ANNE M. GORSUCH, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,
PETITIONER V. SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND

   No. 82-242

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the Administrator of the
Environmental Protection Agency, petitions for a writ of certiorari to
review the decision of the United States Court of Appeals for the
District of Columbia Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

            TABLE OF CONTENTS
   Opinions Below
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-22a) holding
the Administrator liable for attorneys' fees and costs is reported at
672 F.2d 33.  The opinion of the court of appeals (App. B, infra,
23a-38a) determining the amount of those fees and costs is not yet
officially reported.

                             JURISDICTION

   The judgment order of the court of appeals (App. C, infra, 39a-40a)
was entered on July 16, 1982.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   Section 307(f) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(f),
provides in pertinent part as follows:

         In 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.

                          QUESTION PRESENTED

   Whether it was "appropriate," within the meaning of Section 307(f)
of the Clean Air Act, 42 U.S.C. 7607(f), to award over $90,000 in
attorneys' fees and costs to parties who failed to prevail on any
aspect of their challenge to regulations promulgated by the
Administrator of the Environmental Protection Agency.  /*/

                               STATEMENT

   Following a totally unsuccessful challenge to regulations
promulgated by the Environmental Protection Agency (EPA), respondents
Sierra Club and Environmental Defense Fund (EDF) sought an award of
attorneys' fees and costs against the government under Section 307(f)
of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(f).  Although
respondents had not prevailed on any issue in the litigation, the
court of appeals determined that they were entitled to fees and costs.
 Before discussing the court's ruling on attorneys' fees, we briefly
describe the underlying merits litigation.

   1. Section 111 of the Clean Air Act, 42 U.S.C. (Supp. IV) 7411,
requires the EPA to set performance standards limiting emissions from
new or modified air pollution sources that may be reasonably
anticipated to endanger the public health or welfare.  In 1979, EPA
promulgated revised new source performance standards for coal-fired
generators capable of firing more than 250 million British thermal
units (MBtu) per hour.  /1/ The performance standards limited sulfur
dioxide (SO(2)) emissions to a maximum of 1.2 pounds per MBtu.  In
addition, powerplants with potential, i.e., uncontrolled, SO(2)
emissions greater than 0.60 pounds per MBtu were required to reduce
such emissions by 90%;  powerplants with potential emissions less than
0.60 pounds of SO(2) per MBtu were required to reduce them by no less
than 70%.

   The Sierra Club, EDF, and industry organizations filed petitions
for review of the new source performance standards in the United
States Court of Appeals for the District of Columbia Circuit.  /2/
Sierra Club challenged EPA's action on three grounds:  (1) that EPA
lacked statutory authority to adopt a "variable" standard for SO(2)
emissions, i.e., a standard that allowed percentage reductions in
emissions ranging from 70% to 90% (Sierra Club v. Costle, 657 F.2d
298, 316 (D.C. Cir. 1981));  (2) that EPA's standard was not supported
by the rulemaking record (id. at 316-317);  and (3) that EPA failed
adequately to apprise the public of its intention to adopt a variable
reduction strategy, thereby depriving the public of a fair opportunity
to comment on the adoption of a variable standard in the final rule
(id. at 317-318).  EDF challenged the performance standards on only
one ground -- the alleged procedural impropriety of "ex parte
contacts." EDF asserted that a more stringent SO(2) emission ceiling
was attainable and would have been adopted but for an "ex parte blitz"
on EPA after the close of the comment period, during which EPA was
pressured not to adopt a more stringent standard (id. at 386).

   On April 29, 1981, the court of appeals rendered its decision on
the merits.  Sierra Club v. Costle, supra, 657 F.2d 298.  The court
rejected all of Sierra Club's claims.  First, it concluded that EPA
had ample statutory authority to adopt a variable standard (657 F.2d
at 318-322).  Second, it rejected Sierra Club's charge that the
variable standard was without basis in the record.  After reviewing
the technical background for the standard, the factors considered by
EPA in adopting the standard, and examining the agency's stated
rationale, the court held that EPA's action was reasonable (id. at
322-352).  Finally, the court rebuffed Sierra Club's claim that EPA's
adoption of a variable standard was procedurally defective.  The court
found that the public in general and Sierra Club in particular had
fair notice of and opportunity to comment on the agency's intention to
adopt a variable standard (id. at 353-356).

   EDF fared no better on its claim.  The court separated the
allegedly improper ex parte contacts into two categories for
analytical purposes:  (1) written comments submitted after the close
of the comment period;  and (2) meetings after the close of the
comment period with the President and heads of other Executive Branch
agencies, congressional representatives, and private parties (657 F.2d
at 386-387).  With respect to written comments received after the
close of the comment period, the court held that nothing on the face
of the Clean Air Act prohibited the agency from receiving and
considering such materials as long as they were placed in the agency's
rulemaking docket.  All such materials had in fact been properly
docketed in this case (id. at 397-400).

   With respect to the meetings, the court again noted that they were
not prohibited by the Act;  indeed, the court thought that such
meetings were desirable given the importance of openness and
accessibility on the part of public officials (657 F.2d at 400-401).
The court further noted that summaries of seven of the nine contested
meetings had been placed in the rulemaking docket, and held that this
fully satisfied all statutory and due process requirements (id. at
386-410).  A summary of one of the remaining two meetings was omitted
from the docket through inadvertence.  The court found that this was
an honest error and that, in any event, the particular meeting was not
of the type required to be entered on the rulemaking docket (id. at
404).  The final meeting included the President and members of the
White House staff.  The court expressly recognized the President's
constitutional authority to control and supervise executive
policymaking and was hesitant to fashion any new rule that would
impair the President's ability to fullfill this role (id. at 405--
407).  In this particular instance, the court found that since EPA did
not base the rule on any information or data arising from the meeting,
there was no justification for requiring it to be docketed on the
rulemaking record (id. at 407).

