Justia Federal District Court Opinions

Dissenting opinion by WILKEY, Circuit Judge.

PER CURIAM:

Before us are applications for costs and attorneys' fees emanating from the extensive litigation forerunning this court's decision in Alabama Power Co. v. Costle.¹ These we are to measure by the Clean Air Act's generous provision on allowance thereof.² Doing so, we conclude that, with sizeable exceptions hereinafter noted, these requests should be granted.

Section 307(f) of the Act empowers us to award costs and reasonable attorneys' fees "whenever ... appropriate."³ The general tenor of that broad authorization need not detain us long. A year ago, in Metropolitan Washington Coalition for Clean Air v. District of Columbia,⁴ the court had occasion to explain the Act's concept of appropriateness,⁵ and in two opinions today the court adds importantly to the delineation. Sierra Club v. Gorsuch⁶ deals directly with Section 307(f), which governs this case; Environmental Defense Fund v. Environmental Protection Agency⁷ treats Section 19(d) of the Toxic Substances Control Act,⁸ which also employs an "appropriate" standard.

We readily accept the valuable guidance these decisions abundantly afford. No useful purpose could be served by repeating the elaborate discussion they contain. It suffices merely to reiterate that the court, after careful examination of pertinent legislative history, has made clear that whether the party claiming costs or fees has prevailed does not control the inquiry on appropriateness, and that the dominant consideration is whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act.⁹ With that, we proceed to apply to the facts at hand the principles our precedents announce.

A. Sierra Club and Environmental Defense Fund

These organizations were petitioners in some of the cases consolidated into the principal litigation, and in others were intervenors on the side of the Environmental Protection Agency (EPA). Sierra Club seeks $29,088 and Environmental Defense Fund (EDF) $5,880 as attorneys' fees,¹⁰ based on an hourly rate of $48. EPA has not challenged that rate, and we have no doubt as to its reasonableness. EPA does, however, contest the inclusion of attorneys' time for some activities.

More specifically, EPA opposes the request for fees for most of the work done by these groups as intervenors on its behalf, on the ground that their efforts were duplicative of the agency's own efforts. If ever an intervenor can recover attorneys' fees from a party on whose side it participated-a question we do not here reach-the justification would have to be a clear showing of some unique contribution of the intervenor to the strength of that party's legal position. Here, the environmental groups have not demonstrated with any sort of particularity that their intervention added in any essential way to EPA's stance on the issues involved.¹¹ Without deciding more, we hold that wherever the bounds on fee awards to such intervenors should be set, this threshold burden has not been met.¹²

We view differently, however, two superficially related but actually distinct matters. First, Sierra filed a brief in response to certain motions for reconsideration of our decision, and the parties have discussed fees therefor in the context of Sierra's status as an intervenor. It was on specific request of the court, however, that Sierra dealt with one of the three issues that received approximately equal attention in the brief, and EPA concedes the propriety of fees for that work.¹³ We therefore allow them,¹⁴ without determining how awards of fees to intervenors might be handled in more typical situations. Second, on another facet of that brief-EPA's motion for a stay of issuance of our mandate-Sierra and EPA were adversary parties. We accordingly approve the claim for attorneys' services in that regard.¹⁵

We encounter little difficulty in granting Sierra attorneys' fees for their activities as petitioners,¹⁶ nor in awarding the sum Sierra seeks principally for time spent in preparing materials supporting its request for such fees.¹⁷ In so doing, we reject EPA's objection to the inclusion of approximately 68 hours of work devoted by Sierra to the case generally. Sierra accounts for the time in itemized fashion, and states that at least some of it went to coordinating procedural aspects of the litigation and in organizing a joint brief for the environmental petitioners, but it cannot relate the time expenditures to particular issues. In the overall circumstances of the case, we are content to approve in full the amounts requested.

EPA also resists inclusion of time required by research on an ex parte-contacts issue, which was later withdrawn to permit us to reach the substance of the exemptions for fugitive dust and 50 tons of particulate matter per year. This research plainly harmonized with the congressional objective underlying fee allowances; moreover, as heretofore we have observed, "decisions on fee-allowance cannot make wholesale substitutions of hindsight for the legitimate expectations of citizen plaintiffs."¹⁸ We therefore have counted the time consumed by this activity in computing the grant of fees.

Finally, EPA objects to a reimbursement request by Sierra's attorneys for such items as travel and postage in connection with the litigation simply because no receipted bills are presented. We are content to rely upon the integrity of counsel, and allow these expenses.¹⁹

This litigant seeks attorneys' fees in the amount of $5,878.51-a figure based on the rates it pays its attorney-employees and their supporting staff-plus an unspecified upward adjustment pursuant to Copeland v. Marshall.²⁰ EPA contests the validity of any fee award to the District, as well as some of the specifics of the amount requested.

EPA's main contention in essence is that although the District prevailed on both of the issues it raised, it does not qualify for attorneys' fees under the Clean Air Act because the substantive position it took was not "pro-environment," and because it litigated in furtherance of its economic interests and therefore did not need the prospect of an attorneys'-fee recovery as an inducement to advocate in the public interest. The suggestion that fee awards are limited to parties asserting "pro-environment" claims has no support in the words of the statute or its legislative history, and we accordingly reject it.²¹ As a governmental entity, the District was a representative of its citizenry, and an advocate for what it deemed best for those it governed. Without passing on the eligibility under Section 307(f) of a financially able nongovernmental party having no more than its own economic interests at heart,²² we perceive no reason for refusing a fee allowance here.²³

EPA advances three further contentions that we deem equally unmeritorious. First, it argues that the District's motion for attorneys' fees should be denied because it was not presented within the 14-day period prescribed by the Appellate Rules for filings of bills of costs.²⁴ The simple answer is that the time limit referred to does not apply to motions for attorneys' fees.²⁵ Second, as to specific items within the amount requested, EPA opines that the number of hours dedicated to preparation of the motion for fees is disproportionate to the time given to the case itself. We do not agree. All of the time for which fees are sought was time actually spent; if anything, the District's fee submissions were less fully prepared than we would wish. Having put forth numerous objections to the fee claim, EPA is scarcely in a position to fret over the amount of counsel time that the District exhausted in its quest for fees.

