ELR Citation: ELR 20803
No(s). s. 72-1219, -1224 (1st Cir. Oct 1, 1973)

Sections 304(a) and 307 of the Clean Air Act allow the court to award costs and attorney fees to environmental plaintiffs in a suit against EPA which resulted in reversal of the agency's approval of portions of two state implementation plans. Attorney fees can be awarded against a federal agency only where specifically authorized by Congress, and the wording of §304 taken together with the legislative history of §307 and the citizens suit provision, provides such an authorization. The fact that plaintiffs did not prevail on all their claims does not preclude this result since §304 permits an award of fees "to any party whenever the court determines such award is appropriate." The court notes that the citizen plaintiffs have performed a public service by fostering the achievement of urgent statutory goals, and that such awards will enable and encourage other serious plaintiffs to undertake similar actions. The possibility of awarding fees to the defendant agency will serve to discourage frivolous litigations. The court also points out that this judgment will allocate the costs of the suit equitably by ultimately spreading them among the taxpaying public which has received the suit's benefits in the form of cleaner air. The parties are asked to submit memoranda on the reasonableness of the amount requested by plaintiffs for costs and fees, since the plaintiffs have, in effect, imposed their services on involuntary clients and thus may properly be held to less than the market rate for reimbursement.

Counsel for Plaintiffs
Thomas B. Arnold
Epstein, Salloway & Kaplan
131 State Street
Boston, MA 02109

Richard E. Ayres
1710 N Street NW
Washington, DC 20036

Counsel for Defendant
Kent Frizzell Asst. Attorney General
Thomas C. Lee
John P. Hills
Edmund B. Clark
Martin Green
Department of Justice
Washington, DC 20530