Respondents Brief — Alyeska Pipeline Service Co. v. Wilderness Society

Supreme Court brief1975

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<5 + vee CARS eee he OR ee ROP VEE OU

“NO. TS-1977 ae

WICHAEL RODAK, JR.,

IN “THE

Supreme Court of the United States

OCTOBER TERM 1974

ALYESKA PIPELINE SERVICE COMPANY,

Petitioner

THE WILDERNESS SOCIETY, ENVIRONMENTAL

DEFENSE FUND, INC., AND FRIENDS OF THE EARTH,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

DENNIS M. FLANNERY

1666 K Street, N.W.

Washington, D.C. 2006

Of Counsel: PAUL GEWIRTZ

JoHN F. DIENELT JOSEPH ONEK

1101 17th Street, N.W. Center for Law and Social Policy

Washington, D.C. 20036 1751 N Street, N.W.

Washington, D.C. 20036

THOMAS B. STOEL, JR.

spor: N Street, N.W Attorneys for Respondents,

. or The Wilderness Society

.C. 2003 ’

Weeatneton. Coa Environmental Defense Fund,

‘December 30, 1974 Inc., and Friends of the Earth.

WILSON - CPES PRINTING CO.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

SRE ee a gE Ske PRN ae OT yt: PEP TET

ia A a I SG PRS IFFT LE IIE | LN IE AE NB ES ET IEE TBE TN gO PG TREE MN 4

TABLE OF CONTENTS

pss 0) a 6) a ey Ws 0) i BO. gee eee eeeoeneree

OPIN TONS BOW yccicci cpacenctep caprscavas ese csenanettupracsesss a

QUESTIONS PRESENTED .............00...000..2220.02.20002200---

STATEMENT OF THE CASE 0.o..oo.....2.2-c-ceceeceeceeeeeess

A. Introduction 00. | enna

B. Statement of Facts ne | Sree Ie eee En

1. Identification of the Parties

2. Description of the Trans-Alaska Pipeline

SCL: | i a a eee Ae er ee

3. Chronological Summary of the Litigation

Below 0...

a. Events Preceding the Commencement of

Litigation

b. Commencement of the Litigation and

Issuance of an Injunction.

“~~ ¢. Events Preceding the Court of+ “Appeals

Decision on the Merits

4. The Court of Appeals’ Decision on the

Merits =... Sse ueeeseen Goeecp ean speentieeenetacedes

5. Public Law No. 93-153, 87 Stat. 576 .

6. The Court of Appeals’ Decision Awarding

Attorneys’ Fees

SUMMARY OF ARGUMENT |.

Fo 58 OF 09 Dy it MRR nn

I. THE EQUITABLE POWER TO AWARD FEES

IS NOT CONFINED TO RIGID SETS OF

CASES |... +......... ee ae eee rae T ee Seen

Roa |

ii,

III.

‘TABLE OF CONTENTS—Continued

THE EQUITABLE FACTORS IDENTIFIED

BY THE COURT SUPPORT A SHIFTING OF

FEES FROM RESPONDENTS IN THIS

Fb) |) eee ae eee oe eee en Sin eeeteneees :

. The Factors Identified by the Court Are

Amply Supported by the Record .....

1. The Statutory Interests Involved Were

Important |.....220.0.....0 ee.

2. The Benefits Conferred by the Litigation

Were Substantial 00000.

Private Enfarcement Was Required to

Vindicate the Statutory Interests and

Confer the Benefits Identified by the

| bi ee

4. The Litigation Placed Heavy Burdens on

Respondents and Their Counsel ..

The Factors Identified by the Court Are Ap-

propriate Factors in Determining Whether to

SPEC CS no ccc ces dav edeccseanceoncorschaceuntesiaccesave

THE EQUITABLE FACTORS PRESENT IN

THIS CASE SUPPORT A SHIFTING OF RE-

SPONDENTS’ FEES TO ALYESKA

The Litigation Stemmed from Actions and

Decisions for Which Alyeska Was Directly

Responsible _...... ove eeeeee eee ceeeeeeeeeeeeeeeeeeeeee scenes .

Alyeska Was a Real Party in Interest and

Took an Active Role in the Litigation .........

Alvyeska Received Direct Benefits from the

Litigation and Is in a Position to Shift the

Award to Other Beneficiaries of the Litiga-

8) | a ae ee ne ene ee ea en ee

Page

Ill

TABLE OF CONTENTS—Continued

The Mineral Leasing Act Imposed a Direct

Legal Obligation on Alyeska .

. The Award of Fees Works No Hardship on

Alyeska .

. Alyeska Was Not Prejudiced by the Lack of

an Award Against the Other Defendants

IV. ALYESKA’S OTHER ARGUMENTS AGAINST

THE AWARD OF FEES IN THIS CASE LACK

OR ooaceee tee eee

oo)

Alveska’s Arguments About “Success” Do

Not Apply to the Facts of This Case and

Do Not Provide a Useful Guide for Other

Cases ...0 2...

Alveska’s Objections to Fee Awards for

Salaried Attorneys Lack Merit —..........

_ In Making Its Award of Fees in This Case

the Court of Appeals Relied on Judicially

Manageable Factors 0 ..0.......0 02...

A Fee Award in This Case Will Not Lead

to Frivolous Litigation 002...

The Fee Award Need Not Be Limited to the

Salaries Earned by the Attorneys Involved

CONCLUSION .22245-jeouda se eerie encore

APPENDICES ....................-. Sapbeeweseoarne age eae nents

TABLE OF AUTHORITIES

CASES:

Allen v. State Board of -Elections, 393 U.S. 544

6 OS]: )

Arlington Coalition on Transp. V. Volpe, 458 F.2d

1323 (4th Cir.), cert. denied, 409 U.S. 1000

CUTZ) ovceictenssnisnrnivacns ccteauncncesievastssisseeuadasenredenesaes

Assoicated Industries V. Ickes, 134 F.2d 694 (2d

Cir),. vacated on other grounds, 320 U.S. 707

CVAD. schccs cence ee Ge ee eset cee

Bell v. Hood, 327 US. 678 (1946) . Ce ee

Best Medium Pub. Co. Vv. Nat’s Insider, Inc., 385

F.2d 384 (7th Cir. 1967), cert. denied, 390 US.

955 (1968) 0.0.2... eeceecececeececeescseeeeecesesessseseneceeees

sivens V. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971) 220 eee

Biau v. Rayette-Faberge, Inc., 389 F.2d 469 (2d

Cir. 1968) .

Blumenthal v. Te ‘Memorial Hospital, No. H- 70-

C-5 (E.D. Ark., Aug. 6, 1971) .. i

Boddie v. Connecticut, 401 U.S. 371 (1971).

Boys Markets, Inc. v. Retail Clerks, Local 770, 398

U.S. 235 (1970) .

Bradley V. Rickuged School Board, 416 U. s. 696

6 0 fC. 9 Pane 57, 58, 65, 68, 93

Brandenberger Vv. Thompson, 494 F.2d 85 (9th

©: | ans | 2 £ |) Pn nc oe Oe ane a :

Brewer Vv. Norfolk School Board, 456 F.2d 943

(4th Cir.), cert. denied, 406 U.S. 933 (1972)

Brotherhood of R.R. Trainmen Vv. Chicago River &

Ind. R.R., 353 U.S. 30 (1957) .

Brown Vv. Ballas, 331 F. Supp. 1033 (NLD. Tex.

|b ne Ren cnn eae taro Nan. mere Berea eran

Brown Vv. Board of Education, 347 US. 483

8 Sy. 8 eee ea ee nee

California Motor Transp. Co. v. Trucking Unltd.,

BOATS. SOS C1STZY ocean eet

Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972).

Calnetics Corp. V. Volkswagen of America, Inc.,

353 F. Supp. 1219 (C.D. Cal. 1973) ..........002.... >

Page

, 9D, ot

68, 93

81-82

TABLE OF CONTENTS—Continued

Page

Calvert Cliffs’ Coord. Comm. v. Atomic Energy

Comm’n, 449 F.2d 1109 (D.C. Cir. 1971) ...... —_ 44

J. 1. Case Co. V. Borak, 377 U.S. 426 (1964)... 61, 62

Central R.R. & Banking Co. Vv. Pettus, 113 U.S. 106

OY cease ee eee 36

Clark v. Board of Educ. of Little Rack School Dist.,

449 F.2d 493 (8th Cir. 1971), (en banc), cert.

denied, 405 U.S. 936 (1972) bo celecseseeceeeeeeees 90

Clark v. American Marine Corp., 320 F. Supp. 709

(E.D. La. 1970), aff'd, 437 F.2d 959 (5th Cir.

MT EY, pe coctic eee ese eee 101

Committee to Stop Route 7 v. Volpe, 4 ERC 1681

CW COM, L912) ececcree tee ees 74

Cooper V. Allen, 467 F.2d 836 (5th Cir. 1972) —.. 67

Cornist Vv. Richland Parish School Board, 495 F.2d

189 (5th Cir. 1974) ......................--.--eeceeeeeeeeence eee eeee 67

Davy v. Faucher, 84 F. Supp. 737 (N.D. Fla.

1949) 0. oui ede cneieoe es sett ouettgaan ip sone en pnecuesersvanqawanne 89

D.C. Federation of Civic Ass’ns, Inc. Vv. Volpe, 434

F.2d 436 (D.C. Cir. 1970) 0.000200. eee eee ee eee ee 92

Denver Petroleum Corp. Vv. Shell Oil Corp., 306 F.

Supp. 289 (D. Colo. 1969) .................-----: ee 83

Donahue v. Staunton, 471 F.2d AT5 (7th Cir.

1972), cert. denied, 410 U.S. 955 (1973)... 67

Environmental Defense Fund v. Hardin, 428 F.2d

1093 (D.C. Cir. 1970) ..........-.--------2---2--ee 92

Environmental Defense Fund v. TVA, 468 F.2d

T1G4 (6th Ci. F902) eee 44

Esso Standard (Libya), Inc. v. S.S. Wisconsin, 54

F.R.D. 26 (S.D. Tex. 1971) - 89

Fairley Vv. Patterson, 493 F.2d “598 “(5th Cir.

TOG ica esc Oise 67, 88, 93, 101

Farmers’ Loan & Trust Co. v. McClure, 78 F. 209

(8th Cir. 1897) ....... ee pce aoe 4-5

Fleischmann. Distilling Corp. v. Maier Brewing

C0... 080- U.S. T1496) ) aires 4,85

Fowler v. Schwarzwalder, 498 F.2d 143 “(8th Cir.

sk yf. 9) eRe oon eon Tn eT AD ren Deena Dea 68

g Daa aed ee

TABLE OF AUTHORITIES—Continued

Page

Gateway Coal Co. v. United Mine Workers, 414

U.S. 368 (1974) coon oe 96-97

Gideon V. Wainwright, 372 U.S. 335 (1963) —......... 63

Gomillion Vv. Lightfoot, 364 U.S. 339 (1960) .......... 92

Greene County Planning Bd. v. FPC, 455 F.2d 412

(2d Cir.), cert. denied, 409 U.S. 849 (1972) 76

Hall v. Cole, 412 U.S. 1 (1973) .........4, 36, 38, 60, 61, 64,

f 83-84, 85, 94, 96, 97

Hammond Vv. Housing Authority & Urban Readaul

Agency, 328 F. Supp. 586 (D. Ore. 1971) 0... 90

Harper V. Mayor ond City Council, 359 F. Supp.

1187 (D. Md. 1973) . - 69

Henry V. Auchincloss, Parke r vy Redpath, 305 F.2d

753 (D.C. Cir. 1962)... 77

Hines V. Perez, 242 F.2d 459 (9th Cir. 195 57). 88

Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974). 67, 93-94

Howerton V. Mississippi County, 361 F. Supp. 356

(E.D. Ark. 1973) 0... 89

Incarcerated Men V. Fair, 376 F, ‘Supp. 483, (NLD.

Ohio 1973) 69

Jinks Vv. Mays, 350 F. Sint. 1037 (ND. Ga. 1972). 70

Johnson V. Avery, 393. U.S. 483 (1969) on 63

Jones V. Alfred H. Mayer Co., 392 U.S. 409

CT ogc cesic creer sestosestteunsashacsetheasieemaunpeam teases he Oe

Kirkland v. New York Dept. of Correct. Serv., 374

F. Supp. 1361 (S.D.N.Y. 1974) 0 0. 70

Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) | 67

La Raza Unida Vv. Volpe, 57 F.R.D. 94 (N.D. Cal.

1972), appeal pending .... ... .......58, 69, 94

Lathan Vv. Volpe, 455 F.2d 1111 (9th Cir. 1971). 44

Lee V. Southern Home Sites Corp., 444 F.2d 143

(5th Cir. 1971) or .....59, 64, 67, 93, 95

Lewis Vv. Pennington, 400 F.2d 806 (6th Cir.),

cert. denied, 393 U.S. 983 (1968) .... _ 89

Lindy Bros. Builders, Inc. V. American Rilintor

and Standard Sanitary Corp., 487 F.2d 161 (3d

Cir. 1972) .... soecasuyabdecauesagasue,deessnouedabetadenieacconieds 91

VII

TABLE OF AUTHORITIES—Continued

Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971). 69

McEnteggart v. Cataldo, 451 F.2d 1109 (1st Cir.

1971), cert. denied, 408 U.S. 943 (1972) ............ 91

Mashak v. Hacken, 303 F.2d 526 (7th Cir. 1962). 89

Miller v. Amusement Enterprises, Inc., 426 F.2d

@ BBE (Sth Cir. 1970) ccinccecncnnsecciceencssscconvedennssensuasene 94,101

Mills v. Electric Auto-Lite Co., 396 U.S. 375

0 7 (1) ee nner ee 4, ye at 63, 64, 72, 81, 85, 88, 96

Mitchell v. Robert De Mario Hewelry, Inc., 361 U.S.

DPBS (1960) .........-.---cccscerscenccscerscceeccrareseeseesssecnenrcenee 62

Moragne V. States Marine Lines, Inc., 398 U.S. 375

(1970) _..2220...ccccescroceeceDsonesnsccenceetarscassrelosesssrsensessesense 63-64

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala.

1972), aff'd, 493 F.2d 614 (5th Cir. 1974). 58, 69, 82

NAACP Vv. Button, 371 U.S. 415 (1963) 00.000... 63

National Helium Corp. v. Morton, 455 F.2d 650

(10th Cir. 1971) .2.2...-2222---ceceeeeeeseeeececcesereeenseetensees 44

National Safe Deposit, Sav. & Trust Co. Vv. Hibbs,

P29 U.S. 391 (1918) 2.2... ne ceeeeedenceereeeeeneneenees 77

Natural Resources Defense Council v. EPA, 484

F.2d 1331 (1st Cir. 1978) .......-.......--:--------eeeeeeees 91

Newman Vv. Alabama, 349 F. Supp. 278 (M.D. Ala.

1972) . ... 69, 82

Newman V. . Piggie Park Enterprises; Ine., 390 U. S.

BOO (1968) on. 2ee ee ence ee eee 59, 64-65, 92-93, 94, 95

Northcross ¥. Memphis Board of ‘Education, 412

U.S. 427 (1978) ..n0.-00c-0cc--e-cencceeeesssnersereengeereseneeces 65, 93

Office of Communications of United Church of

Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) 62,98 -

Oster V. Rubinstein, 142 F. Supp. €20 (S.D.N.Y.

MOBY ic ccacicss css venavecedndicencatasnancesunsBenndnseenpasnsonteys 89

Palmer V. Columbia. Gas, Inc., 375 F. Supp. 634

(N.D. Ohio 1974) .......2---2:-2::eceeceee eee _ 70-71

| Parham Vv. Southwestern Bell Tel. Co., 433 F.2d

| 421 (8th Cir. 1970) ........... (eine 90

| Poe V. Ullman, 367 U.S. 497 (1961) - . 26

| Pompton v. Cooper Union, 101 U.S. 196 (1879)... 76-77

PPO RE PATE EER RRS re |

SSOREEBN SS oe Neate ge

VIII

TABLE OF AUTHORITIES—Continued

. Page

Porter v. Warner Holding Co., 328 U.S. 395

IE is ccedecsccucficceuagnarent itirecsnta:ctgdncincyctipuctdeagaicess 61, 86

F. D. Rich Co. v. United States, 417 U.S. 116

(UGTA) nectdevicchsisscisccnrsovscanctscosnsssonocesetveats 3, 35, 38-39, 59-60

Ross V. Goshi, 351 F. Supp. 949 (D. Hawaii 1972) 70

Hill vy. Flota Mercante Grancolombiana, S.A.,

267 F. Supp. 380 (E.D. La. 1967), aff'd, 405

F.2d 878 (5th Cir.), cert, denied, 395 U.S. 934

(1969)-~ - — 77

Ryan V. Spaniol, 198 F2d B51 (10th Cir. 195 51). 77

Scenic Hudson Preserv. Conf. v. FPC, 354 F.2d

608 (2d Cir. 1965), cert.-denied, 384 U.S. 941~

I ao cscesisshvasseiicntes apne Whadapsh anedesantbnttacasousiascekceadinr<s 92

Scenic Hudson Preserv. Conf. v. FPC, 453 F.2d

463 (2d Cir. 1971), cert. denied, 407 U.S. 926

OI Ee rena lacy ricatenegy ex sncts ieee earns escnceesan cs 44, 50

Scott v. Opelika City Schools, 63 F.R.D. 144 (M. D.

Pla. BOT) on cnceec Sissel eceewwvecscsere0iseiciceckoacn anon ecdouosnaces 70

Shelley v. Kraemer, 334 U.S. 1 (1948) 200000000... 92

Sierra Club v. Lynn, 502 F.2d 43 (5th Cir. 1974). 68, 78-

80, 84

Sierra Club v. Morton, 405 U.S. 727 (1972) ..... .... 20, 41,

44,98

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff'd,

409 U.S. 942 (1972). _ .......68-69, 82

Sprague v. Ticonic Nat'l Bank, 307 US. 161

C1GBB) orvccenccscccsserscnsesstesens Sune 3, 4, 36, 37, 38, 72, 81, 88-89

Sprague V, Ticonic Nat'l Bank, 110 F.2d 174 {ist

Cir. 1940) -............ 37

Stanford Deity Vv. Zurcher, 366 F. Supp. 18 (ND.

‘Cat-t973)-- re 70

Steele V. Louisy ile & Nashville R. R., 323 US . 192

CORES rc vicntipccenianrnelendsavetsntenrsussedisontenarinbaietned 62

Stolberg V. Members of Ba. ‘of Trustees for State’

Colleges, 474 F.2d 485 (2d Cir. 1973) ..... i, 68

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

. (1969) . 7 sosseeeeeoets 61

Sweatt v. Painter, 339 U. S. 629 (1950) lessee decansvuses 92

‘

‘om

— ne

IX aN

TABLE OF AUTHORITIES—Continued -

Page

Switzer Bros., Inc. V. Chicago Cardboard Co., 252

F.2d 407 (7th 1958) be ss dussiwnnanervraseaniuneunee: 89

James Talbott, Inc. V. Associates Discount Corp.,

302 F.2d 443 (8th Cir. 1962) . capeesetaeesinien 77

Taylor V. Perini, 503 F.2d 899 (6th Cir. 1974) — 67

Texas & P. Ry. V. Rigsby, 241 U.S. 33 (1916) —.... 62

Textile Workers Union v. American Thread Co.,

271 F.2d 277 (4th Cir. 1959) .............-------------- 89

Thomas V. Honeybrook Mines, Inc., 428 F.2d

981 (3d Cir. 1970), cert. denied, 401 U.S. 911

(1971): 90

Thonen V. Jenkins, 374 'F. “Supp. 134 (E. D. NC.

