The Supreme Court Limits Fee Awards in Unsuccessful Environmental Suits

Kenneth L. Rosenbaum

Editors' Summary: A string of recent cases, mostly out of the D.C. Circuit, have held that under many environmental statutes, a court could grant attorneys fees to a losing party whose participation substantially furthered the purposes of the statute. The Supreme Court, reversing the D.C. Circuit in Ruckelshaus v. Sierra Club, put an end to grants to non-prevailing parties. The five-member majority hewed closely to traditional notions of fee shifting. The four-member dissent found an intent in the statutes to abandon the traditional rules. The author argues that in suits involving policy decisions, success on the merits is a poor measure of the public benefit a party's participation confers. Congress should consider revising the fee provisions to encourage participation in the public interest.

[13 ELR 10244]

Is it ever "appropriate" for a court to award attorneys fees to a party that has lost on the merits? This July, in a 5-4 split, the Supreme Court answered this question with an unconditional, though shaky, "No" in Ruckelshaus v. Sierra Club.¹

The case came to the Court from the D.C. Circuit, where in a 256-page opinion, the court of appeals upheld the Environmental Protection Agency's (EPA's) new source performance standards (NSPS) for coal-fired power plants.² Both industry and environmental groups had challenged the standards, but the EPA prevailed on all points. Nonetheless, the Sierra Club and the Environmental Defense Fund (EDF) asked for attorneys fees under § 307(f) of the Clean Air Act,³ which allows courts to award fees when "appropriate" in challenges to EPA rulemaking. The D.C. Circuit ruled that in this unusual circumstance, where a losing party had aided the court in settling important questions about the Clean Air Act and had thereby substantially furthered the goals of the Act, an award of fees was appropriate.⁴

The Supreme Court reversed. Never reaching the question of what general standards a court should use to judge whether an award is appropriate, the Court confined itself to the narrow question of whether an award may go to a completely unsuccessful party. It ruled that an award may not go to a loser in a judicial proceeding under any current federal statute. In so ruling, the Court made clear that it was construing not only the "appropriate" language in § 307(f), but also similar "appropriate" provisions in § 304(d) of the Clean Air Act⁵ and in 16 other statutes,⁶ including the Toxic Substances Control Act,⁷ the Endangered Species Act,⁸ the Surface Mining Control and Reclamation Act,⁹ the Federal Water Pollution Control Act,¹⁰ the Marine Protection, Research, and Sanctuaries Act,¹¹ and the Safe Drinking Water Act.¹²

Fee Awards and Environmental Litigation

Citizen involvement in rulemaking and enforcement has played a central role in American environmental law. In some areas, this involvment was fostered by the courts, first by the grant of standing to groups trying to protect environmental interests,¹³ and then, for a time, by the grant of attorneys fees to groups who came to court as "private attorneys general" to protect the public interest.¹⁴

Congress too has encouraged citizen involvement. In 1970 in the Clean Air Act,¹⁵ Congress passed the first of many provisions granting citizens the power to seek enforcement of environmental laws.¹⁶ To encourage private [13 ELR 10245] parties to undertake the costly task of enforcement, and also to discourage abuse of the citizen suit, Congress included a fee shifting provision, allowing courts to award attorney and expert witness fees to any party "whenever the court determines such award is appropriate."¹⁷ The citizen suit provision and the "appropriate" standard have become common inclusions in environmental statutes.¹⁸ And while no one makes a living from fee awards alone,¹⁹ the fee shifting provisions doubtless do encourage citizen suits.

