Full opinion text
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. These we are to measure by the Clean Air Act’s generous provision on allowance thereof. Doing so, we conclude that, with sizeable exceptions hereinafter noted, these requests should be granted. I. STATUTORY AUTHORIZATION Section 307(f) of the Act empowers us to award costs and reasonable attorneys’ fees “whenever ... appropriate.” 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, the court had occasion to explain the Act’s concept of appropriateness, and in two opinions today the court adds importantly to the delineation. Sierra Club v. Gorsuch deals directly with Section 307(f), which governs this case; Environmental Defense Fund v. Environmental Protection Agency treats Section 19(d) of the Toxic Substances Control Act, 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. With that, we proceed to apply to the facts at hand the principles our precedents announce. II. ATTORNEYS’ FEES 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, 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. 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. 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. We therefore allow them, 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. We encounter little difficulty in granting Sierra attorneys’ fees for their activities as petitioners, nor in awarding the sum Sierra seeks principally for time spent in preparing materials supporting its request for such fees. 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.” 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. B. The District of Columbia 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. 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. 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, we perceive no reason for refusing a fee allowance here. 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. The simple answer is that the time limit referred to does not apply to motions for attorneys’ fees. 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 Copeland 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, 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. We discern none ourselves, and accordingly we approve attorneys’ fees in the District’s favor against EPA. III. COURT COSTS 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. The industry parties’ problem, however, is more complicated. They seek a recovery solely on the basis of the general costs statute and Appellate Rule 39(a). 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, 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. 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, and for the outlay for transcripts of the oral argument in this court. 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. 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, entitled to be fully recompensed for its costs. An order will be entered to effectuate the rulings set forth herein. OUTLINE OP 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-frlvolous" 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. Environmentalist briefs duplicative oftheEPA’s___________________ 29 2. Other issues___________________ 31 IV. CONCLUSION ....................... 32 APPENDIX to dissent_______________________ 32 . 196 U.S.App.D.C. 161, 606 F.2d 1068 (1979). . Clean Air Act § 307(f), 42 U.S.C. § 7607(f) (Supp. III 1979). . “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.” Id. . 205 U.S.App.D.C. 280, 639 F.2d 802 (1981). . Id. at 282-283, 639 F.2d at 804-805. Although the opinion discusses § 307(f) of the Act, 42 U.S.C. § 7607(f) (Supp. III 1979), the basis of decision more properly was the comparably-worded § 304(d), 42 U.S.C. § 7604(d) (Supp. III 1979). . 672 F.2d 33 (D.C.Cir. 1982). . 672 F.2d 42 (D.C.Cir. 1982). . 15 U.S.C. § 2618(d) (1976). . Metropolitan Washington Coalition for Clean Air v. District of Columbia, supra note 4, 205 U.S.App.D.C. at 281-282, 639 F.2d at 803-804; Sierra Club v. Gorsuch, supra note 6, at 34-39; EDF v. EPA, supra note 7, at 47-50 (interpreting comparable provisions of the Toxic Substances Control Act). . In their original motion for allowance of fees, Sierra sought $26,724 and EDF $5,880 for attorneys’ time. In a supplemental motion, Sierra requested an additional $2,364 therefor, resulting in the totals reported in text. These motions also enumerated attorneys’ expense items, one of which — the docketing fee in this court — is a court cost, and is later dealt with as such. See note 30 infra. We note that, unlike the situation in EDF v. EPA, supra note 7, Sierra and EDF did not calculate a lodestar figure from prevailing attorney rates, to which adjustments for special case-related considerations might be made. We utilized that approach in a Title VII context in Copeland v. Marshall, 205 U.S.App.D.C. 390, 641 F.2d 880 (en banc) (1980), and its application to an environmental statute’s attomeys’fee provision was our principal task in EDF v. EPA, supra note 7, at 51-61. Since the fee-claimants do not invoke that methodology here, we do not resort to it. . The environmental groups have addressed this point only briefly, and in conclusory rather than analytical fashion. Motion for Allowance of Counsel Fees at 5 (filed Apr. 18, 1980); Reply of Environmental Petitioners to Department of Justice Position on Petitioners’ Request for Attorneys’ Fees and Costs at 7-8 (filed Apr. 18, 1980); Reply to Department of Justice Position on Sierra Club’s Supplemental Motion for Attorneys’ Fees and Costs at 3 (filed Jan. 17, 1980). . This ruling pertains to requests by Sierra for $3,357.60 and by EDF for $1,920 for intervention briefs, and by Sierra for $528 — one third of the total claim for its brief in response to motions for reconsideration, see text infra at note 13 — the amount that we attribute to its work on the question of which pollutants could be regulated under the “prevention of significant deterioration” provision. . Respondents’ Response to Sierra Club’s Supplemental Motion for Allowance of Counsel Fees and Other Costs at 2 (filed Jan. 15, 1980). . The allowance is $528, see note 12 supra, for the portion of the brief devoted to the “modification” issue. . The amount approved is $528. See notes 12, 14 supra. . The amounts are $23,366.40 for Sierra and $3,960 for EDF. 