaiedacesiaeksasnmeceosaakenan

11

11

iv

TABLE OF AUTHORITIES

Page

CASES:

Bowen v. City of New York, 476 U.S. 467 (1986) ............... 10

Buckhannon Board & Care Home, Inc. v. West

Virginia Department of Health & Human Re-

sources, 532 U.S. 598 (2001) .............sscscsseseeseeeeees 3, 4, 6, 7

Center for Biological Diversity v. Norton, 262 F.3d

Be Ce Ie BE Bi chincncsaccinmiepbecctnaniantideinaveaematicneddien 8

Hensley v. Eckerhart, 461 U.S. 424 (1983) ........... eee 7

Hilton v. South Carolina Public Railways Commis-

SN, FE Ve Pe CRED tekaranrtentineinnmena 9, 10

Loggerhead Turtle v. County Council, 307 F.3d 1318

GS SUE SNE sslapnsiccesettesieuindenmedsaiscnndabscmmmandeummcenaatieas 8

Ober v. EPA, 84 F.3d 304 (9th Cir. 1996)... eeeeeeee 8

1000 Friends of Maryland v. Browner, 265 F.3d 216

Ce Re SUED eicsinccicenncevcanclaiiennaiinnncpabsbieiabuaiccaaiuniaasaatieniedss 8

Pearson v. Western Electric Co., 542 F.2d 1150 (10th

SEIU: SPIT cxccasasctissnsensiseesconsionannandipedeccamaaiaaauaalidbidaamlabanabibtadiain 5

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

Seminole Tribe of Florida v. Florida, 517 U.S. 44

IT casei saicihticaeilehsancigicaaiecalaitadbesiedsasraiebasiaiain se lisiatihanaadacitiende 6

Sierra Club v. EPA, 311 F.3d 853 (7th Cir. 2002)............... 8

Southern Organizing Committee v. EPA, 333 F.3d

ee ee eicccstoncncsivaneusansesssicencsndiionniiesiianatanions 8

Southwestern Pennsylvania Growth Alliance v.

Browner, 144 F.3d 984 (6th Cir. 1998).......... eens 8

a

TABLE OF AUTHORITIES — Continued

Page

STATUTES:

Clean Air Act §101 et seg., 42 U.S.C. 7401 et seq.:

SSOAG), 42 U.B.C. § TOOK GE) .0..0ecrcesecesssccssovesosoveeqosseoesons 10

SOOT, SE 57 TG, © FRG vi risttincesssicapeecenientinennen 8

§307(b)(1), 42 U.S.C. §7607(b)(1) .............sssscecssserecesesccene 8

rh, OEe CAAA. B Fe ri ittetcctivccsamensectociicbiekoumans passim

SOS), GS U.S. F FOC AGED cccevncesnesiserssesionisannnntanseensvni 1

Pub.L. 101-549, 104 Stat. 2399 (1990) oo. ee eeeeee 9

Code of Federal Regulations:

BD CF Fe esses sicnicseinteininnsianiliaiinaiaantacataaeaaan 2

BO CIAR. Fla I eviccnticcsmnsireniiasiiaiaaeaans 1

GD CER. FE. FO GN. I srcsncesessesteintntivineensnbeeaaee 2

MISCELLANEOUS:

65 Fed.Reg. 32085 (2000)..............ssesssessosscsssssesssenccosscevees 1

GS FOR TAS, TE CN ertincsiinsicegiaanenemaeaanel 2

OO Peed: Diner, SURGE CIGD sii isnessrsniecesccsevsvasnenvnecoioneientients Z

GG Fed. Rag, SEBS (QO) «..ccscssesssesssensesesesevessoesseessooesseves 2

BF ee, Be tierkercenisviionssneichinemntenael 2

OF FOE ee. Gre Ce wetecesinencirmenccscsanidenseseeeieatmenean 2

Brief for Petitioner, Ruckelshaus v. Sierra Club,

1968 LIGA UB. Tex0l BAG ooncesccccoscccecdecsevensvescsovesees 6, 10

. 1

COUNTERSTATEMENT

In this case, Respondents Sierra Club and New York

Public Interest Research Group (collectively, “Sierra Club”)

challenged EPA’s repeated renewal of “interim” approvals

of deficient state air pollution permit programs under Title

V of the Clean Air Act (the Act). Interim approval allows a

state, rather than EPA, to issue air pollution permits for

purposes of Title V, even though the state’s permit pro-

gram does not meet all of the Act’s requirements. 42

U.S.C. §7661a(g). The Act strictly limits interim approval

to a single, non-renewable period of two years, during

which time the state has an opportunity to correct the

remaining deficiencies in its program. Jd. If the state has

not corrected all of the deficiencies by the end of the

interim approval period, EPA must immediately take over

administration of Title V permit program in that state. Id.;