1974) _... —ccévseniiinsinccdinnesetsvuniasuiandpstspvansnserccsontumnasiennson 70

Trafficante V. Metropolitan Life Insurance Co., 409

U.S. 205 (1972) 2.222.-c--cececedeceteceeeceeceeeeserseneeesenenane 61-62

Trustees V. Greenough, 105 U.S. 527 (1882) peas 4, 36, 98-

Unioy P. Ry. Co. Vv. Chicago, R.l. & P: Ry., 163

U.S. 564 (1896) —.... git stiaie sonata deseandnsrenstsaee™ hen 38

United States V. Morgan, 307 U.S. 3 (1939) ae 61

United States vy. Schooner ae 5 US. (1

Cranch) 103 (1801)... ...2..-------- eeeeeeteceeceeerte ees 97

United States v. SCRAP, 412 US S. 669 (1973) 44, 62

Virginia Ry. V. Sustem Federation, 300 U.S. 515

(1937) 61

Webb Vv. Barle Y, No. $564- N (M. D. Ala., or 18,

G73) ..ecc-ceecenceccecceseseecceccencsneneenesseseeecbesnessnsensnaensenses 90

Whitehead V. American Secur. & Trust Co., 285

F.2d 282 (D.C. Cir. 1960) —....... 17

Wilderness Society V. Hickel, 325 F. “Supp. 422

(D.D.C. 1970) .2.2.------ccecececececerecceeessenenenesanenesscecens 12, 56

Wilderness Society V. Morton, 4 ERC 1467 (D.D.C. :

1972) .n..-seeececosecncccnscsecensssecssnsersserssnsaensadbearersceeasesses 22

Wilderness Society V. Morton, ‘479 F.2d 842, cert.

denied, 411 U.S. 917 (1973) (Wilderness So-

ciety IT)... Sscassauts __..... passim

Wilderness Society V. “Morton, 495 F. 24 1026 (D. ..

Cir. 1974) (Wilderness Society II) -.--------------- passim

ELEN TNR EEG

SAR SNES OBS RG ET PEE

> eee —

ry SOT Pt

TABLE OF AUTHORITIES—Continued

os Page

Winchell v. Moffat County State Bank, 307 F.2d

280 (10th Cir. 1962) 20. 77

Wyandotte Transp. Co. v. United States, 389 U. s.

ROY CDG TY vasiicuiccnnenexsecspcapeseeescencemncnacndcxnseureenennes 62

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala.

1972), appeal pending .........-.--..2-...----eeeeeeeeee seen 69-70

Yablonski v. United Mine Workers of America,

466 F.2d 424 (D.C. Cir. 1972), cert. denied, 412

U.S. 938 (1978) ..5....-.-.-ncccc ce cece ececte cee 88

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970),

cert. denied, 401 U.S. 910 (1971) —......000000000...... 44-45

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS:

U.S. Constitution:

Art. TV, § 8, C1 2 occcccccccscccscccesssscssssceccceneceeeene 24

Civil Rights Act of 1964:

42 US.C. §2000a-3 (1970) 91, 92

Clean Air Amendments of 1970:

42 U.S.C. § 1857(a) et seg. (1970) 42, 57, 65-66,

: 90, 92, 97

Federal-Aid Highway Act of 1966: >

23 U.S.C. § 188 (1970) 2.02200. 42

Federal Water Pollution Control Act Amendments

of 1972:

33 U.S.C. § 1251 et seq. (Supp. II, 1972) ..42, 57, 65-

) 66, 90, 92, 97

_}Freedom of Information Act Amendments: _

~~ cea. Pub. L. No. 93-502, 88 Stat. 1561 (1974) ....... 65

Judicial Code:

28 U.S.C. § 2412 (1970) ......00000.... dengcaensasvatese 30, 85

TABLE OF AUTHORITIES—Continued

Page

Marine Protection, Research, and Sanctuaries Act

of 1972:

33 U.S.C. § 1401 et seq. (Supp. II; 1972) ...... 42

Mineral Leasing Act of 1920:

30 U.S.C. § 185 (1970) ......---------- eer passim

National Environmental Policy Act of 1969:

42 U.S.C. § 4321 et seq. (1970) ......--..---00c0--ceeee= passim

Noise Control Act of 1972:

42 U.S.C. § 4901 et seq. (Supp. 1 AG fe) cans 42

Pub. L. No. 93-153, 87 Stat. 576:

30 U.S.C.A. § 185 (Supp. 1974),

43 U.S.C.A. § 1651 et seq. (Supp. 1974) ...26-28, 51-

54, 55, 81, 86

LEGISLATIVE MATERIALS:

—.

S. Rep. No. 93-854, 93d Cong., 2d Sess. (1974) .... 65

H.R. Rep. No. 93-624, 93d Cong., 1st Sess. (1978) .. 27

H.R. Rep. No. 93-617, 93d Cong., 1st Sess. (1973) .. 27

ILR. Rep. No. 93-420, 93d Cong., Ist Sess. (1973). 26-27

H.R. Rep. No. 93-414, 93d Cong., Ist Sess. (1973). 26, 28

S. Rep. No. 93-207, 93d Cong., 1st Sess. (1973) .... 26, 28

_ELR. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) .. 65

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) 65, 66, 90

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) .. 65, 66,

S. Rep. No, 91-296, 91st Cong., 1st Sess. (1969).. 42-43

119 Cong. Ree.

S13,689-90 (daily ed. July iy Ae ee 27

~H7281-82 (daily ed. Aug. 2, 1978) -.-.----------~ 27

Heavings on H.R.9130 Before the Subcomm. on

Public Lands of the House Comm. on Interior

and Insular Affairs, 93d Cong., Ist Sess., Ser.

No. 93-12, pts. 1, 2, and 3 (1978) ...-..------=eer2--- 26 |

XII

TABLE OF AUTHORITIES—Continued

. Page

Hearings on S. 1040, S. 1041, S. 1056, S: 1081 Be-

fore the Senate Comm. on Interior and Insular

Affairs, 93d Cong., Ist Sess., pts. 1 and 2

Hearings on S. 970, S. 993, S. 1565 Before the

Senate Comm. on Interior and Insular Affairs,

93d Cong., Ist Sess., pts. 3 and 4 (1973) ........... 26, 28

Oversight Hearings on the National EnVironmental

Policy Act and Its Implementation Before the

Senate Comms. on Public Works and Interior

and Insular heats 92d Cong., lst Sess. (1972) .. 13

- Hearings on S. 35, S. 835 and S. 1571 Before the

Y Senate Comm. on Interior and Insular Affairs,

. 92d Cong., Ist Sess., pt. 2 (April 20, 1971) .... 73

Hearings on S. 1075, S. 237 and S. 1752 Before

the Senate Comm. on Interior and Insular Af-

fairs, 91st Cong., Ist Sess. (1969) 2000000... 43

RULES:

U.S. Sup. Ct. R.57 (1970) ee RD

Fed. R. Civ. P. 54(d) oo... cee cece oe 89

MISCELLANEOUS:

ABA, Code of Profegsional Responsibility D.R

NG onrssce az canincanmnanygilltanamcetessaniieeuntsecemieeieciviessimsexssccece 99

Address by the Tfenorable Russell E. Train to the

Joint Judicial Conference of the Eighth and

Tenth Circuits, June 29, 1973 _.... .........0, 45, 46, 47

Alaska Construction & Oil:

February 197) 20 ecen. 50

June 1974.00.00... diss endeuakanphpaendicaieastaienneduewessedcesasxe 47

: The Alaska Pipeline, Smithsonian (Vol. 5, No. 7)

Fé (October 1974) oo... .cocceecc coco cece cegeeeeceee cee eee cece 47

“Y Atomic Energy Commission, 39 Fed. Reg. 26279,

} §§ 51.20, 51.21 (July 18, 1974)- palagelisapesorstratnens 76

XIII

TABLE OF AUTHORITIES—Continued

Comment, Court Awarded Attorney’s Fees and

Equal Access to the Courts, 122 U. Pa. L. Rev.

m 636 (1974) ..--------nn-seeccrerce 3

Council on Environmental Quality, 40 C.F.R., ch.

V, § 1500.7 (Cc) -.------n--n-0--0o see 76

Department of Agriculture: Rural Electrification

Administration, 39 Fed. Reg. 23240 § V(D) (2)

(June 27, 1974) -.....-------- 76

Department of the Interior, Regs. part 516, ch.

DOB) (2) nnsc-ceeen-snencccseseneesseseceseeseneecesestasmnarerereate 76

Department of Transportation, 39 Fed. Reg. 35234,

$7(e) (Sept. 30, 1974) ..a-------cee-ceeceeeceeceeeetete 76

Derfner, Attorneys’ Fees in Pro Bono Publico

Cases, reprinted in Hearings on The Adequacy

of Representation Before the Subcomm. on Rep-

resentation of Citizen Interests of the Senate

Judiciary Comm., 93d Cong., Ist Sess., pts. 3

and 4, at 862 (1973) .....-------------- 71

Developments—Discovery, 74 Harv. L. Rev. 940

(U9GL) a ecne-na-enesencensseeesnesenseenseectenesnssensonesensnnstenssene 63

Environmental Quality: Second Annual Report of

the Council on Environmental Quality (1971) .... 56

Ford Foundation: Annual Report (1978) ....--------- 95

Fortune, May 1973 ......------------- 57

Goodhart, Costs, 38 Yale L. J. 849 (1929) -...-.------ 3

Law Enforcement Assistance Administration, 28

C.F.R. §§ 19.9(b) (2), (b) (5), (C) ----------2e2 76

Legal Defense Fund: A Report to the American

People (1974) -.-.-----------cecr ee 95

Martindale-Hubbell Law Directory, vol. 1 (1974)... 57

MeCormick, Counsel Fees and Other Expenses of

Litigation as an Element of Damages, 15 Minn.

L. Rev. 619 (1981) ...---------secese te 3-4

6 Moore’s Federal Practice (1972) -.-------------------> 83

1974 National Petroleum News Factbook .......------- 57, 81

N. Y. Times, Dec. 15, 1974, p. 1, COMB ccc-cacsenseets 94

President Nixon’s Special Message to the Congress

Outlining the President’s 1972 Environmental

Program, 8 Pres. Doc. 218-19 (Feb. 8, 1972) ....-- 43

XIV

TABLE OF AUTHORITIES—Continued

’ Nussbaum, Attorney’s Fees in Public Interest Liti-

gation, 48 N.Y.U. L. Rev. 301 (1973)

Rockefeller Brothers Fund: Annual Report

6 / ¢: 9 Rance

Stoebuck, Counsel Fees Included in Costs: A

Logical Development, 38 U. Colo. L. Rev. 202

Gk: <a

Ten Year Report: Lawyers’ Committee for Civil

Rights Under Law (1973) _..00

The Wilderness Society: The Directors’ Annual

Report (1974) 2...

Page

IN THE ue

Supreme Court of the United States

OCTOBER TERM 1974 )

No. 73-1977

ALYESKA PIPELINE SERVICE CoMPANY,

Petitioner

THE WILDERNESS SOCIETY, ENVIRON MENTAL

DEFENSE FUND, INC., AND FRIENDS OF THE EARTH,

. Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

: pene, 0)

o~ x: ¥

a el mae

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit is reported at

495 F.2d 1026 (1974) and will be referred to herein

as “Wilderness Society II.” The opinion of the court

of appeals on the merits of the case is reported at

479 F.2d 842, cert. denied, 411 U.S. 917 (1973),

—

and will be referred to herein as “Wilderness Society

1.” - ;

QUESTIONS PRESENTED

1. Whether, following its adjudication on the

merits of the Trans-Alaska Pipeline controversy, the

court below had the equitable power to authorize a

partial shifting of fees from respondents to petitioner.

2. If so, whether the shifting of fees authorized

by the court was an abuse of discretion when the

record supports the conclusions that: -

a. Respondents’ successful litigation vindicated im-

portant Congressional policies and led to substantial

benefits, including legislation imposing significant

new environmental, technological and other safe-

guards; the litigation was necessary to achieve those ‘

ends; and the litigation, undertaken by respondents

as private citizens for no economic gain, was mas-

sive and placed heavy burdens on respondents and

their counsel; and

b. The Trans-Alaska Pipeline was conceived and

proposed by petitioner; the litigation resulted from.

actions and decisions for which petitioner was _ re-

sponsible (and, in the case of the Mineral Leasing

Act, from obligations that were directly enforceable

against petitioner) ; the economic gain that petitioner

hoped to derive from the pipeline made it the real

party in interest in the litigation; petitioner took a

major and active role in the litigation to protect its

economic interests; petitioner received direct benefits

from the litigation and can distribute the award

among other beneficiaries; and the award does not

otherwise work any hardship or unfairness on pe-

titioner.

ea’

STATEMENT OF THE CASE

A. Introduction

Attorneys’ fees are not ordinarily recoverable in

the absence of a statute or enforceable contract pro-

viding therefor. This is the traditional American rule.

Just last Term this Court reaffirmed the appropriate-

ness of the rule in “everyday commercial litigation.”

F. D. Rich Co. v. United States, 417 U.S. 116, 130

~ (1974). The rule and its basic rationale were ac-

cepted by the court below.’ Neither is being chal-

lenged in this case.

What is in issue is the application to the facts of

this case of an equitable power that is as “traditional”

and “historic” as the American rule itself. It is the

power of federal courts to award attorneys’ fees “in

exceptional cases and for dominating reasons of jus-

tice.” Sprague v. Ticonic National Bank, 307 U.S.

161, 167 (1989).* When reviewing awards of fees

1 The decision blo was prefaced by an acknowledgement

that: “{T]he American rule barring attorneys’ fees to suc-

cessful litigants except in. extraordinary « circumstances is

based on important policies. of its own. But if the matter is

examined closely .... an award of fees in the present case

may be justified by reference to the very same policies.”

Wilderness Society II, 495 F.2d at 1031.

-2 As the Court noted in Sprague, the power of federal

courts to award fees derives from “the original authority of

the chancellor to do equity in a particular situation.” 307

U.S. at 166. See cases and authorities cited at 307 U.S. 164

n.l, 165 n.2. See generally Comment, Court Awarded At-

torney’s Fees and Equal Access to the Courts, 122 U. Pa. L.

Rev. 636, 645 (1974); Goodhart, Costs, 38 Yale L. J. 849, 854

(1929); McCormick, Counsel Fees and Other Expenses of

Litigation as an Element of Damages, 15 Minn. L. Rev. 619,

sot PANTS ORRIN

serenees

LPNS OE TED LY LEIS

| et AMUSE

by lower federal courts, this Court has been con-

cerned primarily with whether the fee award in a

particular case was beyond the power of the lower

court.’ Once satisfied on this point, the Court has

traditionally recognized that the court with detailed

knowledge of the case is usually in a better position

to make the “ultimate judgment . . . as to the fair-

ness of making an award, or the extent of such an

award.” Sprague, 307 U.S. at 167.'

619-20 (1931); Stoebuck, Counsel Fees Included in Costs:

A Logical Development, 38 U. Colo. L. Rev. 202, 204-05

(1966); Nussbaum, Attorney’s Fees in Public Interest Liti-

gation, 48 N.Y.U. L. Rev. 301, 313-14 (1973).

3 See, e.g., Hall v. Cole, 412 U.S. 1, 4-14 (1973); Mills v.

Electric Auto-Lite Co., 396 U.S. 375, 389-397 (1970); Fleisch-

mann Distilling Corp. Vv. Maier Breiring Co., 386 U.S. 714,

714-15 (1967); Sprague, supra, 307 U.S. at 164; Trustees v.

Greenough, 105 U.S. 527, 537 (1882).

' See, e.g., Hall v. Cole, 412 U.S. at 14-15 (standard of

review is whether “the award of counsel fees to respondent

under the facts of this case constituted an abuse of the distriet

court’s discretion”); Trustees V. Grecnough, 105 U.S. at 537

(the court below should have ‘“‘considerable latitude . . . since

it has far better means of knowing what is just and reason-

able’).

As Circuit Judge Walter Sanborn stated many years ago in

a case reviewing the amount of an attorneys’ fee award:

“The judge who entered this decree below was familiar

with the proceedings in hts own court, with the char-

acter of this litigation, with the controversies, if any,

that had arisen in it, with the amount of services that

had been rendered by eath-ef the solicitors, and with

- every step that had been taken in the case... . Its

-finding and decree thereon ... must be taken as pre-

sumptively correct; and, unless an obvious error has

intervened in the application of the law, or some serious ©

or important mistake has been made in the considera-

The decision below rests on a judgment by the court

that-adjudicated the Trans-Alaska Pipeline contro-

versy (1) that overriding equitable factors were pres-

ent in the case that support a shifting of fees from

respondents and (2) that, in the circumstances of-the

case, it was fair and equitable to shift a portion

of those fees to the Alyeska Pipeline Service Company

(‘‘Alyeska’”’). Respondents respectfully suggest that

an understanding of the record on which the court’s

judgment rests requires a fuller factual statement

than that set forth in Petitioner’s Brief (“P. Br.”’).

B. Statement of Facts

1. Identification of the Parties

Petitioner, Alyeska Pipeline Service Company, is

owned by a consortium consisting of Exxon Pipeline

Company, Mobil Pipeline Company, ARCO Pipeline

Company, Phillips Petroleum Company, Union Oil

Company of California, Sohio Pipeline Company, and

Amerada-Hess Corporation. Those companies, or

their beneficial owners, hold the rights to explore

and develop the substantial oil and natural gas re-

sources in Prudhoe Bay on the North Slope of Alaska.

Alyeska was formed to construct and operate thes

Trans-Alaska Pipeline System—the system Alyeska’s

principals have chosen to transport oil from Prudhoe

Bay to markets in the lower 48 states.

Respondents, The ~ Wilderness Society, Environ-

mental Defense Fund, Inc., and Friends of the Earth.

tion of the evidence, the decree should be permitted to

stand.” Farmers’ Loan & Trust Co. v. McClure, 78 F.

209, 210 (8th Cir. 1897).

a |

SE PRU I

are non-profit organizations. Each of the organiza-

tions has had a long-standing concern for the Alaskan

environment and a commitment to preserve it for

present and future generations.

2. Description of the Trans-Alaska Pipeline System

The Trans-Alaska Pipeline System has come to

be recognized as the “most complex” and “most eco-

logically sensitive” private engineering project ever

attempted. The overland portion of Trans-Alaska

Pipeline System will traverse the State of Alaska

from Prudhoe Bay on Alaska’s North Slope to the

Port of Valdez on Prince William Sound in the south

—a distance of some 800 miles (641 of which cross

federal public lands). From = Valdez the oil will be

loaded onto tankers to be transported through Prince

William Sound and down the Northeast Pacific.

At Appendices A and B, respectively, respondents

have reproduced from their papers below a descrip-

tion of the Trans-Alaska Pipeline System and a com-

pilation of some of its still-unknown “environmental

> Statement of Under Secretary of the Interior, William T.

Pecora, contained in record below at P. Docs. III, Tab B, at

4 (R. 207).

Documents in the record below will be cited either as “‘Ad.