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. Had it been that substantial questions of interpretation or administration of the Act were intermingled with questions demanding only mundane application of established law, we might find it necessary to address in more detail whether specific issues were of a kind justifying an allowance of fees. See Sierra Club v. Gorsuch, supra note 6, at 39-41. . The amount claimed is $780. . Metropolitan Washington Coalition for Clean Air v. District of Columbia, supra note 4, 205 U.S.App.D.C. at 282, 639 F.2d at 804. We have no doubt that the issue was advanced in earnest, and that, had it remained in the case, its resolution would have contributed importantly to administration of the Act. What we hold, then, is that we will not use hindsight to deny an otherwise appropriate recovery simply because a substantial issue, originally raised in good faith, is later withdrawn as a matter of legitimate litigation strategy. . This award is for $359.81, which includes $181.05 in postage for briefs, the amount claimed by Sierra less what it spent for mailing of the intervenor brief; $117.26 in reproduction and postage costs for motions and miscellaneous filings, the amount requested by Sierra less one-third of the costs associated with its brief in response to the motions for reconsideration; and $61.50 for travel and meals, the full amount Sierra asks for. . Supra note 10. The District also relies heavily on Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974). The District’s use of the Copeland methodology is in contrast to the approach used by the environmental groups.. See note 10 supra. . In providing for recovery of costs and attorneys’ fees, Congress indicated an intent to “encourage litigation which will assure proper implementation and administration of the act. or otherwise serve the public interest.” H.R.Rep. No.294, 95th Cong., 1st Sess. 337 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1077, 1416. When a “non-pro-environment” entity resolves disputed issues through litigation, its accomplishment has as much potential for realizing these goals as when a “pro-environment” entity does so. . See note 33 infra and accompanying text. . In pursuing what it perceived to be the appropriate balance between the diverse interests of its citizens, the District sought a reading of the Act’s provision that may allow for greater economic development within the District’s geographic boundaries. This important and generalized governmental interest is not a disqualifying factor under § 307(f). . See Fed.R.App.P. 39. . EDF v. EPA, supra note 7, at 61. . Copeland v. Marshall, supra note 10. . EDF v. EPA, supra note 7, at 52. . The two arguments urged by EPA are that any upward adjustment would constitute “enrichment” beyond verifiable costs, and that award of such a “bonus” is particularly inappropriate in the case of a governmental body with broad-based revenue-raising potential. The first of these contentions fails because it mistakenly perceives the Copeland methodology’s adjustments to the lodestar as a reward over and above what the attorney truly deserves in compensation. In truth and in essence, a lodestar adjustment is an attempt to calculate more precisely the market value of the services provided by the attorney. EPA’s second argument is simply irrelevant. EPA’s theory is bottomed on the notion that a local government will not be deterred by cost because it can always replenish its finances by increasing taxes. The fact that a governmental entity can raise funds through its taxing power does not make any less applicable to it the considerations that prompted Congress to authorize awards of attorneys’ fees. . The amount of the award therefor is $7,348.13, the base amount sought by the District plus 25% because of delayed receipt of payment. The District requested an unspecified upward adjustment premised on other considerations, but our review — in light of EDF v. EPA, supra note 7, at 51-61—convinces us that an adjustment in this amount and on this basis is the appropriate disposition. It is warranted because “of the value of the use of the money” during the pendency of judicial proceedings. Copeland v. Marshall, supra note 10, 205 U.S.App.D.C. at 403, 641 F.2d at 893. . See note 3 supra. The bill of costs submitted by the environmental groups contains no claim pertaining to any item for which we have disallowed attorneys’ fees. Accordingly, we approve in full the amount requested therein plus the appellate docket fee of $50, which should have been included as an item of costs rather than attorneys’ fees, see note 10 supra, and thus award Sierra Club and EDF costs against EPA in the amount of $2,712.81. . 28 U.S.C. § 2412 (1976). . Fed.R.App.P. 39(a). . The clearest expression of congressional purpose in enacting statutes of this type is found in the legislative history of § 19(d) of the Toxic Substances Control Act, 15 U.S.C. § 2618(d) (1976)—which, as we earlier noted, uses the same “appropriate” standard as the provision of the Clean Air Act that controls this case. See text supra at note 8. During debate on the final version of § 19(d), Senator Magnuson, the ranking Senate Manager on the Conference Committee, stated: It is not the intention of these provisions to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding.... It is not intended that the provisions support participation of persons, including corporations or trade associations, that could otherwise afford to participate.... Whether or not the person’s resources are sufficient to enable participation would include consideration of ... the likelihood that the person would seek to participate in the proceeding whether or not compensation was available. 122 Cong.Rec. 32,855 (1976) (remarks of Senator Magnuson). . Dupree v. Jefferson, 215 U.S.App.D.C. 43, 47 n.24, 666 F.2d 606, 610 n.24 (1981), (assertion made at oral argument, but rationale not provided either in briefs or at argument; court therefore declined to address question); Miller v. Avirom, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967) (“points not asserted with sufflcierit precision to indicate distinctly the party’s thesis” normally not considered); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 692 (4th Cir. 1978) (when parties did not address an issue, court would not “select from the mass of authority on the subject arguments which might support the position which the notices of appeal suggest would have been advantageous to the plaintiffs”); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981) (court will not decide a claim mentioned in brief but the merits of which were never addressed); Markowitz & Co. v. Toledo Metropolitan Hous. Auth., 608 F.2d 699, 707-708 (6th Cir. 1979) (court declined to decide issue apparent to it but not addressed by the parties); United States v. White, 454 F.2d 435, 439 (7th Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972) (where issue has not been properly briefed as required by Fed.R.App.P. 28(a)(4), it is particularly appropriate to deem it waived where the court has “not been presented with sufficient information or argument to allow an intelligent disposition of [the] issue”); United States v. John Bernard Indus., Inc., 589 F.2d 1353, 1362 n.5 (8th Cir. 1979) (court will not decide issue raised in brief but