40 C.F.R. §71.4(a)(2) (2003).

The renewal challenged by Sierra Club in the instant

case was the fourth one granted by EPA, prolonging the

total duration of interim approval for some states to five

years. 65 Fed. Reg. 32035, 32036-37 (2000). Sierra Club’s

petition for review in the D.C. Circuit argued that the

renewal violated §502(g) of the Act, which provides that

“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.” 42

U.S.C. §7661a(g) (emphasis added). Sierra Club asked the

Court to vacate the renewal and order EPA not to grant

any additional renewals. Opening Brief of Sierra Club at

11, Sierra Club v. EPA (D.C. Cir. 2000) (No. 00-1262).

In pre-briefing pleadings, EPA conceded that Sierra

Club had raised a substantial challenge. Respondent EPA's

2

Opposition to Petitioners’ Motion for Expedited Considera-

tion, Aug. 7, 2000, at 2 n.1. Six days before EPA’s brief was

due, the parties entered into a Settlement Agreement

providing, inter alia, that: 1) EPA would not grant further

interim approval extensions, and would notify states that

the federal Title V program would automatically supplant

any state program not fully approved by December 1,

2001; 2) EPA would repeal, by June 1, 2001, the portion of

an existing rule, 40 C.F.R. §70.4(d)(2), that purported to

allow additional interim approval extensions; and 3) EPA

would initiate and complete, within specified time frames,

a formal notice and comment process to identify and

remedy additional deficiencies in State Title V permit

programs beyond those previously identified by EPA. Pet.

App. 27a-44a. The Settlement Agreement further provided

for a stay of the litigation pending implementation of the

Agreement’s terms. Id. 28a.

On November 30, 2000 the Court of Appeals ordered

that the litigation be held in abeyance pending implemen-

tation of the Settlement Agreement. Thereafter, EPA

proceeded to implement the Settlement Agreement by,

among other things: terminating all interim approvals by

December 1, 2001, repealing the rule that purported to

allow further interim approval extensions, and requiring a

number of states to correct additional program deficiencies

identified in the settlement-mandated notice and comment

process. 40 C.F.R. Pt. 70, App. A (2003); 67 Fed. Reg. 6709

(2002); 67 Fed. Reg. 5490 (2002); 66 Fed. Reg. 63236

(2001); 66 Fed. Reg. 27008 (2001); 65 Fed. Reg. 77376

(2000).

On Sierra Club’s motion to the D.C. Circuit for attor-

neys’ fees, EPA did not not seriously question Petitioners’

success, conceding that the “sole dispute” was “whether a

3

fee-award under CAA §307(f) can be based upon the

‘catalyst theory.’” EPA’s Opposition to Petitioners’ Motion

for Attorneys Fees at 1 (June 26, 2002). The Court of

Appeals held without dissent that this question had been

resolved 20 years ago in Ruckelshaus v. Sierra Club, 463

1.S. 680 (1983). There, this Court specifically found that

in providing for fee awards under §307(f) “whenever [the

court] determines that such award is appropriate,” Con-

gress meant to allow fees in “suits that forced defendants

to abanden illegal conduct, although without a formal

court order.” Jd. 686 n.8. The Court of Appeals refused to

dismiss this holding as dictum, noting that to do so would

“pull the rug from under” the statutory interpretation

adopted by Ruckelshaus to decide the case before it. Pet.

App. 12a. The D.C Circuit also rejected EPA claims that

Ruckelshaus was impliedly overruled by Buckhannon Bad.

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

Human Res., 532 U.S. 598 (2001), noting that Buckhannon

construed a differently worded fee statute allowing fee

awards only to “prevailing” parties, and that Buckhannon

made no mention whatsoever of Ruckelshaus. Pet.