   Finally, the court noted that it could find no evidence of
impermissible congressional pressure on EPA arising out of two
meetings (both entered on the rulemaking docket) that the
Administrator had with West Virginia Senator Robert Byrd.  EDF's claim
in this regard was rejected because it failed to present any evidence
that Senator Byrd had sought to influence the rulemaking by injecting
extraneous considerations into the agency's decisionmaking processes
(657 F.2d at 408-410).

   2. After losing every issue on the merits, Sierra Club and EDF,
relying on Section 307(f) of the Clean Air Act, filed motions seeking
awards of attorneys' fees and costs.  Although settlement discussions
were initiated between respondents and the Justice Department lawyer
then assigned to the litigation, no agreement was ever consummated
because the Assistant Attorney General in charge of the matter
declined to approve settlement.  Thereafter, the fee requests were
fully briefed by respondents and the government.  Sierra Club and EDF
both argued that an award of fees and costs was "appropriate" because
they had conferred certain public benefits by bringing their
unsuccessful lawsuits.  Specifically, they contended that they had
advanced the purposes of the Clean Air Act by enabling the court of
appeals to construe the provisions of Section 111 of the Act, thus
providing future guidance to EPA and the public as to how that
provision should be interpreted and implemented.  EDF also argued
separately that litigation of the ex parte contacts issue had
clarified the "rules of the game" as to contacts with agency officials
during informal rulemakings.  The government opposed any fee award
whatsoever because respondents not only lost the litigation but failed
to advance the purposes of the Clean Air Act in any concrete or
tangible fashion.

   On February 5, 1982, the court of appeals issued an opinion
rejecting all the government's arguments in opposition to the motions
for fees (App. A, infra, 1a-22a).  /3/ After examining the text of
Section 307(f) and its legislative history, the court concluded that
an award of fees was "appropriate" where the party seeking fees had
"'substantially contributed' to the goals of the Clean Air Act" (App.
A, infra, 20a n.10), whether or not the litigation was actually
successful.  The court further concluded that the express goals of the
Clean Air Act included "prompt resolution of serious questions of
statutory interpretation" (id. at 18a).  A litigant could satisfy this
goal, the court ruled, by making exemplary presentations on important,
complex and novel issues (id. at 12a-13a, 18a-19a).

   The court then suggested that the parties resume their negotiations
over the proper amount of fees to be awarded, and ordered a status
report on the negotiations within three months.  In May 1982, the
parties advised the court that their negotiations had been
unsuccessful.  Thereafter, Sierra Club and EDF filed amended fee
requests encompassing their work on the case-in-chief and on the
attorneys' fee dispute.  On July 16, 1982, the court of appeals issued
its final opinion (App. B, infra, 23a-38a).  A majority of the panel
determined that Sierra Club was entitled to an award of $44,715 in
fees and $644.60 in expenses, and that EDF was entitled to an award of
$45,874.80 in fees (App. C, infra, 39a-40a).  Although the court made
modest reductions in the number of compensable hours claimed by
respondents, the majority awarded fees at the hourly rates respondents
had requested and rejected the government's argument that the awards
should be reduced to reflect respondents' total lack of success on the
merits (App. B, infra, 26a-30a, 32a-35a).  The majority stated that
any such reduction could not be squared with "the Clean Air Act's
overriding purpose of encouraging constructive legal challenges * * *
" (id. at 30a).  The court did, however, agree with the government
that because of their failure to prevail respondents were not entitled
to any "bonus" in addition to their "lodestar" fees (determined by
multiplying the hours reasonably expended by a reasonable hourly rate)
(id. at 30a-31a).  Judge Robb dissented in part, asserting that a
reduction in respondents' lodestar fees was "appropriate" because
respondents had "batted zero" and "(i)f counsel were private
practitioners their clients might well complain that they could have
lost the case for less money" (id. at 36a-37a).

                   REASONS FOR GRANTING THE PETITION

   In holding the government liable for attorneys' fees incurred by
litigants who do not prevail in any respect, the court of appeals has
departed from accepted notions of fee-shifting, and has established a
precedent that threatens to impose substantial burdens on the federal
courts, administrative agencies and the Justice Department by
encouraging unproductive, expensive and time-consuming litigation.
/4/ The court's decision, furthermore, disregards both settled
principles of sovereign immunity and the congressional intent behind
Section 307(f) of the Clean Air Act.

   1. The court adopted a seemingly benign standard in this case,
ruling that an award of attorneys' fees would be "appropriate"
whenever a litigant "substantially contributed" to the goals of the
Clean Air Act (App. A, infra, 20a n.10).  There can be little dispute,
moreover, that litigation resulting in proper implementation of the
statute substantially contributes to Congress' goals.  Where the court
went fundamentally astray, however, was in its equation of proper
implementation of the Clean Air Act with mere judicial
"interpretation" of the statute (id. at 5a n.3, 8a, 11a, 18a).  It is
clear that Congress intended to hold the government liable for
attorneys' fees in actions that spur proper implementation of the Act
by correcting administrative errors (see pages 16-17, infra).  But it
is equally clear that judicial interpretation of the Act is not in
itself a goal of the statute.  Unless one views litigation as
desirable for its own sake, it is difficult to comprehend how
implementation of the Act is furthered when a court finds, in the
course of interpreting the Act, that the Agency was already
implementing it correctly.

   The court of appeals' elevation of judicial review to the level of
a "goal" of the Clean Air Act is the sole basis for its conclusion
that totally unsuccessful litigation is capable of yielding public
benefits that justify an award of attorneys' fees.  For example, the
court stated that "by assisting judicial interpretation of the Clean
Air Act, Sierra Club and EDF aided agency implementation and
Congressional reevaluation of the Act" (App. A, infra, 8a) (footnote
omitted).  The Agency's implementation of the Act, however, was found
to be in full accord with congressional intent, and it is therefore
difficult to imagine that the Agency was aided in any way by judicial
reaffirmation of its actions.  As for congressional reevaluation of
the Act, Congress has ample tools at its command to conduct that
reevaluation without the assistance of litigants who press
unsuccessful claims.  The legislative history of Section 307(f) does
not support the notion that it was designed to promote unsuccessful
litigation for the edification of Congress.

