JUSTICE REHNQUIST delivered the opinion of the Court.
In 1979, following a year of study and public comment, the Environmental Protection Agency (EPA) promulgated standards limiting the emission of sulfur dioxide by coalburning powerplants. Both respondents in this case — the Environmental Defense Fund (EDF) and the Sierra Club — filed petitions for review of the agency's action in the United States Court of Appeals for the District of Columbia Circuit. EDF argued that the standards promulgated by the EPA were tainted by the agency's ex parte contacts with representatives of private industry, while the Sierra Club contended that EPA lacked authority under the Clean Air Act to issue the type of standards that it did. In a lengthy opinion, the Court of Appeals rejected all the claims of both EDF and the Sierra Club. Sierra Club v. Costle, 211 U. S. App. D. C. 336, 657 F.2d 298 (1981).
Notwithstanding their lack of success on the merits, EDF and the Sierra Club filed a request for attorney's fees incurred in the Sierra Club action. They relied on § 307(f) of the Clean Air Act, 91 Stat. 777, 42 U. S. C. § 7607(f) (1976 ed., Supp. V), which permits the award of attorney's fees in certain proceedings "whenever [the court] determines that
The question presented by this case is whether it is "appropriate," within the meaning of § 307(f) of the Clean Air Act, to award attorney's fees to a party that achieved no success on the merits of its claims. We conclude that the language of the section, read in the light of the historic principles of feeshifting in this and other countries, requires the conclusion that some success on the merits be obtained before a party becomes eligible for a fee award under § 307(f).
Section 307(f) provides only that:
It is difficult to draw any meaningful guidance from § 307 (f)'s use of the word "appropriate," which means only "specially suitable: fit, proper." Webster's Third New International Dictionary 106 (1976).
Our basic point of reference is the "American Rule," see Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240,
While the foregoing treatments of fee-shifting differ in many respects, they reflect one consistent, established rule: a successful party need not pay its unsuccessful adversary's fees. The uniform acceptance of this rule reflects, at least in part, intuitive notions of fairness to litigants. Put simply, ordinary conceptions of just returns reject the idea that a party who wrongly charges someone with violations of the law should be able to force that defendant to pay the costs of the wholly unsuccessful suit against it. Before we will conclude Congress abandoned this established principle that a successful party need not pay its unsuccessful adversary's fees — rooted as it is in intuitive notions of fairness and widely mainfested in numerous different contexts — a clear showing that this result was intended is required.
Also relevant in deciding whether to accept the reading of "appropriate" urged by respondents is the fact that § 307(f) affects fee awards against the United States, as well as against private individuals. Except to the extent it has waived its immunity, the Government is immune from claims for attorney's fees, Alyeska, supra, at 267-268, and n. 42. Waivers of immunity must be "construed strictly in favor of the sovereign," McMahon v. United States, 342 U.S. 25, 27 (1951), and not "enlarge[d] . . . beyond what the language requires." Eastern Transportation Co. v. United States,
Given all the foregoing, we fail to find in § 307(f) the requisite indication that Congress meant to abandon historic feeshifting principles and intuitive notions of fairness when it enacted the section. Instead, we believe that the term "appropriate" modifies but does not completely reject the traditional rule that a fee claimant must "prevail" before it may recover attorney's fees. This result is the most reasonable interpretation of congressional intent.
Respondents make relatively little effort to dispute much of the foregoing, devoting their principal attention to the legislative history of § 307(f). Respondents' arguments rest primarily on the following excerpt from the 1977 House Report on § 307(f):
In determining the meaning of the Senate Report's rejection of the "prevailing party" standard it first is necessary to ascertain what this standard was understood to mean. When § 307(f) was enacted, the "prevailing party" standard had been interpreted in a variety of rather narrow ways. See, e. g., Taylor v. Safeway Stores, Inc., 524 F.2d 263, 273 (CA10 1975); Pearson v. Western Electric Co., 542 F.2d 1150 (CA10 1976); Best Medium Publishing Co. v. National Insider, Inc., 385 F.2d 384, 386 (CA7) (the " `prevailing party'
These various interpretations of the "prevailing party" standard provide a ready, and quite sensible, explanation for the Senate Report's discussion of § 307(f). Section 307(f) was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties — parties achieving some success, even if not major success.
