Environmental Defense Fund, Inc. v. E.P.A.

• Decision Date: 30 August 1983
• Docket Number: No. 82-1346,82-1346
• Citation: 716 F.2d 915,230 U.S.App.D.C. 264
• Parties: , 230 U.S.App.D.C. 264 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 915

716 F.2d 915

19 ERC 1657, 230 U.S.App.D.C. 264

ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors.

No. 82-1346.

United States Court of Appeals, District of Columbia Circuit.

Submitted Nov. 29, 1982.

Decided Aug. 30, 1983.

Petition for Review of an Order of the Environmental Protection agency.

Khristine L. Hall and Daniel B. Edelman, Washington, D.C., were on the motion for attorneys' fees and expenses, for petitioner.

Lee R. Tyner, Atty., Dept. of Justice, Washington, D.C., was on the opposition to motion for attorneys' fees and expenses, for respondent. Donald W. Stever, Atty., Dept. of Justice, Gail B. Cooper and Mark A. Greenwood, Attys., E.P.A., Washington, D.C., also entered appearances for respondent.

John T. Smith, II, and Jennifer L. Machlin, Washington, D.C., entered appearances for intervenor, Chemical Mfrs. Ass'n.

Greer S. Goldman and Sue M. Briggum, Washington, D.C., entered appearances for intervenor, Edison Elec. Institute, et al.

MOTION FOR COSTS AND FOR ATTORNEYS' FEES AND EXPENSES

Before MIKVA and EDWARDS, Circuit Judges and MacKINNON, Senior Circuit Judge.

Opinion for the Court PER CURIAM.

PER CURIAM:

On March 31, 1982, the Environmental Defense Fund ("EDF") petitioned for review of a decision by the Environmental Protection Agency ("EPA") to delay certain reporting requirements applicable to generators of hazardous waste and operators of hazardous waste treatment and disposal facilities. After EPA took action that in effect mooted the petition for review, the parties filed a joint motion for dismissal. We granted the motion on October 29, 1982.

EDF now asks the court to award costs, attorneys' fees, and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412 (Supp. V 1981). That statute provides, inter alia, that in a suit brought by or against the United States, the court "shall award" attorneys' fees to a "prevailing party" unless "the position of the United States was substantially justified." Because we find that EDF is a prevailing party and that the position of EPA was not substantially justified, we grant the motion for costs, fees, and expenses.

I. BACKGROUND

Sections 3002 and 3004 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6901-6987 (1976 & Supp. V 1981), require EPA to promulgate hazardous waste record-keeping and reporting regulations "as may be necessary to protect human health and the environment." Id. Secs. 6922, 6924. The regulations at issue in this litigation are three reporting requirements promulgated in 1980 pursuant to this statutory mandate. The regulations require submission of: (1) annual reports by generators of hazardous waste and by operators of waste treatment and disposal facilities, 40 C.F.R. Secs. 262.41, 264.75, 265.75; (2) quarterly groundwater monitoring reports by operators of treatment and disposal facilities, id. Sec. 265.94(a)(2)(i); and (3) groundwater quality assessment outlines by operators of treatment and disposal facilities, id. Sec. 265.93(a).

The 1980 annual report was due on March 1, 1981. In January 1981, however, EPA permanently suspended the reporting requirement for 1980, stating that its "tremendous workload" precluded it from analyzing the reports adequately. See 46 Fed.Reg. 8395 (Jan. 26, 1981). In February 1982, EPA deferred compliance with all three reporting requirements until August 1, 1982. ¹ This time, the agency explained that it was "currently developing formal proposals to substantially streamline or eliminate these requirements," and wished "to prevent the regulated community from expending resources toward complying with them in their present form." 47 Fed.Reg. 7841 (Feb. 23, 1982). Moreover, EPA determined that there was "good cause" to dispense with normal notice and comment procedures, and therefore made the suspension effective immediately. Id. at 7842.

On March 31, 1982, EDF filed a petition for review of the agency's decision to suspend the reporting requirements without public notice and comment. See 42 U.S.C. Sec. 6976(a) (Supp. V 1981). The parties then undertook settlement negotiations, and we held the appeal in abeyance upon their representation that an agreement was near. No compromise was reached, however, and when the August 1 deadline brought no further action from the agency, EDF sought a court order compelling publication of a Federal Register notice reinstating the reporting requirements. EPA opposed the request, claiming that the groundwater monitoring and assessment outline requirements had gone back into effect on August 1, and that no additional notice was required. With respect to the annual reports, EPA conceded that the requirement was not in effect, but blamed the delay on the Office of Management and Budget which had denied clearance for the annual report forms under the Paperwork Reduction Act of 1980, 44 U.S.C. Secs. 3501-3520 (Supp. V 1981). ²

On September 24, EDF filed its brief on the merits. On October 12, however, EPA mooted the case by publishing a notice that all three requirements were back in effect--essentially all the relief that EDF had wanted. See 47 Fed.Reg. 44,938 (Oct. 12, 1982). We then granted the parties' joint motion to dismiss, subject to the right of EDF to make the instant motion.