App.13a-14a. EPA petitioned the D.C. Circuit for rehear-

ing en banc, but the petition was denied because no

member of that court requested a vote thereon. Id. 25a.

a

id

REASONS FOR DENYING THE PETITION

The Court of Appeais correctly followed Ruckelshaus

in holding that the Clean Air Act, unlike statutes that

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

fee awards to parties who obtain relief without a formal

court order. The D.C. Circuit’s holding does not conflict

with any decision of any other court of appeals: Indeed, the

4

two other circuit courts that have addressed the matter

since Buckhannon have agreed that “whenever appropri-

ate” fee statutes like the one at issue here authorize fee |

awards for non-judicial success. Nor does this case present |

any other issue of federal law warranting this Court’s

review.

I. THE COURT OF APPEALS CORRECTLY

HELD THAT THE CLEAN AIR ACT ALLOWS

FEE AWARDS FOR NON-JUDICIAL SUCCESS

A. Ruckelshaus is Dispositive

The Court of Appeals correctly relied on Ruckelshaus

in holding that a formal court order or judgment is not a

prerequisite to fee eligibility under §307(f) of the Clean Air

Act. Ruckelshaus held that Congress used the “whenever

appropriate” language in §307(f) specifically to extend fee

awards “to suits that forced defendants to abandon illegal

conduct, although without a formal court order.” 463

U.S. at 686 n.8 (emphasis added). This holding was hardly

dictum, as EPA claims, but rather an integral part of the

Court’s resolution of the case. To decide whether §307(f)

allowed for fee awards to totally unsuccessful parties (the

fact pattern in Ruckelshaus), this Court had to determine

what Congress meant in authorizing fee awards “when-

ever appropriate.” The Court expressly found that Con-

gress used this language specifically to allow fees to

parties who succeed without formal court order, as op-

posed to the more “sweeping” result of allowing fees for

wholly unsuccessful litigants:

Congress found it necessary to explicitly

state that the term appropriate “extended”

to suits that forced defendants to abandon

illegal conduct, although without formal

—— ae ae

5

court order; this was no doubt viewed as a

somewhat expansive innovation, since, under

then-controlling law, see infra, 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 “ap-

propriate” 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 re-

spondents, it plainly would have said so, as is

demonstrated by Congress’ careful state-

ment that a less sweeping innovation was

adopted.

463 U.S. at 686 n.8 (italics by the Court, boldface added).

Moreover, the Court repeated the above rationale

elsewhere in the Ruckelshaus opinion:

When §307(f) was enacted, the “prevailing party”

standard had been interpreted in a variety of

rather narrow ways ... Some courts - al-

though to be sure, a minority - denied fees

to plaintiffs who lacked a formal court or-

der granting relief ... [Bly enacting §307(f),

Congress intended to eliminate ... the re-

strictive readings of “prevailing party”

adopted in some of the cases cited above...

Id. at 687-88 (emphasis added). Later in the opinion the

Court stated that in using the “whenever appropriate”

standard, Congress intended to “reject{] the restrictive

notions of ‘prevailing party’ adopted in Pearson [v. Western

Electric Co],” 542 F.2d 1150, 1153 (10th Cir. 1976), a case

that had expressly limited “prevailing party” fee awards to

a party “who is successful in court.” Id. at 689-90.

6

Thus, Ruckelshaus stressed no less than three

times (463 U.S. at 686 n.8, 687-88, 689-90) that Congress

used the “whenever appropriate” standard specifically to

reject any requirement that a party had to prevail in court

to be eligible for fees. A rationale so central to the Court’s

reasoning can hardly be characterized as dictum. Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996)

(rationale upon which the Court based the results of

decision is not dictum). Indeed, EPA itself argued in

Ruckelshaus that the “whenever appropriate” standard

was meant to allow fee awards to parties who succeed

without a formal court order. The agency argued to the

Court that “Congress authorized courts to award attor-

neys’ fees when ‘appropriate’ so that fees would be

available to a plaintiff who succeeded in correcting

a violation of the Act but did not obtain a final

judgment.” Brief for Petitioner, Ruckelshaus v. Sierra

Club, 1982 LEXIS U.S. Briefs 242 at 4 (emphasis added).