EPA's third objection, again relative to the specific amount to be awarded, is that any adjustment pursuant to Copeland²⁶ is out of order. The court today confirms the applicability of the Copeland methodology to environmental statutes utilizing the "appropriate" standard for attorneys' fee awards,²⁷ and the only additional issue EPA raises is the propriety of an upward adjustment of fees for a governmental party. EPA has not advanced any legitimate reason why that step would contravene congressional intent or otherwise would be incorrect.²⁸ We discern none ourselves, and accordingly we approve attorneys' fees in the District's favor against EPA.²⁹

The environmental and the industry petitioners, along with the District of Columbia, ask for reimbursement of court costs. For the same reasons and in the same areas that we allow the environmental groups' attorneys' fees, they should recoup their costs.³⁰ The industry parties' problem, however, is more complicated. They seek a recovery solely on the basis of the general costs statute³¹ and Appellate Rule 39(a).³² These provisions sanction cost awards only to winning parties, and in this large and complex body of cases none of the principals clearly prevailed. Reaching further outward, EPA asserts-without, however, citing any authority-that the industry parties could not found their cost claims on Section 307(f) because, they say, Congress obviously did not intend to subsidize all litigation under the Clean Air Act, and hardly contemplated the availability of Section 307(f) to financially resourceful parties who out of their own substantial economic interests would have litigated anyway. There is some support for this position,³³ and the industry group has made no response whatsoever to EPA's contentions on that score. Courts have long declined to render decisions on important questions of far-reaching significance which have not been argued by the party who might benefit therefrom.³⁴ The exigencies of sound decisionmaking require us to decline for the moment an undertaking to interpret a statute the industry parties do not invoke, or explore a theory they do not advance, and accordingly we deny costs to them.

As to two smaller matters, however, the results of our consideration differ. We think EPA should reimburse the industry petitioners for the expense of copies of the legislative history appendix provided to it,³⁵ and for the outlay for transcripts of the oral argument in this court.³⁶ These represent EPA's share of the total spent by the industry petitioners, who took the lead in the preparation of these items, and EPA has conceded its responsibility for a portion of such expenditures.³⁷

The District of Columbia seeks costs for its role in the litigation. Because it prevailed on both of the points it raised in its petitions, the District is, under the general costs statute,³⁸ entitled to be fully³⁹ recompensed for its costs.⁴⁰

An order will be entered to effectuate the rulings set forth herein.

OUTLINE OF DISSENT

                                                         Page
  I.  OVERVIEW ............................................ 8
 II.  THE MEANING OF "APPROPRIATE" ........................ 9
      A. Applicable Statutes .............................. 9
      B. Legislative History ............................. 10
      C. Analysis ........................................ 13
          1. Congress intended a "prevailing-plus"
              standard ................................... 14
          2. The "plus" has no judicially cognizable
              meaning .................................... 15
              a. Sierra Club and the "non-frivolous"
                  standard ............................... 15
              b. The "public interest" standard .......... 18
              c. Conclusion .............................. 24
III.  THE INSTANT LITIGATION ............................. 25
      A. General Disposition ............................. 25
      B. Remaining Issues ................................ 29
          1. Enviromentalist briefs duplicative
              of the EPA's ............................... 29
          2. Other issues ................................ 31
 IV.  CONCLUSION ......................................... 32
APPENDIX to dissent ...................................... 32

WILKEY, Circuit Judge, dissenting:

In the costs and attorneys' fees statute before us, Congress has, perhaps deliberately but probably unintentionally, abdicated an important legislative decision to the judiciary. Thus, at Congress' bidding, the court today-in the majority opinion here and, especially, in Sierra Club v. Gorsuch1-necessarily plays legislature in its "interpretation" of the statute. I would decline to do so. Moreover, the way in which the court has played legislature has only added to the confusion and constitutional strain created by Congress. In the instant litigation, the majority misapplies whatever standard it has even on its own terms, especially by the refusal to apply the standard issue by issue. I must respectfully dissent.

We have before us certain applications for fees and costs associated with the litigation culminating in Alabama Power Co. v. Costle.2 In that action several petitioners challenged the validity of final regulations promulgated by the Environmental Protection Agency (EPA) on 19 June 1978. These "PSD" regulations generally aimed at the p revention of § ignificant d eterioration of air quality in the nation's "clean air areas." They interpreted and began the implementation of various provisions of the Clean Air Act Amendments of 1977.3 Both the litigation itself and our final opinion were lengthy and complicated. On some of the issues petitioners-who included representatives of various industries, environmental groups, and local governments-can fairly be said to have prevailed, on others to have failed, and on still other issues to have neither won nor lost.

Certain petitioners applied for the award of costs and attorneys' fees under the 1977 Amendments, which provide in relevant part that "(i)n any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate."4 Congress thus fashioned a statute the meaning of half of which we can determine. We can be reasonably certain that Congress intended for courts to award costs and attorneys' fees in those suits in which petitioners prevailed. Congress also seemingly intended that such awards were not to be limited to petitioners who prevailed,5 a departure from all previous statutory authorization or previous practice in the courts.

But Congress did not say when awards were to be made to non-prevailing petitioners and, because it is impossible to discern a standard both different from "prevailing" and consistent with principled judicial interpretation, we should not apply this second, shrouded half. Accordingly, I would dismiss the petitions without prejudice so that they might be amended to request attorneys' fees and costs only to the extent that petitioners prevailed. Moreover, even were I to follow the majority and embrace the "standard" promulgated in Sierra Club v. Gorsuch, I would not join the decision the majority has written in this case today.

In the discussion which follows I shall first analyze the meaning of the word "appropriate" in the costs and fees provision before us by reviewing the applicable statutes and their legislative histories. I shall then apply the interpreted provision to the instant litigation. I submit that the result reached in this dissent will be, besides more firmly grounded constitutionally, also more equitable and reasonable in its award.

II. THE MEANING OF "APPROPRIATE"

As already stated, the key statute in this case is § 7607(f), which provides that "(i)n any judicial proceeding under this section (i.e., "Administrative proceedings and judicial review"), the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate." This parallels an earlier statute, which empowered district courts to make similar awards for suits originating there.6 This earlier statute was part of the 1970 Amendments to the Clean Air Act.7

The issue which immediately presents itself, and which the statutes themselves do not answer, is what precisely "appropriate" means. On the one hand it is clear from other statutory language8 that, absent specific authorization by Congress, the award of attorneys' fees, particularly to non-prevailing parties, is to be the exception rather than the rule.9 The Supreme Court, in Alyeska Pipeline Service Co. v. Wilderness Society,10 limited the opportunity to obtain public interest fees in the federal courts almost entirely to those situations where there was specific statutory authority.11 It found that "the approach taken by Congress ... has been to carve out specific exceptions to a general rule that federal courts cannot award attorneys' fees beyond the limits of 28 U.S.C. § 1923 ...."12 Costs are generally awarded to the party prevailing on appeal.13

On the other hand, it is also clear that Congress intended the awards of costs and fees to be made in a somewhat more liberal fashion in cases falling under the 1970 and 1977 Amendments to the Clean Air Act. It can probably also be fairly implied from the statutes alone that in determining whether or not such awards are "appropriate," courts were intended to take into account factors besides, though not necessarily excluding, whether or not a given party prevailed. This is so because prevailing vel non was already the standard for costs, and because it would have been a simple matter for Congress to have made this the standard for attorneys' fees, too-as it has done, for instance, in other statutes.14 It is still unclear, however, what the other criteria for determining whether an award of the costs of litigation should be made are. Given the ambiguity of the statute itself, we turn to its legislative history.

