* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10974

BLUE SKIES ALLIANCE, DOWNWINDERS AT RISK, 

PUBLIC CITIZEN, and SIERRA CLUB,

Plaintiffs-Appellees,

v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

Intervenor-Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

No. 3:04-CV-2169

Before REAVLEY, SMITH, and GARZA, Circuit Judges.

PER CURIAM:*

Blue Skies Alliance and other environmental organizations sued the Environmental Protection Agency (“EPA”) under the Clean Air Act(“CAA”) for failUnited States Court of Appeals

Fifth Circuit

F I L E D

February 7, 2008

Charles R. Fulbruge III

Clerk
No. 06-10974

2

ing to take several non-discretionary actions with respect to the air quality in

the Dallas-Fort Worth area (“DFW”). The Texas Commission on Environmental

Quality (“TCEQ”) and other parties intervened. After multi-lateral discussions,

plaintiffs and the EPA agreed to a consent decree that included attorneys’ fees

for plaintiffs;there were also agreements with several ofthe intervenors, including the TCEQ. 

Plaintiffs moved for attorneys’ fees of $56,276.10 from the TCEQ, which

the district court awarded. The TCEQ appeals the awarding of fees. Because

plaintiffs did not have success against the TCEQ on the merits, attorneys’ fees

are not justified, so we reverse the fee award.

I.

This case arises from DFW’s failure to satisfy the minimum national ambient air quality standards (“NAAQS”) set by the EPA. Under the CAA, the EPA

sets the NAAQS, and the state is required to develop a state implementation

plan (“SIP”) that models existing and future air quality conditions and specifies

techniques and strategies for attaining the NAAQS by the statutory deadline.

The SIP is developed by the state with the input of many groups, including local

governments, industry, and citizen groups. The EPA must approve the SIP.

Based on the level of ozone pollution, an area is classified as marginal,

moderate, serious, severe, or extreme. Each classification level has specific and

increasingly more onerous requirements and has different deadlines for mandatory attainment. If the state fails to attain the NAAQS by the deadline or has

excessive pollution and requests voluntary reclassification,the area is placed into the next higher class.

The EPA changed the NAAQS for ozone in 1997. Before 1997, the NAAQS

for ozone was 120 parts per billion averaged over a one-hour period (the “onehour standard”). The 1997 revision adopted a NAAQS for ozone of 80 parts per
No. 06-10974

3

billion averaged over an eight-hour period (the “eight-hour standard”).

DFW has consistently failed to meetthe NAAQS. Likewise, the TCEQ has

repeatedly failed to submit an adequate SIP. Consequently, in 1998 the EPA reclassified DFW from “moderate” to “serious” with a new attainment deadline of

November 15, 1999.

Under 42 U.S.C. § 7509(c), the EPA administrator was required to determine, within six months of the deadline, whether DFW had met the one-hour

NAAQS. If he found that it had not, DFW was to be automatically reclassified

as “severe.” 42 U.S.C. § 7511(b)(2). In October 2004, when this suit was filed,

the EPA had yet to determine whether DFW had achieved the one-hour standard as of November 15, 1999. Thus, plaintiffs sued under the CAA’s citizen suit

provision, 42 U.S.C. § 7604(a)(2),to compelthe EPA to render its determination.

Additionally, the EPA is required to approve, approve in part, or disapprove a SIP within twelve months of its submission and the EPA’s determination

that it is complete. 42 U.S.C § 7410(k)(2). The TCEQ submitted two SIP revisions in response to the 1998 reclassification, on October 25, 1999, and April 25,

2000. On December 16, 1999, and June 23, 2000, respectively, the EPA determined the revisions were complete At the time this suit was filed, the EPA had

not taken final action on either SIP, and the suit sought to compel such action.

The counties of Collin, Ellis, and Tarrant and the City of Garland intervened as defendants; the Association of Cement Companies of Texas, the Portland Cement Association, and the BCCA Appeal Group intervened as defendants

to represent various business interests. The TCEQ intervened as a defendant

atthe request of Tarrant and Collin counties and the EPA. The plaintiffs did not

oppose any ofthe interventions but asked that each intervenor be willing to participate constructively in settlement negotiations.