Rec.,” which refers to the documents collected by Interior

Department lawyers and designated by them as the “Aa-

ministrative Record” (R. 239); “FIS,” which refers to the

Interior Department’s Final Impact Statement on the project

(R. 239); and “Rule 9(h) Documents” and “P. Does.,” which

refer to compilations of documents introduced into the record

by respondents in the proceedings below (R. 152, R. 207).

ramifications.” Both Appendices are based entirely

on statements contained in the Interior Department’s

Final Impact Statement. They will, hopefully, place

the litigation in context by conveying some under-

standing of the environmental and technological prob- .

lems posed by the Trans-Alaska Pipeline. For, as

Russell E. Train has observed:

“(T]he case of the Alaska pipeline has not been

simply one of aesthetics, or of concern over wild-

life and wilderness disturbance, or worries over

water pollution, important as all of these are.

It was clearly an example where sound environ-

mental analysis was essential to sound engineer-

5 99 7

ing

8. Chronological Summary of the Litigation Below

a. Events Preceding the Commencement of Litigation

In August 1968, substantial oil and gas reserves

were discovered on the Alaskan North Slope. In

6 Appendix A is taken verbatim from pages 3-12 of Re-

spondents’ Brief on National Environmental Policy Act Issues

(R. 206). ;

Appendix B, is taken verbatim from Appendix B of the

Appendices to Respondents’ Brief on National Environmental

Policy Act Issues (R. 207). ;

7 Address by the Honorable Russell E. Train to the Joint

Judicial Conference of the Eighth and Tenth Circuits, June

29, 1973, quoted at Wilderness Society II, 495 F.2d at 1033

n.3.

Mr. Train (who is now Administrator of the Environmental

“Protection Agency) was Under Secretary of the Interior

and Chairman of the Federal Task Force on Alaskan Oil

Development when Alyeska’s principals first submitted their

proposal.

Oi ieee - .

NS RNR A ae eR

POSEY RO RIE I

June 1969, the interested oil companies, Alyeska’s.

principals, filed with the Interior Department a for-'

mal application for an oil pipeline right-of-way across

the public lands of Alaska.“ Alyeska’s principals

recognized from the outset that the right-of-way

allowed by statute was not adequate for the pipeline

they proposed:

“The 54’ R.O.W. [right-of-way| which is al-,

lowed by statute is not adequate for the con-

struction of a 48” pipeline. The R.O.W. should

be 100’ width to accommodate the extremely

large equipment that is necessary to handle the

48” pipe, and the large spoil [from] excavated

soil... .” (Emphasis added)."

And wipusaein papers filed by them at the time

contained only generalized descriptions about how

they proposed to construct the pipeline.” Nonethe-

less, they requested right-of-way permits “by July”

so that construction-related activities could begin

immediately. "

The permit application was referred to a Federal

Task Force, which, on September 15, 1969, issued

a report which concluded that the oil companies

* Ad. Rec. 1.1.1.2 (R. 239).

* Letter from Kenneth P. Fountain, attorney for the Trans-

Alaska Pipeline System to the Honorable Russell FE. Train

‘(then Under Secretary of the Interior), June 10, 1969, Rule

9(h) Documents, Tab B, p. 102 (R. 152) (Jt. App. 46).

' See, e.g., Trans-Alaska Pipeline System’s Answers to

~ Questions, June 19, 1969, P. Does. I, Tab F; Ad. Ree. 1.1.2.1

(R. 207, R. 239).

" Letter from Kenneth P. Fountain, supra, Rule 9(h) Doc-

uments Tab B, p. 101 (R. 152) (Jt. App. 43).

“had not adequately finalized their own plans on a

technological level” and were not in a position even

to “use data from their own ongoing studies.” '* The

report also concluded that a “complex and interre-

lated scope of environmental, technological, social

and legal problems” remained to be solved.”’. In--

cluded among the legal problems identified jin the

report was the absence of statutory authority for

the right-of-way requested."

deral Task Force

1969, Rule 9(h)

152, R. 239)

12 Preliminary Report to the President, Fe

on Alaskan Oil Development, September 15,

Documents, Tab C, p. 3; Ad. Reess1.1.2.1 (CR.

(Jt. App. 81).-

Jd. at 5 (Jt. App. 82).

identified in the report related to pe

water pollution (both with regard tot

in the operation of tankers on the marine leg of the system),

and impacts on fish and wildlife.

The report contained the following:

“Width of the right-of-way: The application requests a

54-foot wide pipeline right-of-way together with an ad-

ditional parallel and adj

ther, for all sections between Livengood and the North

Slope, the applicants request another 100-foot right-of-

way for a construction road, making a total requirement

( of 200 feet in width for that distance.

“The authorizing statute (30 U.S.C. 185) limits pipe-

line rights-of-way to 25 feet on either side of center line,

or to a total of 54 feet.

between the Department

exact method by which TAPS will

46 feet for the pipeline right-of-

addition of a 100-foot right-of-way for

road.” Id. at 11 (Jt. App. 86).

The environmental problems

afrost, seismic activity,

Discussions are continuing

and TAPS to determine the

acquire the additional

way and the further

a construction

acent 46-foot right-of-way. Fur- -

Re —

RIE RPA AR

e overland portion and > i}

Throughout the remainder of 1969, and the early

months of 1970, Alyeska’s principals pressed for the.

commencement of the pipeline-related construction."

Their efforts were successful in part when, in March

1970—at a time when the “complex and interrelated

. environmental, technological, social and legal

problems” referred to by the Task Force remained

largely unsolved and barely two months after the en-

actment of the National Environmental Policy Act—

Secretary Hickel announced that the first stage of

pipeline-related construction, a haul road for the

pipeline from the Yukon River to the North Slope,

was about to begin.’ That authorization was recog-

nized within the Interior Department as approval of

the pipeline itself." On March 20, 1970, to “fulfill the

requirements of Section 102(2)(c) of the National

Environmental Quality [sic] Act of 1969,” a cursory

seven-page document titled “Environmental State-

ment: Yukon River-North Slope Road” was _ for-

warded to the Council on Environmental Quality.”

'’ See, e.g., Department of the Interior News Release,

January 14, 1970, P. Does. I, Tab I (R. 207).

'* Letter from Secretary Hickel to President Nixon, March

5, 1970, P. Docs. I, Tab K (R. 207).

‘* Memorandum for the Record of North Slope Task Force

Working Group Meeting, June 17, June 18, 1969, P. Docs. I

Tab kK (“once we sanction any part of the road right-of-way

we are actually approving the pipeline and furthermore render

it difficult or impossible to make major route changes... .”’)

(R. 207).

's P. Docs. I, Tab K (R. 207).

b. Commencement of the Litigation and Issuance of

an Injunction

The decision to proceed with the project in this

manner led respondents to seek the assistance of

counsel. Recognizing that a major, ongoing legal

effort would be required which they could not them-

selves afford and which, whatever its outcome, would

result in no award of monetary damages, respond-

ents obtained the assistance of attorneys from the

Center for Law and Social Policy. The Center is

modelied along the lines of such organizations as the

NAACP; Legal Defense and Educational Rund. Its

attorneys provide legal representation in poverty law,

consumer, environmental, and other areas to groups

and individuals who, for economic reasons, cannot

obtain legal representation from traditional law

firms."

On March 26, 1970, respondents filed a complaint

against the Secretary of the Interior (R.»1A) and a

Motion for Preliminary Injunction, together with ex-

tensive affidavits from zoologists, biologists, ornithol-

ogists, geologists, seismologists, botanists, and pipe-

line engineers (R. 3A). On April 28, 1970, the dis-

trict court held that irreparable injury was likely to

result from the commencement of the construction-

related activities in question and granted respondents’

Motion for Preliminary Injunction (R. 26). The in-

junction was premised on two grounds: (1) that the

application of Alyeska’s principals exceeded the limi-

tations that Congress had established in Section 28

” As the litigation progressed, additional legal assistance

was provided by attorneys on the staffs of the Environmental

Defense Fund and the Natural Resources Defense Council.

Peon REAP ons

12 \

of the Mineral Leasing Act of 1920 (30 U.S.C. § 185)

on the amount of public lands that could be diverted

to pipeline use; and (2) that the environmental and

other safeguards set forth in the National Environ-

mental Policy Act of 1969 (42 U.S.C. § 4821 et seq.)

’ had not been applied to the project. Waéilderness

Society v. Hickel, 325. F. Supp. 422 (D.D.C. 1970).

c. Events Preceding the Court of Appeals’ Decision

on the Merits

On January 15, 1971, almost a year after the is-

suance of the preliminary injunction, the Interior

Department published a “Draft Impact Statement”

on the proposed pipeline. Ad. Rec. 2.18 (R. 289).*°

Discovery disclosed that before publication drafts of

the statement were given to Alyeska and substan-

tial revisions were made at Alyeska’s behest to de-

lete or soften numerous negative observations about

*°In the interim, respondents had undertaken an extensive

discovery effort in the district court. See, e.g., Interrogatories

of Plaintiff [hereinafter referred to as “Respondents”] to

Defendant, May 20, 1970 (R. 27); Interrogatories of Re-

spondents to Defendant, June 12, 1970 (R. 31); Request of

Respondents for Defendant To Produce for Inspection Cer-

tain Documents, July 20, 1970 (R. 36); Motion of Respondents

To Compel Answers to Interrogatories, July 24, 1970 (R. 37);

Request of Respondents for Admissions Pursuant to Rule 36,

August 20, 1970 (R. 43); Request of Respondents for Produc-

tion of .Documents, September 30, 1970 (R. 46); Motion of

RespowXents To Compel Answers to Interrogatories and In-

spection\of Documents, November 10, 1970 (R. 52); Supple-

mental Memorandum of Respondents in Support of Their

Motion to Compel Answers to Interrogatories and Inspection

of Documents, December 8, 1970 (R. 56); Interrogatories to

Defendant as Amended, February 22, 1971 (R. 60).

1’ At substantial cost and effort, re-

spondents arranged-fexexpert witnesses in a -broad

range of technological, environmental, ad other dis-

ciplines to appear at public hearings and describe

the major defects that remained in the Alyeksa

proposal.”

1 See Deposition of Deputy Under Secretary of the Interior

Jack O. Horton at 101-02, 111-12, 116 and Exhibits A-E there-

to (R. 217). See also documents collected at P. Docs. II, Tab

B (R. 207).

2? A summary of Public Comments on the January State-

ment was submitted to the court below as Appendix C in Re-

spondents’ Appendices to Brief on National Environmental

Policy Act Issues (R. 207).

Respondents were not alone in their criticism. Almost every

federal agency with expertise in environmental matters com-

mented critically on Alyeska’s lack of readiness in a broad

range of areas. A summary of Agency Comments on the

January Statement was submitted to the court below as Ap-

pendix D in Respondents’ Appendices to Brief on National

Environmental Policy Act Issues (R. 207). The following

comments are illustrative:

Pipeline Engineering—The draft environmental state-

ment is seriously weakened by the lack of technical de-

sign details. These. details are unavailable from the

permit applicant because he has not yet developed the

final pipeline, monitoring systems and related designs.

The weakness results in broad assurances that environ-

mental degradation will be kept to a minimum....” (Let-

ter from EPA Administrator_Ruckelshaus to Secretary

Morton, March 12, 1971, p.% 9 3) (FIS, Vol. 6, p. A-43;

Ad. Rec. 2.14.6.3.1) (R. 239).

* ok * *

- Seismological Problems—“The statement discusses

some of the potential problems related to seismic ac-

tivity but the references to the seismology problems are

Phe ie eae ak |

Beers

It was only after these hearings that efforts were

begun to evaluate realistically the full range of

technological and environmental problems posed by

the Trans-Alaska Pipeline and to devise ways to re-

incomplete. An appropriate evaluation would require a

full report detailing the earthquake... risks... . [I]t

is recommended that detailed studies be made for the

diverse earthquake problems related to the pipeline.

This would involve the field of engineering seismology

and the application of strong motion data .... This

is essential in view of the variance in surface geology

which will support the pipeline structures.” (Comments

of Office of Assistant Secretary of Commerce for En-

’ vironmental Affairs, April 16, 1971, pp. 10-11) (FIS,

Vol. 6, p. A-78; Ad. Rec. 2.14.6.3.1) (R. 239).

* * * *

Detection of Terrestrial Oil Spills and Leaks—‘The

seismic,and leak monitoring systems are to provide the

basic alert mechanism to protect tiie environment against

major crude oil releases. Yet, according to the draft

statement these systems have not been designed. There-

fore, it is not possible to determine their efficiency and

dependability.” (Letter from EPA Administrator Ruck-

elshaus to Secretary Morton, March 12, 1971, p. 4, § 5)

(FIS, Vol. 6, p. A-44; Ad. Rec. 2.14.6.3.1) (R. 239).

* * * *

Monitoring Systems—“The monitoring of the system

will be critical to its safe operation and to the avoidance

of leaks and spills. Much additional data is required on

precisely how the monitoring will function, before it will

be possible to make a judgment on the safety and in-

tegrity of the system.” (Comments by the Department

of Transportation, March 24, 1971, p. 1) (FIS, Vol. 6,

p. A-55; Ad. Rec. 2.14.6.3.1) (R. 239).

* * * *

Marine Transport—“In particular, we feel that the

transshipment of oil from the Port of Valdez to other

15 :

duce the substantial risks that remained both to the

physical integrity of the pipeline and to the surround-

ing environment. Alyeska finally began compiling a

comprehensive Project Description,” and a completely

new environmental impact statement.drafting team

was organized by the Interior Department.”

Following the submission of its Project Descrip-

tion to the Interior Department in July and August

1971, Alyeska sought leave to enter the litigation as

a party defendant. In papers filed in district court

on August 20, 1971, Alyeska asserted that:

“(I]t is Alyeska and its shareholders, and not

the Plaintiffs or Defendant [7.e., the Secretary

coastal points in the continental United States to be as

serious a concern and ‘responsibility of the Federal

Government in terms of probable adverse environmental

impact ‘as anything occurring in the State of Alaska

itself. The statement should carefully and accurately

evaluate the risk of massive oil-spills, in international

waters proximate to Canada, along the northwest coast

of the United States, and in the Puget Sound area of

Washington State, in considering whether to approve

or disapprove the Alyeska proposal, and in deciding

whether lesser risks may occur by recourse to other

means of transporting oil from the Prudhoe Bay oil-

fields.” (Letter from Secretary of HEW to Secretary

Morton, July 6, 1971, p. 4) (FIS, Vol. 6, p. A-103; Ad.

Rec. 2.14.6.3.1) (R. 239).

23 Deposition of Dr. Frederick Sanger, Chairman of the

Interior Department’s Technical Advisory Board, at 8 (R.

221).

2* Deposition of Dr. David A. Brew, Chairman of the In-

terior Department’s Environmental Impact Statement team,

at 7, 88-89 (R. 220).

of the Interior] which have the ‘real economic

stake in the outcome of this litigation’... .”~

* * * *

“[Alyeska’s] interests cannot be represented

adequately by existing parties; the responsibili-

ties and duties of the Secretary of Interior, do

not include or concern the proprietary and finan-

cial interests of Alyeska or the companies with

whom Alyeska has contracted and for whom it

is authorized to act as agent and attorney-in-

fact in connection with the applications which

are the subject of this action.” *

Those interests were so strong, Alyeska asserted,

that:

“Alyeska as a private party may well have a

greater interest than the Secretary of the Inte-

rior in advancing arguments in support of the

Secretary’s authority to issue the necessary

rights-of-way and permits.” “

Alyeska’s motion was granted on September 20,

1971 (R. 84) without opposition from respondents

(R. 79).* Once in the litigation, Alyeska pursued

its interests vigorously.”

-° Memorandum of Points and Authorities in Support of

Alyeska Pipeline Service Company's Motion to Intervene, pp.

OR TE):

** Motion of Alyeska Pipeline Service Company To Inter-

vene as a Defendant, p. 4 (R. 77).

** Memorandum, supra, note 25, at 11-12 (R. 77).

**On September 10, 1971, the State -of Alaska was also

allowed to intervene as a party defendant (R. 83), again with-

out opposition from respondents (R. 81).

** The 78 docket entries between.the date of Alyeska’s in-

tervention (September 20, 1971) and the filing of respond-

On March 20, 1972, the Interior Department re-

leased to the public a six-volume Environmental Im-

pact Statement and a three-volume Economie and

Security Analysis. Ad. Ree. 2.14 (R. 289). In re-

sponse to the Secretary’s announcement that he would

withhold decision for 45 davs to permit public com-

ment, respondents disseminated the impact statement

to a large number of experts across the country and

submitted their comments to the Secretary on May

4, 1972.”

ents’ Motion for Partial Summary Judgmengfon May 12, 1972

(R. 152) belie the assertion in Alyeska’s brief (P. Br.. 5)

that “proceedings in the district court... [were] essentially

dormant” following its intervention. Alyeska participated

extensively in a broad range of procedural matters during

this period. See, ¢.9., Memorandum of Points and Authorities

— Submitted by Defendant Alyeska Pipeline Service Company in

Support of Defendant’s Motion To. Have the Action Main-

tained as a Class Action, November 23, 1971 (R. 106); Mem-

orandum of Alyeska Pipeline Service Company in Opposition

to the Motion by David Anderson and the Canadian Wildlife

Federation To Intervene, November 30, 1971 (R. 111); Memo-

randum of Alyeska Pipeline Service Company in Opposition

to Respondents’ Motion To Clarify the Preliminary Injunc-

tion, December 1, 1971 (R. 114); Response of Alyeska Pipe-

line Service Company to Motion for Protective Order, De-

cember 13, 1971 (R. 127); Memorandum of Alyeska Pipeline

Service Company im Opposition to Respondents’ Motion To

Compel Production of Documents, February 18, 1972 (R.

140).

3° The comments submitted by respondents were organized

in four volumes relating to Technical Comments (i), Ter-

restrial Impact (11), Marine Impact (III), and Economics,

National Security and Systematic Evaluation and Balancing

of Alternatives (IV). See Ad. Ree. 4.3.2.1 (R. 239).

On May 11, 1972, the Secretary announced through

a News Release that Alyeska would be granted the

permits it requested for the Trans-Alaska Pipeline.”

The Secretary indicated that a dual permit device

would be utilized to accommodate Alyeska’s land

needs. That is, permits designated “right of way”

permits would be issued for the first fifty feet re-

quired by Alyeska and permits designated “special

land use permits” would be issued for whatever ad-

ditional contiguous lands Alyeska might need.

On May 12, 1972, respondents filed a Motion for

Partial Summary Judgment on the Mineral Leasing

Act issues in the case (R. 152). In their accompany-

ing brief, respondents contended that Congress en-

acted the Mineral Leasing Act as a conservation

measure; that its width limitation was designed to

assure that if more land was needed for larger pipe-

lines Congress would have the opportunity to con-

sider whether and under what conditions such land

might be used; and that the contemplated dual per-

mit device violated both the Mineral Leasing Act

and the Interior Department’s own regulations. Re-

spondents contended further that the Mineral Leas-

ing Act presented a threshold legal issue, the adjudi-

cation of which could be dispositive of the case.*

** The release is contained at Tab A of Respondents’ Ap-

pendices to Brief on the Mineral Leasing Aci isswes (R. 152).