In its Report16 on the Clean Air Act Amendments of 1977 the House Committee on Interstate and Foreign Commerce stated that this provision would allow the award of attorneys' fees and other costs "in the court's discretion."17 The House Report went on to state:

The committee bill also contains express authority for the courts to award attorneys fees and expert witness fees in two situations.20 The judicial review proceedings under section 307 (§ 7607) of the act when the court determines such award is appropriate (sic).

In the case of the section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the "prevailing party". In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 (sic) (1st Cir. 1973).

In adopting this provision concerning fees, the committee intended to meet the requirement for specific authorization imposed by 28 U.S.C. sec. 2412 and by the Supreme Court's ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

Assuming that the citation in the House Report was to page 1338, the passage which the House Report endorsed19 in Natural Resources Defense Council, Inc. v. EPA reads as follows:

We are not impressed by the government's argument that because some issues were decided adversely to petitioners each party should bear its own costs. The authorizing language of section 304(d) (i.e., § 7604(d) ) permits an award "to any party, whenever the court determines such award is appropriate." This suggests greater latitude even than is found in 28 U.S.C. § 2412, which authorizes awards to "the prevailing party". We are at liberty to consider not merely "who won" but what benefits were conferred. The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program of such vast and unchartered (sic) dimensions, there are roles for both the official agency and a private watchdog. The legislation is itself novel and complex. Given the implementation dates, its earlier interpretation is desirable. It is our impression, overall, that petitioners, in their watchdog role, have performed a service.

Were we to believe that the litigation were wholly or in substantial part frivolous, we would not, of course, award costs of any description to petitioners. In such cases, indeed, we reserve the right to award costs and fees in favor of the EPA. But the challenges here, even those not sustained, were mainly constructive and reasonable. And petitioners were successful in several major respects: they should not be penalized for having also advanced some points of lesser weight.20

The 1977 Senate Report stated that § 7607(f)'s "purpose ... is to carry out the intent of the committee in 1970 (i.e., when the 1970 Amendments were added) that a court may, in its discretion, award costs of litigation to a party bringing a suit under section (7607) of the Clean Air Act."21 The 1977 Conference Report said, "The conferees agreed to accept both the House provision, which is identical to one portion of the Senate provision, as well as the entire Senate provision."22

Because the statutory language and the legislative history of the 1977 Amendments are far from dispositive, courts have also looked to the legislative history of the earlier and, in the final version at least, almost identically-worded § 7604(d).23 In 1970 the House bill did not include a provision for citizen's suits.24 In the Senate Report,25 however, three relevant passages appear. First:

Concern was expressed that some lawyers would use section 304 (i.e., § 7604) to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought.

The Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party. This should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict. For instance, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expenses borne by the plaintiffs in prosecuting such actions.26

Second, it said, "Government initiative in seeking enforcement under the Clean Air Act has been restrained. Authorizing citizens to bring suits for violations of standards should motivate governmental agencies charged with the responsibility to bring enforcement and abatement proceedings."27 Third, the Senate Report stated, "The court may award costs of litigation to either party whenever the court determines such an award is in the public interest without regard to the outcome of the litigation."28

Finally, the 1970 Conference Report stated simply that "(d)iscretionary authority was provided to the court to grant reasonable attorney and expert witness fees."29 Senator Muskie's "Summary of the Provisions of Conference Agreement on the Clean Air Act Amendments of 1970," presented to the Senate on the day after the Conference Report was published, repeats largely verbatim the language of the Senate Report quoted above.30

The statutes and legislative histories raise more questions than they answer about the definition of "appropriate."31 All precedent and statute points to the fair conclusion that there is a general presumption against one side (particularly the winner) paying the other's attorneys' fees. Thus, when in doubt, no award will be made. Dramatic deviations from the American rule will be construed against. Similarly, there is a presumption that non-prevailing parties are not entitled to costs.

It must also be kept in mind that "appropriate" is at least in part a reference to the fact that generally attorney's fees are not awarded even when a party wins. Thus, in the absence of an explicit statutory provision, attorneys' fees would not be awarded to even a prevailing party. In short, while there is an inference here that, as we discuss below,32 something less than "prevailing" will suffice, there is generally an intimation that something more than "prevailing" is required-explicit statutory authority.

A review of the relevant statutes and legislative history, however, makes clear that at least some departure from the stricter rules discussed above was contemplated by § 7607(f). It is fair to conclude that prevailing is not a necessary condition for the award of attorneys' fees and costs, though it is sufficient. Congress, that is, generally intended that an award be made when a petitioner prevailed, plus in some other instances as well. The reasons for this conclusion are set out in the next section. In the subsequent section, however, I outline why the "plus" in this "prevailing-plus" standard is without judicially cognizable meaning.

1. Congress intended a "prevailing-plus" standard

There is abundant evidence that prevailing should be sufficient. The 1970 Senate Report states, "The Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the Courts should award costs of litigation to such party."33 Although the context of this passage makes it unclear whether "legitimate actions" might extend to all non-frivolous suits, it is likely that where the party prevails such action would be considered "legitimate." If the idea is to encourage "legitimate actions," "proper implementation," or suits in the "public interest," an award to parties who prevail would seem to be required by the legislative history.

Section 7607(f), of course, adopted the same language as § 7604(d) and, thus, presumably intended the same effect. It is also to be presumed that Congress in 1977 was aware of the cases decided under the 1970 Amendment language implying that prevailing was a sufficient condition for an award,34 and that in adopting the same language the holdings in these cases were approved. Finally, the 1977 House Report stated that the citizen's suit provisions were intended "to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the 'prevailing party'."35 Although this again makes it unclear to what extent Congress wanted awards made to non-prevailing plaintiffs, it is clear that prevailing plaintiffs were to be awarded attorneys' fees and costs.

