ELR Citation: ELR 20664
No(s). 82-242 (U.S. Jul 1, 1983)

The Court, reversing the D.C. Circuit, 12 ELR 20212, rules that a party must at least partially succeed on the merits of its case before it may collect attorney fees under §307(f) of the Clean Air Act, which allows courts to award attorney fees where "appropriate." The Court first notes that neither the common law nor any statute not using the "appropriate" standard requires the government to pay a losing party's attorney fees. The Court holds that statutes that grant fees waive a governmental immunity and thus must be narrowly construed. The Court finds that the term "appropriate" modifies the traditional rule on award of fees but fails to find clear congressional intent to abandon that rule completely. The legislative history of §307 supports the conclusion that a party must at least partially succeed on the merits before a court may award fees. The legislative history indicates that by adopting the "appropriate" standard in §307(f), Congress intended to distinguish between "prevailing parties" and "partially prevailing parties," not to authorize fees for completely unsuccessful parties. Also, the use of the same "appropriate" standard in §304(d), authorizing attorney fees in citizen suits, suggests that fees should be denied to unsuccessful parties to discourage frivolous suits and avoid burdening innocent parties.

The dissent would find that the language of §307(f) and the legislative history of both §§307(f) and 304(d) support the conclusion that fees should be awarded. It notes that the losing parties in this case helped the court of appeals settle critical legal points. Further, the dissent finds that the plain language of §307(f) does not limit awards to prevailing parties and that the legislative history supports flexible awards of fees. It also finds the majority's governmental immunity argument and §304(d) analogy unpersuasive. The dissent would allow award of fees to non-prevailing parties under exceptional circumstances, when the party had substantially furthered the goals of the Act.

Counsel for Petitioner
Kathryn A. Oberly, Louis F. Claiborne, Richard G. Wilkins; Rex E. Lee, Solicitor General
Department of Justice, Washington DC 20530
(202) 633-3957

James M. Spears, James, P. Leape; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2770

Counsel for Respondents
Harold R. Tyler Jr.
Patterson, Belknap, Wabb & Tyler
30 Rockefeller Plaza, New York NY 10112
(212) 541-4000

Bingham Kennedy, Barry J. Trilling
Trilling & Kennedy
Suite 1100, 1100 17th St. NW, Washington DC 20036
(202) 223-1577

Joseph J. Brecher
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100