Roosevelt Campobello Intern. Park Com'n v. U.S. E.P.A.
| Citation | 711 F.2d 431 |
| Decision Date | 23 June 1983 |
| Docket Number | 81-1560 and 81-1773,Nos. 81-1548,81-1549,s. 81-1548 |
| Parties | ROOSEVELT CAMPOBELLO INTERNATIONAL PARK COMMISSION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The Pittston Company, et al., Intervenors. ROOSEVELT CAMPOBELLO INTERNATIONAL PARK COMMISSION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The Pittston Company, Intervenor. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., Natural Wildlife Federation and Natural Resources Council of Maine, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The Pittston Company, et al., Intervenors. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The Pittston Company, et al., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Alan Wilson, David F. Cavers, Jr., Kathleen C. Farrell, Palmer & Dodge, Steven D. Stark, and Douglas I. Foy, Boston, Mass., on brief, for petitioner Conservation Law Foundation of New England, Inc.
Rosanne Mayer, Atty., U.S. Dept. of Justice, Washington, D.C., on brief, for respondent.
Before COFFIN, BOWNES and BREYER, Circuit Judges.
This case is before us today on petition of the Conservation Law Foundation (CLF) for an award of attorneys' fees against the U.S. Environmental Protection Agency (EPA) in connection with our decision in Roosevelt Campobello International Park Commission v. U.S. Environmental Protection Agency, 684 F.2d 1041 (1st Cir.1982). CLF claims entitlement under three statutes: the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(d); the citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g)(4); and Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). Defendant contests CLF's entitlement under all of these statutes. Both parties have briefed this issue, the resolution of which we now address.
In our opinion on the merits, we reviewed EPA's decision to grant a National Pollutant Discharge Elimination System (NPDES) permit to the Pittston Company to construct and operate an oil refinery and marine terminal at Eastport, Maine. CLF challenged that decision on five grounds under the Clean Water and Endangered Species Acts, claiming, inter alia, that EPA had violated its duty under the Endangered Species Act to use the best scientific data available in making endangered species jeopardy determinations, 16 U.S.C. § 1536(a)(2), 1 and its duty under the Clean Water Act to include state-certified conditions in the federal NPDES permit, 33 U.S.C. § 1341(d).
CLF also argued that EPA violated the Endangered Species Act by redefining the bald eagle population which the U.S. Fish and Wildlife Service had determined was likely to be jeopardized by the Pittston refinery; by failing to give required weight to the biological opinions of the Fish and Wildlife Service and the National Marine Fisheries Service on jeopardy to the bald eagle and the right and humpback whales; and by failing to include in the NPDES permit a condition limiting the content of mercury in the refinery's crude oil supply.
Agreeing outright with CLF's first two points, and indicating sympathy with its third, 2 we vacated EPA's permit decision and remanded for further proceedings. 3 This petition followed.
The Clean Water Act provides for two types of citizen-initiated judicial review: "citizen suits" in district court under section 1365, and petitions for review in the courts of appeals under section 1369. Under section 1365(d), a court "may", when "appropriate", award "reasonable" attorneys' fees to "any party" in "any action brought pursuant to" section 1365(a). The question here is whether section 1365(d) authorizes an award of fees in this case--whether, that is, CLF's petition for review may be deemed a "citizen suit" "brought pursuant to" section 1365 for purposes of attorneys' fees, even though, procedurally, it was maintained under section 1369.
EPA urges that section 1365(d) applies on its face only to suits instituted in district court under section 1365(a), and is therefore inapplicable to CLF's petition for review of EPA's permit decision under section 1369, because section 1369, unlike section 1365, makes no mention--at least no separate mention--of attorneys' fees. As EPA argues, sections 1365 and 1369 not only specify different fora, but also define different classes of suits: section 1365, for example, addresses nondiscretionary duties of the EPA Administrator, whereas section 1369 extends also to exercises of agency discretion. 4 The two sections also have different timing and notice provisions: section 1369 petitions may be instituted without prior notice to EPA and must be commenced within 90 days of the agency action in question, whereas section 1365 suits may only be instituted on 60 days' notice to EPA and need not be commenced with 90 days.