The legislative history also indicates that, while prevailing is sufficient, it is not necessary for an award to be made. We have already pointed out the significance of the fact that the statute itself does not invoke the standard of prevailing, though other statutes have. Moreover, as we just quoted, the 1977 House Report explicitly stated, "The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the 'prevailing party'. In fact, such an amendment was expressly rejected ...."36 The House Report went on to endorse that part of Natural Resources Defense Council, Inc. v. EPA, which found "greater latitude (in making awards) even than is found in 28 U.S.C. § 2412, which authorizes awards to the 'prevailing party'."37 The 1977 Senate Report said simply that "a court may, in its discretion, award costs of litigation to a party bringing a (§ 7607) suit"38 under the Act, making no mention of a need to prevail in that suit, and the 1977 Conference Report indicated that "the conferees agreed to accept"39 both the Senate and House provisions-with, one must assume, their respective legislative histories. Finally, the 1970 Senate Report stated, "The court may award costs of litigation to either party whenever the court determines such an award is in the public interest without regard to the outcome of the litigation."40

Still, it is also possible that if prevailing were not required, at least "not losing" was.⁴¹ The sole examples given of when a court might make an award to a nonprevailing party in any of the legislative history are in the 1970 Senate Report and 1977 House Report. The former states:

The Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party. This should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict. For instance, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expenses borne by the plaintiffs in prosecuting such actions.⁴²

Similarly, Natural Resources Defense Council, Inc. v. EPA,⁴³ endorsed at least in part by the 1977 House Report,⁴⁴ involved an award to a plaintiff who, while not prevailing on all counts, nevertheless prevailed on many of them. The court there stated that "the challenges here, even those not sustained, were mainly constructive and reasonable. And petitioners were successful in several major respects ; they should not be penalized for having also advanced some points of lesser weight."⁴⁵

2. The "plus" has no judicially cognizable meaning

In any event, if we assume that awards are not limited to those who prevail-or who at least do not lose-then the obvious next question is what standards are the courts to use in making awards? It is, unfortunately, at this point that the trail is lost and evidence of congressional intent vanishes without a trace. While we can deduce with some certainty that prevailing is sufficient for an award to be made, and are told that other standards besides prevailing exist, we are never given the barest clue of what those standards are.

a. Sierra Club and the "non-frivolous" standard

In Sierra Club v. Gorsuch,46 also decided today and relied upon by the majority, a number⁴⁷ of standards are conjured up, but they are all defective. Some are simply question-beggars: whether "the suit (was) of the type Congress intended to encourage," what "benefits" were "conferred" by the litigation, and whether the litigation was in the "public interest." Other criteria clearly have no basis whatever in the statute or its history: whether the suit would have been brought without an award, the need to ensure representation of the environmentalist point of view, and the aid given to congressional reevaluation of the Clean Air Act. What is truly remarkable is that in the seemingly interminable list of criteria explicitly or implicitly endorsed by Sierra Club and the majority, all are defective: they are either unworkable, or unrelated to anything in the statute or its legislative history, or both.

Moreover, even if some of these criteria would be workable if narrowly and carefully construed, a fatal flaw would remain: It is never made clear how the various standards endorsed are to relate to one another. How are they to be balanced, or are they to be balanced? Is it necessary to meet more than one test? Are some to be weighted more heavily than others? Which ones? Not only has the court acted like a legislature, it has not even improved over the inconclusive job done by Congress. If anything, the vagueness of the statute has been augmented to validate any whim of any judge.

Thus the most troubling aspect of Sierra Club and, to the extent it endorses Sierra Club, the majority opinion herein, is their effect of enacting the all-but-the-frivolous standard. That is, I fear that these multifarious and diffuse "standards" amount to no standard at all. It would be difficult to imagine a non-frivolous petitioner who could not qualify under the language used. I find it at least troublesome, for instance, that while no petitioner was successful in any appeal of EPA regulations in Sierra Club, all appeals were apparently adjudged to have "substantially contribute(d) to the goals of the Act."

The trouble with the non-frivolous standard is that it would dramatically alter the award structure. In the absence of some evidence that Congress intended a dramatic departure, we should not adopt such a construction. Were such an expensive and unprecedented result contemplated, it surely would have been mentioned.⁴⁸ Yet in none of the myriad House and Senate reports, committee prints, and floor debates cited in this opinion were more than a few lines ever devoted to these sections at all, let alone any mention made of such a change. Indeed, only once was any part of § 7607 mentioned in the floor debates, and that was of a version later rejected.⁴⁹ Moreover, it must be kept in mind that the whole tenor of the Clean Air Act was, in both 1970 and 1977, to strike a balance among industry, government, and environmentalists. If Congress meant for "appropriate" to mean that all non-frivolous plaintiffs would recover, it surely would have said so. As the Supreme Court observed in Alyeska :

(C)ongressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowances ... and to award attorneys' fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award.⁵⁰

....

Since the approach taken by Congress ... has been to carve out specific exceptions to a general rule that federal courts cannot award attorneys' fees beyond the limits of 28 U.S.C. § 1923, those courts are not free to fashion drastic new rules with respect to the allowance of attorneys' fees ... in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending on the courts' assessment of the importance of the public policies involved in particular cases.⁵¹

Moreover, it would have been a simple enough matter for Congress to have drafted a statute embodying the non-frivolous standard, or at the very least to have included its intention to adopt such a standard in the legislative history somewhere, but Congress did not do so. Finally, even were we to adopt such a standard for private litigant-versus-private litigant actions, we might still decline to do so for private litigant-versus-government actions. In the latter cases although perhaps the public is afforded some nebulous benefit by having the law clarified, it must pay the very real cost of a lawsuit and of the diversion of EPA's resources from doing what it is supposed to be doing.⁵²

I am hopeful that the awards by the majority today will be read as generally limited and circumspect, starting the post-Sierra Club cases in the right direction. Perhaps courts will, in spite of Sierra Club's ambiguities, enact something besides the non-frivolous standard, which Congress clearly did not intend. But the point is that courts ought not to be enacting standards at all, even standards to which Congress might not have objected. We should instead follow congressional guidance and, where there is none, we should wait.

b. The "public interest" standard

Besides "prevailing," the one⁵³ other gauge that was mentioned in the legislative history, though only briefly, is the "public interest."⁵⁴ Yet we can hardly embrace this "standard." It was, significantly, expressly struck from the statute in 1970.⁵⁵ Moreover, it is nowhere defined. Presumably, it can have meant one of two things, "consistent with valid public law" or "consistent with valid public policy." Yet neither meaning affords a court any additional guidance. I shall consider in turn the ramifications of adopting either.

If the "public interest" meant suits consistent with valid public law, then it is difficult to see how this standard is different from the prevail/not prevail standard.⁵⁶ After all, as a matter of valid public law, non-prevailing petitioners have lost. It is especially difficult to see how it is ever consistent with "valid public law" to force the government to spend taxpayers' dollars defending an EPA action that is eventually adjudicated as lawful.

Nor is it implausible that Congress intended "public interest" to mean "consistent with valid public law." Note that both the 1977 and 1970 legislative histories gave as a central purpose of the statutes the encouragement of litigation insuring "proper implementation" of the Amendments by the government;⁵⁷ if the idea was to get the government to do its job, unsuccessful suits have an attenuated utility. This point is buttressed by the 1970 legislative history which spoke of "legitimate actions." Note too that the 1970 and 1977 legislative histories addressed themselves as much to discouraging frivolous suits as to encouraging valid ones.⁵⁸ Finally, as discussed above, the only examples given of appropriate awards to "non-prevailing" plaintiffs were when those plaintiffs had practically won or at least had not lost.