* See, e.g., Respondents’ Motion for Partial Summary

Judgment, May 12, 1972, at 1 (R. 152) (Jt. App. 139):

“The grounds for [respondents’] motion are that the

Mineral Leasing Act issues present threshold questions

resting on operative facts that are different from .and

independent of the operative facts of [respondents’]

claims under the National Environmental Policy Act

Respondents suggested, therefore, that the Mineral

Leasing Act issues be decided without further delay.’

Alyeska vigorously opposed respondents’ Motion.

Alyeska argued in part that a full presentation of

the Natural Environmental Policy Act ( “NEPA’”’)

issues in the case was necessary to provide a factual

predicate for an informed judgment on the Mineral

(“NEPA”); the NEPA issues need be adjudicated only

if the permits contemplated by the Secretary are not pro-

hibited by the Mineral Leasing Act: and if said permits

are prohibited by the Mineral Leasing Act; it would be

a waste of judicial time and effort for [the] court to

adjudicate the far more complicated NEPA issues which

would, in that event, be reduced to hypothetical ques-

tions.”

33 Respondents’ Response to Defendant's Motion To Defer

Consideration of Respondents’ Motion for Partial Summary

Judgment Under the Mineral Leasing Act, May 19, 1973, at 2

(R. 162) (Jt. App. 160-61):

“The oil companies have had three full years to figure

out why the Mineral Leasing Act does not mean 50

feet when it says 50 feet. Surely, they—and the Secre-

tary—should now be required to provide their expla-

nations... .

“TRespondents] suggest, therefore, that defendants be

required to file responsive briefs to [respondents’] Mo-

tion for Pretrial Summary Judgment within ten (10)

days (they have already had the motion for seven days) ;

followed by an expeditious consideration by the Court

of the merits of [respondents’] motion. If the Court

concludes that [respondents’] contentions are clearly

correct-—as it preliminarily concluded in April, 1970—

if can then afford defendants the opportunity of an ex-

pedited appeal (which defendants could make either to

the Court of Appeals or as may be far more appropriate,

and likely, to Congress).”

TEER OL RE ce |

ty SAS ARLENE ES DAL

Leasing Act issues. Alyeska argued further that such

a presentation would lead to the rejection of re-

spondents’ Mineral Leasing Act arguments:

“Both the permit issues and those relating

to the National Environmental Policy Act

(NEPA), 42 U.S.C. $ 4331 et seq., are insepa-

rably associated with the technical details of how

the trans-Alaska pipeline system will be built.

Alyeska is confident: that when the [respond-

ents’] contentions are examined by this Court

with a full factual understanding of the project,

the scope of the Secretary’s power to issue ‘the

requested permits and the past policies and prac-

tice of the Department of the Interior, the Court

will reject those contentions.” *!

Alyeska prevailed in its position (R. 164). Respond-

ents’ motion was held‘in abeyance while discovery

on the NEPA issues (which had theretofore been

deferred at the request of Alyeska and the other de-

fendants) was completed on an expedited basis.”

* Memorandum of Alyeska Pipeline Service Company in

Support of Defendant's Motion To Place Respondents’ Motion

for Partial Summary Judgment in Abeyance, May 17, 1972,

at 7-8 (R. 154) (Jt. App. 147-48).

** Depositions were taken on May 18, 1972 (R. 217), May

24, 1972 (R. 220), May 31, 1972 (R. 221), June 6, 1972 (R.

222), June 8, 1972 (R. 223), June 16, 1972 (R. 224), and

June 24, 1972 (R. 225). In addition, on May 26, 1972,

Alveska served on respondents extensive interrogatories de-

signed to explore the adequacy of respondents’ standing

under Sierra Club v. Morton, 405 U.S. 727 (1972) (R. 165).

The response to these interrogatories, which required informa-

tion *rom respondents’ officers and members across the coun-

try, was filed by respondents on June 26, 1972 (R. 194, R.

195).

The exposition of the NEPA issues in the case re-

quired an elaborate development of the technical de-

tails of the Trans-Alaska pipeline. Respondents dealt

extensively with those details in their NEPA brief.”

So did Alyeska, which filed extensive briefs which,

when printed, filled over 300 pages (more than the

combined totals of the other defendants) (R. 205,

R. 230). The result was a record and set of briefs

that set forth the entire fact picture that Alyeska

had contended was necessary for a fully informed

decision in the case.

On August 14 and 15, 1972, the district court

heard argument in the case. Alyeska was allocated ©

36 See Respondents’ Brief on National Environmental

Policy Act Issues, at 3-12, 54-59, 72-80 (R. 206). (Page ref-

erences are to the printed version of the brief, filed on Septem-

ber 13, 1972, in the court of appeals.)

The principal NEPA ‘issues raised by respondents were:

First, that by focusing on Alyeska’s proposal for North, Slope

oil, and effectively excluding from consideration a second

(gas) pipeline which the Interior Department acknowledged

would be constructed across Canada in any event, the impact

statement did not set forth the full implications of: the

Alyeska proposal or analyze the realistic alternatives to it.

These alternatives were (1) an oil and gas pipeline across

Alaska plus marine transport of oil through Prince William

Sound and down the Northeast Pacific plus a completely sep-

arate pipeline route for North Slope natural gas across

Canada or (2) a single overland corridor across Canada

which could accommodate both the oil and gas pipelines. Id.

at 39-64. See Appendix A, infra. Second, that in view of the

substantial number of indeterminacies acknowledged in the

impact statement, the statement should also have indicated

the steps, if any, being taken to close those gaps and discuss

the risk of proceeding in the face of so many indeterminacies.

Id. at 65-86. See Appendix B, infra.

‘-

Oh POE TNR NTR

PARI AT

FELLER ee EC:

Pa ba tas

RRP ES

22 . J

the major poytion of defendants’ time on both the

Mineral Leasing Act and NEPA issues. On August

15, 1972, the district court ruled from the bench in

defendants’ favor. The court declined, however, to

set forth reasons for its decision on the grounds

that it would take “weeks and months to complete”

an “exhaustive, legal opinion” and that “the appellate

process [should] be initiated as soon as possible.” *

4. The Court of Appeals’ Decision on the Merits

An expedited appeal to the court of appeals en-

sued. Oral argument was held on October 6, 1972.

with Alyeska again allocated the main portion of

defendants’ argument. Since no opinion had been

issued below, it was necessary for the court of ap-

peals to conduct its own five-month review of the

voluminous record. On February 9, 1973, the court

rendered its exhaustive opinion in Wilderness Society

The focus of the court’s opinion was on the

Mineral Leasing Act. The court concluded that, on

its face, Section 28 of the Mineral Leasing Act pre-

cluded issuance of the right-of-way permits requested

pn ak Ca 5

* See Wilderness Society V. Morton, 4 ERC 1467 (D.D.C.

1972).

At the conclusion of the two-day oral argument, the district

court remarked:

“T have never seen a case more thoroughly or better

briefed‘on all sides. I can hardly imagine that anyone

of you could brief it more extensively or better.” Tran-

script, Hearings before District Court, August 15, 1972,

at 360. ’

by Alyeska. Wilderness Society 1, 479 F.d et 855."

The opinion demonstrated further that the width

limitation contained in Section 28 was a device con-

sciously chosen by Congress to “maintain control ovér

pipeline rights-of-way and to force the industry to

come back to Congress if the amount of land granted

was insufficient for its purposes.” Id. at 892. ( Em-

phasis added).

As explained in the opinion, the Mineral Leasing

Act was the product of a debate on public land use

28 The full text of Section 28 of the Mineral Leasing Act

is set forth at P. Br., App. A. The section provided in per-

tinent part that:

“Rights of way through the public lands . . . may be

granted by the Secretary of the Interior for pi jne

_ purposes for the transportation of oil or natural gas-.. .

to the extent of the ground occupied by the said pipe line

and twenty-five feet on each side of the same under such

regulations and conditions as to survey, location, applica-

tion, and use as may be prescribed by the Secretary of

- the Interior .a . .” (Emphasis added). ‘,

The section also provided:

“That no right-of-way shall hereafter be granted over

said lands for the transportation of oil or natural gas

except under and subject to the provisions, limitations

and conditions of this section.” (Emphasis added).

And the section contained a specific forfeiture provision in

the event of any “failure to comply with the provisions of

_this section”’:

“Failure to comply with the provisions of this section

or the regulations and conditions’ prescribed by the

Secretary of the Interior shall be ground for forfeiture

of the grant by the United States district court for the

district in which the property, or some part thereof, is

located in an appropriate proceeding.” (Emphasis added).

Fe oe ae

HOD, SERS

extending over several Congresses. It was triggered

by Congress’ concern that ‘tin the past, when grant-

ing rights-of-way to railroads, it had been much too

generous in giving away valuable public lands, and

it did not want this to be repeated.” Wilderness

Society 1, 479 F.2d at 863. Over the years preceding

the, Act’s passage, Congress considered various width

limitations for oil and gas pipelines. Jd. at 856. Con-

gress was warned by oil and gas pipeline proponents

that a fifty-foot width limitation would not accom-

mpdate future pipeline developments. /d. at 859.

Nonetheless, Congress selected that width limitation

because it was sufficient for pipeliné construction

methods with ‘which it was familiar. Jd. at 863 n. 47.

If interested oil companies. needed more land, Con-

gress intended for them to “come back and try to get

a more liberal law.” /bid.

In light of the above, the court coneluded that:

—

“Article 4, § 3, Cl. 2 of the Constitution provides

that ‘The Congress shall have Power to dispose

of and make all needful RuleS and Regulations

respecting the Territory [or] other Property be-

longing to the United States.’ The power over

the public land thus entrusted to Congress is

without limitations.” Jd. at 891.

e. * * *

“These companies have now come into court, ac-

companied by the executive agency authorized

» to administer the statute, and have said, ‘This

is not enough land; give us more.’ We have no

more power to grant their request, of course,

than we have the power to. increase congres-

fn.

Yo?

= ——

sional appropriations to needy recipients.” /bid.

(Emphasis added).

With regard to the National Environmental! Policy

Act issues in the case, the court concluded that the

parties had presented “complex and important ques-

tions.” Jd. at 889. Those questions, the court was

later to say, were interrelated with the Mineral

Leasing Act issues and had served as a predicate for

a “precise analysis” of those issues. Wilderness So-

ciety II, 495 F.2d at 1035. But the necessity for prior

Congressional action could moot, or developments

pending Congressional action could alter, the factors

bearing on a final resolution of the NEBA issues.

Wilderness Society I; 479 F.2d at 889. Thus, although

three dissenting judges would have reached the NEPA

issues, the court declined to adjudicate them on tra-

s° It should be noted that in Wilderness Society I the court

of appeals squarely rejected Alyeska’s assertions that its

decision to seek authorization from the Secretary rather than

the Congress was supported by Interior Department “special

land use permit” regulations and certain opinions of the

Attorney General (P. Br. at 16.n. 11). The court there held

that on their face the Department’s “special land use’ per-

mit” regulations and the Attorney General’s#opinions cited by

petitioner precluded the type of permit Alyeska requested. Id.

at 870-75.

The court also pointedly noted the irony that Alyeska “‘ap-

parently did not know” about the so-called “administrative

practice of over fifty years” (P. Br. at 30 n. 25) at the time

Alyeska filed its application with the Secretary. 479 F.2d at

867. Indeed, a subsequent three-year search by Alyeska and

Interior Department counsel into the files of Interior Depart-

ment field offices in quest of such a practice produced no more

than a handful of documented instances to which the court of

appeals properly gave little weight in Wilderness Society I,

A479 F.2d: at 868.

ORE ee Dye ee DNC oR 8 -_

zt pam - aie penys' 245

eR PAT ae

ditional ripeness grounds, id. at 889-90, citing Poe

v. Ullman, 367% U.S. 497 (1961) and 367 U.S. at

528 (Mr. Justice Harlan, dissenting).

Petitions for certiorari were filed on March 9,

1973, and respondents’ opposition was filed on March

28. Five days later, on April 2, 1973, this Court

denied certiorari, without dissent. 411 U.S. 917

(1973).

5. Public Law No. 93-153, 87 Stat. 576 *°

With its jurisdiction over the public lands pre-

served, Congress embarked upon several months of

intensive deliberations—filling thousands of pages of

‘hearings “ and reports.*

30 U.S.C.A. $185 (Supp. 1974): 43 U.S.C.A. § 1651

et seq. (Supp. 1974).

"! See, e.g., Hearings on S. 1040, S. 1041, S. 1056, S. 1081

Before the Senate Comm. on Interior and Insular Affairs,

93d Cong., Ist Sess., pt. 1 (1973); Hearings on S. 1040, S.

1041, S. 1056, S. 1081 Before the Senate Comm. on Interior

and Insular Affairs, 93d Congy 1st Sess., pt. 2 (1973); Hear-

ings on S. 970, S. 993, S. 1565 Before the Senate Comm. on

Interior and Insular Affairs, 93d Cong., Ist Sess., pt. 3 (1973);

Hearings on S. 970, S. 993, S. 1565 Before the Senate Comm.

on Interior and Insular Affairs, 93d Cong., 1st Sess., pt. 4

(1973); Hearings on H.R. 9130 Before the Subcomm. on

Public Lands of the Heuse Comm. on Interior and Insular

Affairs, 93rd Cong., Ist Sess., Ser. No. 93-12, pt. 1 (1973):

Hearings on H.R. 9120 Before the Subcomm. on Publie Lands

of the House Comm. on Interior and Insular Affairs, .93d

Cong., Ist Sess., Ser. No. 93-12, pt. 2 (1973); and Hearings

on H.R. 9130 Before the Subcomm. on Public Lands of the

House Comm. on Interior and Insular Affairs, 93d Cong., 1st

Sess., Ser. No. 93-12, pt. 3 (1973).

*? See, e.g., S. Rep. No. 93-207, 93d Cong., Ist Sess. (1973) ;

H.R. Rep. No. 93-414, 93d Cong., 1st Sess. (1973); H.R. Rep.

That process convinced Congress that (1) it should

enact a completely new legislative charter for pipe-

lines crossing the public lands, incorporating string-

ent technological, environmental, and land use safe-

guards, and (2) that the construction of the Trans-

Alaska Pipeline should. proceed, subject to extensive

safeguards set forth in the Act, without further

litigation under the National Environmental Policy

Act.”

With regard to Congress’ decision to authorize the

construction of the Trans-Alaska Pipeline, a proposal

to declare that the actions already taken by the Sec-

retary constituted compliance with NEPA was re-

jected." But by a 49-49 vote in the Senate, requir-

ing then Vice President Agnew to break the tie, and

a 221-198 vote in the House, Congress nonetheless

decided to permit construction of the pipeline without

any further litigation under NEPA.”

The extensive hearings and debate had convinced

Congress that during the forced delay of pipeline

construction :

No 93-420, 93d Cong., Ist Sess. (1973); H.R. Rep. No. 93--

617, 93d Cong., Ist Sess. (1973); H.R. Rep. No. 93-624, 93d

Cong., 1st Sess. (1973).

“42 The text of Pub. L. No. 93-153 is set forth at Appendix C

to this brief. The provisions of the Act are summarized at

pp. 51-54 infra.

+ H.R. Rep. No. 93-617, 93d Cong., 1st Sess. 27 (1973).

Alyeska’s assertion that Congress made “a legislative finding

that’the Department’s efforts were fully adequate” ¢P. Br.

35) is in error.

119 Cong., Rec. S. 13,689-90 (daily ed. July 17, 1973);

119 Cong. Rec. H. 7281-82 (daily ed. Aug. 2, 1973).

RPO TOREE MDT COMTI

HERRERO LTP LEIS ST OE RE IE

“[T]he risk of environmental damage . . . has

been substantially lessened as a result of the

stricter environmental stipulations, redundant

safety systems, contingency planning and better

engineering imposed upon the proposed Trans-

Alaska pipeline.” “

In language that mirrored Wilderness Societ; y I, Con-

gress determined that:

“Tt is fitting and proper for Congress to make

this decision. The issue is one of national im-

portance. The issue involves the use of the pub-

lie lands, the control of which the Constitution

expressly reserves to Congress. It is the respon-

sibility of Congress to decide whether the pipe-

line should be authorized.” *

These benefits were acknowledged by some of the pipe-

line’s most ardent supporters. See, e.g., Statement of Senator

Gravel, Hearings on S. 970, S. 993 and S. 1565 Before the

Senate Comm. on Interior. and Insular Affairs, 93d Cong.,

Ist Sess., pt. 4, at 56 (1973) (“While the four-year delay

in construction of the Alaska Pipeline has been costly to the

United States in balance of payments and a worsening energy

shortage, it has—and I think most of us agree, including the

oil industry—served a very useful purpose. A safer line will

be constructed today than could have been constructed four

years ago.”); Statement of then Under Secretary of the

Treasury William E. Simon, Hearings on S. 970, S. 993 and

S. 1565 Before the Senate Comm. on Interior and Insular

Affairs, 93d Cong., 1st Sess., pt. 4, at 127 (1973) (“past

delays and resultant research have greatly reduced the magni-

tude of [the] risks’’).

** H.R. Rep. No. 93-414, 93d Cong., Ist Sess. 14 (1973).

6. The Court of Appeals’ Decision Awarding Attorneys’ Fees

The court of appeals’ decision in Wilderness Society

I] is discussed at length in the Argument Section

of this brief." In summary, the court concluded that

in view of the extraordinary factual circumstances

of this case respondents and their counsel should not

be required: to bear the entire cost of the litigation.

The equitable factors relied on by the court in reach-

ing this determination related to the importance of

the congressional policies effectuated, the benefits

conferred on others by the litigation, the massive legal

efforts required, and the burden that that effort placed

on respondents and their counsel. Wilderness So-

ciety Ii, 495 F.2d at 1030-36.

Having concluded that respondents and their coun-

sel should not be required to bear the entire cost

of the litigation,- the court determined that the

“equities of this particular case” justified a partial

shifting of respondents’ fees to Alyeska. The court

explained that the Trans-Alaska Pipeline is Alyeska’s

‘ project; the litigation stemmed from actions and de-

cisions taken by Alyeska and for which Alyeska

dlone was responsible; Alyeska participated in the

litigation as a “major and real party in interest’;

and an award of fees against Alyeska could not de-

ter it from pursuing its interests in court. /d. at

1039-38.

In this connection, the court made no provision

for the efforts of respondents’ counsel prior to

Alyeska’s entry into the case in September 1971.

*s The Bill of Costs on which the court acted is reproduced

at Jt. App. 209-221.

s Coe Lee as

Nor did the court authorize any shifting of fees for

any legal effort undertaken after that date that was

not related to the preparation and presentation of the.

briefs and oral argument that served as the basis

- for the court of appeals’ decision on the merits. Even

with regard to the latter, the court limited the award

against Alyeska to “half of the total fees,” ” the

“amount... [to] be fixed in the first instance by the

District Court, after hearing evidence if necessary

as to the extent and nature of the services rendered.”

Id. at 1036.

SUMMARY OF ARGUMENT

The power to award attorneys’ fees in the absence

of specific statutory authorization is not confined

within rigid categories. It is a flexible, equitable

power whose exercise depends upon the particular

* The court, explained:

_ “Under 28 U.SC. § 2412 . . . no attorneys’ fees can be

imposed against the United Sta®es_.-—-—

* * * * :

“Since Alyeska unquestionably was a major and real

party at interest in this ease, actively participating in

the litigation along with the Government, we think it

fair that it should bear part of the attorneys’ fees ., . .

