Citizens Ass'n of Georgetown Committee of 100 on Federal City v. Washington

• Decision Date: 25 May 1976
• Docket Number: No. 74-2086,74-2086
• Citation: 535 F.2d 1318,175 U.S.App.D.C. 356
• Parties: , 175 U.S.App.D.C. 356, 6 Envtl. L. Rep. 20,524 CITIZENS ASSOCIATION OF GEORGETOWN the COMMITTEE OF 100 ON the FEDERAL CITY, v. Walter E. WASHINGTON, Commissioner of the District of Columbia, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1318

535 F.2d 1318

8 ERC 2164, 175 U.S.App.D.C. 356, 6

Envtl. L. Rep. 20,524

CITIZENS ASSOCIATION OF GEORGETOWN the COMMITTEE OF 100 ON the FEDERAL CITY, v. Walter E. WASHINGTON, Commissioner of the District of Columbia, et al., Appellants.

No. 74-2086.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 16, 1975.

Decided May 25, 1976.

David Eisenberg, Asst. Corp. Counsel, District of Columbia, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis Robbins, Principal Asst. Corp. Counsel and John C. Salyer, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants.

Bruce J. Terris, Washington, D. C., with whom Suellen T. Keiner, Washington, D. C., was on the brief, for appellees. Burton A. Schwalb, Washington, D. C., entered an appearance for appellee The Georgetown Inland Corp.

Before McGOWAN and LEVENTHAL, Circuit Judges, and JAMES B. McMILLAN, ^* United States District Judge for the Western District of North Carolina.

PER CURIAM:

This appeal involves only the propriety of an award by the District Court of attorneys' fees to plaintiffs-appellees, whose complaint was dismissed after hearing on the merits. 383 F.Supp. 136 (1974).

In October of 1972, the Maloney Concrete Corporation obtained a construction permit from the District of Columbia for an office building with an underground garage in the Georgetown area. In August of 1973, the Georgetown-Inland Corporation obtained a permit to construct an office building with an underground garage in the same area. Both garages were to have ventilation systems that would remove automobile exhaust fumes and emit them to the surrounding air.

Plaintiffs-appellees filed this suit seeking to enjoin the corporate defendants from further construction of the projects and to require the District of Columbia officials named as defendants to prohibit continued construction on the projects until air quality permits had been obtained. ¹ Appellees premised these claims for relief on two theories: first, the emissions from the ventilation systems and the increased automobile traffic needed to transport people to and from the developments would prevent the District of Columbia from attaining by 1977 and maintaining thereafter the relevant national primary air quality standards promulgated under the Clean Air Act; and, second, the construction violated a provision of the District's air quality implementation plan requiring the issuance of an air quality permit prior to the construction of a "stationary source" of air pollution in the District.

The District Court concluded, after trial on the merits of the claim for permanent injunctive relief, that (1) the corporations were not in violation of an "emission standard or limitation" as defined by the Clean Air Act, (2) the District of Columbia's regulation for "stationary sources" was not applicable to emissions from underground garages, and (3) the appellees failed to demonstrate that the projects would interfere with attainment of the applicable air quality standards by 1977.

Appellees then filed a motion to amend the judgment to include an award of attorneys' fees of approximately $13,000 against the District on the theory that the "various actions and failures to act (by the government officials) have been the principal cause of the present litigation." The District Court granted the motion. 383 F.Supp. at 143-46.

We can affirm the award of attorneys' fees against the District of Columbia only if the District Court had jurisdiction under the citizen suit provision of the Clean Air Act. As the District Court apparently recognized, and as counsel for the Association acknowledged in oral argument before us, jurisdiction under 28 U.S.C. § 1331 will not support a claim for attorneys' fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see NRDC v. EPA, 168 U.S.App.D.C. 111, 512 F.2d 1351, 1361 (1975) (Wright, J. dissenting).

Section 304(d) of the Clean Air Act specifically provides that "in issuing any final order in any action brought pursuant to subsection (a) of this section, (the District Court) may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 42 U.S.C. § 1857h-2(d) (1970) (emphasis added). As the italicized language indicates, the Act authorizes fees only in actions under subsection (a), which provides in relevant part:

(A)ny person may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other government instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . .

Id. § 1857h-2(a) (emphasis added). Since no "order" of the kind contemplated in clause (B) was involved in this case, the only remaining question is whether the complaint alleged that the District violated "an emission standard or limitation."

Appellee's complaint did not allege that any facility of the District of Columbia was emitting pollutants into the air, but only that the District failed to insist on preconstruction review of private buildings with large parking facilities. The complaint alleged that the planned private buildings would pollute the environment, but the claim with respect to the District of Columbia was based on its alleged failure to insist on preconstruction review in order to assure compliance with the timetable for attainment of national air quality standards in the District.

After reviewing the legislative history of the citizen suit provision, it is our conclusion that an allegation that a government instrumentality has failed to enforce the Clean Air Act does not satisfy the statutory requirement that the government instrumentality be alleged to be in violation of "an emission standard or limitation." Although early versions of the legislation gave the district courts jurisdiction over civil actions "for . . . enforcement, or to require such enforcement," whenever a government instrumentality was alleged to be in violation of "any . . . provision" of the Act, see Senate Committee on Public Works, 91st Cong., 2d Sess. § 304(a)(1) Committee Print No. 1 (1950) (emphasis added), reprinted in Environmental Policy Division of the Congressional Research Service, A Legislative History of the Clean Air Amendments of 1970, at 704 (1974) (hereinafter cited as Legislative History), the enacted version limited federal jurisdiction over suits against a governmental instrumentality to those alleging a violation of an emission standard or limitation, or of an order issued by the Administrator of the EPA or by a State with respect to an emission standard or limitation. And the legislative history surrounding the evolution of those limitations quite clearly indicates that section 304(a)(1) confers federal jurisdiction only over suits against polluters, and, under certain conditions, the Administrator of the EPA. ²

For example, in the course of the floor debate in the House over the version of the Act that emerged from the Conference Committee, Congressman Staggers noted that section 304 of the Act would permit citizen suits "against polluters as well as against the Administrator." 116 Cong.Rec. 42520 (1970), reprinted in Legislative History, supra, at 112 (emphasis added). Similarly, Senator Muskie's summary of the key provisions of the Conference version of the Act emphasized that the "conference agreement authorizes citizen suits against polluters to abate violations of any emission limitation under the Act. . . . Any polluter, including a government agency, is subject to suit after sixty days (sic) notice from the citizen plaintiff." 116 Cong.Rec. 42386 (1970), reprinted in Legislative History, supra, at 136 (emphasis added). ³

Although the question whether section 304(a)(1) encompasses suits against state officials for failure to enforce the provisions of the Clean Air Act has not previously been squarely presented to this court, another panel had an opportunity to comment on the meaning of that section in the course of analyzing the citizen suit provision of the Water Pollution Control Act Amendments of 1972, which was modeled on the parallel provision of the Clean Air Act. NRDC v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975). After reviewing the legislative history of section 304, this court said that "(section 304) was designed to provide a procedure permitting any citizen to bring an action directly against polluters violating the performance standards and emission restrictions imposed under the law . . . ." Id. at 700 (emphasis added). It emphasized that, although section 304 was a broad measure intended to facilitate the citizen's role in enforcing the Clean Air Act, "Congress did not fling the courts' door wide open. . . . (The citizen suit provision) was hedged by limitations the confinement to clear-cut violations by polluters . . . ." Id. (emphasis added.). ⁴

This limitation on district court jurisdiction over citizen suits was accomplished by authorizing civil actions only against persons (including government instrumentalities) "who (are) alleged to be in violation of an emission standard or limitation under this chapter . . . ." Clean Air Act § 304(a)(1)(A), 42 U.S.C. § 1857h-2(a)(1)(A) (1970). For the purposes of the citizen suit provision, "emission standard or limitation" is defined to include (1) an emission standard, (2) an emission limitation, (3) a schedule or timetable for compliance, and (4) a standard of performance. Clean Air Act § 304(f)(1), 42 U.S.C. § 1857h-2(f)(1) (1970). ⁵

The enumerated items were intended as "objective evidentiary standard(s) (which) would have to be met by the citizen who...