# Respondents Brief — Alyeska Pipeline Service Co. v. Wilderness Society > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0408%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 240 ## Text Page 62 91 v 90 63 96 , 9D, ot 68, 93 81-82 96 v 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 VI 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 | v | 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 So 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 eee — ry SOT Pt xX 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 f 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 XI 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, 90 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 © Ly ¢: 9 Rae 26, 50 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 ot XIII TABLE OF AUTHORITIES—Continued Pa 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: 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). ae 7 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 - . Ps NS RNR A ae eR POSEY RO RIE I | 4 ad w - 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). 9 “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} ts > 10 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). N | 11 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). 13 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 14 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). 16 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- 17 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). 18 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 19 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 20 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). 21 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 I. 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. ’ Ya 23 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 24 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? a = —— De 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 © cameeell 26 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. 27 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 28 “[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.” * © S. Rep. No. 93-207, 93d Cong., Ist Sess. 18 (1973). 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). 29 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. ht s Coe Lee as 30 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). ” va 31 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 32 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 on 33 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 i = Be z & ; ETAT LE I SL ae 34 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). 35 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 t 36 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. f 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 ’ 37 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 38 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 39 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 40 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 41 s 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. 4 C De rset he ed el a eat a t iV , . Federal-Aid GAVEERS Act of 1966, 23 U.S.C. § 138 (1970). ay 42 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. j 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); 43 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. yy “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): “ 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 ; \ 1 ’ 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. j Z / / 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). ~“ { ’ ’ en 50 “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.” ~~. 51 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- Mb 52 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 4 53 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). Is 54 ‘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 55 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. / 56 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 ol 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). a 58 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 59 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. 60 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 . Congressional policy depends upon private enforce- © ment, litigation expenses serve as a barrier to that enforcement. In such cases, effective implementation 61 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). 62 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 ne 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). 63 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). - a er 64 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 2 “ 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. a 65 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 5 66 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). oN 67 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 68 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 O 69 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 - 70 ~ 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. Mt 71 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 resou [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0408%3A09. Public record. Not legal advice.