In recognition of the Government’s role in the case, on |

the other hand, Alyeska should have to bear only half

of the total fees. The other half is properly allocated

to the Government and, because of the statutory bar,

must be assumed by appellants [i.e., respondents]. In

this manner the equitable principle that appellees [7.e.,

Alyeska] bear their fair share of this litigation’s full cost

and the congressional policy that the United States net

be taxable for fees can be accommodated.” 495 F.2d at

1036. (Emphasis added). (Footnote omitted).

”

facts of particular cases. The fee award here rests

upon a determination that (1) overriding equitable

factors support a shifting of fees from respondents

and (2) it is fair and equitable to shift a portion of

those fees to Alyeska. That determination was made

by a court of appeals uniquely immersed in the facts

of the case. (Point I).

The court identified four factors which in its judg-

ment supported a shifting of fees from respondents.

Respondents’ litigation vindicated important Congres-

sional policies; it conferred substantial benefits on

others; massive private litigation was necessary to

achieve those ends; and the litigation, undertaken

for no economic gain, placed heavy burdens on re-

spondents and their counsel. Each of the factors cited

by the court finds ample support in the record. (Point

Il A). Moyeover, each of the factors was an ap-

propriate one for the court to consider in deciding

whether to authorize a shifting of fees from respond-

ents. (Point II B). Taken together, they demonstrate

that the decision to shift fees from respondents rests

upon unusually compelling considerations.

The Mineral Leasing Act was a landmark con-

servation measure designed to correct past abuses

in public land management. Its width limitation was

a protective device consciously designed by Congress

to preserve for itself the opportunity to safeguard

the public lands. NEPA embodies important and

cdmprehensive policies designed to ensure that fed-

eral actions which might have significant environ-

mental conséquences, including private projects re-

quiring government approval, not be undertaken until

their adverse consequences have been analyzed and

See a |

casi §

LASSER CTT NON TNO Ze era

AER

Reet

ways to minimize them considered. The litigation

below vindicated the purposes of both these Acts

precisely as Congress intended. The litigation re-

quired government and industry to consider carefully

the risks associated with the construction of the

Trans-Alaska Pipeline and it required them to seek

Congressional approval before diverting the irreplace-

able public lands of Alaska to pipeline use. hue II

Al).

The litigation had other concrete and substantial

benefits. First, the preliminary injunction obtained

in April 1970 by respondents, when neither industry

nor government was prepared to deal with the com-

plex. problems of an Arctic pipeline, prevented a

possible environmental and engineering disaster. Sec-

ond, as government and industry spokesmen have

acknowledged, the litigation served as a catalyst for

their joint efforts to reduce the project’s risks. Third,

and most important, the litigation 1] major legis-

lation which set forth a completely” vy charter for

pipelines crossing public lands and] sed detailed

environmental, technological, and other safeguards on

the Trans-Alaska Pipeline. In its brief, Alyeska

labors to create the impression that following the

court’s decision in Wilderness Society I, Congress

merely rubber-stamped the construction of the Trans-

Alaska Pipeline. This contention is totally belied by

Pub. L. No. 93-153, which is reproduced at Appendix

C to this brief and summarized at pp. 51-54, infra.

(Point II A 2).

The Congressional policies effectuated and the bene-

fits conferred were the result of a r:*3sive private

litigation effort undertaken by respor ents with no

prospect of receiving monetary damages. There was

a substantial disparity in the resources available to

the respective parties in the litigation and the effort

required of respondents placed a heavy burden on

them and their counsel. (Point II A 3, 4).

The appropriateness of these considerations as fac-

tors to be weighed in deciding whether to shift fees

from respondents is amply demonstrated by this

Court’s attorneys’ fee decisions, this Court’s decisions

concerning judicial effectuation of Congressional poli-

cies and access to the courts, Congressional legisla-

tion on attorneys’ fees, and by the attorneys’ fees

decisions of the lower federal courts. (Point II B).

The court of appeals’ determination that it was

fair and equitable in the circumstances of this case

to shift a portion of respondents’ fees to Alyeska was

also correct. Alyeska argues that it had no legal

obligation under the Mineral Leasing Act or NEPA,

and that therefore the court was without power to

award fees against it. As a technical matter the

Mineral Leasing Act did impose an enforceable legal

obligation on Alyeska. But more to the point, this

Court’s decisions establish that the power to shift

fees does not depend upon the formality of a party’s

technical obligation. It rests on the inherent judicial

power to do equity in a particular situation. (Point

III).

The court’s power to shift fees to Alyeska was

properly exercised in the circumstances of this case.

Alyeska is no mere. bystander unfairly selected out

to pay attorneys’ fees. The Trans-Alaska Pipeline

is Alyeska’s project—conceived and proposed by

Alyeska’s principals to promote their private economic

interests. The litigation itself resulted from actions

See eee |

EN ONY ENE

;

ETAT LE I SL

and decisions for which Alyeska’s principals were

directly responsible. It was Alyeska’s principals who

decided to address their application to the Secretary

of the Interior rather than to Congress. They were

free at any time to change their decision and address

their request to the Congress, but they declined to

do so even after receiving a clear signal from the

preliminary injunction. It was also Alyeska’s prin-

cipals who sought approval of the pipeline without

adequately considering major technological and en-

vironmental problems posed by the project. As the

moving party behind an inadequately planned project

contemplating an unauthorized use of public lands,

Alyeska was the direct cause of this litigation and the

real party in interest. (Point III A}.

To prctect the enormous economic interests of its

principals, Alyeska played.a major and active role

in the litigation. Alyeska conducted extensive dis-

covery, filed massive briefs, and took the major por-

tion of defendants’ oral argument in both the district

court and the court of appeals. (Point III B). Fur-

thermore, although Alyeska vigorously opposed re-

spondents, Alyeska received concrete benefits from the

litigation—primarily from the correction of basic

’ technological deficiencies in the proposed pipeline that

threatened its physical integrity. Alyeska’s principals

are also in a position to distribute the fee award

among members of the public who are the ultimate

beneficiaries of an improved pipeline, an improved

environment, and a proper functioning of our govern-

mental system. (Point III C). And the award does

not otherwise work any hardship or unfairness on

Alyeska. (Point III D-F).

Finally, Alyeska raises several miscellaneous con-

tentions concerning the judicial manageability of fee

awards and the appropriateness of awarding fees to

attorneys who receive salaries from non-profit or-

ganizations. These contentions are refuted by the

facts of this case and by judicial precedent. (Point

IV). :

ARGUMENT

I. THE EQUITABLE POWER TO AWARD FEES fs

NOT CONFINED TO RIGID SETS OF CASES. |

The decision below rests on the premise that the

“Supreme Court has... indicated .. . that the equit-

able power of federal,courts to award attorneys’ fees

. ., iS not a narrow power confined to rigid sets of

eases.” Wilderness Society II, 495 F.2d at 1029. This

Court’s decisions clearly support that premise.

Over the years, the Court has approved non-puni-

tive equitable awards of attorneys’ fees in a variety

of factual contexts which, taken together, have come

to be known as the “common benefits” exception to the

American rule.” Behind the label “common benefits”

is a diverse group of cases in which particular facts

°° As formulated by thé Court in F. D. Rich Co. v. United

States, 417 U.S. 116 (1974),' this exception to the American

rule applies “where a successful litigant has conferred a sub-

stantial benefit on a class of persons and the court’s shift-

ing of fees operates to spread the cost proportionately among

the members of the benefited class.” Id. at 129-30.

The Court has, in addition, “long recognized that at-

torneys’ fees may be awarded to a successful party when his

opponent has acted in bad faith, vexatiously, wantonly or for

oppressive reasons.” Jd. at 129 and the cases collected at 129

n.17.

Pee Sa a Oe |

CREA!

ty Se

PUSS

ee ed

Ye See

were found sufficient to support an equitable fee

award. Indeed, what is now called the “common bene-

fits” exception has itself developed from a simpler

“common fund” doctrine to. accommodate new equit-

able considerations. :

The genesis of the exception was the recognition

that it is basically unfair to require a litigant to

bear the expense of a litigation from which others

profit. This principle was recognized initially in a

very narrow group‘of cases in which a “common

fund” was protected, created, or recovered as a re-

sult of the litigation. E.g., Central R.R. & Banking

Co.'v. Pettus, 113 U.S. 106 (1885); Trustees v.

Greenough, 105 U.S. 527 (1882). It was then recog-—

nized that the same considerations of fairness should

be applied to a case which did not actually result in

a fund, but produced a similar effect by establishing

a precedent for others. Sprague v. Ticonic National

Bank, 307 U.S. 161, 166 (1939). Recently, the Court

has held that the benefits conferred upon others need

not be pecuniary for the same considerations of

fairness to apply. Hall v. Cole, 412 U.S. 1 (1973);

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970).

~In Hall and Mills the Court has also, recognized that

other equitable factors, not present in the common

fund cases, may lend additional support for the shift-

ing of fees. See p. 60 infra.

The ability to shift fees-in a specific case depends,

of course, on more than fairness to the plaintiff.

There must exist, or there must be fashioned, an

equitable fee shifting mechanism that is not unfair

to others. Here, too, however, the Court has shown

flexibility in approving mechanisms, which, even if

’

imperfect, reflect the specific circumstances of the

case before it. In Sprague, sipra, for example, no

fund was actually established by the litigat'on. The

Court recognized that any cost-spreading mechanism

that might be devised would be imperfect since both

secured and unsecured creditors would have to pay

for it, even though only the former had beneiiicd

from the.lawsuit. But the Court considered this a»

simply one factor to be considered “in the ultimate

judgment’. . . as to the fairness of making an award.”

307 UsS.at 167."

This Court’s descriptions of the types of cases that

might present sufficient equities to warrant the award-

ing of fees appear to have been carefully drafted so

as to dispel any inference that ‘the power to awar?

fees for non-punitive reasons was somehow frozen

within the mold of already decided common benefit

cases.” In Sprague, the Court asserted that fee shift-

" Following the remand, a fee was, in fact, awarded at the

partial expense of non-benefitting general creditors by the

district court. On appeal, the court of appeals upheld the

equity of that award:

“But if it was equitable to make the plaintiff whole for

her expenses in establishing the lien, the District Court

was warranted in concluding that the trivial disadvantage

to the unsecured creditors was not a significant counter-

vailing consideration.” Sprague v. Ticonic Nat'l Bank,

110 F.2d 174, 177 (1st Cir. 1940).

“2 To have done otherwise would have been a startling

departure from the manner in which equitable jurisdiction

traditionally functions. As the Court recognized in Sprague:

“As in much else that pertains to equitable jurisdiction,

individualization in the exercise of.a discretionary power

Oe ane NRE “f CMOS Pas ook a) t

ing is appropriate ‘in exceptional cases and for domi-

nating reasons of justice:*-307 U.S. at 167. In Mills,

supra, the Court indicated that “both the courts and’

Congress have developed exceptions to this rule for

situations in which overriding considerations indi-

cate the need for such a recovery.” 396 U.S. at 391-

92. And in Hall, supra, the Court stated that ‘‘fed-

eral courts ... may award attorneys’ fees when the

interests of justice so require” and that “federal |

courts do not hesitate to exercise this inherent equit-

able power whenever ‘overriding considerations in-.

' dicate the need for such a recovery’.”: 412. U.S. at

4-5.

Indeed, at the very time that the Court was en-

ceavoring to contrel encroachments on the American

rule in the context of everyday commercial litigation.

it did not thereby freeze all future permissible ex-.

ceptions to the rule into the precise mold of already- .

decided cases. While expressly reserving judgment

‘on the validity of the scope of that doctrine,” the

Court took note that “the lower courts have .

applied a [private attorney géneral] rationale for fee

shifting based on the premise that the expense of

litigation may often be a formidable if not imsur-

will alone retain equity as a living system and save it

from sterility.” 307 U.S. at 167.

Compare, Unidn P. Ry. Vv. Chicago RU. & P. Ry., 163 U.S.

564, 601 (1896):

“As has been well said, equity .-. . ‘has always pre-

served the elements of flexibility and expansiveness, so

that new [remedies] may be invented, or old ones modi-

fied, in order to meet the requirements of every

CS ais

mountable obstacle to the private litigation necessary

to enforce important public policies.” F. D. Rich,’

supra, 417 U.S. at 130.°

Thus, the approach taken by the court below in

looking to the “equities of this particular case” and

not to some inflexible formula was fully consistent

with this Court’s decisions. The appropriateness of

the court’s award should be decided not on the basis

of abstract predetermined formulas as Alveska sug-

gests but on traditional grounds of (1) whether the

overriding equitable factors identified by the court

support a shifting of fees from respondents in this

case, and, if so, (2) whether it is fair and equitable

in the circumstances of this case to shift those fees

‘o Alyeska.

Il. THE EQUITABLE FACTORS IDENTIFIED BY THE

COURT SUPPORT A SHIFTING OF FEES FROM

RESPONDENTS IN THIS CASE.

The court of appeals identified four equitable fac-

tors that in its judgment were sufficiently strong in

“this particular case [to] support an awardtef at-

tornevs’ fees to the successful [respondents].” Id-

derness Society 11, 495 F.2d at 1036.

The equitable factors relied on were that the litiga-

tion had vindicated important Congressional policies;

that it had conferred substantial benefits on others

besides respondents; that massive litigation by re-

spondents as private citizens was necessary to achieve

those ends; and that the litigation, undertaken for

°3 The lower court cases cited in F. D. Rich, 417 U.S. at 130

n.19, and other “private attorney general” cases are collected

at note 91, infra.

AN Ie

‘peng

no economic gain, placed heavy burdens on respond-

ents and their counsel. Each of the factors cited by

the court finds ample support in the record. More-

over, each of the factors was an appropriate one for

the court to consider in deciding whether to authorize

a shifting of fees from respondents in this case.

Taken together, they demonstrate that the decision

to shift fees from respondents rests upon unusually .

compelling considerations.

A. The Factors Identified by the Court Are Amply

Supported by the Record

1. The Statutory Interests Involved Were Important

The court’s conclusion that “vital statutory in-

terests’”’ were at stake in the litigation below is

clearly correct. See Wilderness Sociely II, 495 F.2d

at 1032. ay

As previously discussed, the Mineral Leasing Act

was a landmark conservation measure designed to

correct past abuses in public land management. When

it enacted the law, Congress intended to reassert

its own control over the use and disposition of the

public lands. Wilderness Society I, 479 F.2d at 859-

860, 864. The debates cited at length in the court

of appeals’ opinion\ demonstrate that “Congress

seemed to be aware that the width limitation jim-

posed on pipeline rights-of-way] might .. . in the

future prove to be . =. insufficient,” but “Congress

intended to maintain control over pipeline rights-of-

way and to ferce the industry to come back to Con-

eress if the amount of land granted was insufficient

for its purposes.” (Emphasis added). /d. at S60,

892. Under the scheme of the Act, Congress would

then have the opportunity to decide whether more

public land should be granted and, if so, whether

specific conditions and safeguards should be attached

to its use. a

Even if Congress had never enacted the National

Environmental Policy Act of 1969, the case below

would have been no “ordinary, run-of-the-mill litiga-

tion.” See Sierra Club v. Morton, 405 U.S™727, 755

(1972) (Mr. Justice Blackmun, dissenting). On a

general level, as Justice Blackmun recently stated

in an analogous context, “the propriety of the ‘dual

permit’ device as a means of avoiding . . . [a] limi-

tation imposed by Congress” presented an_ issue that

“raise[d| important ramifications for the quality of

the country’s public land management.” *’ More spe-

cifically, Alyeska’s Trans-Alaska Pipeline proposal

raised “significant aspects of a wide, growing, and

disturbing problem, that is, the Nation’s and the

world’s deteriorating environment with its resulting

ecological disturbances.” Jd. at 755. The public lands

“4 Sierra Club v. Morton, 405 U.S. 727, 757 (1972) (dis-

senting opinion). Significantly, the Congressional limitation

contained in the Mineral Leasing Act was even stronger than

that in issue in Sierra Club. As the court below noted:

“We need not voice our views with respect to the Ninth

Circuit’s opinion in .... [Sierra Club v. Hichel, 9 Cir.,

433 F.2d 24 (1970), affirmed only on the ground of lack

of standing to sue, 405 U.S. 727 (1972)] .... [T]he

statute involved in that case, 16 U.S.C. $497 (1970),

has no provision comparable to that in Section 28 of

the Mineral Leasing Act expressly stating that no rights-

of-way for the uses in question shall be granted except

under the provisions, conditions and limitations of the

statute.” Wilderness Society I, 479 F.2d at 869-70.

De rset he ed el a eat a t

. Federal-Aid GAVEERS Act of 1966, 23 U.S.C. § 138 (1970).

that Alyeska selected for its pipeline are unique and

irreplaceable. See Appendix A, infra. The project,

however conceived and executed, will substantially

and*frretrievably alter their ecology and character

for the rest of time. The preservation of Congress’

right to protect these lands from needless degradation

and to determine their most beneficial use was a

matter of obvious national importance.

The importance of the environmental concerns that

prompted the litigation’ below was confirmed and

given concrete focus in 1969 when Congyess passed

the National Environmental Policy Act, the first and

broadest of a sevies of federal stgtutes specifically

designed to protect and restore the/national enviren-

ment.”” NEPA was predicated on’ fhe recognition by

Congress that: | ¢

“As the evidence of environmental decay and de-

gradation mounts, it becomes clearer ... that

’ the Nation cannot continue to pay the price of

past abuse . ‘

“If the United States is to create and main-

tain a balanced and healthful environment, new

means and procedures to preserve environmental

values in the larger public interest, to coordinate

Government activities that shape our future en-

\ vironment, and te provide guidance and incen-

*° Sev also Noise Control Act of 1972, 42 U.S.C. § 4901 ef

seq. (Supp. II, 1972); Marine’ Protection, Research, and

Sanctuaries Act of 1972, 33 U.S.C. $1401 et seq. (Supp. H,

1972) ; Federal Water Pollution Contro! Act Amendments of

1972, 33 U.S.C. § 1251 et seq. (Supp. Il, 1972); Clear Air

Amendments of 1970, 42 U.S.C. §1857(a) et seq. (1970);

tives for State and local government and for

private enterprise must be devised.” “

In NEPA, ongress expressly declared that the

Nation’s goals include “‘fulfill[ing| the responsibilities

of each generation as trustee of the environment for

succeeding generations” and “attain[ing] the widest

range of beneficial uses.of the environment without

degradation [and] risk to health or safety.” ” In

recognition of the “critical importance of restoring

and maintaining environmental quality to the overall

welfare and development of man,” “ Congress estab-

lished the “action-forcing” “ procedures of Section

102(2)(c). These procedures are designed to ensure

that federal actions which might have significant en-

vironnental consequences, including private projects

requiring government approval, be delayed until their

consequences ‘have been analyzed and ways to mini-

mize them considered.

“S. Rep. No. 91-296, 91st Cong., Ist Sess. 5 (1969). Com-

pare President Niron’s Special Message to the Congress Out-

lining the President’s 1972 Environmental Program, 8 Pres.

Doc. ‘218-19 (Feb. 8, 1972):

“<fT]t is literally now or never’ for true quality of life

in America .... Environmental concern must crystal-

lize into permanent patterns of thought and action.

What began as an environmental awakening must mature

finally into a new and higher environmental way of life.”

‘* Section 101(b), 42 U.S.C. § 4331 (b).