   The court below awarded attorneys fees not only because the
respondents brought "complex and novel" issues before it (App. A,
infra, 13a), but also because "their assistance in the resolution of
the issues was substantial" (ibid.).  The court's reliance on the
"substantial nature of petitioners' assistance" (id. at 16a), however,
is insufficient to justify an award of attorneys' fees.  /5/ Surely
the fact that a litigant's position, though wrong, was competently
presented does not make fee-shifting appropriate.

   The court stated that it "was totally dependent upon Sierra Club to
brief and advocate the opposition to a variable standard" (App. A,
infra, 17a).  But the court failed to point out that absent this
litigation there would have been no need for judicial evaluation of
the variable standard in the first place.  Similarly, the court found
that EDF's contributions expedited and "enriched" its consideration of
the ex parte contacts issue, and allowed the court to "resolve close
questions of interpretation for future rulemaking under the Act" (id.
at 18a).  The court's consideration, of course, was only necessary
because EDF raised the ex parte contacts issue.  Nothing in the Act,
moreover, suggests that Congress meant to pay litigants to resolve
questions that might not even arise until "future rulemaking(s)"
(ibid.).  An award of attorneys' fees is not "appropriate" merely
because it furthers, even substantially, jurisprudential
understanding.  /6/

   Congress assigned to EPA the expensive, time-consuming and
important responsibility of implementing the Clean Air Act.  When EPA
missteps, Congress has encouraged private litigants to inovke judicial
review to put the Agency back on course.  But where EPA has not
strayed, there is little logic to the assumption that Congress
intended to pay self-appointed representatives of the public interest
/7/ to judicially reaffirm the Agency's actions.  Respondents were, of
course, free to take their disagreements with the Agency's approach to
court, but they should not expect the government to pay them for
having its course of action vindicated.  Rewarding litigants who
actually aid Agency implementation of the Clean Air Act by correcting
administrative errors is sufficient incentive for the citizen
involvement in the implementation of the Act that was contemplated by
Congress.  Rewarding unsuccessful litigants who do no more than
vindicate the Agency's approach to the statute not only does nothing
to assist implementation of the Act but, on the contrary, frustrates
that purpose by diverting scarce Agency resources from more pressing
needs.  /8/

   2. The lower court's liberal interpretation of Section 307(f) is
inconsistent with certain fundamental considerations underlying the
doctrine of sovereign immunity and the traditional rules governing the
allocation of attorneys' fees.  The court of appeals' departure from
these traditional norms cannot be squared with the literal language of
the statute, or its legislative history.

   "(T)he United States, as soveriegn, 'is immune from suit save as it
consents to be sued * * * .'" United States v. Testan, 424 U.S. 392,
399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586
(1941).  The Court has emphasized that such consent "cannot be implied
but must be 'unequivocally expressed.'" Army and Air Force Exchange
Service v. Sheehan, No. 80-1437 (June 1, 1982), slip op. 6, quoting
United States v. Testan, supra, 424 U.S. at 399;  United States v.
Mitchell, 445 U.S. 535, 538 (1980).

   Where Congress has waived sovereign immunity, its waiver is to be
"construed strictly in favor of the sovereign." McMahon v. United
States, 342 U.S. 25, 27 (1951);  United States v. Kubrick, 444 U.S.
111, 117-118 (1979);  United States v. Sherwood, supra, 312 U.S. at
590.  Thus, in interpreting a statute that waives the immunity of the
United States, the courts should not "enlarge its liability * * *
beyond what the language requires." Eastern Transportation Co. v.
United States, 272 U.S. 675, 686 (1927).  Strict construction
conserves the public fisc and limits recovery to those situations in
which it may be confidently concluded that Congress has determined
that the government should be liable.  See, e.g., Indian Towing Co. v.
United States, 350 U.S. 61, 68-69 (1955).  These principles are, of
course, fully applicable to claims against the government for
attorneys' fees.  /9/ Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240, 267-268 & n.42 (1975).

   In addition to the bar that sovereign immunity interposes to fee
awards against the government, attorneys' fees generally are not
available to parties who do not prevail on any claim.  /10/
Interpretation of the Clean Air Act to allow an award of fees to the
Sierra Club and Environmental Defense Fund in this case contravenes
this general rule.  Such an interpretation should be particularly
disfavored here because it increases the burden of the statute on the
public fisc.  See Lehman v. Nakshian, 453 U.S. 156, 161 n.8 (1981).
Thus respondents' claims for fees should not be allowed unless the
Court finds that Congress clearly and "unequivocally" departed from
the general presumption against awarding fees to totally unsuccessful
litigants.  Id. at 160-161.

   The government does not dispute that Congress has authorized
attorneys' fees awards against the government.  The legislative
history of Section 307(f) clearly demonstrates that Congress meant to
waive the government's traditional immunity and to overcome the
presumption of the "American Rule" against fee-shifting.  See H.R.
Rep. No. 95-294, 95th Cong., 1st Sess. 337 (1977) ("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 * * * .").  But Congress'
decision to subject the government to attorneys' fee awards under
Section 307(f) does not mean that it has consented to an award in the
circumstances of this case.  Nothing in the language or legislative
history of Section 307(f) suggests that attorneys' fees may be
assessed against the government in favor of unseccessful suitors.  It
is highly unlikely that such a radical departure from both the
American Rule on attorneys' fees and the general rules of construction
governing waivers of sovereign immunity could have passed Congress
with nary a mention, let alone a clear exposition of Congress' intent.