EPA can hardly claim that the Court’s adoption of this

very position was dictum, when the agency itself argued

that position as a ground for resolving the case.

B. Buckhannon is Inapplicable to the Clean —

Air Act’s Fee Provision

The Court of Appeals also correctly rejected EPA’s

claim that Buckhannon somehow impliedly overruled

Ruckelshaus. As the Court of Appeals explained, Buck-

hannon did not even mention Ruckelshaus, and by its

terms applied only to statutes using the “prevailing party”

standard — a “legal term of art” that the Buckhannon

Court found required success in court before fees could be

allowed. 532 U.S. at 603. Buckhannon in no way under-

mines Ruckelshaus, which ruled that Congress deliberately

7

used a different standard in §307(f) — “whenever appropri-

ate” — precisely to avoid the requirement for success in

court under the “prevailing party” standard.

Statements in Ruckelshaus that §307(f) of the Act

extended fee eligibility to “partially prevailing” parties can

hardly be read as requiring success in court — as EPA

urges — when the opinion repeatedly stressed that Con-

gress used the “whenever appropriate” standard to avoid

just such a result. Rather, as shown above, the Court used

“partially prevailing” to reicr to all the types of success

(including out-of-court success) excluded from fee eligibil-

ity under the restrictive “prevailing party” caselaw cited in

the opinion. 463 U.S. at 689-90.

Indeed, to read the “whenever appropriate” standard

as requiring partial judicial relief - as EPA appears to

argue — would render it indistinguishable from the “pre-

vailing party” standard, which, by the time Ruckelshaus

was decided, had already been construed by this Court to

allow fees for partial or limited judicial relief. Hensley v.

Eckerhart, 461 U.S. 424, 433-36 (1983) (plaintiff need only

achieve “some” of the benefit sought). Ruckelshaus plainly

did not consider “partially prevailing” to mean the same

thing as “prevailing”, but rather viewed these standards

“as two quite different things.” 463 U.S. at 689.

Il. THE D.C. CIRCUIT’S HOLDING DOES NOT

CONFLICT WITH ANY DECISION OF ANY

OTHER COURT OF APPEALS

There is no conflict among the circuits that would

militate in favor of granting certiorari in this matter. The

two other circuit courts that have addressed the matter since

Buckhannon have found that fee awards for non-judicial

8

success are authorized under a “whenever appropriate” fee

statute virtually identical to the one at issue here. Logger-

head Turtle v. County Council, 307 F.3d 1318 (11th Cir.

2002); Center for Biological Diversity v. Norton, 262 F.3d

1077, 1080 n.2 (10th Cir. 2001) (dictum). EPA asserts (at

21) that the three-part catalyst test used by the D.C.

Circuit differs in one detail from that used in two other

circuits, but the details of the catalyst test are simply not

before the Court, as EPA seeks certiorari only on the

question of whether §307(f) authorizes fee awards at all to

parties who do not succeed in court. And the fact-specific

inquiry as to how the test was applied in this case is

hardly a matter deserving of this Court’s review.

Nor is there any reason to abandon this Court’s usual

practice of awaiting a conflict among the circuits before

accepting review. As shown above, this is not one of those

rare instances in which the question presented is confined

to only one circuit, such that conflicts can never arise.

Indeed, contrary to EPA’s suggestion, §307 itself provides

for suits in circuits other than the D.C. Circuit, where the

challenge is to “locally or regionally applicable” EPA

action. 42 U.S.C. §7607(b)(1). Such §307(b)(1) suits do in

fact occur in multiple circuits. See, e.g., Southern Organiz-

ing Committee v. EPA, 333 F.3d 1288 (11th Cir. 2003);

Sierra Club v. EPA, 311 F.3d 853 (7th Cir. 2002); 1000

- Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir.

2001); Southwestern Pennsylvania Growth Alliance uv.

Browner, 144 F.3d 984 (6th Cir. 1998); Ober v. EPA, 84

F.3d 304 (9th Cir. 1996). Because there has been and will

be ample opportunity for any circuit conflict to surface,

review by this Court at the present juncture is simply

unwarranted.