Though many statutory fee shifting provisions specify that only "prevailing," "partially prevailing," or "successful" parties may recover fees,²⁰ the "appropriate" statutes are silent on whether a party must prevail to collect. For at least a decade, no losing party enjoyed an award under these statutes. In part, this may have been because rewarding losers is so foreign to American jurisprudence that courts were uneasy with it. As Judge Winner noted in Colorado Public Interest Research Group, Inc. v. Train, such an award "goes somewhat against my training and experience as a lawyer possessed of much experience in losing contingent fee cases."²¹

Despite this reluctance, as clear line of dicta developed during the 1970s acknowledging the possibility of awarding fees to non-prevailing parties. In Natural Resources Defense Council, Inc. v. Environmental Protection Agency, the First Circuit sustained an award of fees to a partially prevailing party in a Clean Air Act § 304 citizen suit, noting "[w]e are at liberty to consider not merely 'who won' but what benefits were conferred."²² In Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., a district court denied attorneys fees to plaintiffs in a § 304 action but noted that "ultimate success in a citizen suit was not intended to be a prerequisite to an award."²³ Rather, the litigation should serve the objective of the statute "in some substantial way."²⁴ In Citizens Association v. Washington,²⁵ a district court did award attorneys fees to a losing party in a § 304 action, but the D.C. Circuit reversed the award holding that the trial court lacked jurisdiction to hear the case under the citizen suit provision.

The first rulings permitting an award of fees to a losing party came out of the D.C. Circuit beginning in 1981. In Metropolitan Washington Coalition for Clean Air v. District of Columbia,²⁶ plaintiff's suit under § 304 of the Clean Air Act to enforce a state implementation plan (SIP) became moot when the SIP was revised. The district court denied plaintiff's request for attorneys fees. The D.C. Circuit remanded, setting out standards for the lower court to follow in fee awards.²⁷ It told the court to award fees to the loser if there was an expectation when the suit was brought that the suit was prudent and would achieve unfulfilled objectives of the Act.

Sierra Club v. Gorsuch

The D.C. Circuit's second major decision allowing attorneys fees was Sierra Club v. Gorsuch,²⁸ the case the Supreme Court was to hear as Ruckelshaus v. Sierra Club. As discussed above,²⁹ the case concerned a request for fees after an unsuccessful challenge to EPA's NSPS for coalfired power plants. The government argued that it was never appropriate to award fees to a party that had not at least partially prevailed. The court of appeals turned for guidance to the legislative history of § 307(f) of the Clean Air Act, under which the fees were claimed. The House report on the section expressly rejected the "prevailing party" standard, citing with approval National Resources Defense Council, Inc. v. EPA (NRDC).³⁰ The government read this as an endorsement of the "partially prevailing" standard, since the plaintiff in NRDC had partially succeeded on the merits. The D.C. Circuit noted, though, that the NRDC opinion downplayed the outcome of the trial and emphasized that the contribution the party made to the goals of the law was the main factor to consider when awarding fees.

The D.C. Circuit found further support for a fee award in its opinion in Washington Coalition.³¹ The government tried to distinguish Washington Coalition as a case where the party would have prevailed absent intervening events.³² The court refused to read the case so narrowly. It noted that Washington Coalition endorsed the rationale of Citizens Association v. Washington,³³ which put furthering the Act's purposes above success in considering whether to award fees. Finally, the court noted that the government's position would equate the "appropriate" language in the Clean Air Act with the "partially prevailing" language used in prior statutes. The court held that the change of wording suggested that Congress intended to change standards.

The court then set out the reasons why an award was appropriate in the case before it. "[T]he issues [the parties] addressed were important, complex, and novel; their assistance in the resolution of the issues was substantial and not duplicative of the efforts of other parties; and the caliber of their written and oral presentations was exemplary."³⁴ The court therefore granted attorneys fees.

[13 ELR 10246]

After Sierra Club v. Gorsuch

In the short time before the Supreme Court reversed it, Sierra Club v. Gorsuch was the leading case on award of fees to non-prevailing parties. The Ninth Circuit followed it in Northern Plains Resource Council v. EPA,³⁵ another § 307 case. The D.C. Circuit clarified its rationale and expanded it to cover other statutes in Village of Kaktovik v. Watt³⁶ and EDF v. EPA.³⁷ In Kaktovik, it denied fees to an unsuccessful plaintiff who challenged oil and gas leasing plans under the Outer Continental Shelf Lands Act and the Endangered Species Act. Although these statutes allow award of fees when appropriate, the plaintiff had not raised novel, complex, and important issues and had not substantially contributed to the goals of the acts. In EDF v. EPA, the court awarded fees to a partially prevailing party in a challenge to EPA's Toxic Substances Control Act regulations, ruling that under the "appropriate" standard, a party may receive fees for time spent on both the winning and the losing issues so long as litigation of the issues substantially furthered the purposes of the Act.

