Natural Resources Defense Council, Inc. v. E.P.A.

• Decision Date: 19 May 1975
• Docket Number: No. 72-2233,72-2233
• Citation: 168 U.S.App.D.C. 111,512 F.2d 1351
• Parties: , 168 U.S.App.D.C. 111, 5 Envtl. L. Rep. 20,323 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1351

512 F.2d 1351

7 ERC 2041, 168 U.S.App.D.C. 111, 5

Envtl. L. Rep. 20,323

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 72-2233.

United States Court of Appeals District of Columbia Circuit.

May 19, 1975.

Rehearing Denied June 24, 1975.

David Schoenbrod, New York City, was on the pleadings for petitioners.

Edward J. Shawaker, Washington, D. C., was on the pleadings for respondent.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the Court filed by Chief Judge BAZELON.

Opinion filed by Circuit Judge J. SKELLY WRIGHT, concurring and dissenting.

BAZELON, Chief Judge:

Natural Resources Defense Council, Inc., (NRDC) brought this action following the publication of final regulations by EPA pursuant to section 211 of the Clean Air Act, as amended. ¹ As initially proposed, ² the regulations had required gasoline retailers to carry at least one grade of unleaded gasoline and had also laid down standards governing the use of lead additives in all grades of gasoline. In final form, they contained only the lead-free brand requirements. ³ Before briefs were filed, NRDC filed a Motion for Prehearing Conference, Summary Reversal, or Expedited Hearing, urging the immediate need for across-the-board controls on lead additives. This motion was denied without prejudice to its renewal if EPA did not take final action in deciding whether to promulgate such controls within 60 days. Subsequent delays by the agency resulted in an order by this court on October 29, 1973, directing EPA to reach a final decision within thirty days. On November 28, 1973, EPA informed the court that it had decided to issue the regulations in question. ⁴ NRDC now petitions to withdraw its appeal and for an award of costs and attorneys' fees against EPA under section 304(d) of the Act. ⁵

The principle of sovereign immunity precludes the award of costs and fees against the United States "in the absence of a statute directly authorizing it ...." ⁶ In 1966 Congress revamped 28 U.S.C. § 2412 to provide:

Except as otherwise specifically provided by statute, a judgment for costs ... may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity ....

But "fees and expenses of attorneys" were specifically excluded from the "costs" which courts were authorized to award. ⁷ This limitation seems, on its face, inconsistent with the broad principle which led to the revision of section 2412 in the first place: "It is fundamental that the law should be uniform in its application." ⁸ It also presents a significant impediment to the implementation of the "private-attorney-general" theory, as federal agencies are defendants in a large percentage of public interest cases. ⁹ Having registered these concerns, however, we are left to determine whether Congress has made a specific grant of attorneys' fees covering this case.

I.

Section 304 of the Clean Air Act Amendments authorizes the award of costs and attorneys' fees "whenever the court determines (that) such (an) award is appropriate." This authorization goes specifically to suits brought under section 304(a), which recognizes actions against the Administrator "where there is alleged a failure ... to perform any act or duty under this chapter which is not discretionary" ¹⁰ and grants the district courts jurisdiction to hear these suits and issue appropriate relief. NRDC's action, however, was initiated in this court under section 307(b), ¹¹ which directs petitions for review of specified actions by the Administrator to the circuit courts of appeals. EPA urges us to conclude, therefore, that the provisions of section 304(d) are inapplicable and that in the absence of any other express authorization for the award of fees, NRDC's petition must be rejected.

The same question was considered by the First Circuit in NRDC v. EPA. ¹² In that case, the court determined that section 304(a) provided the authorization for suits against the Administrator, whether brought in district court or in an appeals court under section 307. Section 307 simply directed that certain actions authorized by section 304(a) be brought in one forum rather than the other. NRDC's appeal was thus an action pursuant to section 304(a) and section 304(d) was applicable. Reluctantly, we find ourselves unable to follow the path by which the First Circuit reached this result.