Section 101(a), 42°U.S.C. § 4331 (a).

Hearings on S. 1075, S. 237, and S, 1752 Before the Sen-

ate Comm. on Interior wud Insular Affairs, 91st Cong., 1st

Sess. 116 (1969) (remarks of Senator Jackson).

FE TREK aM MAE NH t

NEPA’s enactment leaves no doubt that “the com--

mitment to improving and protecting our natural en-~*

vironment” is, as the court below held it to be, “among

the most important” facets of “‘one of the most «vital

of current national policies.” Wilderness Society 11,

495 F.2d at 1034.” As applied to the proposed Trans-

°° Numerous other courts, including this Court, have ac-

knowledged the national importance of environmental protec-

tion, and the major role to be played by NEPA in preventing

environmental abuse. E.g., United States v. SCRAP, 412 U.S.

669, 693 (1973) (NEPA is a “major federal [effort] at re-

versing the deterioration of the country’s environment’) ;

Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (‘‘Aesthetic

and environmental well-being, like economic well-being, are

important ingredients of the quality of life in our society’) ;

Environmental Defense Fund v. TVA, 468 F.2d 1164, 1174

(6th Cir. 1972) (NEPA is a clear Congressional mandate

recognizing ‘“‘the obligation of all citizens” to incorporate en-

vironmental considerations into the decisionmaking process) ;

Arlington Coalition on Transp. V. Volpe, 458 F.2d 1323, 1326

(4th Cir.), cert. denied, 409 U.S. 1000 (1972) (“It is the de-

clared public policy of the United States to protect and pre-

serve the national enyironment “to the fullest extent pos-

sible’’’) ; Lathan v. Volpe, 455 F.2d 1111, 1116, 1121 (9th

Cir. 1971) (NEPA is designed to implement “important pub-*

. lie policies” and to prevent “environmental harm’’) ; National.

Helium Corp. y. Morton, 455 F.2d 650, 656 (10th Cir. 1971)

(National inférests are protected by NEPA’s requirement

that agencies “assess environmental consequences in formu-

lating policies”) ; Scenic Hudson Preserv. Conf. v. FPC, 453

F.2d 463, 473 (2d Cir. 1971), cert. denied, 407 U.S. 926

(1972) (full consideration and exploration of environmental

factors is required by NEPA to ensure “the conservation of

natural resources” and the “maintenance of natural beauty’’) ;

Calvert Cliffs’ Coord. Ce ~°. Vv. Atomic Energy Comm'n, 449

F.2d 1109, 1122 (D.C. - “) (“The sweep of NEPA is

extraordinarily broad, - “iy consideration of any and

all types of environmental imps -t of federal action”); Zabel

Alaska Pipeline, the Mineral Leasing Act and NEPA

fit together to provide a single, clear national objec-

tive and a set of mutually reinforcing procedural

safeguards designed to protect the public lands of

Alaska from unnecessary environmental degradation.

2. The Benefits Conferred by the Litigation Were

Substantial

The court’s conclusion that ‘“‘conerete and... im-

portant benefits” resulted from the litigation is amply

supported by the record. See Wilderness Society II,

495 F.2d at 1033." These benefits furthered the ob-

jectives of both the Mineral Leasing Act and NEPA.

They resulted from respondents’ early recognition of

the project’s risks, respondents’ perserverance in the

litigation over a three-year period, and the ultimate

success of respondents’ efforts to compel Alyeska to

zo to Congress.

First, Alyeska was not prepared for pipeline-re- -

lated construction in 1970 and respondents averted a

possible environmental and engineering disaster by

obtaining a preliminary injunction at that time.

Wilderness Society IT, 495 F.2d at 1033 n.3.

No one now disputes that “industry [had] seriously

underestimated the real technical difficulties of the

v. Tabb, 430 F.2d 199, 200 (5th Cir. 1970), cert. denied, 401

U.S. 910 (1971) (the preservation of our environment is an

issue of “spectacular public importance’’).

"' The court of appeals noted that the litigation below also

produced other equally important, but less tangible, benefits

relating to “the proper functicning of our system of govern-

ment under the Constitution.” Wilderness Society II, 495

F.2d at 1033.

UCI III ARS. 4

task and failed to appreciate fully—particularly at

the outset—the new conditions for decision-making

in matters that substantially affect the environment.

On its part, government was ill-equipped both in-

stitutionally and informationally for dealing with the

complex problems of the pipeline.” —

Alyeska’s lack of preparedness threatened more

than avoidable (and potentially massive) degradation

of irreplaceable wilderness, wildlife, fish, and vegeta-

tion. A major miscalculation on any one of a broad

range of environmental problems (permafrost, ero-

sion, earthquakes, river scour, flooding) threatened

“the physical integrity of the pipeline itself.” By

definition, averted potential disasters cannot be quanti-

fied. But in the present.case, the risk of going ahead

on a piecemeal basis—as was contemplated in 1970—

was clearly significant. And, in a very real sense,

respondents’ early intervention helped to save

Alyeska’s principals not only from their own errors

but from direct, substantial and potentially irrecover-

able economic loss.“

*2 Address by the Honorable Russell E. Train to the Joint

Judicial Conference of the Eighth and Tenth Circuits, June

29, 1973, quoted at Wilderness Society II, 495 F.2d at 1033-

34 n.3.

6’ See Address by Russell E. Train, supra:

“If the pipeline had been constructed using the original

design specifications, it would very’ likely have resulted

in not only very serious environmental damage but also

serious operational problems. Indeed, the physical in-

tegrity of the pipeline itself was very much at stake.”

Ibid.

** As Administrator Train has explained:

“(T]he case of the Alaska pipelfne has not been simply

one of aesthetics, or of concern over wildlife and wilder-

Wer

Second, once the preliminary injunction was} is-

sued, the litigation served as a catalyst for the jpint

efforts of industry and government to reduce ‘the

project’s risks: Wilderness Society I], 495 F.2d at

1034-35. .

The process that culminated in Congress’ authori-

zation of the Trans-Alaska Pipeline was, as Adminis-

trator Train has characterized it, ‘one of learning

for both industry and government.” “ The reduction

ness disturbance, or worries over water pollution, im- .

portant as all of these are. It was clearly an example

where sound environmental analysis was essential to

sound engineering and siting.” Jbid. See p. 7 ‘supra.

Former Secretary of the Interior Hickel has been quoted as

asserting that Alyeska’s principals initially brought a “tem-

perate zone mentality” to Alaska, reckoning that what they

had done in Oklahoma they could do just as well in Alaska.

His conclusion, while stated in blunter terms, mirrors that

of Mr. Train: “It wouldn’t have just been an environmental

disaster, it would have been an engineering disaster.” The

Alaska Pipeline, Smithsonian (Vol. 5, No. 7) 38, 42 (October

1974). Compare Statement of Alaska State Pipeline Coor-

dinator Chuck Chapman, quoted in- Alaska Construction &

Oil 24 (June 1974) (“In 1969 when... TAPS [Trans-Alaska

Pipeline System] wanted to build the pipeline, they hadn’t

done their homework.”’).

*> Address by Russell E. Train, supra, note 62. ~~

A quick insight into the progression of that process can be

gained if the Court were to compare the sketchy papers that

accompanied Alyeska’s principals’ initial application, Rule

9(h) Documents, Tab B (R. 152) with the 29-volume Proj-

ect Description ultimately submitted (Ad. Rec. 1.1.2.3) (R.

239) and compare the Interior Department’s Fina] Impact

Statement on the project (Ad. Rec. 2.14) (R. 239) with the

Department’s earlier efforts—the eight-page document dated

Marck 20, 1970, titled “Environmental Statement .Yukon

;

’

Monette caeenw cr Lise oats 1

“48

in risk that resulted from this process was cited by

Congress as a determinant factor in its decision to

authorize the project? See legislative history cited at

pp. 26-28 supra.

Some of the more significant changes that reduced.

the project’s risks can be summarized briefly.

Alyeska’s principals originally proposed to bury all

but five percent of the line. The consequence would

have beén the thawing of permafrost to such an

extent that resulting pressures on the pipe would

have caused numerous ruptures. As now conceived,

more than 300 miles of pipeline that were originally

to be buried will now be above ground. Alyeska’s

principals similarly planned to cross all rivers by

burying the pipe beneath river beds. If they had done

so, numerous hydrologic hazards would have threaten-

ed the integrity of the pipeline. Current design plans

now call for several overhead crossings.

The delay in project start-up also permitted both

_Alyeska and the government to undertake detailed

geologic, soils, and engineering studies on many as-

pects of the environment that resulted in a safer

pipeline design. Because of these studies, there have

been numerous changes in the alignment of the route

to avoid hazarcous areas that the original route would

have traversed. Other substantial risk reduction

measures include a specialized elevated seismic design

to carry the_pipeline over the Denali Fault. Zotte “

_ River - North Slope Road” (P. Docs. I, Tab K) (R. 207) and

the descriptive document dated January 15, 1971, titled “Draft

Impact Statement” (Ad. Ree. 2.13) (R. 239).

** This is a major fault zone on which there has been exten~

sive surface displacement over time. ae i.

49 ‘

and the development of specialized devices to. permit

safer pipeline burial in permafrost.”

‘Obviously many factors contributed to the develop-

ment of an environmentally and technologically safer

pipeline project. But both government and industry

alike have acknowledged that this litigation played an

_ important role in the process. On several occasions

Secretary Morton asserted that his Department’s ef-

forts were responsive to issues raised in the litiga-

tion:

“We are under an injunction not to issue a

permit .... [B]Jefore we go to court we better

look at the whole work... .””

* * * *

“TWl]e are taking as thorough a process as we

can, definitely involving the best talents we can

develop within the Government and without the

Government as consultants to go at this job so

that-when we make a decision it will be a deci-

sion that has all of the criteria to back it up.

The matter then will be an easier matter for

the courts to decide.” ”

Indeed, Secretary Morton concluded his deposition

in this case with an expression of appreciation for

bce e's efforts:

mene 1 ,

** See Ad. Ree. 1.1.2.3 (R. 239). Wh

6s Statement of Secretary Morton, Press Conference, Oc-

tober 4, 1971, P. Does. II, Tab G, p. 30 (R. 207).

* Statement of Secretary Morton, Hearings on S. 35, S. 835,

and S. 1571 Before the Senate Comm. on Interior and Insular

Affairs, 92d Cong., 1st Sess., pt. 2, 455 (April 29, 1971); P.

Docs. II, Tab D, p. 455 (R. 207).

~“

{ ’

’

“T want to thank all of you. I think it is just

going through all of this that we are going to

have a better world. I am for it.” ’’

And the president of one of Alyeska’s major prin-

cipals, in testimony before the Senate Committee on

Interior and Insular Affairs, candidly admitted:

“We have learned from the environmenfaélists. I

think it is perfectly true to say we can build a

better line today. a better and more environ-

mentally safe line today, because of the inter-

vention of thé environmentalists than we could

-- have built 4 years ago.”.”

Third, and most significant, the result of respond-

ents’ success in “forcing Alyeska to go to Congress”’

.was the imposition by Congress of “important new

requirements” which “protect the public interest” and

* Deposition of Secretary Morton, June 24, 1972, pp? 71-

72 (R. 225).

™ Statement of Thornton F. Bradshaw, President. Atlantic

Richfield Co., Hearings on S. 1040, S. 1041, S. 1056, S. 1081

Before the Senate Comm. on Interior and Insular Affairs, 93d

Cong., Ist Sess., pt. 2, at 383 (1973). Accord, Interview with

Governor William A. Egan.of Alaska, Alaska Construction & -

Oil Report 48 (February 1971) (‘the hue and ery, as they

called it in the beginning, may have been a blessing in dis-

guise for the long-range operations of this kind of develop-

ment”), Compare Scenic Hudson Preserv. Conf. v. FPC, 453

F.2d 463, 481 (2d Cif. 1971), cer denied, 407 U.S. 926

(1972) : .

“The petitioners performed a valuable service in that

earlier case, and later before the Commission. By reason

of their efforts the Commission has reevaluated the en-,

tire Cornwall project. The modifications in the project!

reflected a heightened awareness of the conflict between

utilitarian and aesthetic needs.”

~~.

reflect the environmental, technological, and other con-

cerns that prompted the litigation below. Wilderness

Society N, 495° F.2d at 1083.

In its brief, Alyeska labors to create the impres-

sion that following the court’s decision in Wilderness

Society I Congress made “a legislative finding that

the Department’s efforts were fully adequate” anc

quickly rubber-stamped the construction of the Trans-

Alaska. Pipeline by simply. removing the previous

width limitation. See P. Br. 35. This is simply un-

true. Although there were those urging that the

national interest required the immediate commernce-

ment of pipeline construction, Congress spent ten

months ‘conducting hearings, deliberations and de-

bate, in order to assure careful consideration of the

merits of the pipeline proposal. Most significantly,

the end result of this process, Pub. L. No. 93-153

(Appendix C, infra), contains on its face the best

evidence of the conerete and substantial benefits of

the litigation and the iniportance that Congress placed

on the concerns that it ratsed.

Thus, Title I sets forth a completely new charter

for pipelines crossing public lands. Explicit “Pipe-

line Safety” (Section 28(g)) and “Environmental

Protection” (Sec..28(h)) requirements—including re-

quirements~‘designed to control or prevent (i) dam-

age to the environment (including damage to fish

_and wildlife habitat, (ii) damage to public or private

property and (iii) hazards to public health and safe-

ty”—have now for the first time been imposed on such

pipelines by Congress. The Secretary of the Depart-

ment of Transportation is now required to “cause

the examination of all pipelines and associated fa-

cilities on Federal lands” and to “cause the prompt

reporting of any potential leaks or safety problems”

(Section 28(w)(3).); provisions are made for the

suspension or termination of rights-of-way for fail-

ure to comply with the“Avt’s requirements (Section

28(0)): and annual reports are required from the

Setretary of the Interior on the “safety and environ-

mental requirements imposed” by the Act (Section

28(w)(1)) and from the Secretary of the Depart-

ment of Transportation on ‘any potential dangers of

or actual explosions, or potential or actual spillage

on Federal lands’ (Section 28(w) (4) ).

Significantly, the new-Act reflects much the same

concern for public land use that prompted the- restric-

tive width limitation of its predecessor and does not

simply confer unfettered “discretion on the Secre-

tary. Thus, Congress retained the fifty foot right-

of-way limitation “unless the Secretary or agency

head finds, and records the reasons for his finding,

that in. hi® judgment a wider right-of-way is ieces-

sary for operation.and maintenance after construc-

tion, or to protect the environment or public safety”

(Seetion 28(d)) (emphasis added). The Aet requires

the Secretary “to notify the House and Senate Gom-

mittees on Interior and Insular Affairs promptly up-

on a receipt of an application for a right-of-way for

a pipeline twenty-four inches or more in diameter”

and to refrain from issuing permits for. such pipe-

lines until those Committees have an opportunity to

act (Section 28(w) (2)). .

Moreover, the Act explicitly adopts the principle

of one of the key arguments in respondents’ NEPA

brief concerning the desirability of common corridors

for oil and gas pipelines. See p. 21 n. 36 supra. It

provides that ‘“[i]n order to minimize adverse en-

vironmental impacts and. the proliferation of separate

rights-of-way across Federal lands, the utilization of

rights-of-way in common shall be required to the ex-

tent practical” (Section 28(p)). Moreover, ‘“[i]n

order to minimize adverse environmental impacts and

to prevent the proliferation of separate rights-of-way

across Federal lands” the Act requires the Secretary

of the Interior to “review the need for a national

system of transportation and utility corridors across

Federal lands and submit a report of his findings

and recommendations to the Congress and the Presi-

dent by July 1, 1975” (Section 28(s)).

The environmental and other safeguards imposed

on the construction of the Trans-Alaska Pipeline in

Title Il of the Act are similarly far-reaching. The

“Tr]ights-of-way, permits, leases and other authori-

zations” to be issued to Alyeska are expressly made

subject to the various environmental and technologi-

eal safeguards of Title I (Section 203(¢)).° Strict

liability has been imposed on Alyeska for ‘damages

in connection with or resulting from activities along

or in the vicinity of the . . . right-of-way” (Section

204(a)(1)). Specifically, “[iJf any area within or

Without the right-of-way ... is polluted . . . and

such pollution damages or threatens to damage

aquatic life, wildlife, or public or private property,

the control and total removal of the pollutant shall

be the expense of [Alyeska]” (Section 204(b));

there shall be strict liability “without regard to fault

in. accordance with the provisions of this subsection

7? With the exception of subsections (h) (1), (k), (q), (wv)

(2), and (x).

‘N

‘for all, damages, including clean-up costs, sustained

by any person or entity, public or private; including

residents of Canada, as the result of discharges. of

“oil from... fésself's]” transporting pipeline oil

(Section 204(c)(1)); and Alyeska is.now obligated

by law to maintain a $100,000,000 liability fund to

satisfy claims (Section 204(c) (5) ).

Finally, specific provisions are also included in the

Act relating to vessel construction (Section 401) and

vessel traffic control (Section 402) for the sealeg

portion of the system. |

's 3. Private Enforcement Was Required To Vindicate

the Statutory Interests and Confer the Benefits

_ Identified by the Court

The court of appeals concluded that this was a case

Where the effectuation of the statutory interests and

the conferral of the benefits descfibed above ‘“de-

pend[ed] on the diligence tf private attorneys gen-

eral and their willingness to bring suit.” Wilder-

ness Society IIT, 495 F.2d at 1034. Alyeska speculates

that the ‘“‘beneficial results” cited by the court “might

have occurred” without respondents’ lawsuit. P. Br.

11, 36-42.° But the record cleariy supports the

court’s decision to the contrary.”

eterna Se »~g &

' Alyeska’s Brief is contradictory on this point. On the

one hand, Alyeska argues that even without the litigation

pipeline construction would not have started until full en-

vironmental studies were undertaken and that these studies

would have been done without respondents’ litigation. P. Br.

36-42. On the other hand, Alyeska argues that beginning

in 1970 respondents caused a three-year delay in the pipe-

line’s construction by their litigation seeking environmental

studies. P. Br. 38. Alveska cannot have it both ways.

*' Alveska now apparently seeks full-blown formal “hear-

ings” on the causation issue. P. Br. 42. But Alyeska never

Obviously, there can be no dispute that private en-

forcement was essential to assure that the objective

of the Mineral Leasing Act’s width limitation was

fulfilled. This case was one, not unique in our his-

tory, where government officials were willing to

acquiesce in an unauthorized private | use of public

lands. Ewen after the clear warning of the {prelim-

inary injunction, Alyeska and the Government were

determined to go forward with the pipeline project

without seeking Congressional approval. As the court

below so vividly described the situation: ‘‘These com-

panies have now come into court, accompanied by the

‘executive agency authorized to administer the statute,

and have said, ‘This is not enough land, give us

more’.”” Wilderness Society I, 479 F.2d at 891.

Since Alyeska was unwilling to observe and the

Government was unwilling to enforce Congressional

land use policy, private enforcement of the law was

necessary. And no one can deny that the new envi-

ronmental, technological, and land use safeguards im-

posed by Pub. L. No. 93-153, on-all future pipelines,

crossing public lands as well as on the Trans-Alaska

Pipeline, are the direct consequence’ of respondents’

success in the court of appeals. Without that success

clearly there would have been no Pub. L. No. 93-153.