This view of the "when appropriate" standard is confirmed by the language of a forerunner of § 307, § 36 of S. 252, 95th Cong., 1st Sess. (1977):
This provision was described, in the legislative history, as follows:
It is clear from the distinction drawn in these two passages that — as the case law discussed above fairly indicated — Congress understood "prevailing party" and "partially prevailing party" as two quite different things, with the former encompassing only a limited category of parties that achieved success in their lawsuits. The "prevailing party" category was thought not to extend to parties who prevailed only in part.
Given this, the House Report's statement that "the court's discretion . . . should [not] be restricted to cases in which the party seeking fees was the `prevailing party,'" H. R. Rep. No. 95-294, p. 337 (1977) (emphasis added), provides little, if any, support for the theory that completely unsuccessful plaintiffs may receive fees. Rather, the sentence, fairly read, means only that fees may be awarded to all parties who prevail in part as well as those who prevail in full: it rejects the restrictive notions of "prevailing party" adopted
This straightforward reading of the House Report finds support in Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (CA1 1973), cited in the Report. There, the court considered whether fees should be denied under § 304(d) "because some issues were decided adversely to petitioners." Id., at 1338. This argument was rejected, primarily because "petitioners were successful in several major respects; they should not be penalized for having also advanced some points of lesser weight." Ibid. (emphasis added). Needless to say, this holding does not mean that even if a party is unsuccessful in all respects, it still may
The foregoing reading of § 307(f) also finds support in other aspects of the legislative history. For example, § 307(f), as enacted, was regarded as narrower than the attorney's fee provision in S. 252, which, as mentioned above, was a forerunner of § 307(f). A section-by-section analysis of S. 252 and § 307(f) stated that the "conference report [setting out the current `when appropriate' standard] contained a narrower House provision" than S. 252. Section-by-Section Analysis, supra n. 10, at 37. Yet, as the quotation, supra, at 689, shows, S. 252 permitted fee awards only to prevailing and partially prevailing parties, and not to completely losing parties. The statement that the current language of § 307(f) is "narrower" than S. 252 strongly suggests that losing parties were not intended to recover fee awards under the section. Moreover, the view that § 307(f) was "narrow" hardly comports with the somewhat radical departure from wellsettled legal principles urged by respondents.
In addition, the relation between §§ 304(d) and 307(f) is instructive. Like § 307(f), § 304(d) provides that a court may award fees when "appropriate." Importantly, however, suits may be brought under § 304 against private parties alleged to be in violation of the requirements of the Clean Air Act. It is clear, as explained below, that, whatever general standard may apply under § 307(f), a similar standard applies under § 304(d). In Northcross v. Memphis Bd. of Ed., 412 U.S. 427 (1973), we held that similar attorney's fee provisions should be interpreted pari passu, and read the "prevailing party" standard in 20 U. S. C. § 1617 as identical to that in 42 U. S. C. § 2000a-3(b). In Hensley, 461 U. S., at 433, n. 7, we held that "the standards set forth . . . are
Given the foregoing, respondents' argument that fee awards are available even to unsuccessful plaintiffs encounters yet further difficulties. Section 304 suits may be brought against private businesses by any private citizen. Such suits frequently involve novel legal theories, theories that the EPA has rejected. After protracted litigation requiring payment of expensive legal fees and associated costs in both money and manpower, the private defendant may well succeed in refuting each charge against it — proving it was in complete compliance with every detail of the Clean Air Act. Yet, under respondents' view of the Act, the defendant's reward could be a second lawyer's bill — this one payable to those who wrongly accused it of violating the law. We simply do not believe that Congress would have intended such a result without clearly saying so.
Finally, as shown in the margin,
We conclude, therefore, that the language and legislative history of § 307(f) do not support respondents' argument that the section was intended as a radical departure from established principles requiring that a fee claimant attain some success on the merits before it may receive an award of fees. Instead, we are persuaded that if Congress intended such a
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.
Even though the Court may regard the practice as "novel, costly, and intuitively unsatisfying," ante, at 687, n. 8, it is not at all unusual for a government to pay an unsuccessful adversary's counsel fees; indeed, in the largest category of litigation in which governments engage — criminal litigation — they do so routinely.
The Court gives a one-dimensional description of the role played by respondents, Sierra Club and the Environmental Defense Fund, in the Sierra Club v. Costle, 211 U. S. App. D. C. 336, 657 F.2d 298 (1981), litigation: they failed to obtain any of the relief they requested. It is necessary to examine this uniquely important and complex litigation more thoroughly in order to illuminate the other considerations that are relevant to an award of attorney's fees under § 307(f) of the Clean Air Act.