   3. The court of appeals misinterpreted Congress' intent in enacting
Section 307(f).  The court concluded that Congress' decision not to
employ a "prevailing party" standard in Section 307(f) necessarily
meant that success on the merits was not a relevant inquiry.  The
government agrees that success on the merits, in the traditional sense
of a favorable final judgment, is not a prerequisite for an award of
fees under the statute.  Nevertheless, Section 307(f)'s legislative
history clearly indicates Congress' understanding that some tangible
accomplishment is a prerequisite to eligibility for a fee award under
the statute.  There is little in the legislative history to support
the court of appeals' conclusion that unsuccessful, albeit competent,
litigation of novel or important issues is the sort of contribution to
the administration of the Clean Air Act that Congress intended to
reward with attorneys' fees.

   a. Because the language of Section 307(f) does not identify what
situations Congress thought might be "appropriate" for attorneys' fee
awards, the court of appeals turned to the legislative history for
guidance.  The court erred, however, in confining its analysis to the
legislative history of Section 307(f) alone.  That section was not
added to the Clean Air Act until 1977, and its meaning can only be
determined by tracing its origins in the Clean Air Act of 1970.

   In the 1970 Act, Congress authorized courts to award attorneys fees
in "appropriate" cases under Section 304(d), 42 U.S.C. (Supp. IV)
7604(d) -- the so-called citizens' suit provision of the Act.  That
section allows citizens to bring enforcement actions directly against
persons or entities alleged to be in violation of the Act or against
the EPA Administrator for failure to perform a nondiscretionary duty.
Congress' purpose in enacting this provision was to supplement
government enforcement efforts and motivate government agencies to
take more vigorous enforcement actions themselves.  As stated in the
Senate Report (S. Rep. No. 91-1196, 91st Cong., 2d Sess. 36-37, 38-39
(1970)):

         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.

                      * * * * *

         The Committee bill would provide in the citizen suit
      provision that actions will lie against the Secretary for
      failure to exercise his duties under the Act, including his
      enforcement duties.  The Committee expects that many citizen
      suits would be of this nature, since such suits would reduce the
      ultimate burden on the citizen of going forward with the entire
      action.

   Thus, Congress' purpose was to enlist the aid of citizens in those
situations where the government was not living up to its
responsibilities.  It is against this backdrop that the Senate
Report's explanation of the attorneys' fees provision in Section
304(d) must be evaluated (S. Rep. No. 91-1196, supra, at 38) (emphasis
added):

         Concern was expressed that some lawyers would use section 304
      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.  /11/ 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 example, 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.

   Congress was thus focusing on two concerns, neither of which
supports the court of appeals' approach to the statute.  /12/ First,
Congress wanted to protect prevailing defendants against the burden of
having to oppose frivolous lawsuits.  Second, Congress wanted to
reward legitimate citizen suits.  Although the court of appeals would
apparently read "legitimate actions" as including those raising
"important, novel or complex" issues (App. A, infra, 13a), it is clear
from a careful reading of the entire passage that "legitimate actions"
can only have meant successful actions.  That is because the next
sentence of the report states that fee awards should "extend to
plaintiffs in actions which result in successful abatement but do not
reach a verdict" (S. Rep. No. 91-1196, supra, at 38) (emphasis added).
 While Congress thus obviated the need for a plaintiff to "prevail" in
the strictly technical sense of obtaining a judgment, it clearly did
not remove the element of success in a practical sense, because a
party still had to "win" in the sense of producing the desired result,
albeit without a verdict.  As Judge Wilkey put it in his dissent in
Alabama Power Co. v. Gorsuch, supra, 672 F.2d at 15, 19, to be awarded
attorneys' fees a party must at least not lose.  /13/ A fair reading
of the Senate Report thus demonstrates that "abatement without final
judgment" represents the limits of a court's discretion to award fees
under Section 304(d) to non-prevailing plaintiffs.  /14/

   Although the court of appeals recognized the import of the 1970
Senate Report, it nevertheless stated that it did "not read the Report
as ruling out all other instances where attorneys' fees would be
appropriate" (App. A, infra, 4a n.3).  Against the backdrop of
soverign immunity that should have informed the court's approach,
however, it was not necessary for Congress to "rule out" categories of
cases;  rather, Congress must clearly and affirmatively "rule in"
those situations where it meant to authorize fee awards.  And, at
least as of 1970, there is no clear indication that Congress
contemplated fee awards to totally unsuccessful litigants.  /15/

   b. In addition to dismissing the 1970 Senate Report on the grounds
that it did not "rule out" (App. A, infra, 4a n.3) the court's
construction, the court of appeals held that it must focus its
attention on the legislative history of the 1977 amendments, which
added an "appropriate" attorneys' fee provision to Section 307 of the
Act (App. A, infra, 4a-6a).  The court, however, ignored the
motivation behind Congress' 1977 amendment of Section 307.

   In 1970, Congress had made no provision for awards of attorneys'
fees in actions brought under Section 307, which provides for direct
review in the courts of appeals of the Administrator's actions in
promulgating regulations and approving state implementation plans.  In
Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st
Cir. 1973), the court was confronted with a request for attorneys'
fees in an action brought under Section 307.  The court found that
Section 304, which permits suits against the Administrator for failure
to perform a nondiscretionary duty, aptly covered the case before it,
where the essence of the claim was that the Administrator failed to
perform his duty with respect to the review and approval of state
implementation plans.  The court's problem, however, was that Section
304 citizens' suits may only be brought in district courts, while the
case before it had to be filed in the court of appeals under Section
307.  Using somewhat questionable logic, the court concluded that
Section 307 did no more than specify the forum, and that a suit
brought under Section 307 was really an action pursuant to Section
304.  Accordingly, the court concluded that Congress had given the
necessary authorization for an award of attorneys' fees in actions
brought under Section 307.  484 F.2d at 1335-1338.