Insofar as the complementary objectives of NEPA

were concerned, it is indisputable that in 1970 Gov-

requested such hearings before the court of appeals and never

expressed any dissatisfaction with the procedures that court

used in ruling on respondents’ Bill of Costs. In fact, the

procedure followed by the court was both fair and workable,

and afforded Alyeska the unfettered opportunity to present

all of its causation arguments.

ernment ana industry were prepared to proceed on a

piecemeal basis with the cénstruction of the Trans-

Alaska Pipeline without having evaluated the grave

potential risks to the environment and to the physi-

cal integrity of the pipeline entailed in such an ap-

proach. The district court determined at that time

that irreparable injury was the likely result of that

course of action. Wilderness Society v. Hickel, 325

~F..Supp. at 424. For a considerable time thereafter

—as evidenced by the wholly inadequate “Draft Im-

pact Statement” of January 1971 prepared with A!-

yeska’s assistance—government and industry work-

ing together were still not doing the job. In shert,

continued private citizen action Was necessary as it .

has proved necessary in other environmental mat-

ters.

~ The need for private enforcement of Congressional en-

vironmental policy is widely recognized. In its second annual

report the Council on Environmental Quality stated:

“Perhaps the most striking recent legal development-has

been_the step-up in citizen ‘public interest’ litigation to

halt degradation of the environment. In the face of a

history of administrative decisions that ignored envir-

onmental impacis ind against a tide of legislative delays

in developing pollution control law, citizens concluded

that they must use the courts to cure the neglect. The

citizen litigation has not only challenged specific govern-

ment and private actions which were environmentally

undesirable. It has speeded court definition of what is

required of Federal agencies under environmental pro-

tection statutes. The suits have forced greater sensi-

tivity in both government and industry to environmenta:

considerations. And they have educated lawmakers and

the publicto the need for new environmental legislation.”

Second Annucl Report, 155-56 (1971)

[Footnote continued on page 57]

~ e

lod

(

1. The Litigation Placed Heavy Burdens on Re-

spondents and Their Counsel

Finally, the record also clearly supports the court’s

characterization of the litigation below as one “of

monumental proportions” that placed a ‘“‘heavy- bur-

den” on respondents. Wilderness Society II, 495 F.2d

at 1036.

Here, as in Bradley v. Richmond School Board, 416

U.S. 696, 718 (1974), there was substantial “dis-

parity in the respective abilities of the parties ade-

quately to present and protect their interests.’ Re-

spondents were required to match their modest finan-

cial resources against the enormous resources of the

Federal Government and a consortium of large oil

companies." Compare Bradley v. Richmond School

Board, 416 U.S. at 718 n.25 (“ ‘Ranged against the

[Continued ] *

The need for private enforcement has also been recognized

by Congress in the Clean Air Amendments of 1970 and the’

Federal Water Pollution Control Act Amendments of 1972,

both of which specifically provide for citizen suits and for

attorneys’ fees awards to facilitate such suits. 42 U.S.C.

$ 1857h-2(d) (1970); 33 U.S.C. § 1865(d) (Supp. II, 1972).

See pp. 65-66, infra.

** The seven beneficial owners of Alveska constitute, respec-

tively, the second (Exxon), sixth (Mobil), twenty-second

(ARCO), thirty-seventh (Phillips), fiftieth (Union), eighty-

sixth (Sohio), and eighty-ninth (Amerada-Hess) largest cor-

pdrations by net sales in the United States. 1974 National

Petroleum News Factbook 29. (Ranked according to the

Fortune directory of the 500 largest -adustrial corporations,

May 1973.) Their distinguished counsel in the litigation below

and before this Court is the large and prestigious law firm

of Steptoe & Johnson. See Martindale-Hubbell Law. Director u,

vol. 1, 2954B-2959B (1974).

plaintiffs have been the legal staff of the City Attor-

ney’s office and retained counsel highly experienced

in trial work .... Few litigants—even the wealthi-

est—come into court with resources at once so for-

midable and so suited to the litigation task at hand

’”): La Raza Unida v. Volpe, 57 F.R.D. 94, 101

(N. D. Cal. 1972) (“the average .. . litigant must

hesitate, if not shudder, at the thought of ‘taking on’

an entity such as the California Department of High-

ways, with no prospect of financial compensation for

the efforts and expenses rendered’); NAACP v.

Allen, 340 F. Supp. 703, 710 (M.D. Ala. 1972), aff'd,

493 F.2d 614 (5th Cir. 1974) (‘“ ‘an enterprise on

which any private individual should shudder to em-

bark’ ’”’).

Extensive factual discovery, expert scientific Analy-

sis, and legal research on a broad range of techno-

logical, environmental, and land use questions were

required to produce “a record and set of briefs com-

mensurate with the multi-billion-dollar project at

stake.” Wilderness Society I, 479 F.2d at 846. The

preparatignaind presentation of the record, briefs, and

oral argument that served as the basis of the court

of appeals’ decision in Wilderness Scciety I consumed

over 4,500 hours of attorneys’ time, not to mention

the substantial effort (amounting to several hun-

dred man-hours) expended by volunteer legal interns

and clerical staff. A full description of the efforts

undertaken in this regard is contained in the A ffi-

davit of Counsel attached to the Bill of Costs at Jt.

App. 213-19.

The court of appeals noted that ‘“[t]his burden was

assumed not in the hope of obtaining a monetary

award.” Wilderness Society 11, 495 F.2d at 1032.

And it was in fact carried out under heavy con-

straints imposed by respondents’ modest budgets. See

Affidavit of Counsel, supra. Obviously, therefore, the

burden of this litigation posed a particularly formid-

able obstacle to the beneficial results it produced. And,

as the court declared:

“In such cases, ‘[i]f successful plaintiffs were

routinely forced to bear their own attorneys’

fees, few aggrieved parties would be in a posi-

tion to advance the public interest by invoking

the injunctive powers of the federal courts.’

Newman v. Piggie Park Enterprises, Inc., .. .

390 U.S. at 402 .... Where the law relies on

private suits to effectuate congressional policy in’

favor of broad public interests, attorneys’ fees

are often necessary to ensure that private liti-

gants will initiate such suits. See Lee v. South-

ern Home Sites Corp.,. . . 444 F.2d at 145.” °

B. The Factors Identified by the Court Are Appropri- -

ate Factors in Determining Whether To Shift Fees.

The appropriateness of the factors which guided the

fee award in the present case is amply demonstrated

» by this Court’s attorneys’ fees decisions, this Court’s

decisions concerning judicial effectuation of Congres-

sional policies and access to the courts, Congressional

legislation on attorneys’ fees, and the attorneys’ fees

decisions of lower federal courts.

Just last Term, this Court recognized that “the

expense of litigation may often be a formidable if uot

insurmountable obstacle to the private litigation nec-

essary to enforce important policies.” F. D. Rich Co.

* Wilderness Society II, 495 F.2d at 1030.

v. United States, 417 U.S. at 130. Thus, this Court

is aware that at least in some cases private enforce-

ment of Congressional policies requires a mechanism

‘ which mitigates the costs of litigation. The factors

relied upon by the court of appeals are appropriate

because they serve precisely this function. These

factors describe “overriding consfderations” which

justify a fee award in “the interests of justice.”

Mills v. Electric Auto-Lite Co., 396 U.S. at 391; Hall

v. Cole, 412 US. at 5.

This Court’s attorneys’ fees decisions in ‘common

benefit”’ cases have made clear that where a litigant

produces benefits to others, a fee award may -be ap-

propriate. As part of the evolution of the “common

fund” exception into a “common benefits” exception,

- the Court in both Mills and Hall recognized that

there is an added reason for shifting fees, not previ-

ously alluded to in the earlier cases, when the bene-

fits conferred by the litigation effectuate Congres-

sional policy. In Mills,.the Congressional policy ef-

fectuated was that of “fair and informed corporate

suffrage.” 396 U.S. at 396. In Hall, it was the Con-

gressional policy “that all union members be guaran-

teed at least ‘minimum standards of demoeratic proc-

ess....’” 412 US. at 7.

As a corollary, the Court noted in Hall that when

the litigation effectuates Congressional policy, fee

shifting is appropriate because it will affirmatively

facilitate such litigation. The Court recognized the

“inescapable fact’” that when the effectuation of .

ment, litigation expenses serve as a barrier to that

enforcement. In such cases, effective implementation

may Aepend en the ability of courts to fashion an

equitable mechanism for the shifting of .fees.”

In analogous areas, the Court has emphasized that

courts have a responsibility to exercise their equitable

powers to facilitate the priyate enforcement of Con-

eressional statutes. As the Court has explained, “it

is the duty of the courts to be alert.to provide such

remedies as are necessary to make effective the con-

gressional purpose.” J. 1. Case Co. v. Borak, 377

U.S. 426, 433 (1964)." Because government enforce-

ment resources are limited and because sometimes

the government does not correctly follow the law, pri-

vate parties must often be relied upon to enforce the

law. E.g., Trafficante v. Metropolitan Life Insurance

** To deny attorneys’ fees, the Court concluded:

““TW ould be tantamount to repealing the Act itself by

frustrating its basic purpose. It is difficult for individual

members of labor unions to stand up and fight those who

are in charge. The latter have the treasury of the union

at their command and the*paid union counsel at their

beck and call while the member is on his own .... / An

individual union member could not carry such a heavy

financial burden. Without counsel fees the grant of fed-

eral jurisdiction is but a gesture for few union members

could avail themselves of it.’” 412 U.S. at 13, quoting

court of appeals opinion, 462 F.2d 777, at 780-81.

"See generally Sullivan v. Little Hunting Park, Inc., 396

U.S. 229, 239 (1969): Jones v. Alfred H. Mayer Co., 392 U.S.

“409, 414 n. 13 (1968); Bell v. Hood, 327 U.S. 678, 684 (1946).

This Court has noted that equity courts have particularly

broad powers to mold remedies when public interests as op-

posed to mere private interests are involved. Porter v. Warner

Holding Co., 328 U.S. 395, 398 (1946); United States v.

Morgan, 307 U.S. 183, 194 (1239); Virginian Ry. v. System

Fed’n, 300 U.S. 515, 552 (1937).

Co., 409 U.S. 205, 211 (1972) and cases.cited; see

- Associated Industries v. Ickes, 134 F.2d 694, 704 (2d

Cir.), vacated on other -grouids, 320 U.S. 707 (1943). -

~ Thus, this Court has not hesitated to imply a private

right of action to facilitate the enforcement of feg-

eral statutes which were merely declarative of cer- —

tain rights,’ or which on their face provided only

for enforcement by the government.' In many cir-

cumstances, the Court has implied # right to com-

pensatory damages where the statute failed to pro-

vide for any.” In short, the court of appeals was on

“traditional ground when it provided an equitable

remedy in order to facilitate private enforcement nec-

essary to effectuate Congressional policies.

Other cases in this Court have long recognized both

the significance of access to the courts and the reality

of economic burdens to litigation. For example, this

Court has granted citizen groups access to the courts

through decisions’ on standing.”’ It has held that ac-

cess to the courts must be protected because litiga-

OEG., Jones V. Alfred H. Mayer Co., 392 U.S. 409, 414

-n.13 and cases cited (1968); cf. Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971).

*! See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544

(1969); J. I. Case Co. Vv. Bogak, 37@U.S. 426 (1964).

* Wyandotte Transp. Co. Vv. United States, 389 U.S. 191,

202, 204 (1967); Mitchell v. Robert De Mario Jewelry,. Inc.,

361 U.S. 288, 296 (1960); Steele v. Louisville & Nashville

R.R., 323 U.S. 192, 207 (1944); Teras & P. Ry. v. Rigsby, 241

U.S. 33, 39-40 (1916); J. I. Case Co. Vv. Borak,*supra; cf.

Bivens Vv. Six Unknown Fed. Narcotics Agents, .supra.

3 E.g., United States v. SCRAP, 412 U.S. 669 (1973). See

also Office of Comm’n of United Church of Christ v. FCC,

359 F.2d 994 (D.C. Cir. 1966).

tion is frequently more than “a technique of resolving

private differences.” ~' And in numeyvous decisions, it

has struck down economic burdens to litigation or

mitigated the impact of those burdens.’ These cases

demonstrate that the court of appeals properly con-

sidered, as one factor justifving the fee award in the

present case, that it would relieve economic burdens

which make-access to the courts more difficult. -

Congressional legislation on attorneys’ fees pro-

vides additional support for the factors relied upon

by the court of appeals. These expressions of Con-

gressional policy are significant because, as the Court

noted in Mills, both court-developed and Congres-

sionally-developed fee awards rest upon the same

basie determination that “overriding considerations

indicate the need for such a recovery.” 396 U.S. at

391-92. In determining how to exercise their equi- |

table powers, courts have *traditionally been guided

by Congressional policy determinations:

“This legislative establishment of policy car-

ries significance beyond the particular scope of

each of the statutes involved. .The policy thus

established has become itself a part of our law,

to be given its appropriate weight not only in

‘NAACP Y. Button, 371 U.S. 415, 429-30 (1963), see also

California Motor Transp. Co. Vv. Trucking Unitd., 494 U.S.

508 (1972).

B.g., Boddie Vv. Connectient, 401 U.S. 371 (1971); John-

son V. Avery, 393 U.S. 483 (4969); Gideon v. Wainwright,

372 U.S. 335 (1963). It has been noted that one main pur-

pose of the Federal Rules concerning discovery is to simplify

litigation and thereby eliminate some of its costs. Devrelop-

ments—Discovery, 74 Harv. L. Rev. 940, 945 (1961).

matters of statutory construction but also in

those of decisional law.” ~’

The Congressional policy with regard to the award

of fees in appropriate cases is reflected in many

statutes. For example, this Court recognized in

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968), that the fee provision? of Title II of the

Civil Rights Act of 1964 were premised on the rec-

ognition that there were economic barriers to the

effectuation of Congressional policies through private

litigation. As the court noted in Newman:

“When a plaintiff brings an action under that

Title, he cannot recover damages. If he obtains

an injunction, he does so not for himself alone

but also as a ‘private attorney general, vindi-

cating a policy that Congress considered of the

highest priority. If successful plaintiffs were

routinely forced to bear their own attorneys’

fees, few aggrieved parties would be in a posi-

tion to advance the public interest by invoking

“ Moragne W. States Marine Lines, Tne., 398 U.S. 375, 390-

91 (1970): see also Lee Vv. Southern Home Sites Corp., 444

F.2d 143 (Sth Cir. 1971). It4s, of course, by now well settled

that Congress’ action in specifically providing for fee awards

to effectuate some statutes hardly* precludes the courts from

exercising their own powers in connection with other statutes.

Indeed, this Court has specifically held that in situations where

Congress has specifically made provisions for the award of

fees in some titles of statutes but not others, courts are not

precluded from exercising their equitable power to award

fees with regard to the latter. Mills v. Blectric Auto-Lite Co.,

396 U.S. at 390-91; Hall v. Cole, 412 U.S. at 10-11.

tae injunctive powers of the federal courts.” 590

#@ U.S. at 402.

Anothér example is the recently passed amendment

to the Freedom of Information Act. In explaining

why the courts should assess reasonable attorneys’

fees against the Wnited States in productive cases,

the Senate report stated: .

“Too often the barriers presented by court costs

and attorneys’ fees are insurmountable for the

average person requesting information, allowing

the government to escape compliance with -the

law ... The negessity to bear attorneys’ fees

and court costs can thus present barriers to the

effective implementation of national policies ex-

pressed by Congress in legislation.” ~

The Clean Air Amendments of 1970, 42 U.S.C.

§ 1857h-2(d), ‘and the Federal Water Pollution Con-

trol Act Amendments of 1972, 38 U.S.C. § 1365 (d)

provide particular guidance for the present case be-

‘“ause beth involve environmental policies. In specifi-

eally providing for a private right of action under

both statutes, Congress recognized that private en-

forcement was necessary to effectuate these nationally

important environmental policies.” Moreover, both

= Sve also Bradley V. Richmond School Bd., supra, 416 VS.

at 719: Northeross V. Memphis Bd. of Educ., 412 US. 427

428. (1975).

~S. Rep. No. 93-854, 93d Cong., 2d Sess. 17-1 (1974).

“S. Rep. No. 91-1196, 91st Cong., 2d Sess. 3639 (1970)

@Clean Air Amendments): S. Rep. No. 92-414, 92d Cong., Ist

Sess. 79-82 (1971) (Federal Water Pollution Control Act

Amendments): H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 1382

(1972) (Federal Water Pollution G@Gontrol Act Amendments) .

»N

Acts specifically provide for attorneys’ fees. Since

only injunctive relief is generally available under each

statute, significant economic obstacles may stand in

the way of private enforcement. Thus, the Congres-

sional committees which reported out the attorneys’

fees provisions in each statute stated that “in bring-

ing legitimate actions ... citizens would be perform-

ing a public service and in such instances the courts

should award costs of litigation to such party.” ”

In short, the factors relied upon by the court of

appeals were he same factors identified by Congress

in legislation providing for fee shifting.

Finally, the appropriateness of the factors guiding

the fee award in the present case is supported by the

decisions of numerous lower courts which have relied

upon these same factors in granting non-statutery

fee awards in other so-called “private attorney gen-

eral” cases. Respondents do not assert that the re-

sults reached in the particular circumstances of all

these cases were necessarily correct. But the factors

which underlie many of these fee awards reflect the

same considerations which euided the court below.

In particular, these lower federal courts, which

have a day-to-day working knowledge of the realities

of litigation, have found that there are substantial

economic obstacles to certain private litigatién which

vindicates Congressional policies and confers bene-

fits on others beside the litigant. They have recog-

nized that fee awards may be appropriate in such

“" S. Rep. No. 91-1196, 91st Cong., 2d Sess. 38 (1970) (Clean

Air Amendments); S. Rep. No. 92-414, 92d Cong., Ist Sess.

81 (1971) (Federal Water Pollution Control Act Amend-

ments).

eases because, without the prospect of recovering fee

awards, worthy and productive litigation may be un-

justifiably discouraged.”

"! Leading cases in the courts of appeals which have fol-

lowed a private attorney general theory in. making a fee

award include: Knight v. Auciello, 453 F.2d 852 (1st Cir.

1972) (fee awarded in Section 1982 civil rights case to “re-

move the burden from the shoulders of the plaintiff seeking to

vindicate the public right”); Hortt v. Vitek, 495 F.2d 219 (ist

Cir. 1974) (fee awarded in Section 1983 prisoner rights case

“to encourage important policy enforcement’); Lee v. South-

ern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (fee

awarded in Section 1982 civil rights case “[t]o ensure that in-

dividual litigants are willing to act as ‘private attorneys

general’ to effectuate the public purposes of the statute’);

Cooner V. Allen, 467 F.2d 836 (5th Cir. 1972) (fee may be

awarded in Section 1981 civil rights case for the reasons dis-

cussed in “Lec, supra); Fairley v. Patterson, 493 F.2d 598

(Sth Cir. 1974) (fee awarded in Fourteenth Amendment

reapportionment case where “private plaintiffs have aided in

efectuating important congressional and public policies’):

Cornist V. Riehland Parish School Bd., 495 F.2d 189 (5th Cir.