EPA's reasoning is obviously not without force. Indeed, were there nothing more to consider than the fact that the specific section of the Clean Water Act under which this action was brought does not provide for attorneys' fees, it would be overwhelming. But there is much more to consider: our own precedent in construing the Clean Air Act, a parallel statute; legislative intent as evidenced by considerations of general policy; subsequent decisions from other circuits; the central teaching of Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); the 1977 amendments to the Clean Air Act and their implications for this case. We consider each in turn.
In Natural Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331 (1st Cir.1973) [NRDC I ], we dealt with the then almost identically worded parallel provisions of sections 304 and 307 of the Clean Air Act, Pub.L. No. 91-604, 84 Stat. 1676, §§ 304, 307, formerly codified at 42 U.S.C. §§ 1857h-2, 1857-5(b)(1), currently codified at 42 U.S.C. §§ 7604(d), 7607, on which the Clean Water Act sections in question here were modeled. Like the Clean Water Act, the Clean Air Act authorizes citizen suits in district court and petitions for review in the courts of appeals. As in the Clean Water Act, the citizen suit section of the Air Act authorizes attorney fee awards in suits "brought pursuant to" the citizen suit section. Notwithstanding this language, we held that, for attorneys' fee purposes, a petition for review could be deemed a suit "brought pursuant to" the citizen suit section.
We acknowledged the rigorous requirement of 28 U.S.C. § 2412(a) that there be a specific statutory sanction for counsel fees. Id. at 1335. That requirement was satisfied by section 304, we held, reasoning that the petition for review section (section 307) merely designated a circuit court as the forum for some of the suits authorized by the Clean Air Act. Id. at 1336. Two additional considerations buttressed our conclusion. First the "any citizen" standing provision of section 304(a), the citizen suit section, was not repeated for section 307, and thus was apparently intended to apply to both sections. Finally, Congressional policy to encourage citizens to take the initiative where administrative agencies failed would be "no less frustrated if the EPA approves an inadequate plan than if it fails to enforce an adequate plan." Id. at 1337.
Apart from the above-mentioned policy to encourage citizens where administrative agencies fail, other policy considerations may be noted. There is no indication that Congress intended the availability of fees under the Clean Water (or the Clean Air) Act to turn on the forum where suit is filed, for fees are routinely allowed under the two Acts' citizen suit provisions for work in the court of appeals when a citizen suit is appealed from district court. There is thus no reason to infer negative Congressional intent for suits instituted in the court of appeals in the first instance. The 90-day limitation period on petitions for review is likewise irrelevant to the issue of fees.
The citizen-suit notice requirement is more troubling, for notice might conceivably be thought relevant to the fairness of awarding fees, 5 but this factor is not dispositive, for the primary purpose of fee awards is not to punish the agency, 6 but to promote citizen enforcement, and fairness concerns seem adequately covered already by the statute's restriction of fee awards to "appropriate" cases. In any event, CLF's participation in permit proceedings at the agency level gave EPA adequate notice of CLF's objections long before commencement of its petition for review. 7 Finally we note, as in NRDC I and the Clean Air Act, that the test of standing under both sections of the Clean Water Act is the same, despite superficial differences in language. See 33 U.S.C. § 1365(g); Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 576-78 (D.C.Cir.1980) [Montgomery merits case]; Currie, Judicial Review Under Federal Pollution Laws, 62 Iowa L.Rev. 1221, 1273 (1977).
Our NRDC I decision was not persuasive to other circuit courts of appeals. In Natural Resources Defense Council v. Environmental Protection Agency, 512 F.2d 1351 (D.C.Cir.1975) [NRDC II ], the court felt from its reading of legislative history that the "petition for review" section, section 307, was wholly independent from section 304 and that the two sections contemplated "distinct groups of cases". Id. at 1354-55. Then, after Alyeska, see infra, the Fifth Circuit, though finding "[t]he logic of [our] policy argument [in NRDC I ] compelling", followed the D.C. court in relying upon legislative history to conclude that there was no relationship between ...
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