Ruckelshaus v. Sierra Club

The Supreme Court ended Sierra Club's brief tenure on the leading edge of the law on July 1, 1983.Justice Rehnquist, speaking for the five-person majority, declared that is is never "appropriate" for a court to award attorneys fees to a party that completely failed to succeed on the merits of its case.³⁸ He began by noting that the language of the statute alone gives little guidance as to when to award fees. He therefore turned to an examination of fee shifting in other contexts and to an examination of the legislative history of the Clean Air Act.

The Court noted that common law and almost all federal statutes governing fee shifting award fees at best to the prevailing party. The general common law rule in America — the "American Rule" — does not allow fee shifting at all.³⁹ Most federal statutes on fee shifting require some success by the claimant.⁴⁰ In a draft of the Equal Access to Justice Act, Congress rejected a general provision allowing awards to losers "in the interests of justice."⁴¹ And in England, where under the "English Rule" fees are routinely awarded to the prevailing party, fees are never awarded to the loser. The Court found that all of these positions on fees reflect a common, intuitive sense of the unfairness of forcing the winner to pay the loser. Also, the Court noted that attorneys fees provisions waive governmental immunity and as such must be strictly construed.⁴² Given all this, the Court could not find any congressional intent in § 307 to abandon the traditional rules for the award of fees.

Turning to the legislative history, the Court quoted an excerpt from the House report on § 307(f), which declared that "[t]he committee did not intend that the court's discretion to award fees under this provision be restricted to cases in which the party seeking fees was the 'prevailing party.'"⁴³ However, the Court interpreted this merely to sanction awards to partially prevailing parties and to parties who achieve success through settlement or actions indirectly related to their suit.⁴⁴ The same House report also explained that the prevailing party standard was rejected "largely on the grounds set forth in NRDC v. EPA."⁴⁵ The Court characterized NRDC v. EPA as a suit in which the court found it proper to award fees to a party that only partially prevailed.⁴⁶ Another committee document, a staff report comparing the Senate version of § 307 with the conference bill,⁴⁷ concluded that the "appropriate" standard was "narrower" than the "prevailing or partially prevailing party" standard. The Court took this on its face to mean that a losing party should not recieve fees under the section.⁴⁸

Finally, the Court compared § 307, governing fee awards in rulemaking review, with $304, governing fee awards in citizen suits and also using the "appropriate" [13 ELR 10247] standard. The Court noted that in general, similarly worded attorneys fees provisions should be construed similarly.⁴⁹ Section 304, unlike § 307, raises the possibility of assessing attorneys fees against a private defendant. The Court found that construing the section to allow such awards would be intuitively unjust. Also, since the legislative history of § 304 declares that the attorneys fee provision would discourage frivolous suits, it seemed strange to the Court to read the provision to reward meritless suits.⁵⁰

The dissent,⁵¹ written by Justice Stevens and joined by Justices Brennan, Marshall, and Blackmun, found flaws in every aspect of the majority's opinion. Justice Stevens began by noting that although the majority regards awarding fees to losing parties as novel, the government routinely pays the fees of losing parties in criminal actions, the government's largest category of litigation.⁵² Absent any bias toward awarding fees to losers, the language and legislative history of the statute would compel the Court to affirm the ruling below.

The dissent chided the majority for giving a one-dimensional won-lost description of the litigation below. The issues were complex and had enormous practical import, both in terms of impact on the environment and on the economy. The record before the court of appeals was immense. Although the court decided all points in favor of the government, it found that the Sierra Club and EDF had substantially contributed to the goals of the Act by aiding the court in reaching an informed decision. The court of appeals noted that "[t]he rulemaking process not only involved highly technical and complex data, but controversial considerations of public policy. Given the complexity of the subject matter, without competent representatives of environmental interests, the process of judicial review might have been fatally skewed."⁵³

The dissent also found fault with the majority's comparison of the "appropriate" standard with other fee shifting statutes. The majority had reasoned that the prevalence of federal statutes requiring some success on the merits is evidence that Congress judged awards to losing parties to be inappropriate. The dissent found that this reasoning begged the question of whether by using different wording Congress intended to adopt or reject its past standards.

