Sierra Club v. Gorsuch, s. 79-1565
| Decision Date | 05 February 1982 |
| Docket Number | 79-1867,79-1874,80-1187,80-1201,80-1213 and 80-1338,79-1719,Nos. 79-1565,s. 79-1565 |
| Citation | 672 F.2d 33,217 U.S.App.D.C. 180 |
| Parties | , 217 U.S.App.D.C. 180, 12 Envtl. L. Rep. 20,213 SIERRA CLUB, Petitioner, v. Anne M. GORSUCH, Administrator of the Environmental Protection Agency, Respondent, National Coal Association Alabama Power Association, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before ROBB, WALD and GINSBURG, Circuit Judges.
Opinion PER CURIAM.
The Sierra Club and the Environmental Defense Fund ("EDF"), petitioners in Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir.1981) (hereinafter Sierra Club ), seek an award of attorneys' fees for their participation in an unsuccessful appeal of certain Environmental Protection Agency ("EPA") regulations, 44 Fed.Reg. 33580 (June 11, 1979), promulgated pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (1979 Supp. III). We find that under section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f), this is an "appropriate" case for the court to award attorneys' fees.
Prior to August, 1981 (when EPA apparently adopted a policy of blanket opposition to all petitions for attorneys' fees by non-prevailing parties 1), Sierra Club and EDF were actively engaged in negotiations with EPA over the amount of attorneys' fees. Therefore, we hold here only that attorneys' fees may be awarded to non-prevailing parties under Section 307(f) and that such an award to Sierra Club and EDF in this case is appropriate, and we suggest that the parties resume their negotiations over the amount. If settlement proves impossible, the parties may return here for resolution of this matter. 2
Section 307(f) of the Clean Air Act provides that
In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate.
42 U.S.C. § 7607(f) (emphasis added). An award of attorneys' fees under the Clean Air Act is not limited to "substantially prevailing" parties. Compare 42 U.S.C. § 7607(f) with 5 U.S.C. § 552(a)(4)(E) (). On its face, the statutory provision clearly permits the court to award attorneys' fees to prevailing, substantially prevailing, or non-prevailing parties in "appropriate" cases.
The legislative history of section 307(f) confirms this reading and offers guidance in identifying "appropriate" cases. The House Report, H.R.Rep.No.95-294, 95th Cong., 1st Sess. 337 (1977), reprinted in 1977 U.S.Code Cong. & Adm.News 1077, 1416, states:
In the case of the section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the "prevailing party." In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 (1st Cir. 1973). 3
The passage from Judge Campbell's opinion in National Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331, 1338 (1st Cir. 1973) (hereinafter NRDC), endorsed in the House Report, reads:
The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program of such vast and uncharted dimensions, there are roles for both the official agency and a private watchdog. The legislation is itself complex and novel. Given the implementation dates, its early interpretation is desirable.
For Judge Campbell, and apparently for Congress, it was not enough merely to consider "who won." The benefits conferred by the litigation were an equally important consideration. 4
The government here seeks to distinguish Sierra Club from NRDC, and thereby to pull this case beyond the purview of the plain language and the intent of the statutory provision, by arguing that the party awarded attorneys' fees in NRDC prevailed on some, although not on all issues. See Brief For The United States On The Issue of Attorneys' Fees For Losing Parties Under 42 U.S.C. 7607(f) at 11. The passage from NRDC reprinted above cannot, however, be read so narrowly. It indicates that the relevant inquiry is whether the litigation-successful or not-furthered the goals of the Act. It was this general policy which Congress sought to codify in the 1977 Amendments of the Clean Air Act. 5
Our reading of the legislative history is supported by recent decisions of this court and the district court for the District of Columbia. In Metropolitan Washington Coalition for Clean Air v. The District of Columbia, 639 F.2d 802 (D.C.Cir.1981) (hereinafter Washington Coalition), this court reversed a decision of the district court, which, although acknowledging that unsuccessful parties may be awarded attorneys' fees under the Clean Air Act, found no public benefit from the lawsuit because the challenged operation of a municipal incinerator was ultimately determined not to endanger public health. The district court also found that the suit had "questionable legitimacy" because EPA was already considering revisions of the District of Columbia implementation plan and therefore the non-prevailing party's efforts "did not serve to expedite the Administrator's decision." This court reversed and remanded because:
the District Court incorrectly focused its attention on the outcome and practical effects of the litigation, to the exclusion of a more relevant consideration: whether the suit was of the type that Congress intended to encourage when it enacted the citizen-suit provision.... Quite obviously, the legislature, when it called for citizen-suits, considered a fee recovery to be consonant with the public interest whenever the underlying suit was a prudent and desirable effort to achieve an unfulfilled objective of the Act. The attorneys' fee feature was offered as an inducement to citizen-suits, which Congress deemed necessary; and if the hope Congress had for such suits is to become a reality, decisions of fee allowance cannot make wholesale substitutions of hindsight for the legitimate expectations of citizen plaintiffs.
Id. at 804. It is true that in Washington Coalition we noted that at the time the suit began there may have been "a well founded expectation that the suit would bring about a more timely compliance with the (implementation) plan, and in that fashion an observance of the (Clean Air) Act." Id. at 805. The government therefore suggests that we read Washington Coalition to permit awards of attorneys' fees to "non-prevailing parties" only in those situations where, except for intervening events, the litigation would have been successful. Although the government's reading is snugly fit to the facts of Washington Coalition, that reading is not properly tailored to the case's rationale. We find the rationale of Washington Coalition to be broad enough to cover a case like Sierra Club where the non-prevailing parties had a "well-founded expectation" of success when their suit was brought-the issues were not frivolous but substantial-and where the appeal furthered the goals of the Act by facilitating the prompt resolution of the important and complex issues confronting this court involving the Act's interpretation. Moreover, by assisting judicial interpretation of the Clean Air Act, Sierra Club and EDF aided agency implementation and Congressional reevaluation 6 of the Act.
Our decision in Washington Coalition took note of Judge Richey's opinion in Citizens Association of Georgetown v. Washington, 383 F.Supp. 136 (D.D.C.1974), rev'd on other grounds, 535 F.2d 1318 (D.C.Cir.1976) (hereinafter Citizens Ass'n). The issue presented there was "whether Plaintiffs, who were unsuccessful in a suit brought under the Clean Air Act, 42 U.S.C. §§ 1857 et seq., should be awarded costs and attorneys' fees." Id. at 143. After trial, the district court concluded that the plaintiffs had not successfully proved a violation of the Act. Nevertheless, understanding Congress to have intended courts to award attorneys' fees in appropriate cases to unsuccessful as well as successful parties, the district court granted plaintiffs' request because the litigation had furthered the Act's purpose of encouraging citizen suits to accelerate enforcement of the Clean Air Act. In support of its holding the court noted that the case was one of first impression in the circuit, extensive preparation was required, non-frivolous claims were raised, and the suit was brought in the face of a clean air regulatory vacuum in the District of Columbia. 7
It is clear from the foregoing review that whether Sierra Club and EDF are entitled to attorneys' fees turns not on whether they have prevailed in whole or in part, but on whether they have served the goals of the Clean Air Act. The government's current position, that non-prevailing parties are not entitled to attorneys' fees, conflicts with the language and history of section 307 and judicial precedent. Under the government's position, there would have been no need to abandon the "substantially prevailing" standard commonly used to guide judicial awards of attorneys' fees. See pp. 34-35 supra; n. 8 infra. Clearly Congress meant something more by the provision in the Clean Air Act: it intended to encourage the participation of "public interest" groups in resolving complex technical questions and important and difficult questions of statutory interpretation, and...
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