ELR Citation: ELR 20777
No(s). 72-2402 (5th Cir. Oct 4, 1976)

The Fifth Circuit denies a motion for attorney fees in a Clean Air Act citizen suit which successfully challenged the EPA Administrator's approval of portions of the Georgia air quality implementation plan An award of attorney fees must be based on a statutory exception to the general prohibition against such awards. This suit was brought directly in the court of appeals under §307 of the Clean Air Act. Unlike §304, which provides for citizen enforcement of the Act in federal district court, Section 307 makes no mention of attorney fees. The court declines to follow the First Circuit's holding that a §307 suit can be considered as one brought pursuant to §304(a), and thus one in which an attorney fees award under §304(d) is appropriate. While it considers the policy argument behind the First Circuit's decision compelling, the court finds that the legislative history dictates a contrary conclusion. The Senate Report and parts of the floor debate show that Congress did not intend §307 suits to be brought pursuant to §304.

Counsel for Petitioner
Richard E. Ayres
Natural Resources Defense Council, Inc.
917 15th St., NW
Washington DC 20005
(202) 737-5000

Counsel for Respondent
Edmund B. Clark
Department of Justice
Washington DC 20530
(202) 737-8200

Wisdom, J., joined by Dyer and Ingraham, JJ.