9

III. PRINCIPLES OF STARE DECISIS STRONGLY

MILITATE AGAINST GRANTING CERTIO-

RARI

Because of the “central importance” of stare decisis in

this Court’s jurisprudence, the Court should decline EPA’s

invitation to revisit Ruckelshaus’ construction of §307(f) of

the Act. Hilton v. South Carolina Pub. Rys. Comm’n, 502

U.S. 197, 201 (1991). Considerations of stare decisis “have

special force in the area of statutory interpretation” where

“Congress remains free to alter” what the Court has done.

Id. 202 (citation omitted). Here, Congress has had more

than 20 years in which it could have rejected Ruckelshaus’

reading of §307(f), but it “has not chosen to do so” (502

U.S. at 202), despite having adopted comprehensive

amendments to the Act in the interim (including amend-

ments to both §§304 and 307). Pub.L. 101-549, 104 Stat.

2399 (1990). ;

Moreover, there is simply no reason to abandon

Ruckelshaus’ reading of § 307(f), much less the kind of

“compelling” justification required to depart from stare

decisis. Hilton, 502 U.S. at 202. EPA implies that sover-

eign immunity principles were somehow overlooked in

Ruckelshaus, but in fact Ruckelshaus expressly ad-

dressed those principles in construing the scope and

meaning of §307(f). 463-U.S. at 685-86. (“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 reading of the language of the section re-

quires.”). Likewise, EPA’s own brief in Ruckelshaus began

with a lengthy recitation of sovereign immunity principles,

followed‘ by argument that §307(f) “undeniabl[y] ...

authorized some attorneys’ fee awards against the gov-

ernment,” and that these included fee awards to parties

10

who succeed without formal court order. 1982 LEXIS U.S.

Briefs 242 at 5, 6, 8-9. EPA cannot credibly argue that the

statute’s immunity waiver is narrower today than it was

20 years ago, and even if it could, such an argument is not

a legitimate ground for upsetting settled precedent. See

Hilton, 502 U.S. at 206-07 (rule requiring clear statement

of intent to waive immunity “does not prevail over the

doctrine of stare decisis as applied to a longstanding

statutory construction implicating important reliance

interests”).

Further, contrary to EPA’s claims, Ruckelshaus did

narrowly construe §307(f)’s waiver of sovereign immunity

by limiting that statute’s facially broad authorization of

fee awards “whenever appropriate” to cases where the fee

applicant achieved some success — a limitation that does

not appear on the face of the statute itself. In finding that

the statute nonetheless did authorize fee awards for

parties who succeed without a court order, the Court

simply exercised the requisite care “not to ‘assume the

authority to narrow the waiver that Congress intended’...

or construe the waiver ‘unduly restrictively.’” Bowen v. City

of New York, 476 U.S. 467, 479 (1986) (citations omitted).

Equally groundless is EPA’s claim (at 16-17) that the

Court’s reasoning in Ruckelshaus was not “persuasive”

because it relied in part on the legislative history of

§304(d) of the Act in interpreting §307(f). EPA itself argued

in Ruckelshaus that the Court “must . . . look to the history

of Section 304(d) to determine the intended scope of the

‘appropriate’ standard” under §307(f), because Congress

intended the latter to “conform” with the former. 1982

LEXIS U.S. Briefs 242 at 7, 9 (emphasis added). The Court

followed that approach, finding that “(because

§$304(d) and 307(f) have similar meanings, the history of

Rr a

ee |

11

§304 is relevant to a construction of §307(f).” 463 U.S. at

692 n.13. EPA can hardly now fault the Court for following

the very approach that the agency itself argued was

essential.

IV. NO OTHER FACTORS MAKE THIS CASE

WORTHY OF THE COURT’S ATTENTION

This case does not present any other issues of federal

law warranting this Court’s review. Indeed, the Court of

Appeals found that Sierra Club’s fee motion was “easily

resolved” on the merits, once the court confirmed that the

Act allows fee awards for non-judicial success Pet. App.

18a. Nor does this case implicate any other matters of

pressing or substantial concern warranting this Court’s

attention.

2

Vv

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

DAVID S. BARON

EARTHJUSTICE

1625 Massachusetts Avenue, N.W.

Suite 702

Washington, D.C. 20036

Counsel of Record for Respondents

Sierra Club and New York Public

Interest Research Group