Section 307(b) originally appeared as section 308(a) of Senate Bill 4358, as reported by the Senate Committee on Public Works. ¹³ That section stated that "(a)ny interested person may file a petition against the Secretary for review" of any national standard, goal or prohibition in the United States Court of Appeals for the District of Columbia. Attacks on the adoption or promulgation of state implementation plans were directed to the United States court of appeals for the "appropriate circuit."

Appeals were required to be taken within thirty days of the Administrator's action. In the Joint Conference Committee the language was changed from "(a) ny interested person may file a petition ... for review" to "(a) petition for review may be filed." ¹⁴ In all other material respects it remained the same through its enactment.

In framing section 307(b) the Senate Committee was aware that under decisions such as Barlow v. Collins ¹⁵ and Abbott Laboratories v. Gardner ¹⁶ the actions listed would probably be held reviewable under the Administrative Procedure Act (APA) in the absence of a statement of Congressional intent to the contrary. ¹⁷ Finding that "precluding review does not appear to be warranted or desirable," the Committee provided for review subject to the constraints which it considered necessary to preserve the "even and consistent national application" of standards and to "maintain the integrity of the time sequences of the Act." ¹⁸ After conference, section 307(b) was again characterized as a provision which "permits review." ¹⁹ Against this background, we find it difficult to say at least without clearer affirmative support than has been offered, ²⁰ that the "authorization" for section 307 appeals derives elsewhere in the Act, or that section 307 looks elsewhere in the Act for its terms and conditions.

The independence of sections 307 and 304 is also suggested by the language and history of section 304. Like section 307, this provision originated in the Senate. The Senate Committee's report characterized it as "carefully restricted to actions where violations of standards and regulations or a failure on the part of officials to act are alleged," and its limited scope was stressed again by Senator Muskie in floor debate. Despite these declarations, opponents of the clause urged that the language was broad enough to encompass, inter alia, suits to require the revision or disapproval of implementation plans submitted by the states and the review and revision of emission standards. ²¹ Perhaps in response to such criticisms, the conference committee altered the provision, which had authorized the provision, which had authorized enforcement actions against the Administrator for failure to exercise "any duty established under this Act," to allow citizens suits only for failure to perform any act or duty which is "not discretionary." Managers for both the House and the Senate stressed the restrictive intent of the new language in floor debate. ²²

Although the major emphasis throughout the development of section 304 was on its role as a vehicle for enforcement of established standards, courts have read it to cover the Administrator's failure to take other steps required of him, such as the promulgation of implementation plans or standards within a specified time. ²³ But the language and history do not provide a basis for holding, as a general matter, that section 304 encompasses suits against the Administrator for taking steps alleged to be misguided or uninformed. Review of the Administrator's exercise of judgment, or "discretion," of course, is available under section 307, which establishes exclusive jurisdiction in the courts of appeals for actions within its compass. ²⁴ We conclude, contrary to the First Circuit, that sections 304 and 307 contemplate distinct groups of cases.

Another problem with the view adopted by the First Circuit is simply that the conditions for bringing actions under each section are inconsistent. This point, which is not addressed by the court in NRDC v. EPA, rests on the requirement of section 304(b) that no action may be brought pursuant to section 304(a) prior to sixty days after notification of a Administrator. Section 307 requires that appeals brought within 30 days of the Administrator's action. NRDC urges that these conflicting requirements must be read functionally. The requirement of section 304(b) has the purpose of allowing the Administrator, and other officials, to rectify inaction. ²⁵ No similar requirement is necessary with regard to suits contemplated under section 307, which covers actions which have already been taken. The notice provisions of section 304(b), NRDC concludes, should not be read as a "stone wall" separating one jurisdiction from the other. We find this argument unconvincing, particularly as it would lead to a rather tortured reading of section 304, whereby a section 307 appeal would be considered an action pursuant to section 304(a) for purposes of subsection (d) but not for purposes of subsection (b).

II.

Having come this far, however, we acknowledge a peculiar and for us somewhat troubling aspect of this case. Although brought under section 307, and properly so, NRDC's appeal also resembles in important respects the class of cases contemplated by section 304(a). This resemblance raises the possibility at least that the suit falls within the intended reach of section 304(d), if not within its...