Courts and litigants have on occasion argued that even though a party did not prevail, it served the public interest and perhaps valid public law-or, as Sierra Club phrased it, made a "substantial contribution"⁵⁹-by exploring a previously uncharted legal issue.⁶⁰ The resulting "standard" is apparently endorsed by the majority, but it really amounts to awards for all non-frivolous plaintiffs, and I would therefore decline to adopt it for the reasons discussed earlier.⁶¹

Similarly, it may be argued that Congress deemed losing suits to be in the "public interest" and consistent with valid public law since it wanted every possible winning suit brought and was willing to pay the losers to ensure this result. This is not an inherently implausible argument, but it too is totally without support in the language of the statute or its legislative history. It would lead to the same non-frivolous standard, which I would reject.

It should also be pointed out that, although the protection of the environment is surely in the public interest, there are other activities which are presumably in an even greater public interest, and thus involve public law even more critically, for which attorneys' fees are not awarded to all non-frivolous plaintiffs. For instance, in civil rights suits it is only in the court's discretion to award attorneys' fees to prevailing plaintiffs, and no mention is made of allowing courts to award costs or fees to non-prevailing plaintiffs.⁶² Nor are the free-rider effect and other market-failure arguments attenuated in civil rights cases. Indeed, given the socio-economic background of many civil rights plaintiffs on the one hand, and environmentalists on the other, more financial aid in litigation is needed for the former, not the latter. As the Supreme Court pointed out in Alyeska Pipeline Service Co. v. Wilderness Society :

Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys' fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and to allow attorneys' fees only in connection with the former. If the statutory limitation of right-of-way widths involved in this case is a matter of gravest importance, it would appear that a wide range of statutes would arguably satisfy the criterion of public importance and justify an award of attorneys' fees to the private litigant. And, if any statutory policy is deemed so important that its enforcement must be encouraged by awards of attorneys' fees, how would a court deny attorneys' fees to private litigants ... seeking to enforce constitutional rights?⁶³

Thus, we cannot conclude that Congress believed some suits brought under the 1977 Amendments to be inherently in the public interest, win or lose, if by public interest we mean "consistent with valid public law."

On the other hand, if "public interest" meant consistent with good public policy, I would a fortiori reach the same result today. In that case Congress would be asking the courts to legislate, and we should refuse to do so. Just as the Supreme Court held that courts could not aggrandize legislative power in Alyeska, we should hold that courts cannot accept legislative power here. Congress may direct courts to make awards consistent with good policy only if it first describes what good policy is. It has not done so here. The judiciary cannot be left to define this standard on its own. That is a quintessentially legislative task.

The unfortunate phenomenon of the judiciary acting as legislature is not entirely the fault of judges. Congress must also bear some of the blame because of deliberate or inadvertent abdication of decisionmaking to the courts. In drafting a statute charging the courts to award costs and fees where "appropriate," it is difficult-and at this point unimportant-to tell whether this vague instruction was the result of the efforts of draftsmen who had an enormously complex and lengthy act to write, or the result of a deliberate compromise in the bill's acrimonious passage.

"Appropriate," without more, is not an appropriate word, for its meaning varies with the politics of the reader. It should be clear that the award of fees and costs might in a given instance seem appropriate to some but inappropriate to others.⁶⁴ Webster's Third New International Dictionary defines "appropriate" as "specially suitable: fit, proper." This definition demonstrates the term's subjectivity and vagueness-and thus the difficulty of any principled judicial interpretation.

It is true that courts have long had some discretionary authority to award costs and attorneys' fees. But the authorization here is new and different. The discretionary authority granted to courts in the past has involved determinations which courts are qualified to make: whether a suit was frivolous, whether a party prevailed, and so forth. Even an award according to "equity" has had an historical gloss. But here we are asked to award fees where "appropriate," with, in at least some cases, a requirement that we act as legislature. Delegation of such legislative power by Congress to an agency empowered by Congress is one thing, to a separate branch of government another, and to the non-political branch yet a third. It is in the latter case that the delegation is most likely to be unacceptable, and with which we are today confronted. Policymaking of any sort is likely to run afoul of the "case or controversy" requirement of Article III, and the legislative function is more antithetical to the judiciary, more foreign to its very nature.

Professor Charles L. Black, Jr., of Yale Law School, in his Oliver Wendell Holmes Lectures delivered at Harvard Law School in 1979, observed that a

live question has to be whether the materials available as foundations for judicial judgment contain some concepts and terms so vague and ambiguous, so intractable to the normal intellectual processes of law, that a congressional command to apply them, and so, necessarily, to interpret them, must be disobeyed -on the Article III45 ground that the judiciary has been commanded to perform a non-judicial function-as might be the case if the district judges were told to award $1,000, in reasonably lawful money of the United States, to every virtuous person who filed a nice-looking complaint, or to make sure, by the wielding of the mandatory and injunctive powers, that only reverend and discreet merchants were appointed to the Federal Trade Commission. 46

Professor Black is echoing a sentiment expressed repeatedly by the Supreme Court in the course of American jurisprudence.⁶⁶ The Justices were faced early on, in 1792, with an attempt by Congress to enlarge the judiciary's power beyond the scope of Article III. But the members of the Court-albeit separately, in their capacity as Circuit Justices-refused to accept this proffer of power, saying they were agreed:

That by the constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.⁶⁷

One hundred and eighty-four years later these principles remained, and still now remain, vital. In 1976 the Supreme Court, in its per curiam decision in Buckley v. Valeo,⁶⁸ cited James Madison's discussion in The Federalist No. 47 of "Montesquieu's well-known maxim that the legislative, executive, and judicial departments ought to be separate and distinct":

" 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.' "⁶⁹

Even more pertinent to the present case were Hamilton's words in The Federalist No. 78: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them ...."⁷⁰ Where are the "strict rules and precedents which serve to define and point out (our) duty" in the grant of authority to determine what is "appropriate" in the circumstances here?

The statute as written confuses legislative and judicial decisionmaking in the manner warned against by Montesquieu, Madison, Hamilton, and the Supreme Court in 1792, 1976, and thereafter. The case at hand seems, in particular, to be very much like National Cable Television Association, Inc. v. United States.⁷¹ There the Supreme Court was faced with the task of interpreting an act authorizing each federal agency to calculate fees to be charged for its services according to its determination of what is " 'fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts ....' "⁷² In the course of its interpretation, Justice Douglas for the Court pointed out that "(t)he addition of 'public policy or interest served, and other pertinent facts,' if read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House."⁷³

Justice Douglas then discussed the pitfalls of such broad delegation, citing A.L.A. Schecter Poultry Corp. v. United States⁷⁴ and J. W. Hampton, Jr., & Co. v. United States.⁷⁵ He concluded with this paragraph, which parallels our treatment of a similarly and perilously broad delegation in the instant case:

Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions, lead us to read the Act narrowly to avoid constitutional problems.⁷⁶