   This conclusion was subsequently rejected by the Courts of Appeals
for the Fifth and District of Columbia Circuits.  Natural Resources
Defense Council, Inc. v. EPA, 539 F.2d 1068 (5th Cir. 1976);  Natural
Resources Defense Council, Inc. v. EPA, 512 F.2d 1351 (D.C. Cir.
1975).  Those courts concluded that Sections 304 and 307 contemplated
distinct groups of cases and that Section 304's attorneys' fee
provision could not be engrafted onto Section 307 actions.

   These rulings led Congress to amend Section 307 in 1977 to include
express authorization for the award of attorneys' fees in cases
brought under that section whenever, as under Section 304, the court
deemed such awards to be "appropriate." As the Senate Report explained
(S. Rep. No. 95-127, 95th Cong., 1st Sess. 99 (1977)):

         The purpose of the amendment to Section 307 is to carry out
      the intent of the committee in 1970 that a court may, in its
      discretion, award costs of litigation to a party bringing a suit
      under Section 307 of the Clean Air Act.

         The law has been interpreted otherwise.  Section 304 of the
      Clean Air Act specifically authorizes courts to award costs;
      however, section 307 did not contain a specific authorization.
      Courts have construed the absence of such authorization in
      section 307 to indicate congressional intent to prohibit a
      discretionary award of fees in section 307 suits.

   It is thus clear that the congressional purpose behind the 1977
amendment to Section 307 was to conform that section to Section
304(d).  The amendment does not reflect any change in Congress'
understanding of when a fee award is "appropriate." Cf. Northcross v.
Memphis Board of Education, supra.  Thus, under Section 307, as under
Section 304, a litigant must "at least not lose" in order to be
eligible for a fee award.  Fees are "appropriate" if a party prevails
or if it accomplishes some tangible result, such as a voluntary
agreement by the Administrator to modify a regulation or adopt some
other significant policy change.  /16/

   c. Rather than recognizing the narrow purpose behind Congress'
amendment to Section 307, the court of appeals based its entire
decision on the House Report accompanying the 1977 amendments.  In
pertinent part, that report provides as follows (H.R. Rep. No. 95-294,
95th Cong., 1st Sess. 337 (1977)):

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

         In the case of 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).

   /*/ Such fees are already authorized to be awarded in suits brought
under Section 304 of the Act.

   The court of appeals ruled that whatever the policy behind Section
304 attorneys' fees actions this language "shows that Congress in 1977
specifically adopted the far broader policy of rewarding substantial
contributions to the statutory goals of the Act" (App. A, infra,
4a-5a, n.3).  Close examination of the House Report, however, reveals
several flaws in the court's reasoning.

   First, the initial paragraph, like the 1977 Senate Report, shows
only an intent to have Section 307 parallel the existing attorneys'
fee provision in Section 304.  Second, the next paragraph quite
clearly limits itself to actions under Section 307, and does not speak
to Section 304 actions.  It would be curius indeed if Congress really
meant to adopt a "far broader policy" for Section 307 actions;
indeed, such a result cannot be squared with the Senate Committee's
explanation of the need to amend Section 307 simply to bring it into
harmony with Section 304.  S. Rep. No. 95-127, supra, at 99.  Cf.
Northcross v. Memphis Board of Education, supra.  Yet the result of
the court of appeals' ruling is that Section 307 litigants need not
accomplish anything tangible in order to recover attorneys' fees,
while Section 304 litigants must at a minimum achieve some tangible
result short of judgment.  Finally, the House Committee's language
about encouraging "proper implementation of the act" does not suggest
that unsuccessful litigation contributes to proper implementation.  To
the contrary, litigation that promotes "proper implementation of the
act" is quite obviously akin to the "legitimate actions" contemplated
by Congress in 1970.  See S. Rep. No. 91-1196, supra, at 38, at page
18, supra.

   Since the language of the House Report itself does not support an
award of attorneys' fees to unsuccessful litigants, it is necessary to
analyze the First Circuit's decision in Natural Resources Defense
Council, Inc. v. EPA, upon which the House Committee "largely" relied
(H.R. Rep. No. 95-294, supra, at 337).  Again, a close reading of the
case does not support the conclusions reached by the court below.  The
primary issue in National Resources Defense Council, Inc. v. EPA was
whether fees could ever be awarded to a Section 307 litigant since, at
the time of the decision, Section 307 did not explicitly authorize fee
awards.  See page 21, supra.  Only after resolving that question in
NRDC's favor did the court turn to a brief examination of the
"appropriateness" of a fee award.  On this issue, the court was faced
with a very narrow question -- should it award any fees where the
petitioners had prevailed on most but not all of the claims they had
raised.  In resolving this issue, the court turned to the legislative
history of Section 304(d) which, as we have noted, contemplates awards
to successful plaintiffs or to plaintiffs who accomplish something
concrete short of judgment.  Against this backdrop, the court stated
(484 F.2d at 1338) (emphasis added):

         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.  * * * 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
      early 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.

   Thus, on its face, the First Circuit's opinion is far narrower than
the court of appeals here suggested.  NRDC won major portions of its
case;  nothing in the First Circuit's opinion suggests that fees would
still have been awarded had NRDC failed to prevail on a single issue.
The court's dictum about petitioners' "watchdog" role cannot be
considered in isolation;  rather, it must be examined in light of the
government's contention that because NRDC lost some issues it should
be denied any fee award.  484 F.2d at 1338.  Only in this limited
sense can the First Circuit be said to have rejected a "prevailing
party" standard, /17/ and there is nothing in the 1977 House Report's
citation to NRDC v. EPA to suggest that it meant to go beyond this
holding.