Turning to the legislative history of the section, the dissent found the majority's conclusion that the House report endorses the "partially prevailing" standard to be overly narrow. The report expressly rejected the "prevailing party" standard and endorsed "the grounds set forth in NRDC v. EPA."⁵⁴ The majority improperly emphasized the facts of that case, which involved a partially prevailing party, but ignored the rationale, which put forth a broad standard for awarding fees.

The dissent also criticized the majority for its reliance on the doctrine of sovereign immunity. Congress clearly intended to waive governmental immunity to some extent, and the use of the "approprite" standard suggests a knowing grant of authority to the courts to establish the bounds of that waiver. There is no reason the Court should unduly limit that discretion.

Also, the dissent found fault in the majority's comparison of § 307 with the "appropriate" standard in § 304. In the dissent's view nothing in the legislative history of § 304 limited fee awards to prevailing parties. Rather, the history suggests Congress was concerned with encouraging suits in the public interest and discouraging frivolous suits. If Congress had intended the result the majority reached in this opinion, Congress could have achieved it by using the "prevailing" or "partially prevailing" language it had used in previous statutes. Instead, it expressly rejected such wording.

In conclusion, the dissent noted that awards to losing parties would be made only under exceptional circumstances, where the party has made a substantial contribution to judicial review and has furthered the goals of the operational statute. But the dissent declined to read the possibility of such an award out of the Clean Air Act entirely.

Discussion

The views of the majority and dissent are rooted in two different views of the role of the courts. The majority opinion reflects a view of the courts in their traditional role of dispute resolvers. The dissent's view encompasses the growing role of the courts as adjuncts to the administrative policymaking process.⁵⁵

The dispute-resolver view casts the court as a neutral decisionmaker, weighing evidence, finding facts, and applying the law.⁵⁶ Two parties come before the court. One alleges a past wrong and seeks a remedy. The court adjudges one party's case to have merit and, at law, awards money damages. It is under such a view of the courts that the traditional fee shifting rules make the most sense. There is no reason to award fees to a loser in such a situation. Indeed, the loser is at fault, either for the wrongalleged in the suit or for bringing a groundless complaint, and ought not be rewarded.

Modern law, including modern constitutional law and especially including administrative environmental law, has entangled the courts in policymaking.⁵⁷ Multiple parties, including perhaps the public, have a stake in these policy disputes. No one party may be particularly at fault. The court is asked to render a decision, often involving equitable relief, that will have prospective effect. [13 ELR 10248] The fact-finding may go beyond what has happened into what may happen. In review of agency actions, the court must make tricky determinations of legislative intent and agency compliance. Though the court may fictitiously claim that its role is to find facts and apply law, there is enough discretion in the court's authority to admit an important role in setting public policy.

When faced with questions requiring interpretation of the Constitution, no Supreme Court has backed away from its role as a policymaker.⁵⁸ But the Burger Court has shunned enlarging judicial involvement in administrative policymaking. The outstanding example is Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (Vermont Yankee II),⁵⁹ which ended a spree of judicial tinkering with agency decisionmaking procedures lead in part by the D.C. Circuit.⁶⁰

The Court's reluctance to enmesh the federal courts in policy matters is reflected indirectly in the Sierra Club decision. The Court grounded its argument in the traditional fee shifting rules, rules themselves grounded in the traditional model of the courts' role. The Court several times spoke of the inequity of shifting fees to an innocent party, an argument that presupposes that one party is at fault and ignores the public interest in the litigation.⁶¹ And it all but shivered at the prospect of the "sensitive, difficult, and ultimately highly subjective determinations"⁶² laden with policy implications that the dissent's interpretation of § 307 would impose on the courts.