as to which no authority is cited and no argument made); Pedicord v. Swenson, 431 F.2d 92, 93 (8th Cir. 1970) (“[questions not raised, briefed or argued will ordinarily be given no consideration by an appellate court”); Northwest Airlines, Inc. v. Air Line Pilots Ass’n, Int'l, 373 F.2d 136, 141 n.1 (8th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 77, 19 L.Ed.2d 83 (1967) (court declined to decide issue apparent to it but not addressed by the parties); Harman v. Diversified Medical Inv. Corp., 524 F.2d 361, 365 (10th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976) (court deemed issue inappropriate for review because of absence of legal authorities cited in support of conclusory argument and lack of factual basis in record). . The allowance for this item is $458.84. . The allowance for this item is $600.70. . Respondent’s Response to Petitioners’ Bill of Costs at 3 (filed May 19, 1980). Lead counsel for the industry petitioners has assumed responsibility for distributing the shares of individual industry petitioners. Bill of Costs of Alabama Power Co. et al., Enclosure 2 at 1 (filed May 8, 1980). . 28 U.S.C. § 2412 (1976). . Although some of these awards include costs for what might otherwise be considered an excessive number of copies of briefs, the number seems justified by the multiplicity of parties in the cases. . We thus award it costs in the amount of $734.43 against EPA.
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. Gorsuch —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. I. OVERVIEW We have before us certain applications for fees and costs associated with the litigation culminating in Alabama Power Co. v. Costle. 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 significant deterioration 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. 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.” 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, 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” A. Applicable Statutes 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. This earlier statute was part of the 1970 Amendments to the Clean Air Act. 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 language 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. The Supreme Court, in Alyeska Pipeline Service Co. v. Wilderness Society, limited the opportunity to obtain public interest fees in the federal courts almost entirely to those situations where there was specific statutory authority. 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 ....” Costs are generally awarded to the party prevailing on appeal. 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. 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. B. Legislative History In its Report 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.” 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. 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 endorsed 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. 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.” 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.” 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). In 1970 the House bill did not include a provision for citizen’s suits. In the Senate Report, 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. 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.” 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.” Finally, the 1970 Conference Report stated simply that “[discretionary authority was provided to the court to grant reasonable attorney and expert witness fees.” 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. C. Analysis The statutes and legislative histories raise more questions than they answer about the definition of “appropriate.” 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, 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.” 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, 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’.” 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 . ...” 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’.” The 1977 Senate Report said simply that “a court may, in its discretion, award costs of litigation to a party bringing a [§ 7607] suit” 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” 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.” Still, it is also possible that if prevailing were not required, at least “not losing" was 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. Similarly, Natural Resources Defense Council, Inc. v. EPA endorsed at least in part by the 1977 House Report, 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.” 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, also decided today and relied upon by the majority, a number 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 eontribute[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. 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. 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: [Congressional 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. 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. 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. 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 one other gauge that was mentioned in the legislative history, though only briefly, is the “public interest.” Yet we can hardly embrace this “standard.” It was, significantly, expressly struck from the statute in 1970. 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. 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; 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. 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” — by exploring a previously uncharted legal issue. 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. 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. 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? 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. 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 III 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. Professor Black is echoing a sentiment expressed repeatedly by the Supreme Court in the course of American jurisprudence. 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. 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, 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.’ ” 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 ....” 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. 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 ....’” 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.” Justice Douglas then discussed the pitfalls of such broad delegation, citing A.L.A. Schecter Poultry Corp. v. United States and J. W. Hampton, Jr., & Co. v. United States. 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. 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 exclus