   In short, the court of appeals has adopted an erroneous standard
unsupported by the plain language of Section 307(f) or its legislative
history.  The case has worked a virtual revolution in the traditional
law of attorneys' fees, in purported reliance on congressional intent.
 It is unlikely, however, that such a revolution would have occurred
in Congress without anyone noticing it.  In light of the guiding
principles of sovereign immunity and the general presumption against
fee awards to unsuccessful litigants, Congress clearly has not spoken
in the certain and unequivocal terms required to support rhe court of
appeals' decision.  /18/

                              CONCLUSION

   The petition for a writ of certiorari should be granted

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   CAROL E. DINKINS

      Assistant Attorney GENERAL

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   RICHARD G. WILKINS

      Assistant to the Solicitor General

   KATHRYN A. OBERLY

   JAMES M. SPEARS

   JAMES P. LEAPE

      Attorneys

   AUGUST 1982

   /*/ The parties involved in the attorneys' fees litigation are
solely those appearing in the caption of the case in this Court.  This
case began, however, as eight consolidated petitions for review under
the Clean Air Act.  At that stage of the proceedings, the litigants
included a large number of other parties, mostly electric utilities,
whose names are collected in Appendix D, infra, 41a-42a.

   /1/ A complete history of the rulemaking is set forth in the court
of appeals' merits opinion, Sierra Club v. Costle, 657 F.2d 298 (D.C.
Cir. 1981), and need not be repeated here.  As described by the court
of appeals, the final new source performance standards regulated
emissions of sulfur dioxide, particulate matter, and nitrogen oxides.
Respondents, however, only challenged certain features of the sulfur
dioxide standard.  Accordingly, the above description of the merits
litigation is confined to that aspect of the new source performance
standards.

   /2/ Jurisdiction in the court of appeals was properly predicated on
Section 307(b)(1) of the Clean Air Act, 42 U.S.C. (Supp. IV)
7607(b)(1), which provides that judicial review of many of the
Administrator's actions, including the promulgation of new source
performance standards, may be had only in the United States Court of
Appeals for the District of Columbia Circuit.

   /3/ Actually, the court issued its opinion on January 22, 1982.
That opinion was later withdrawn and a substitute opinion issued on
February 5, 1982.  On the same day, the court issued attorneys' fee
decisions in Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C. Cir. 1982)
(petition for rehearing pending, No. 78-1006), and Environmental
Defense Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982) (petition for
rehearing pending, No. 79-1580).  The principal differences between
the January and February Sierra Club opinions are that the February 5
opinion adds a footnote responding to Judge Wilkey's dissent in
Alabama Power Co. v. Gorsuch, supra, 672 F.2d at 8-33, and deletes a
passage cautioning that the amount of an award to "self-appointed
representatives of the public interest" should be closely scrutinized.

   /4/ The impact of the court's decision is not necessarily limited
to attorneys' fee awards under Section 307(f) of the Clean Air Act.
Some 13 other federal statutes contain virtually identical attorneys'
fee provisions.  See Toxic Substances Control Act, 15 U.S.C. 2618(d);
Endangered Species Act of 1973, 16 U.S.C. 1540(g)(4);  Surface Mining
Control and Reclamation Act of 1977, 30 U.S.C. (Supp. IV) 1270(d);
Deep Seabed Hard Mineral Resources Act, 30 U.S.C. (Supp. IV) 1427(c);
Clean Water Act, 33 U.S.C. 1365(d);  Marine Protection, Research and
Sanctuaries Act of 1972, 33 U.S.C. 1415(g)(4);  Deepwater Port Act of
1974, 33 U.S.C. 1515(d);  Safe Drinking Water Act, 42 U.S.C.
300j-8(d);  Noise Control Act of 1972, 42 U.S.C. 4911(d);  Energy
Policy and Conservation Act, 42 U.S.C. 6305(d);  Powerplant and
Industrial Fuel Use Act of 1978, 42 U.S.C. (Supp. IV) 8435(d);  Ocean
Thermal Energy Conversion Act of 1980, 42 U.S.C. (Supp. IV) 9124(d);
and Outer Continental Shelf Lands Act, 43 U.S.C. (Supp. IV)
1349(a)(5).  In light of this Court's decision in Northcross v.
Memphis Board of Education, 412 U.S. 427 (1973), that similar
attorneys' fee provisions should be interpreted pari passu, it is
likely that the ruling below will be extended to claims arising under
other statutes.  Indeed, a separate panel of the court of appeals has
already interpreted the attorneys' fee provision in the Toxic
Substances Control Act to permit awards to non-prevailing parties, in
part by reliance on the decision in this case.  See Environmental
Defense Fund, Inc. v. EPA, 672 F.2d 42, 48 (D.C. Cir. 1982) (petition
for rehearing on other grounds pending, No. 79-1580).  The government
does not plan to seek this Court's review of the decision in
Environmental Defense Fund v. EPA because in that case EDF prevailed
on three of the four issues it litigated on the merits;  however, the
opinion clearly sanctions an award to totally unsuccessful parties.
The ruling in the present case is also having an immediate impact on
other pending litigation.  For example, the Energy Action Educational
Foundation is now seeking attorneys' fees and costs under the Outer
Continental Shelf Lands Act for its work in the district court, the
court of appeals and this Court in Watt v. Energy Action Educational
Foundation, No. 80-1464 (Dec. 1, 1981), notwithstanding the fact that
this Court unanimously rejected Energy Action's position on the
merits.

   /5/ The court of appeals' estimation of respondents' contribution
to the litigation increased markedly between the time it rendered its
decision on the merits and its opinion below.  For example, in its
opinion below the court praised EDF for assisting the court's
deliberations on the ex parte contacts issue.  In the opinion on the
merits, however, the court stated that "the parties," presumably
including EDF, did not make the court's task of identifying the
actions and incidents that gave rise to EDF's complaints "an easy
one." 657 F.2d at 386 n.423.  The court stated (id. at 391):

      EDF does not specify which particular features in each of the
      above-numerated communications violated due process or
      constituted errors under the statute;  indeed, EDF nowhere lists
      the communications in a form designed to clarify why any
      particular communication was unlawful.  Instead, EDF labels all
      post-comment communications with EPA -- from whatever source and
      in whatever form -- as "ex parte," and claims that "this court
      has repeatedly stated that ex parte contacts of substance
      violate due process."