In contrast, the dissent and the court of appeals expressly accepted the policymaking aspects of such litigation.⁶³ They recognized that the propriety of awarding fees must be viewed outside of the context of traditional adjudication. They recognized the public interest in the case and the inappropriateness of characterizing parties as innocent or at fault. And they recognized that it is more likely to be appropriate to award fees to a loser in a policymaking matter, such as a challenge to the validity of regulations, than in a private enforcement action. Because the dissent's implicit view of the role of the courts is more realistic, the dissent's is probably the better interpretation of the statute.

Ruckelshaus v. Sierra Club has not settled the attorneys fee question. First, the case gives little guidance on when it is appropriate to award fees to a prevailing party. A partially prevailing party is eligible for fees, but beyond that, the Court gave no standards for making awards. The majority's silence and the four-member dissent's endorsement of the standard in Sierra Club v. Gorsuch leaves that case and its successors with the strongest claim to presenting the correct standard: a consideration of whether the party acted to substantially further the goals of the statute litigated, in light of the importance, novelty, and complexity of the issues raised, the importance to the court's deliberations of the party's participation, and the quality of the party's participation.

Second, the case keeps the door open for Congress to allow fee awards to losing parties. Congress has already unequivocally allowed awards without regard to outcome to public interest parties who come before the EPA in Toxic Substance Control Act rulemaking.⁶⁴ The rationale for extending this liberal rule to judicial review of rulemaking is strong. Congress has already recognized that it is important to encourage public interest litigation of rulemaking through fee awards. And the D.C. Circuit and the dissent have powerfully argued that the outcome of the case is an unreliable indication of whether the public interest was served. As the various statutes using the "appropriate" standard come up for reauthorization, Congress will have the opportunity to speak clearly on the attorneys fees question. Award of fees to the "loser" in suits involving matters of public policy should be the exception, not the rule, but it should be within the discretion of the courts to grant.

1. 13 ELR 20664 (U.S. July 1, 1983). An error in footnote 7 in the slip opinion, 13 ELR at 20665, in which the majority refers to the dissent as "the Court," suggests that the decision very nearly went the other way.

2. Sierra Club v. Costle, 657 F.2d 298, 11 ELR 20455 (D.C. Cir. 1981).

3. 42 U.S.C. § 7607(f), ELR STAT. 42259.

4. Sierra Club v. Gorsuch, 672 F.2d 33, 12 ELR 20213 (D.C. Cir. 1982), rev'd sub nom. Ruckelshaus v. Sierra Club, 13 ELR 20664 (U.S. July 1, 1983).

5. 42 U.S.C. § 7604(d), ELR STAT. 42256 (attorneys fee awards in citizen suits).

6. See Ruckelshaus v. Sierra Club, 13 ELR at 20664 n.1. In addition to the statutes listed in text, the decision applies to the Deep Seabed Hard Mineral Resources Act, § 117(c), 30 U.S.C. § 1427(c); Deepwater Port Act, § 16(d), 33 U.S.C. § 1515(d), ELR STAT. 41709; Noise Control Act, § 12(d), 42 U.S.C. § 4911(d), ELR STAT. 41505; Energy Policy and Conservation Act, § 355(d), 42 U.S.C. § 6305(d); Powerplant and Industrial Fuel Use Act, § 725(d), 42 U.S.C. § 8435(d); Ocean Thermal Energy Conversion Act, § 144(d), 42 U.S.C. § 9124(d); and Outer Continental Shelf Lands Act, § 23(a)(5), 43 U.S.C. § 1349(a)(5), ELR STAT. 42466.

7. TSCA § 19(d), 15 U.S.C. § 2618(d), ELR STAT. 41347.

8. ESA § 11(g)(4), 16 U.S.C. § 1530(g)(4), ELR STAT. 41832:6.

9. SMCRA § 520(d), 30 U.S.C. § 1270(d), ELR STAT. 42421.

10. FWPCA § 505(d), 33 U.S.C. § 1365(d), ELR STAT. 42147.

11. MPRSA § 155(g)(4), 33 U.S.C. § 1415(g)(4), ELR STAT. 41823.

12. SDWA § 1449(d), 42 U.S.C. § 300j-8(d), ELR STAT. 41115.

13. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (U.S. 1972).