Like the Supreme Court, we are faced with a delegation of legislative authority so broad that it would require a non-congressional body to make "public policy" determinations that are, constitutionally, the exclusive province of the legislative branch. Indeed, the delegation in the instant case is even more dangerous since it is not to an agency created by Congress but to a separate, and non-political, branch of government. Moreover, it is somewhat easier for us to exorcise "public policy" from the statute since it is only part of the legislative history, not the statute itself. Thus, we should adopt the approach taken by the Supreme Court in National Cable and read the delegation narrowly.⁷⁷ In doing so we would simply follow the conventional practice of construing a statute, where possible, so as to avoid issues of constitutionality.⁷⁸

Also closely analogous to the case at hand is TVA v. Hill.⁷⁹ There the Supreme Court was "urged to view the Endangered Species Act 'reasonably,' and hence shape a remedy 'that accords with some modicum of common sense and the public weal.' "⁸⁰ The Supreme Court responded, "But is that our function? We have no expert knowledge on the subject ...."⁸¹ In that case the Court thought it clear that the statute allowed for no such weighing, while in the case before us today we have, perhaps, the consent of Congress to do its job. But this is a distinction without a difference since Congress has no more authority to grant power in violation of our constitutional scheme than we have authority to usurp power. Marbury v. Madison,⁸² of course, rested on Chief Justice Marshall's conclusion that the Supreme Court could not accept a congressional, but unconstitutional, enlargement of its original jurisdiction. As the Court in TVA v. Hill more recently concluded:

... (T)hese principles (of balancing equities in "the public interest") take a court only so far. Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While "(i)t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 1 Cranch 137, 177 (2 L.Ed. 60) (1803), it is equally-and emphatically-the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.

....

We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with "common sense and the public weal." Our Constitution vests such responsibilities in the political branches.⁸³

c. Conclusion

Thus, neither meaning of "the public interest" affords a court any additional guidance. Because this was the only candidate endorsed by the legislature for the "plus" in the prevailing-plus standard Congress apparently intended, there is no comprehensible or principled meaning for "appropriate" that extends further than "prevailing." Accordingly, § 7607(f), as written, enables us to award attorneys' fees and costs if, and only if, petitioners have prevailed in at least some part of their asserted cause of action.⁸⁴

It might be objected at this point that it would be anomalous to enforce the "prevailing" half of the statute when, as concluded early on, the clear intent of Congress was prevailing plus something else. The argument would run that, if we know for certain that Congress did not intend just prevailing, we cannot enforce the statute as if it were written that way.

This argument is flawed, however. It might have some force where the "something else" to be added to "prevailing" was intended to limit it. In that case enforcing the prevailing part without the part that was to limit prevailing might indeed be impossible to defend, rather like a contract-enforcing case in which buyer was forced to pay seller since that part of the contract was clear while seller was absolved from delivery to buyer since that part of the contract was too vague. This is not the case here, however. The uncertain part of the statute was to be in addition to "prevailing," so Congress has given us at least half a loaf. Again drawing an analogy from commercial law, this is rather like a contract wherein certain clauses are independent and severable.

It might also be objected that if we reject the word "appropriate" here, we would be obligated to reject the similarly broad language which pervades much of the rest of our statutory law. This is a non sequitur. While it is true that broad language exists elsewhere in the United States Code, a judicially cognizable meaning can typically be gleaned from the statutory context, legislative history, prior case law, or some other gloss.⁸⁵ As we have seen, these sources offer no aid here. I emphasize again, too, that the legislative delegation here is to another branch, a non-political branch with neither expertise nor experience in deciding what kinds of suits should be encouraged. And I emphasize again that I would not strike down the statute here anyway, but only construe its language so as to avoid the necessity of making a constitutional ruling. For all of these reasons, the rejection of what Congress did here would have a carefully limited impact elsewhere.III. THE INSTANT LITIGATION

In turning now to the specific litigation before us, I hope to make three points. The first is that the majority in this case, whatever standard it relies upon, should have undertaken an issue-by-issue analysis of the appropriateness of an award. The second is that an issue-by-issue application of the prevailing-only standard would result in an equitable and reasonable, besides more legally sound, disposition. Thus, it cannot be argued that my suggested construction leads to an absurd result. The third is that a theory suggested, albeit half-heartedly, by the majority-that a petitioner's motive be scrutinized by the court in determining the appropriateness of an award-is untenable.

The tabulation at the Appendix summarizes the earlier holding on the merits in this litigation. There were at least twenty-four discrete substantive holdings in Alabama Power. There were eleven holdings favorable to the EPA and eleven unfavorable; the environmental petitioners had victories in five instances and lost in three; the District of Columbia won both its arguments, while the State of Texas won one and lost one; the industry petitioners lost nine and won five. In two instances, even on the narrow issue involved, there was no clear prevailing party.

My major quarrel with the majority's general disposition of this case is that it seems to me inconsistent with the statute and even with Sierra Club to conclude summarily that "(w)e encounter little difficulty in granting Sierra attorneys' fees for their activities as petitioners ...."⁸⁶ No reference is made to the issues they litigated even in general, let alone in the issue-by-issue manner I think necessary for an appropriate award. In fourteen words the majority disposes of the bulk of this case. Symptomatic of the majority's approach is its conclusion that, on one issue, "Sierra and EPA were adversary parties. We accordingly approve (Sierra's) claim for attorneys' fees in that regard."⁸⁷ Why the mere fact that Sierra was opposed to EPA should qualify it, without any discussion of how Sierra's action redounded to the "public interest," or whatever, is not explained. If Sierra Club is to be more than just a justification for an award in any non-frivolous suit, I think it is necessary to discuss-as even the per curiam there did-the issues for which an award is being made, not just who the parties are. Whether a suit is "in the public interest" cannot be determined solely by who brings it. It must hinge on the suit itself. Otherwise, we are left with assuming that an avowal by petitioner that it is a public interest group is all that is necessary for an award to be "appropriate." Is this at all determinative of "whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act"⁸⁸ ?