Those negotiations resulted in a consent decree agreed to by plaintiffs and

the EPA whereunder the EPA agreed to act on the April 2000 SIP revision and
No. 06-10974

4

two other SIP’s not mentioned in the original complaint. Plaintiffs agreed to

have their suit dismissed with prejudice, foregoing their claim to compel a determination of whether DFW had met the one-hour standard by November 15,

1999, and their claim to compel action on the October 1999 SIP revision. Plaintiffs and EPA agreed that plaintiffs were entitled to attorneys’ fees under 43

U.S.C. § 7604(d), the amount to be determined by a later settlement or court

order. The negotiations also resulted in agreements among plaintiffs and some

of the intervenors.

Plaintiffs entered into agreements with the local government intervenors

on emissions reduction strategies. Plaintiffs and the TCEQ entered into an

agreement regarding actions to meet the new eight-hour standard by the June

2007 deadline. The agreement included six actions the TCEQ would undertake:

(1) The TCEQ would consider implementing emissions controls before the

the statutory deadline.

(2) The TCEQ would work with the EPA to determine the adequacy of the

DFW 1999 episode and to receive the EPA’s concurrence on the performance of

the photochemical model for planning the eight-hour SIP, with the ultimate goal

of submitting the eight-hour SIP in advance of the statutory deadline and

achieving attainment of the eight-hour standard as soon as practicable. The

TCEQ also agreed to keep plaintiffs informed of the progress of each effort.

(3) The TCEQ agreed to consider control measures used in other one-hour

nonattainment areas, including Los Angeles, which has the most exhaustive

control measures in the country. The TCEQ agreed to explain any decision not

to include one of these measures in the eight-hour SIP.

(4) The TCEQ agreed to a time line, with input from plaintiffs, the EPA,

and the Portland Cement Association, for a study of available air pollution control technologies for the cement kilns in DFW. The TCEQ was already developing a scope of work contract for such a study, but the agreement specified dates
No. 06-10974

5

and mandated the inclusion of plaintiffs in the process.

(5) The TCEQ agreed to consider rulemaking or other action necessary to

implement the controls considered under item (3) above and the technologies

identified under item (4) for the cement kilns.

(6) The TCEQ agreed to confer in good faith with plaintiffs’ counsel on any

issues that might arise from the agreement.

The TCEQ’s actions were in exchange for plaintiffs’ commitment to communicate with the TCEQ and to sign the consent decree with the EPA. The

agreement was contingent on the district court’s signing the decree, the EPA’s

fulfilling its obligations under the decree, and the dismissal of the suit with prejudice. After the court had signed the decree and plaintiffs had reached an

agreement on attorneys’ fees with the EPA, plaintiffs filed their successful motion for fees from the TCEQ. 

II.

The CAA’s citizen suit provision provides that the district court “may

award costs of litigation (including reasonable attorney and expert witness fees)

to any party, whenever the court determines such award is appropriate.” Clean

Air Act § 304(d) (codified at 42 U.S.C. § 7604(d)). The Supreme Court has analogized § 304(d)to 42 U.S.C. § 1988, see Pennsylvania v. Del. Valley Citizen’s Council for Clean Air, 478 U.S. 546, 560 (1986), and we review an award of attorneys’

fees under § 1988 for abuse of discretion, with the supporting facts reviewed for

clear error and the underlying conclusions of law reviewed de novo. Riley v. City

of Jackson, Miss., 99 F.3d 757, 759 (5th Cir. 1996). Thus, we review attorneys’

fees under § 304(d) for an abuse of discretion; we review supporting facts for

clear error and questions of law de novo.