14. See, e.g., Sierra Club v. Lynn, 364 F. Supp. 834, 4 ELR 20110 (W.D. Tex. 1973) (awarding fees to a loser in a National Environmental Policy Act action), rev'd in part, 502 F.2d 43, 4 ELR 20844 (5th Cir. 1974) (reversing award of fees). The Supreme Court ended the practice of awarding fees without express statutory authority in Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286 (1975). See Comment, The Supreme Court Limits Attorneys' Fee Awards, 5 ELR 10095 (1975); Comment, Attorney's Fees in Public Interest Litigation, 16 LAND & WATER L. REV. 727 (1981) (critiquing Alyeska); Note, Environmental Law — Attorneys' Fees — Fees Awarded Under Equity to Environmental Interest Litigants for Promoting Substantial Public Interests, 51 N.D.L. REV. 530 (1974) (discussing the court of appeals decision reversed by Alyeska, Wilderness Soc'y v. Morton, 495 F.2d 1026, 4 ELR 20279 (D.C. Cir. 1974)).

15. Pub. L. No. 91-604, 84 Stat. 1676 (1970).

16. Clean Air Act § 304, current version at 42 U.S.C. § 7604, ELR STAT. 42256.

17. Clean Air Act § 304(d), 42 U.S.C. § 7604(d), ELR STAT. 42256.

18. See Comment, D.C. Circuit Articulates Liberal Standards for Attorneys Fees, 12 ELR 10047, 10048 (1982). See also supra statutes named in text accompanying notes 7-12.

19. See Reed, On Environmental Lawyers' 'Motivations', ENVTL. FORUM, July 1983, at 3.

20. For examples, see the acts cited in notes 3-5 of the Court's opinion in Ruckelshaus v. Sierra Club, 13 ELR at 20665.

21. 373 F. Supp. 991, 995, 4 ELR 20307, 20309 (D. Colo.), rev'd on other grounds, 507 F.2d 743, 5 ELR 20043 (10th Cir. 1974), rev'd, 426 U.S. 1, 6 ELR 20549 (1976).

22. 484 F.2d 1331, 1338, 3 ELR 20803, 20806 (1st Cir. 1973).

23. 62 F.R.D. 353, 4 ELR 20551, 20552 (D. Del. 1974).

24. Id.

25. 383 F. Supp. 136, 4 ELR 20860 (D.D.C. 1974), rev'd, 535 F.2d 1318, 6 ELR 20524 (D.C. Cir. 1976).

26. 511 F.2d 809, 5 ELR 20335 (D.C. Cir. 1975).

27. 639 F.2d 802, 11 ELR 20171 (D.C. Cir. 1981).

28. 672 F.2d 33, 12 ELR 20213 (D.C. Cir. 1982), rev'd sub nom. Ruckelshaus v. Sierra Club, 13 ELR 20664 (U.S. July 1, 1983).

29. See supra text accompanying notes 2-4.

30. See supra text accompanying note 22.

31. See supra text accompanying notes 26-27.

32. E.g., in Washington Coalition, the revision of a state implementation plan.

33. See supra text accompanying note 24.

34. 672 F.2d at 39, 12 ELR at 20216.

35. 670 F.2d 847, 12 ELR 20427 (9th Cir. 1982).

36. 12 ELR 21103 (D.C. Cir. 1982).

37. 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1982).

38. Ruckelshaus v. Sierra Club, 13 ELR 20664 (U.S. July 1, 1983).

39. There are exceptions to the American Rule, which arguably only award fees to prevailing parties. For a discussion of the exceptions, see Comment, Attorney's Fees in Public Interest Litigation, 16 LAND & WATER L. REV. 727 (1981); Note, Awards of Attorneys' Fees to Unsuccessful Environmental Litigants, 96 HARV. L. REV. 677 (1983).