1974) (fee awarded in Section 1983 civil rights case where

plaintiffs’ attorneys “benefited not only [plaintiffs] but all

the black terchers in the Parish as well as the school system

aus a whole by virtue of the system’s being brought into com-

plianee with federal law and Congressional poliew’); Taulor

Vv. Perini, 50% F2QA 899 (6th Cir. 1974) (on authority of

Willerness Society Il, fee may be awarded in Section 198°

prisoner rights case “where there is no potential substantial

award of damages and where the cost of supporting a case

for-iniunetive relief is high” because such an award “serves

to prevent the unjust discouragement of parties in bringine

cenit to vindicate important rights’): Donahue v. Staunton,

AT1 F.2d A475 (7th Civ. 1972). cert. denied, 410 U.S. 955

(1973) (fee awarded in Section 1983 free speech case because

the “relative financial positions of the parties” were disparate

and the “benefit to the general public .. . is substantial in

Il. THE EQUITABLE FACTORS PRESENT IN THIS

CASE SUPPORT A SHIFTING OF RESPONDENTS’

FEES TO ALYESKA.

Having concluded, for the reasons set forth in

Point II, supra, that respondents and their counsel

this case and should not depend for its protection upon the

financial status of the individual’ deprived of his rights):

Fowler V, Schwarziwalder, 498 F.2d 143 (8th Cir. 1974)

(fee may be awarded in Sections 1981 and 1985 civil rights

case since “absent compelling circumstances,” a “ ‘private

attorney general’ . . . seeking to vindicate Congressional

policy of the highest priority and advance the public inter-

est should not be forced to bear the costs of litigation’’):

Brandenberger V. Thompson, 494 F.2d 885 (9th Cir. 1974)

(fee awarded in Section 1983 right to travel welfare case

because plaintiff “benefitted a significant class,” “vindicated

fa] federally protected right,” had an insufficient monetary

interest “to provide an incentive to bring the suit,” and

could not rely upon the state attorney general to protect her

right); ef. Stolberg v. Members of Bd. of Trustees for State

Colleges, ATA F.2d 485 (2d Cir. 1973) (fee awarded in Section

1983 case not because “defendants should suffer pecuniary

punishment,” but rather “to assure that the plaintiff, and

others who might similarly be forced to great expense to

vindicate clear constitutional claims, are not deterred from

securing such vindication by the prospect of costly, pro-

tracted proceedings which have become necessary only because

of the obdurate conduct of the defendants”).

Apparently, only- the Fourth Cireuit has rejected this ap-

proach, Bradley Vv. Richmond School Bd., 472 F.2d 318 (1972),

and that decision was reversed by this Court on other erounds.

416 U.S. 696 (1974). Recently in Sierra Club v. Limn, 502

F.2d 43 (1974), the Fifth Circuit reaffirmed the private at-

torney general rationale but declined to apply it. See pp. 78-

R80 infra.

District court cases include the following: Sims v. Amos,

340 F. Supp. 691 (M.D. Ala.), aff'd, 409 U.S. 942 (1972)

(fees awarded in Section 1983 reapportionment suit “to

should not be required to bear the entire burden of

this litigation, the court determined that, as between

respondents and Alyeska, the equities of this cas>

supported a shift of at least part of respondents’ fees

eliminate [financial] impediments to pro bono publico litiga-

tion” which benefitted plaintiffs’ class and effectuated a strong

congressional policy); La Raza Unida Vv. Volpe, 57 F.R.D. 94

(N.D. Cal. 1972) (fee awarded in environmental protection

and housing assistance case brought under the Department of

Transportation Act of 1966 and various federal housing

statutes, because of “the strength of the Congressional policy.

the number of people benefitted by the litigants’ efforts, and

the necessity and financial burden of private enforcement”):

Lyle Vv. Teresi, 327 F. Supp. 683 (D. Minn. 1971) (fee awarded

in Section 1983 civil rights case “to encourage individuals

injured by racial discrimination to seek judicial relief’):

NAACP Vv. Allen, 340 F. Supp. 708 (M.D. Ala. 1972), aff'd,

4193 F.2d 614 (5th Cir. 1974) (fee awarded in Section 1985

civil rights case because “the benefit accruing to plaintiffs’

class is substantial and important,” because plaintiffs ‘pro-

moted the purposes of congressional legislation,” and because

such cases usually require’ “substantial financial sacrifices”

and may cause the lawver to suffer “community ostracism’):

Harper V. Meyor and City Couneil, 359 F. Stipp. 1187 (D.

Md. 1973) (fee awarded in civil rights case brought under

* 4c

> several statutes because “[p]laintiffs have effectuated a strong

congressional policy by maittaining this suit’): Incarcer-

ated Mer V. Farr, S76 F. Supp. 483 OND. Ohio 1975) (fee

awarded in Section 1983 prisoner rights case to “fassure that

the vindication of public constitutional rights need not depend

upon the financial resources of the particular individuals who

seek to secure those rights”’):.Nemmar Vv. Alabama, 349 F.

Supp. 278 (M.D. Ala. 1972) (fee awarded in case vindicatins

prisoners’ constitutional rights because plaintiffs “benefited

substantiaily a large class of others in the same manner as

they have benefited themselves”): Wyatt v. Stickney, 344 F.

Supp. 587 (M.D. Ala. 1972), appeal pending (fee awarded in

suit vindicating mental patients’ right to treatment because

Se -

to Alveska. Wilderness Society IT, 495 F.2d at 1056.

The court. clearly stated in its opinion that its deci-

sion to shift a portion of respondents’ fees to Alyeska

_the expenses “incurred in vindicating the public good were

considerable,” the litigation benefited large numbers of people,

and fee shifting is necessary “in order to eliminate the im-

pediments to pro bono publico litigation’); Jinks v. Mays,

350 F. Supp. 1037 (N.D. Ga. 1972) (fee awarded in Section

1983 emplovment rights /maternity leave case since a ‘‘sub-

stantial and important” benefit was conferred upon a class

and “such litigation must be encouraged to vindicate the fed-

eral rights of our citizens”); Stanford Daily Vv. Zurcher, 366

F. Supp. 18 (N.D. Cal. 1973) (fee awarded in Section 198°

search and seizure case because “no remedial action can be

expected from public officials,” “fee ‘shifting is necessary to

insure the vindication of important constitutional rights.”

“because it is consistent with a remedy increasingly furnished

by Congress, and because of the high social value placed upon

the rights involved’): Brown v. Ballas, 331 F. Supp. 1032

(N.D. Tex. 1971) (fee awarded in housing discrimination

case brought under the Fair Housing Act and Section 1982

since “much of the elimination of unlawful racial discrimina-

tion devolves upon private litigants and their attorneys”):

Ross V. Goshi, 351 F. Supp. 949 (D. Hawaii 1972) (fee award

in Section 1983 free speech case because “the only practicable

means of enforcing section ¥985 is by private parties,” be-

cause “private parties are least able to bear the cost of vindi-

cating constitutional rights’); Thonen Vv. Jenkins, 374 F. Supp.

34 (E.D.N.C. 1974) (fee awarded in Section 1983 free speech

case to “encourage” vindication of constitutional rights):

Kirkland v. New York Dept. of Correct. Serv., 374 F. Supp.

136L (S.D.N.Y. 1974) (fee awarded in employment discrimi-

nation ease brought under various constitutional and statu-

torv provisions, applying the factors set forth in La Raza

Vnida, supra): Scott v. Opelika City Schools, 63 F.R.D. 144

(\I.D. Ala. 1974) (fee awarded in Section 1983 sex discrimi-

nation case which “effectuate[d] a strony Congressional

policy’); Palmer Vv. Columbia Gas Inc., 375 F. Supp. 634 (N.D.

Was not intended to punish Alyeska as a law violator

or.as a wrongdoer. bid.

Alyeska argues that the Mineral Leasing Act and

NEPA imposed no legal obligation upon it and that

therefore no fees can be awarded against it as a

matter of law. P. Br. 16-23. As @& technical matter,

Section 28 of the Mineral Leasing Act did impose an

enforceable legal obligation on Alyeska to observe all

of the provisions of the section under pain of forfei-

ture of any right-of-way that might be granted. See

pp. 82-83 infra. Far more significantly, however,

Alyeska’s conclusion that a violation of a legal obli-

gation is a prerequisite for a fee award is simply

wrong. Courts of equity frequently award fees

against persons who have not violated any legal obli-

gation. In common benefit cases, for example. the

Ohio 1974) (fee awarded in Section 1983 case challenging

public utility termination procedures because case “substan-

tially benefited” present and future customers and because

the award ‘assures that the vindication of constitutional

rights need not depend upon the financial resources of the

particular individuals who seek to secure those rights”):

Calnetics Corp V. Volkswagen of America, Inc., 353 F. Supp.

1219 (C.D. Cal. 1973) (fee awarded in private antitrust suit

seeking only injunctive relief since plaintiff vindicated “a

policy of compelling national economic interest” and pro-

duced benefits “not only for itself but for all competitors”,

and because private actions are necessary to assure enforce-

ment of the antitrust laws).

See generally cases collected in Derfner, Attorneys’ Fees

in Pro Boxo Publico Cases, reprinted in Hearings on The

Effect of Legal Fees on The Adequacy of Representation

Before the Subcomm. on Representation of Citizen” Interests

of the Senate Judiciary Comm., 93d Cong., Ist Sess., pts. 3

and 4, at 862 (1973). 4

fee award is paid by beneficiaries of the litigation—

and sometimes even non-beneficiaries—who violated

no legal obligations.” Thus, the court of appeals

clearly had the power to require Alyeska to pay fees

in this case if, under all the circumstances, the equi-

ties justify such*an award. As demonstrated below,

they clearly do.

The Trans-Alaska Pipeline was Alveska’s project.

. The litigation resulted from actions and Jecisions for

which Alveska was directly responsible (and, in the

case of the Mineral Leasing Act, legally liable).

“Atveska was a real party in interest and took a lead

role in the litigation to protect those interests. Aly-

eska received direct benefits from the litigation and

is in a position to shift the award to beneficiaries of

other benefits identified in the court’s decision. The

* As Justice Harlan explained:

“This Court in Sprague upheld the District Court’s

power to grant reimbursement for a plaintiff’s litigation

expenses even though she had sued only on her own

behalf and not for a class, because her success would have

a stare decisis effect entitling others to recover out of

specific assets of the same defendant. Although those

others were not parties before the court, they could be

forced to contribute to the costs of the suit by an order

reimbursing the plaintiff from the defendant's assets out

of which their later recovery would have to come.” Mills,

396 U.S. at 393. (Emphasis supplied.)

In the Sprague litigation even some non-beneficiaries were

required to pay fees. See p. 37 supra. See also the discus-

sion of Mills, p. 81 n. 103 infra.

Alveska’s argument that it had “no control” over the gov-

ernmental decision-making, P. Br. 21, is simply a corollary

of its argument that it had no. legal obligation and is not

dispositive for the same reason.

7 73

award of fees works no hardship on Alyeska and wil!

not deter others similarly situated. And, finally, the

court’s decision not to award fees against the other

defendants worked no hardship or unfairness on

Alyeska.

A. The Litigation Stemmed from Actions and Deci-

sions for Which Alyeska Was Directly Responsible

As was consistently emphasized by Secretary Mor-

ton and other Interior Department officials through-

out the proceedings below, the Trans-Alaska Pipeline

is a private project.” The pipeline was conceived by

and is intended to promote the economic interests of

Alyeska’s principals. It was Alyeska’s principals that

decided to take their product to market over lands

“’ See, e.g., Statement of then Under Secretary Train,

Hearings Before the Senate Comm. on Interior and Tisiulur

Affairs, 91st Cong., Ist Sess., pt. 2, 124 (Oct. 16, 1969) (“the

private sector, at least, has made a decision that this is an

important resource that it expects to develop and this has

been a traditional way in which such decisions have been

made in this country’); Statement by Secretary Morton,

Hearings on S. 35, S. 885 and 8S. 1571 Before the Senate

Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess.,

pt. 2, at 454, 456 (April 20, 1971) (“the scope of our work

here is to deal with the applications on our desk”) (‘‘this is

their money and this is their project’); Statement by Secre-

tary Morton, Oversight Hearings on the National Environ-

mental Policy Act and Its Implementation Before the Senate

Comms. on Public Work and Interior and Insular Affairs, 92a

Cong., 1st Sess. 404 (March 9, 1972) (“we have to remember

this is not a Government project’); Statement of (then)

Under Secretary Pecora, Press Conference, March 20, 1972.

9-10 (P. Docs. II], Tab B) (R. 207) (“The Department has

before it at the present time only one application and this

is an application from Prudhoe Bay to Valdez, and that is

the application on which action will be taken.”).

owned by the Federal Government. It was also

Alyeska’s principals that then decided to address

their request for rights-of-way to the Secretary of

the Interior rather than to Congress.

The decision to bypass Congress was made in the

first instance by Alyeska’s principals, not by the Sec-

retary. When-Alyeska addressed its application to

the Secretary rather than to Congress, it did so with

an awareness that the right-of-way allowed by stat-

ute was not adequate for the pipeline they proposed “

and without reliance on any published regulation or

other ‘‘expressly articulated position at the adminis-

trative level.” Wilderness. Society I, 479 F.2d at

868." Alyeska was free at any time to change its

decision and address its request to Congress, but it

declined to do so even after receiving a clear signal

from the preliminary injunction.

At the time Wilderness ‘Society 1 was decided, all

seven judges on the court below recognized Alyeska’s

clear responsibility for the decision to bypass Con-

gress and for the litigation spawned by that de-

cision: |

** See p. 8 supra.

“ See p. 25 n. 39 supra. In this respect, the instant case is

clearly distinguishable from Committee To Stop Route 7 V.

Volpe, 4 ERC 1681 (D. Conn. 1972), cited at P. Br. 22, where

the court expressly found:

“The state agency simply relied upon a federal regulation

... In these circumstances, it would not be appropriate

to impose attorney’s fees as a cost against the state, when

the federal agency made the erroneous decision which

led to the plaintiffs’ judgment.” Jd. at 1682.

“Congress ... allowed pipeline companies to use

a certain amount of land to construct their pipe-

lines. These companies have now come into

court, . . . and have said, ‘This is not enough

land; give us more.’ We have no... power to

grant their request ... . (Emphasis added).

479 F.2d at 891.

* * * *

“T recognize that AYyeska must now go to Con-

gress for an amendment to a law that never

contemplated that a pipeline of this magnitude

would be required to be built under the harsh

conditions of soil and climate that exist in Alas-

ka. That is regrettable... , but it is Cong'ress

that has the legislative power not this court.”

(Emphasis added). (Separate opinion of Mac-

Kinnon, J.). 479 F.2d at 905.

* * * ox

“Regrettably, the would-be builders of the Alaska

Pipeline sought from the courts rather than the

Congress clearly necessary changes in the statu-

tory restriction on the use of public lands.”

(Emphasis added). (Separate opinion of Wil-

key, J.). 479 F.2d at 912.

Similarly, insofar as compliance with NEPA’s poli-

cies is cohcerned, Alyeska as the proponent of the

project bore a responsibility to attend to its en-

vironmental consequences. Indeed, the regulations and

guidelines adopted by the Department of Interior and

other agencies to implement NEPA recognize that

where NEPA is applied to private projects requiring

federal authorization, the responsibility for the initial

analysis of environmental consequences often rests

76 -

with the private application.” As, has been discussed

above, both at the time of its original application,

and for a substantial period thereafter, Alyeska was

unprepared for the undertaking it espoused. This

unpreparedness was a direct causative factor of the

litigation.

All of this is not to say that Alyeska should be

“punished” for any of the actions described above.

But it does refute the inaccurate impression Alyeska

seeks to convey in its brief that it was somehow a

mere bystander to the events that led to the initiation

of this litigation in March 1970 and to the court’s

decision in Wilderness Society I. See P. Br. 16-23."

” See, e.g., Interior Dept. Regs. part 516, ch. 2.9(F) (2);

Atomic Energy Conimission, 39 Fed. Reg. 26279, $$ 51.20,,

51.21 (July 18, 1974): Law Enforcement Assistance Adminis-

tration, 28 C.F.R. $$ 19.9(b) (2), (b) (5), (c) : Department of

Agriculture: Rural Electrification Administration, 39 Fed.

Reg, 25240, §$V(D)(2) (June 27, 1974): Department of

Transportation, 39 Fed. Reg. 35234, $7(e) (Sept. 30, 1974);

Council of Environmental Quality, 40 C.F.R., ch. V, § 1500.7

(c). To recognize Alveska’s responsibility in this regard by |

no means derogates the non-delegable legal duty of the See-

retary to make his own evaluation of environmental issues

and to take responsibility for the scope and content of draft

and final environmental statements. See Greene County Plan-

ning Bu. Vv. FPG, 455 F.2d 412, 420 (2d Cir.), cert. denied —

409 U.S, 849 (1972). ?

* The court's conclusion that Alyeska’s’ responsibility for

the project in question and for the events that led to the liti-

gation is a relevant consideration in determining where the

equities lie as between Alyeska and respondents is grounded

on solid equitable principles. See, e.g., Pompton Vv. Cooper

Union, 101 U.S. 196, 204 (1879) (“Where one of cwo innocent

persons must suffer a loss, and one of them contributed to

produce it, the law throws the burden on him and not upon

b. Alyeska Was a Real Party in Interest and Took

an Active Role in the Litigation

Alyeska did not merely contribute indirectly to the:

litigation by actions and decisions taken by its prin-

cipals outside the courtroom. As the court of ap-

peals noted, “after successfully persuading the In-

terior Department to grant the rights-of-way, Al-

yeska intervened in the litigation to protect its mas-

sive “interests.” Wilderness Society II, 495 F.2d ¢

1036.

Alyeska’s intervention was premised on the recog-

nition that as a private party it had “a greater in-

terest than the Secretary of the Interior in advanc-

ing arguments in support of the Secretary's authority

to issue the necessary rights-of-way and permits.”

Once in'the litigation, Alyeska played a vigorous and

indepen dent role in furthering and protecting those

interests.) Alyeska made extensive discovery demands

on-Téspondents and filed motions and memoranda on

Prod variety of procedural matters. When re-

spondents requested that the district court consider

the Mineral Leasing Act issues as threshold questions,

the other party’). See also National Safe Deposit, Sav. &

Tivst Co. Vv. Hibbs, 229 U.S. 391, 394 (1913): Hill v. Flota

Mereante Graneolonbiana, 8S. A., 267)F. Supp. 380, 384 (ED.

La. 1967), aff'd, 405 F. 2d 878 (Sth Cir.), ce rt denied, 395

US. 984 (1969). Wrrehell v. Moat County State Bank, 307

F.2d 280, 282 (10th Cir. 1962): Henry v. Auchineloss, Parker

& Redpath, 305 F.2d 753, 754 (D.C. Cir. 1962): James Tal-

hott, Inc. V. Associates Discovnt Corp., 302 F. 2d 443, 446-47

(8th Cir. 1962) (Blackmun, J.): Whitehead: Vv. American

Secur, & Trust Co., 285 F.2d 282, 284 (D.C. Cir. 1960) : Ryan

‘v. Spaniol, 193 F.2d 551, 553 (10th Cir. 1951).

See p. 16 supra.

Teas.

rat

it was Alyeska, later joined by the other defendants

(see, e.g., Jt. App. 153), that insisted that all is-

sues be heard together. Alyeska then filed hundreds

of pages of printed briefs and took the major por-

tion of the oral argument in both the district court

and the court of appeals.

In considering Alyeska’s ‘‘major and real” role in

the litigation and the fact tha

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