The Clean Air Act contemplates that the federal government, the states, and private citizens will each implement or enforce the Act in different ways. The Act requires the Administrator to determine which emissions into the air are pollutants, and to establish the minimum acceptable level in the air of any particular pollutant. 42 U.S.C. §§ 7408-7409. The Act leaves to each state the drafting of a "state implementation plan" (SIP) to provide for the implementation, maintenance, and enforcement of the air quality standards set by the Administrator. The SIP must provide "necessary assurances that the State will have adequate personnel, funding, and authority to carry out [the] implementation plan." 42 U.S.C. § 7410(a) (2) (F) (i).
Once a SIP goes into effect, the Act provides three different mechanisms for the SIP's enforcement. States may sue violators pursuant to state or federal law. The Administrator may also sue a violator, after giving thirty days notice to the state in which the polluter is located. 42 U.S.C. § 7413(a) (1). And, because Congress recognized that federal or state enforcement of the Act might be insufficient, the Act also provides for citizen suits. Congress hoped that providing citizens with a liberal right of action would "stir slumbering agencies and . . . circumvent bureaucratic inaction that interferes with the scheduled satisfaction of the federal air quality goals." Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir. 1976).
While Congress sought to encourage citizen suits, citizen suits were specifically intended to provide only "supplemental . . . assurance that the Act would be implemented and enforced." Natural Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 700 (D.C. Cir. 1974). Congress made "particular efforts to draft a provision that would not reduce the effectiveness of administrative enforcement, . . . nor cause abuse of the courts while at the same time still preserving the right of citizens to such enforcement of the act." Senate Debate on S. 3375, March 10, 1970, reprinted in Environmental Policy Division of the Congressional Research Service, A Legislative History of the Clean Air Amendments of 1970, Vol. I. at 387 (1974) (remarks of Senator Cooper). Specificallly, the Act requires that sixty days before filing a citizen suit, plaintiffs give notice of the violation at issue to the Administrator; to the state in which the violation occurs; and to any alleged violator of the standard, limitation, or order. 42 U.S.C. § 7604(b) (1) (A). The purpose of the notice provision is to allow the Administrator and other officials to rectify inaction, and thus obviate the need for judicial recourse. NRDC v. Train, 510 F.2d at 703.
If, however, the Administrator and the state do not themselves bring suit during the sixty-day notice period, citizens may bring suit without joining the Administrator and state as necessary parties. See Metropolitan Washington Coalition v. District of Columbia, 167 U.S. App. D.C. 243, 511 F.2d 809, 814-815 (D.C. Cir. 1975). While courts welcome participation in Clean Air Act suits of governmental units with both enforcement responsibility and expertise, Congress intended the courts to enforce mandated air quality plans irrespective of the failings of agency participation. Friends of the Earth v. Carey, 535 F.2d at 173.
The Act contemplates that each of the three mechanisms for the Act's enforcement will be triggered by a different incentive. The Administrator is required by statute to enforce the Act. He is subject to direction of the President and the Congress.
The states are mandated to develop their own SIPs and to ensure that enforcement resources are adequate for carrying out their SIPs. The enforcement plans of all but a few states
include provisions for imposing fines upon violators. See, e.g., D.C. Code § 6-902(a) (5). The Administrator or private citizens may bring actions pursuant to the SIP after the requisite notice period. Consequently, states are motivated to enforce pollution control regulations because states design the SIPs promulgating those regulations and allocate resources and recover fines for their enforcement, and because states often prefer state to federal or private enforcement.
Private citizens are not motivated by the same political and statutory considerations which influence federal and state action. Moreover, since private plaintiffs frequently face a certainty of attorneys' fees far higher than any personal gain they reap if victorious, private citizens are often reluctant to bring suit without the possibility of a fee recovery. Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331, 1337 (1st Cir. 1973). Consequently, the citizen suit section contains an attorneys' fees provision to encourage citizens to bring meritorious actions by allocating equitably the costs of litigation. Id. at 1337-1338.
Award of attorneys' fees in this case would not further the policy of the Clean Air Act. First, the Act's legislative scheme prefers governmental enforcement in the first instance to private enforcement via citizen suits. An award in this case would frustrate that scheme by rewarding the District for relaxing its own enforcement efforts until citizens forced it to action.
Second, the attorneys' fees provision is designed to remedy lax governmental enforcement by ensuring enforcement by citizens with otherwise little incentive to litigate. Arguably, the availability of attorneys' fees to governmental entities originally named as defendants would encourage those entities to assist citizens' enforcement efforts by moving for realignment rather than seeking dismissal. But states' interests in the issues presented by citizens' lawsuits are often so strong that states do not need the extra incentive of attorneys' fees. Even if states need extra encouragement, the statutory scheme does not place sufficiently high priority on governmental participation once a citizen suit is filed to justify an award for mere governmental participation in the suit.
Finally, while in some instances the governmental entity's post-realignment contribution to effectuation of the Clean Air Act's goals might be significant enough to overcome the presumption against rewarding initial inaction, that is not the case here. When a governmental entity successfully enforces a statutory provision it is charged to enforce, such as the Voting Rights Act, citizen intervenors are awarded attorneys' fees only if the governmental litigant did not adequately represent the intervenors' interests, if the intervenors proposed different theories and arguments for the court's consideration, if the work the intervenor performed was of important value to the court, Donnell v. United States, 682 F.2d 240, slip op. at 18 (D.C. Cir. June 25, 1982), and if the result obtained in settlement reflects the position espoused by the intervenors rather than the government. Commissioners Court of Medina County, Texas v. United States, 683 F.2d 435, slip op. at 13 (D.C. Cir. 1982). Even if the standard for an intervenor's contribution is lower for governmental parties under the Clean Air Act than for citizen-intervenors under the Voting Rights Act, consideration of the criteria described above shows that the District's contribution in this case was not sufficiently substantial to warrant an award of attorneys' fees.
An award of costs of litigation including reasonable attorneys' fees to the District in this case is inappropriate. The District's request for an award of costs of litigation is DENIED.
Upon consideration of the motion of the District of Columbia for an award of the costs of litigation, together with the memorandum of points and authorities and exhibits filed in support thereof, and in opposition thereto, it is
ORDERED that the motion of the District of Columbia for an award of the costs of litigation be, and the same hereby is, DENIED.