The millions of tons of sulfur dioxide emitted by coal-burning powerplants constitute a major source of air pollution in the United States. One method of reducing sulfur dioxide emissions is to install flue gas desulfurization equipment; another is to burn coal with lower sulfur content. In 1977 Congress amended the section of the Clean Air Act governing emission standards for newly built or modified stationary pollution sources, including powerplants. These amendments raised significant questions regarding the pollution control methods that would be required in new powerplants and the levels of sulfur dioxide emissions that would result across the Nation. Section 111, as amended, required EPA to establish standards setting an emission ceiling for each category of new sources and also requiring each such plant to achieve a "percentage reduction" in the emissions that would have resulted from the use of untreated fuels.
The provisions of EPA's sulfur dioxide standard were interrelated. The Clean Air Act requires EPA to engage in a balancing of factors: "a standard of performance shall reflect the degree of emission limitation and the percentage reduction achievable through application of the best technological system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated." 42 U. S. C. § 7411(a)(1)(C) (1976 ed., Supp. V). Thus, in the rulemaking proceeding, EPA considered various projections of the aggregate costs and nationwide levels of sulfur dioxide emissions that would result from different combinations of requirements. Its evaluation of various proposed standards relied on its understanding of the state of available technology, the likelihood of future technological improvements, and the availability of various types of coal with differing sulfur content.
A number of parties filed petitions for review of the EPA's action in the United States Court of Appeals for the District of Columbia Circuit. As the Court of Appeals wrote: "On
These complex, interrelated contentions presented the Court of Appeals with an immense judicial task.
The Court of Appeals rejected the petitions for review filed by the respondents in this case, the Sierra Club and the Environmental Defense Fund, although not entirely for the reasons stated by EPA; it also rejected the contentions of the utilities. The opinion, 256 pages in printed slip opinion form and 132 pages in the Federal Reporter, ended with "a short conclusion: the rule is reasonable." 211 U. S. App. D. C., at 448, 657 F. 2d, at 410.
After further proceedings, the Court of Appeals unanimously decided that it was appropriate to award attorney's fees to both respondents.
Sierra Club, the court noted, was the only party to brief and advocate opposition to a variable standard, an issue conceded by EPA to be critically important. Had this issue not been debated, moreover, the outcome of other related issues in the case — including the appropriateness of the 1.2 pounds/ MBtu standard and the technological feasibility of the 90% reduction requirement — might have been affected. The court expressly stated: "[T]he argument pressed most intensely by the utilities, that a 90% reduction in sulfur emissions was technologically infeasible given the state of antipollution technology, would have been far less completely aired without Sierra Club's participation. The various parts of a complex rule like this one do not travel alone, and the court's education on each part of the rule informed its decisions on other parts." Id., at 188, 672 F. 2d, at 41.
The Court of Appeals explained that, even though respondents were not "prevailing parties," either in whole or in part,
The then EPA Administrator disputed the amount of the fee award in the Court of Appeals, but petitioner does not contest its reasonableness before this Court. Petitioner also apparently does not assert that, if it is ever appropriate to award fees to a losing party, the Court of Appeals improperly exercised its discretion to make an award in this case.
The language of § 307(f) is straightforward. It provides:
The challenge to the sulfur dioxide emission standard in the Court of Appeals was unquestionably a "judicial proceeding under" § 307. That court explained the reasons why it believed that an award was appropriate in this case. It therefore complied with the plain language of the statute.
As the Court of Appeals correctly observed, the language of § 307(f) differs crucially from the wording of many other federal statutes authorizing the court to award attorney's fees and costs.
Nevertheless the Court today asserts that a statute which does not refer to "prevailing parties" actually does refer to "prevailing parties." It does so by invoking the "American Rule" that losing parties do not pay the attorney's fees of their successful opponents, and by asserting that "virtually every one of the more than 150 existing federal fee-shifting provisions predicates fee awards on some success by the claimant." Ante, at 684. Factually, as the Court's own opinion makes clear, this is something of an overstatement. After all, the Court notes that 16 federal statutes and § 304(d) of the Clean Air Act contain provisions for awards of attorney's fees identical to § 307(f). Ante, at 682-683, n. 1. Logically
The legislative history, like the text of the statute, supports the conclusion that Congress intended to allow attorney's fees not only to prevailing parties but also, in appropriate circumstances, to nonprevailing parties. In 1977, when § 307(f) was added to the Clean Air Act, the Senate Committee considered, but did not adopt, a provision that would have required the Court of Appeals to award fees to any "party other than the United States which prevails in such action" and would have given it discretion to award fees to a party "[i]n any case in which such party prevails in part."