Thus, it is not at all clear how Sierra Club can be relied upon to make the across-the-board awards the majority makes today. Sierra Club at least pretended to a careful, issue-specific approach. In Natural Resources Defense Council, Inc. v. EPA, the court warned:

Petitioners are not a public agency and are legally responsible to no one but themselves; we must satisfy ourselves that the taxpayers' money will not be used to support needless or excessive legal items. We must also recognize that petitioners, as surrogate attorneys, for the interests of the public and the EPA, have volunteered and "imposed" their services on "clients" that never contracted for them.⁸⁹

That the majority nonetheless eschewed a careful analysis confirms my fears that Sierra Club's pretensions to balance were only pretentious, and that its effect will be simply to award tax dollars to any environmental litigant who can scrawl "7607(f)."The majority justifies declining to undertake an issue-by-issue analysis of its decision to award environmentalists attorneys' fees by saying, "The number, complexity and frequent interrelationships of the legal problems presented by these consolidated cases as a whole obviates the need for an issue-by-issue explication of our decision to award attorneys' fees."⁹⁰ The obvious question is ... Why? Does the difficulty of reaching the proper result make it less "appropriate" to do so? In the next sentence the majority intimates that issue-by-issue consideration might be necessary if awards on some issues would be inappropriate; the obvious question here is, how do you know if such issues exist if you have not made an issue-by-issue analysis first?⁹¹

Conversely, in explaining why an award of costs to industry petitioners-albeit under the general costs statute⁹²-was not made, the justification seems to be that "in this large and complex body of cases none of the principals clearly prevailed."⁹³ Besides not explaining why complexity justifies not considering issues separately, making awards to some petitioners, and not making awards to other petitioners, the majority opinion will deprive a party who may have won on many issues of any cost recovery, discourage consolidation of cases, and encourage piecemeal litigation.

As difficult as issue-by-issue analysis may be for making awards, I think it essential for ensuring that such awards will be "appropriate," however we define it. The proper approach is, then, to consider the separate issues and litigants carefully, and to apply a judicially cognizable standard, which is to say the "prevailing" standard.

One of the parties, the District of Columbia, is easily dealt with. The District brought two suits and won both. It clearly prevailed, and is therefore clearly entitled to attorneys' fees and costs.⁹⁴ Also, because of the many parties to be served in this litigation, the District is entitled to reimbursement for even those copies of its briefs over the normal allowance of fifty specified by Local Rule 15. Thus, I concur in the majority's decision to award costs and fees to the District of Columbia.⁹⁵

The remaining parties, however, present harder questions. Each of them, while winning on at least one issue, also lost on at least one. Several ideas can be suggested and discarded very quickly. Failing to prevail on one issue ought not necessarily to bar an award for the others-one need not pitch a perfect game to win. On the other hand, prevailing cannot really be defined in terms of a won-lost percentage. In the first place, what figure would we require? . 367 is a very good individual hitting percentage, but few teams would make the playoffs with an overall won-lost record like that, even last year. Moreover, all issues should not be weighted the same. Some games are decisive, others strictly warm-up.

The best solution is to grant the fees and costs incurred issue-by-prevailing issue. Since it will be far easier for petitioners to itemize these expenses than for the EPA to do so, they must demonstrate how much they spent on the issues they prevailed on and for which they are claiming fees and costs. A demonstration of how much was spent on each particular issue may be difficult, and we should therefore be willing to rely heavily on the integrity of counsel in reaching these determinations in this case. In the future, however, litigants planning to ask for an award of costs of fees would be required to keep reasonably detailed accounts on which issues what litigation expenses were incurred.

Because petitioners hoped that they might be awarded costs and fees regardless of whether they prevailed or not, in their requests for attorneys' fees and costs they understandably did not address the problem of on which issues they prevailed. Accordingly, their current requests should be dismissed without prejudice so that they may refashion them.

Note that the Supreme Court has been fairly liberal in its definition of "prevailing" in the context of civil rights fees,⁹⁶ and this liberality should be extended to § 7607(f) awards-especially given the apparent intent of Congress to endorse a prevailing-plus standard. Moreover, I would be willing to make awards where, although petitioners did not technically prevail, they can demonstrate that they did not "lose" either.⁹⁷ For instance, actions which result in successful abatement but do not reach a verdict merit the award of costs and fees.⁹⁸

It should be noted at this point that only environmental petitioners and the District of Columbia have invoked § 7607(f)-industry petitioners have not.⁹⁹ However, the majority has implied that were such a claim to be filed, the court may perhaps need to look beyond the suit itself, and into the heart of the petitioner, in deciding whether it is worthy of an award.¹⁰⁰ Though the majority only suggests the idea as a possibility, this infant is ugly enough to warrant strangling in the cradle.

We ought not require the court to look into the heart of the petitioner to determine whether his motivations were in the public interest only. This, I submit, is an impossible standard for human beings to apply.¹⁰¹ Moreover, it is at odds with the general purpose of § 7607(f) to encourage proper implementation of the act, which must depend on what suit is brought, not on who brings it.

If "the dominant consideration (in whether an award is appropriate) is whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act,"¹⁰² then why would a party invite ineligibility for an award when it has "no more than its own economic interests at heart"¹⁰³? What relevance does the former have to the latter? It also follows that there is the implication in the majority opinion that prevailing is not only unnecessary, but not even sufficient, for an award to be made if the wrong party has brought the suit. This seems entirely inconsistent with Congressional intent,¹⁰⁴ and will remove one of the few easily workable standards we have. The reliance of the majority on Environmental Defense Fund, Inc. v. EPA,¹⁰⁵ an opinion involving the statute and legislative history of an entirely different act, seems to me questionable jurisprudentially. What is appropriate under one statute is not necessarily appropriate under another. Senator Magnuson, on whose remarks alone the majority's suggestion hinges, was not involved with the committees considering § 7607(f), so far as the floor debates and Senate reports reveal. The legislative history of § 7607(f) makes clear only that it is to adopt the standards of § 7604(d),¹⁰⁶ which in fact preceded the statutes involved in EDF. Moreover, is the majority really prepared to be bound by the legislative histories of all fourteen statutes that use the "appropriate" standard for attorneys' fees?¹⁰⁷ How is this reconciled with Sierra Club's discounting of even § 7604(d)'s efficacy in interpreting our statute?¹⁰⁸

I agree with the majority's conclusion that "pro-environment" is no criterion.¹⁰⁹ It is puzzling, then, how the majority can then flirt a few words later with the even less plausible criterion of some sort of pure-heart test.

The criterion of presence vel non of an economic incentive to bring the suit raises a host of additional objections. How are we to define "economic incentives"? Why should only economic incentives disqualify? Does any economic incentive disqualify a suit? If not, where is the line drawn? The standard would prohibit an award to a tenant farmer who seeks to stop a nearby factory from polluting his water supply, but would allow an award to his amateur fisherman brother-in-law who visits him on weekends. I am not even sure how far I would want to carry the argument that environmental petitioners have no economic interest. This will also add to the already anomalous relationship of standing issues in these cases: petitioners must have enough interest at stake for standing, but not too much for § 7607(f).