The “American Rule” is the starting point for fee awards: Even prevailing

litigants are ordinarily not entitled to attorneys’ fees from the losing party.
No. 06-10974

1 Plaintiffs contend they have satisfied the Sierra Club standard for success, but they

also claim the fee award is proper under Chemical Manufacturers Association v. United States

Environmental Protection Agency, 885 F.2d 1276, 1279 (5th Cir. 1989), where we held the National Resource Defense Council was entitled to attorneys’ fees for advancing the goal of the

Clean Water Act. Finally, plaintiffs assert the award is justified under the “catalyst” theory,

see Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 1148, 1152-53 (5th Cir. 1985). In light of

the Court’s express comparison between § 307(f) and § 304(d) in Sierra Club and its statement

that §304(d) is governed by a standard similar to § 307(f), we apply the “some success” standard and do not need to consider whether plaintiffs advanced the goal of the CAA or whether

their suit was a catalyst. We also do not address whether the catalyst theory even remains

valid in the wake of Buckhannon, 532 U.S. at 605-10. See Planned Parenthood v. Sanchez, 480

(continued...)

6

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs.,

532 U.S. 598, 602 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

240, 247 (1975)). Congress has abrogated that rule by statute for certain situations. Though § 304(d) does not limit the award to “prevailing,” “substantially

prevailing,” or “successful” parties as many other statutes do, see Ruckelshaus

v. Sierra Club, 463 U.S. 680, 684 & nn.3-5 (1983), “intuitive notions of fairness”

suggest that “a successful party need not pay its unsuccessful adversary’s fees.”

Id. at 685. Thus, a clear showing from Congress is required to conclude that it

intended to depart from “intuitive notions of fairness.” Id.

Here,there is no such showing, so the question is how much success is necessary to justify an award of fees. The Sierra Club Court, in construing § 307(f)

of the CAA, concluded that “some degree of success on the merits by the claimant,” id. at 694, was necessary to justify an award. The Court looked in part to

§ 304(d), because these two fee shifting provisions share identical “whenever . . .

appropriate” language. Id. at 692. “[W]hatever general standard may apply under § 307(f), a similar standard applies under § 304(d).” Id. “[A]t least as a general principle,th[e] award[] of attorneys’ fees under § 304(d) will be ‘appropriate’

in circumstances similar to those that are ‘appropriate’ under § 307(f).” Id. Accordingly, we must answer whether plaintiffs achieved “some degree of success

on the merits,” id. at 694, such that § 304(d) authorizes the award.1
No. 06-10974

1

(...continued)

F.3d 734, 740 (5th Cir. 2007).

2 Plaintiffs assert the Sierra Club standard justifies their award because the Court recognized that § 307(f), and hence § 304(d), were “meant to expand the class of parties eligible

for fee awards from prevailing parties to partially prevailing partiesSSparties achieving some

success, even if not major success.” Sierra Club, 463 U.S. at 688. The Court explained, however, that this holding “does not mean that even if a party is unsuccessful in all respects, it still

may recover fees from its opponents.” Id. at 690-91. Plaintiffs, like the respondents in Sierra

Club, are parties that have achieved no success on the merits against the defendant from

which they seek fees, so they are not entitled to the award.

7

The “merits” of a case are the “elements or grounds of a claim or defense;

the substantive consideration to be taken into account in deciding a case.”

BLACK’S LAW DICTIONARY (8th ed. 2004) (“merits”). Plaintiffs’ claim is against

the EPA Administrator for failing to take non-discretionary action. As their first

cause of action, they allege that the EPA “Administrator is in violation of her

non-discretionary duties as set forth in 42 U.S.C. § 7509(c)(1) and § 7511(b)(2).”

As their second, they allege the “Administrator is in violation of his non-discretionary duties as set forth in 42 U.S.C. § 7410(k)(3)” and (2). Accordingly, plaintiffs’ requested relief is a declaration that the Administrator was in violation of

his non-discretionary duties and injunctions requiring him to fulfillthose duties

within thirty days.

The grounds for these claims, and hence the merits of the suit, are the Administrator’s inaction. Any success achieved on these merits does not relate to

the TCEQ. In fact, plaintiffs cannot achieve any success against the TCEQ on

those grounds, because the statutes mandate action only by the Administrator.

Because plaintiffs articulated no cause of action against the TCEQ, they could

not achieve any success on the merits, as required by Sierra Club, to justify an

award of attorneys’ fees.2

For the foregoing reasons, the award of attorneys’ fees is REVERSED.