   As noted, the court rejected EDF's position in its entirety (657
F.2d at 386-410).  Similarly, the court had no difficulty rejecting
Sierra Club's construction of the statute.  The court found the
language of the statute itself to be relatively clear (id. at 319),
and concluded that it "critically undercut()" Sierra Club's position
(id. at 318).  The court found Sierra Club's arguments based on the
legislative history no more persuasive.  See generally id. at 319-322.

   /6/ Seen in this light, the ruling in this case conflicts with the
spirit of the Court's recent decision in Valley Forge Christian
College v. Americans United for Separation of Church & State, Inc.,
No. 80-327 (Jan. 12, 1982).  Reviewing the Article III requirements
for standing to sue, the Court there emphasized that federal courts
are neither "publicly funded forums for the ventilation of public
grievances or the refinement of jurisprudential understanding" nor
"judicial versions of college debating forums." Slip op. 8.  Yet it is
precisely for the ventilation of public grievances and the refinement
of jurispreduntial understanding that respondents were awarded fees in
this litigation.

   /7/ Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331,
1338-1339 (1st Cir. 1973).

   /8/ The court of appeals asserted that it would award fees to
totally unsuccessful parties only in "exceptional" circumstances (App.
A, infra, 13a).  The court, however, provided no guidelines for
ascertaining the "exceptional" case.  Implementation of statutes like
the Clean Air Act is inherently important and inevitably complex, and
it will be a rare case that does not raise novel issues that a court,
like the one below, might find worthy of resolution.  See id. at
12a-13a.  So long as the present ruling stands, therefore, it can only
encourage substantial amounts of lengthy litigation that might
otherwise not be brought, at great cost both to the courts and the
Executive Branch.

   /9/ This Court's recent decision in Lehman v. Nakshian, 453 U.S.
156 (1981), illustrates how principles of sovereign immunity should
impact upon Section 307(f)'s provision for attorneys' fees in
"appropriate" cases.  In Lehman, plaintiff sued the Navy under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. 633a, which waived
sovereign immunity for such suits.  Plaintiff claimed she was entitled
to a trial by jury.  The Court noted that, in general, trial by jury
is not available in suits against the United States.  In light of this
general rule, the Court held that "accepted principles of sovereign
immunity require that a jury trial right be clearly provided in the
legislation creating the cause of action." 453 U.S. at 162 n.9.  The
Court further explained that "even if the legislative history were
ambiguous, that would not affect the proper resolution of this case,
because the plaintiff in an action against the United States has a
right to trial by jury only where Congress has affirmatively and
unambiguously granted that right by statute." Id. at 168.

   /10/ As Judge Wilkey stated in his dissenting opinion in Alabama
Power Co., supra, 672 F.2d at 13:

      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.

   /11/ Section 304(d) initially provided for attorneys' fee awards
when the court determined that such an award would be in the "public
interest." See S. 4358, 91st Cong., 2d Sess. (1970).  This was the
version of the bill discussed in the Senate Report.  The bill was
later changed to authorize fees where "appropriate." There is no
legislative history, however, to suggest that Congress meant anything
substantive by the change.

   /12/ Indeed, the first concern the "appropriate" standard was
designed to deal with cuts against the award of fees in this case.
Far from authorizing fees in favor of unsuccessful plaintiffs, the
statute was designed to provide fees for successful defendants.

   /13/ The court of appeals' decision in Metropolitan Washington
Coalition for Clean Air v. District of Columbia, 639 F.2d 802 (D.C.
Cir. 1981), is not authority to the contrary.  At the time plaintiffs
filed suit in that case, and for three years thereafter, the District
of Columbia was in clear violation of its implementation plan under
the Clean Air Act.  Plaintiffs never obtained a favorable final
judgment, however, because the District modified the plan, and EPA
approved the revision, in such a way as to render the case moot.  To
the extent the court of appeals now reads this decision as sanctioning
fee awards to totally unsuccessful parties (App. A, infra, 7a-10a), it
is in error for the same reasons it erred in the present case.

   /14/ The report states that fee awards under Section 304(d) "extend
to" situations where plaintiffs accomplish a tangible benefit short of
judgment;  the report does not imply that a fee award is proper when a
litigant merely raises novel but unsuccessful contentions (S. Rep. No.
91-1196, supra, at 38).  The summary "section-by-section" analysis of
the Senate Report, however, states that a "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." S. Rep. No. 91-1196, supra, at 65.  There is no
elaboration on the meaning of "without regard to the outcome of the
litigation" but, in light of the more complete explanation of
congressional intent at page 38 of the report, there is no reason to
believe that Congress intended any radical departure from the notion
that awards were to be made to plaintiffs who accomplished something
concrete, such as abatement of a violation, yet failed to secure a
favorable final judgment.

   /15/ The court of appeals was concerned (App. A, infra, 11a) with
constructing a definition of "appropriate" that would go beyond the
"prevailing party" standard that Congress had employed in other
statutes, such as the Civil Rights Act of 1964, 42 U.S.C. 2000a-3, and
the Civil Rights Act of 1968, 42 U.S.C. 2000e-5.  However, the court
of appeals overlooked the fact that as of 1970, the first time
Congress employed the "appropriate" standard, the courts were narrowly
construing "prevailing" to include only those parties that had
obtained a favorable final judgment.  It was not until 1976, for
example, that courts began awarding attorneys' fees to civil rights
plaintiffs who "prevailed" by means of a settlement rather than a
litigated judgment.  See, e.g., Foster v. Boise-Cascade, Inc., 420 F.
Supp. 674 (S.D. Tex. 1976);  Richardson v. Civil Service Commission of
New York, 420 F. Supp. 64 (S.D.N.Y. 1976);  Parker v. Mathews 411 F.
Supp. 1059 (D.D.C. 1976);  Clanton v. Allied Chemical Corp., 409 F.
Supp. 282 (E.D. Va. 1976).  Thus, Congress' desire to reward parties
whose litigation efforts had in fact achieved the result sought,
albeit without a judgment, necessitated the adoption of some standard
other than the "prevailing party" standard.  The court of appeals thus
erred in concluding (App. A, infra, 5a n.3, 11a) that if Congress had
only meant to reward tangible accomplishments, it would not have
drafted a new standard.

