ELR Citation: ELR 20213
No(s). 79-1565 (D.C. Cir. Jan 22, 1982)

The court holds that environmental group litigants are entitled to attorney fees for their unsuccessful challenge to the Environmental Protection Agency's (EPA's) Clean Air Act §111 new source performance standards for coal-fired power plants. It first rules, relying on the plain meaning of $307(f) of the Act, its legislative history, and the case law, that the section authorizes the award of attorney and expert witness fees to parties who did not even "substantially prevail" in the litigation so long as their efforts substantially furthered the goals of the Clean Air Act. Whether a given suit is sufficiently harmonious with the purposes of the statute is determined by examining whether the claimants had a well-founded expectation of success when bringing the suit, raised substantial issues, and facilitated prompt resolution of the issues confronting the court. After acknowledging that the instances in which a nonprevailing party can meet these conditions are exceptional, the court holds that the public interest group petitioners in this case have done so. Claimants' substantial, sometimes single-handed, role in the court's consideration of central issues in the case rendered appropriate the award of attorney fees. The court concludes by suggesting that the claimants and EPA resume their negotiations on the proper amount of the award, noting the recognized difficulty of appellate court resolution of such issues.

Counsel for Petitioners
Joseph J. Brecher
506 15th St., Oakland CA 94612
(415) 763-3594

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

Counsel for Respondent
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4624

Before: ROBB, WALD, and GINSBURG, Circuit Judges.