40. As the dissent points out, this is begging the question. See Infra text accompanying notes 53-54. Also, there is one statute, TSCA § 6(c)(4)(A), 15 U.S.C. § 2605(c)(4)(A), ELR STAT. 41342, discussed infra in text accompanying note 64, that allows award of fees from the government for participation in rulemaking to any party "who represents an interest which would substantially contribute to a fair determination of the issues." This suggests that when broad policy matters are at stake, as in review of rulemaking, success on the merits is not a proper measure of the social value of a party's suit. See infra text accompanying notes 55-64 (discussion of fee shifting policies).

41. S. 2354 95th Cong., 2d Sess. (1978). This is a broad statute, however, encompassing petty claims as well as grand policy disputes. Awards to losers are probably only justifiable in policy disputes. See infra text accompanying notes 55-64.

42. This is a strange claim in light of the total waiver of governmental immunity in the Equal Access to Justice Act, 28 U.S.C. § 2412(b): "The United States shall be liable [for attorneys fees in civil actions] to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award."

43. 13 ELR at 20666, quoting H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1977).

44. The dissent and the court of appeals both found a quite different meaning in the passage. See infra text accompanying note 54, supra text accompanying note 30.

45. H.R. REP. NO. 294, supra note 43, at 337. The case is discussed briefly in text accompanying note 22.

46. The court of appeals' and dissent's interpretations of the case are presented in text accompanying notes 30 and 54.

47. STAFF OF SENATE SUBCOMM. ON ENVIRONMENTAL POLLUTION OF THE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 95TH CONG., 1ST SESS., SECTION-BY-SECTION ANALYSIS OF S. 252 AND S. 523 (Comm. Print 1977) reprinted in 5 SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 95TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, at 3852 (1978).

48. The report itself said:

The [Senate version] requires that "any party other than the United States" be compensated for its costs of litigation when that party "prevails" in the action …. The conference report contained a narrower House provision. It authorized but did not require, courts to award reasonable attorneys fees to any party against whom EPA acted unreasonably in initiating an enforcement action.

Id. at 37, reprint at 3893. In the context of a prevailing polluter seeking fees against the EPA, the "appropriate" language, even as interpreted by the dissent, would be narrower than the Senate's language.

49. The Court thus extends its decision to the 16 other statutes using the "appropriate" standard, listed supra in notes 6-12 and accompanying text.

50. The reading of the dissent would also discourage frivolous suits. The dissent realized, however, that it is wrong to equate failure with frivolity in public interest litigation.

51. 13 ELR at 20668.

52. The dissent could have added that the government gives a healthy subsidy to business litigators (almost half their litigation costs) in the form of a tax deduction, regardless of their success on the merits. See 16 U.S.C. § 162.

53. 13 ELR at 20669, quoting Sierra Club v. Gorsuch, 672 F.2d at 41, 12 ELR at 20218.

54. 13 ELR at 20670, quoting H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1977).

55. These two views of the courts are discussed at length in Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976). The usefulness of Chayes' views in understanding attorneys fees award rationales is pointed out in Note, supra note 39.

56. For a more complete characterization of the lawsuit under the dispute-resolver view, see Chayes, supra note 55, at 1282-83.

57. For a history of judicial involvement in policy disputes and a more complete characterization of the public lawsuit, see Chayes, supra note 55, at 1288-1302.

58. E.g., the Burger Court has made important policy decisions on abortion issues as demonstrated by Roe v. Wade, 410 U.S. 113 (1973).

59. 435 U.S. 519, 8 ELR 20288 (1978).

60. See, e.g., International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 3 ELR 20133 (D.C. Cir. 1973) (imposing a cross-examination requirement in Clean Air Act rulemaking); Mobil Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973) (requiring additional procedures for Natural Gas Act rulemaking). See generally Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REV. 357 (1974) (Judge Wright sits on the D.C. Circuit).

61. It speaks of "intuitive notions of fairness" that seem to presuppose an innocent and a guilty party. 13 ELR at 20665.

62. 13 ELR at 20667.

63. See supra text accompanying note 53.

64. TSCA § 6(c)(4)(A), 15 U.S.C. § 2605(c)(4)(A), ELR STAT. 41342.