   /16/ The legislative histories of other statutes containing
provisions authorizing attorneys' fees where "appropriate" (see note
4, supra) are fully consistent with the government's view of the Clean
Air Act.  For example, the legislative history of Section 505(d) of
the Clean Water Act, 33 U.S.C. 1365(d), shows that Congress
specifically intended Section 505(d) to be interpreted similarly to
Section 304(d) of the Clean Air Act.  Indeed, the House Report simply
states that fact.  H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 132-133
(1972).  The Senate Report, S. Rep. No. 92-414, 92d Cong., 2d Sess. 81
(1972), reiterates the rationale of Section 304(d) of the Clean Air
Act in language virtually identical to the Senate Report on the Clean
Air Act.  Thus, the twin purposes of Section 505(d) of the Clean Water
Act are to punish frivolous or harassing litigants and to reward
citizens' suits that result in pollution abatement but fail to reach a
verdict.  The legislative history of the Safe Drinking Water Act, 42
U.S.C. 300j-8(d), states that its attorneys' fee provision is designed
"(as) a deterrent against frivolous suits." S. Rep. No. 93-231, 93d
Cong., 1st Sess. 17 (1973).  The legislative history of the attorneys'
fee provision in the Surface Mining Control and Reclamation Act of
1977, 30 U.S.C. (Supp. IV) 1270(d), specifically adopts the
legislative history of Section 505(d) of the Clean Water Act.  H.R.
Rep. No. 95-218, 95th Cong., 1st Sess. 90-91 (1977).  The legislative
history of the Toxic Substances Control Act's attorneys' fee
provision, 15 U.S.C. 2618(d), construed by the court of appeals in
Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982),
is likewise fully consistent with the government's position here.
Although the court of appeals relied heavily on a statement by Senator
Tunney that fee awards under the TSCA would be appropriate "where such
award is in the public interest without regard to the outcome of the
litigation," 122 Cong. Rec. 8301 (1976), the court of appeals failed
to analyze the cases Senator Tunney cited in support of that
proposition.  None of the four cases even remotely suggests the
appropriateness of an award for litigating losing issues.  Rather, in
all four cases, the plaintiffs "prevailed" either in fact or by
obtaining a concrete, tangible benefit for themselves or the class
they represented in the form of a definite change in the defendant's
conduct.  Kopet v. Esquire Realty Co., 523 F.2d 1005, 1008-1009 (2d
Cir. 1975);  Parham v. Southwestern Bell Telephone Co., 433 F.2d 421,
429-430 (8th Cir. 1970);  Thomas v. Honeybrook Mines, Inc., 428 F.2d
981, 985 (3d Cir. 1970);  Richards v. Griffith Rubber Mills, 300 F.
Supp. 338 (D. Or. 1969).  The court of appeals in Environmental
Defense Fund, Inc. also glossed over Senator Tunney's statement that
"the court should follow prevailing case law which holds that a
successful plaintiff 'should ordinarily recover an (sic) attorneys'
fees' * * * " (122 Cong. Rec. 8300 (1976) (emphasis added)).

   /17/ Moreover, at the time of the First Circuit's supposed
rejection of a "prevailing party" standard, that standard was still
being narrowly construed by the courts.  See note 15, supra.

   /18/ The court of appeals also overlooked the fact that Congress
has in fact spoken clearly when it meant to award attorneys' fees for
the mere presentation of views.  In Section 6(c)(4)(A) of the Toxic
Substances Control Act, 15 U.S.C. 2605(c)(4)(A), Congress authorized
EPA to award reasonable attorneys' fees to persons participating in
rulemaking proceedings under the Act.  That statute clearly
demonstrates that Congress knew how to draft language awarding fees
for the mere presentation of issues and viewpoints, whether or not
those viewpoints were ultimately adopted.  Under the statute, a
rulemaking participant may be awarded fees if that participant
"represents an interest which would substantially contribute to a fair
determination of the issues to be resolved in the proceeding." 15
U.S.C. 2605(c)(4)(A)(i).  In deciding what persons represent such an
interest, EPA is to take into account "the number and complexity of
such issues and the extent to which representation of such interest
will contribute to widespread public participation in the proceeding
and representation of a fair balance of interests for the resolution
of such issues." 15 U.S.C. 2605(c)(4)(A).  Clearly, these statutory
directives make it appropriate for EPA to compensate persons whose
contribution to the public interest lies simply in adding to the
variety of public debate on an issue.  Nothing remotely comparable can
be read into the "appropriate" standard at issue in this case.

   It is also worth noting that the same Congress that passed Section
307(f) of the Clean Air Act refused to pass a portion of the 1978
Nuclear Regulatory Commission appropriations bill that would have
expressly provided for attorneys' fees for unsuccessful proponents of
worthy causes before the NRC.  Act of Nov. 6, 1978, Pub. L. No.
95-601, 92 Stat. 2947 et seq., discussed in H.R. Rep. No. 95-1089 (Pt.
2), 95th Cong., 2d Sess. 2-3, 22-24 (1978).  The rejected section,
Section 275(a), appears at pages 2-3 of that House Report.

   Appendix Omitted