On the other hand, suppose a plant is required by regulation, or is sued by environmental petitioners, to use or not use certain equipment. It may not be worth it to the plant to go to court unless attorneys' fees are awarded it. Yet the majority and Sierra Club apparently might deny an award to the plant even if it prevailed. Indeed, the plant would even be made to pay the other side, which lost. I still see no relationship between the presence or absence of economic incentives and "whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act." Moreover, the Clean Air Act was intended to strike a balance between environmentalists and industry, so preventing overenforcement of the Act is as much in the public interest as preventing underenforcement.¹¹⁰

It cannot be said that awards to certain petitioners will not aid proper implementation of the Act since these petitioners would have sued anyway. Not only is this speculative, but the prospect of attorneys' fees will provide an additional incentive and will alter the decisionmaker's calculus of whether to sue or not. If the suit contemplated is "in the public interest," the award is thus appropriate. Moreover, as I just discussed, just because some economic incentive already exists does not mean that enough exists without attorneys' fees for the suit to be brought. Thus even on its own terms, the majority's approach is too simple and, to be done properly, would involve us in complex analyses of economic actors' decisionmaking.B. Remaining Issues

There are several additional issues now before us which are amenable to discussion.

1. Environmentalist briefs duplicative of the EPA's

On certain issues in this litigation environmentalists, as intervenor-respondents, filed briefs in favor of the EPA, and seek fees and costs from the EPA. The EPA opposes this claim. The majority would deny petitioners their request, and on this issue I concur.

It is true that the prevailing party in a suit against the EPA is entitled to costs and attorneys' fees. Here, however, although an award to intervenor-respondents would be to the "right" party, the payment would be coming from the "wrong" party. The EPA should have to pay intervenor-respondents only if the positions briefed by the latter-and not by the EPA-were those adopted by the court, or were otherwise instrumental in the court's ultimate disposition of the case.¹¹¹ That is, the EPA should have to pay intervenor-respondents only if it were really they, and not the EPA, who prevailed. As the EPA puts it in its response to the environmentalists' motion, "The government has paid its own attorneys once to brief and argue these points and ... there are no good reasons why the government should pay twice to defend its position on these points."¹¹²

The environmentalists argue that an award is appropriate even where the briefs were duplicative and unadopted since, in complex litigation like this, a certain amount of bolstering is to be encouraged. Of course, this is answered by noting that the standard advocated in the preceding paragraph would allow recovery of attorneys' fees when it is shown to have been helpful. For those arguments that were not demonstrably helpful, however, we should decline to make an award. Note that were these additional arguments costless, or even were the EPA a limitless source of funds, it might be tempting to grant petitioners' request. However, we live in a world of scarce resources and the question inevitably becomes how best to allocate them. In the issue at hand the question is, who is better able to decide how to allocate the EPA's resources: the EPA or the Sierra Club? For the money which the EPA must pay the environmentalists for their bolstering cannot be spent by the EPA for those actions it would otherwise undertake in implementing the Clean Air Act. The environmentalists would then be deciding whether the EPA was spending enough money on enforcing a given issue.

Since the environmentalists intervened in favor of the EPA, the issue here is not whether the EPA is properly implementing the Clean Air Act. Yet, as discussed above,¹¹³ this was a major rationale of the citizen's suits provisions. Of particular interest is an exchange which occurred on the Senate floor between Senators Hruska and Muskie. Senator Hruska declared that he had grave reservations regarding the citizen's suits provision of the 1970 Amendments, fearing that they would encourage profuse litigation and that it assumed that the EPA would not do its job.¹¹⁴ Senator Muskie responded that such suits were limited to enforcing provisions of the Act and could be brought only after the citizen had brought his intention to the attention of the EPA.¹¹⁵ This exchange implies that the EPA is not to be punished except when it neglects to bring suits it should have. Obviously, that is not the case here. Moreover, Senator Muskie's further remarks¹¹⁶ indicate that he expected that most citizens would quit their suits once the EPA was prompted to bring its suit; under these circumstances it seems unlikely that he would have foreseen the EPA paying the litigation costs of such a duplicate suit. Thus, while Congress intended to encourage private parties to make sure the Act was enforced, it did not intend to encourage litigation second-guessing the EPA on how best to allocate its (demonstrably correct) enforcement expenditures.¹¹⁷

In Citizens Association of Georgetown v. Washington,¹¹⁸ this court declined to require defendant District of Columbia to pay plaintiffs' attorneys' fees under § 7604(d) since that provision " 'was hedged by limitations-the confinement to clear-cut violations by polluters,' "¹¹⁹ and there was no allegation that the District was itself a polluter, only that it had failed to enforce the Clean Air Act. The case at hand, of course, is under § 7607(f), which specifically does contemplate awards against the EPA when it fails to enforce the Act. However, even that allegation is not made here. Petitioners not only concede that the EPA was right, but were in fact on EPA's side throughout. Thus, the analogy with Citizens Association seems entirely accurate. There we held that, to collect an award, it must at least be alleged that the party to be billed is the "right party"-a party alleged to be at fault under the statute-to be made to pay. Since here the EPA is the "wrong party," an award is inappropriate under the rationale of Citizens Association.

Sierra Club endorses a number of criteria which bear on the nature of the aid rendered by petitioners: the helpfulness of the contribution, of what quality the briefs were, as well as whether the aid was duplicative.¹²⁰ As just discussed, I agree in principle with the duplicative standard and, for the same reasons, I suppose I would ceteris paribus want to encourage "helpful" and "quality" briefs, though there seems to be some redundancy here (is a duplicative brief ever helpful?). But all of this begs the more basic question in this case: under what circumstances did Congress intend to encourage any brief-even a helpful, non-duplicative, quality one-in a losing cause? On this issue these second-level criteria are of little use. After all, for example, we would reach the decision of frivolous vel non without taking into account how well-written an allegedly frivolous brief was.

Requiring the EPA to reimburse all intervenor-respondents will have three additional ill effects. First, it will encourage the EPA to withdraw from cases in which there had been intervention. This seems particularly indefensible in light of the purpose of the citizen's suit provisions to encourage government involvement and enforcement. Second, it will encourage parasitic intervention by parties having nothing to add but eager to collect costs and fees in suits where the EPA was perceived as likely to prevail. Third, it will encourage additional filings of dubious value in suits already of notorious complexity. Limiting awards as we have indicated today would certainly discourage the latter two temptations; as for the first, the EPA would withdraw only if it were making arguments it thought the court less likely to adopt than intervenors', a palatable result. Intervenor-respondents would then probably make the EPA's arguments in the alternative, in which case very little would be lost indeed.

A particularly troublesome aspect of the opinion in Sierra Club is its assumption that the environment has no protectors in the Environmental Protection Agency. It is "absolutely essential," opines the panel, "in a case of this dimension that this court have expert and articulate spokesmen for environmental as well as industrial interests,"¹²¹ thereby implying at best that the EPA represents neither, and at worst that it is an industrial stooge. The truth of the matter is that the EPA has been entrusted by Congress to protect the environment and, in the absence of a convincing reason to the contrary, it ill-behooves a court to require the EPA to subsidize those who thought-in this case, generally wrongly-that they could do its job better.

In summary, an award of attorneys' fees or costs to intervenors is inappropriate-unless intervenor-respondents show that the positions briefed by them, and not the EPA, were those adopted by the court, or that their brief was otherwise instrumental in the court's disposition of the case.