II. ANALYSIS

EDF bases its request for attorneys' fees and expenses on section 2412(d)(1)(A) of the EAJA, which reads in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. Sec. 2412(d)(1)(A) (Supp. V 1981) (emphasis added). EPA puts forward three arguments against an award under this provision. First, EPA claims that the EAJA is inapplicable because RCRA has a specific attorneys' fees provision that exclusively governs this case. Second, EPA argues that EDF is not a "prevailing party" within the meaning of the EAJA. Finally, EPA asserts that no award is appropriate because the "position of the United States was substantially justified." We address each argument in turn. ³

A. Applicability of the EAJA

Relying on the conditional language "[e]xcept as otherwise specifically provided by statute," EPA argues that EAJA section 2412(d)(1)(A) cannot apply here because RCRA has its own specific fee-shifting provision, 42 U.S.C. Sec. 6972(e) (Supp. V 1981). EDF, however, contends that RCRA does not authorize attorneys' fees in appellate petitions for review, and that section 2412(d)(1)(A) was intended to fill such a gap. We agree with EDF's interpretation of both statutes.

RCRA's fee provision permits an award of attorneys' fees and costs in "citizen suits" brought in the district courts under 42 U.S.C. Sec. 6972(a) (1976). The statute makes no reference to fees or costs in review proceedings commenced in the courts of appeals. Id. Sec. 6976(a). In construing virtually identical provisions of the Clean Water Act and the Clean Air Act, we have held that such silence indicates that Congress intended to preclude fee-shifting in appellate petitions for review. See Montgomery Environmental Coalition v. Costle, 646 F.2d 595, 597 (D.C.Cir.1981) (Clean Water Act); NRDC v. EPA, 512 F.2d 1351, 1354 (D.C.Cir.1975) (Clean Air Act). Because we can see no reason to distinguish the RCRA provision from those of the other two statutes, ⁴ we concude that RCRA does not authorize attorneys' fees in appellate petitions.

Nevertheless, EPA contends that the EAJA is inapplicable to any suit brought under a statute containing a fee provision, even if that provision does not apply to the pending case. Recently, in a petition for review brought in the Third Circuit under the Clean Water Act, EPA put forward the same argument. Like RCRA, the Clean Water Act authorizes attorneys' fees and costs for "citizen suits" in district courts, but is silent with respect to petitions for review in the courts of appeals. ⁵ Still, EPA claimed that the EAJA was inapplicable even though the Clean Water Act fee-shifting provision does not apply to appellate petitions for review. Interpreting congressional intent, the Third Circuit found EPA's position unpersuasive:

Congress intended the EAJA to expand the potential for fee awards under certain circumstances, not to freeze the absence of counsel fee provisions in existing statutes. In this case where there is no applicable fee-shifting provision in the Clean Water Act, acceptance of EPA's reading of the EAJA would create "a no-man's land contrary to clearly expressed Congressional purposes."

NRDC v. EPA, 703 F.2d 700, 705-06 (3d Cir.1983) (quoting Ocasio v. Schweiker, 540 F.Supp. 1320, 1323 (S.D.N.Y.1982)). We agree with the Third Circuit's reasoning. The legislative history of the EAJA clearly indicates that it was intended to apply "to cases (other than tort cases) where fee awards against the government are not already authorized." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 18, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4997; S.Rep. No. 253, 96th Cong., 1st Sess. 20 (1979); see also Spencer v. NLRB, 712 F.2d 539 at 545 n. 18 (D.C.Cir.1983) (EAJA "designed to supplement a host of more specific provisions allowing for the award of attorneys' fees"). We hold, therefore, that EAJA section 2412(d)(1)(A) applies to petitions for review brought under RCRA.

B. EDF as a "Prevailing Party"

In order to recover costs, attorneys' fees, or expenses under the EAJA, EDF must be a "prevailing party." Recently, the Supreme Court identified the standard for determining this status: "plaintiffs may be...