In the NRDC case the party receiving the fee award had prevailed on some issues. The court noted that even those challenges that were "not sustained, were mainly constructive and reasonable." Ibid.
Unpersuaded by the statutory language and legislative history, the Court relies heavily on two other propositions. First, it notes, the doctrine of sovereign immunity requires that any statute authorizing the payment of fees and costs by the United States must be strictly construed. Ante, at 685-686. But this general statement does little to support the Court's position in this case. Congress clearly intended to authorize fees in certain circumstances, see n. 16, supra, and left it to the courts to ascertain which cases would be "appropriate."
As originally proposed in 1970, § 304(d) provided for attorney's fee awards "whenever the court determines such action is in the public interest."
It by no means follows, however, that Congress intended, by using the word "appropriate," to assure only that successful parties in these two situations would be eligible for fees.
When the 1977 Act was passed, Congress made clear that the courts had the power to award fees and costs in actions brought in the courts of appeals under § 307 as well as those filed in district courts under § 304.
The majority's position is simple but illogical: Congress in 1977 used the term "whenever [the court of appeals] determines that such an award is appropriate" to mean when the plaintiff is a "prevailing party" or "partially prevailing party." Ante, at 689. It would have been much simpler for Congress to use the language "prevailing party" and "partially prevailing party" if that is precisely what it meant. Instead, it expressly rejected such language,
Accordingly, I cannot agree with the Court's interpretation of the statutory language. Congress decided that in exceptional circumstances it might be "appropriate" to award attorney's fees to nonprevailing parties. Of course, as the Court of Appeals recognized, it would be unreasonable to presume, against the background of attorney's fees statutes generally, that Congress intended fees to be awarded to every nonprevailing party who has litigated a nonfrivolous challenge to an EPA regulation. See 217 U. S. App. D. C., at 183, n. 4, 185, 189, n. 10, 672 F. 2d, at 36, n. 4, 38, 42,
As the Court of Appeals recognized in this case, § 307(f) requires the court to consider the importance, novelty, and complexity of the issues raised by the party seeking fees and costs. A fee award might well be inappropriate if the party had challenged an agency decision of narrow applicability,
Regardless of our views about the wisdom of the choice Congress made, we have a plain duty to accept it. TVA v.
I therefore respectfully dissent.
"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." S. Rep. No. 91-1196, p. 38 (emphasis added).
The approval of fee awards in "legitimate" actions offers respondents little comfort: "legitimate" means "being exactly as proposed: neither spurious nor false," which does not describe respondents' claims in this case. Respondents contend, however, that Congress intended the term "appropriate" to encompass situations beyond those mentioned in the legislative history, and, therefore, that the term reaches even totally unsuccessful actions. This is, of course, possible, but not likely. Congress found it necessary to explicitly state that the term appropriate "extended" to suits that forced defendants to abandon illegal conduct, although without a formal court order; this was no doubt viewed as a somewhat expansive innovation, since, under then-controlling law, see infra, some courts awarded fees only to parties formally prevailing in court. We are unpersuaded by the argument that this same Congress was so sure that "appropriate" also would extend to the far more novel, costly, and intuitively unsatisfying result of awarding fees to unsuccessful parties that it did not bother to mention the fact. If Congress had intended the far-reaching result urged by respondents, it plainly would have said so, as is demonstrated by Congress' careful statement that a less sweeping innovation was adopted.
The principal response to these concerns was as follows:
"The Senator from Nebraska raised the question of possible harassing suits by citizens. This the committee attempted to discourage by providing that the costs of litigation — including counsel fees — may be awarded by the courts to the defendants in such cases, so that the citizen who brings a harassing suit is subject not only to the loss of his own costs of litigation, but to the burden of bearing the costs of the parties against whom he has brought the suit in the first instance. I doubt very much that individual citizens would lightly engage this possibility." Id., at 280.
This point was repeated in the Senate Report:
"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. 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." S. Rep. No. 91-1196, p. 38 (1970).
"We reach our decision after interminable record searching (and considerable soul searching). We have read the record with as hard a look as mortal judges can probably give its thousands of pages. We have adopted a simple and straight-forward standard of review, probed the agency's rationale, studied its references (and those of appellants), endeavored to understand them where they were intelligible (parts were simply impenetrable), and on close questions given the agency the benefit of the doubt out of deference for the terrible complexity of its job." 211 U. S. App. D. C., at 448, 657 F. 2d, at 410.
In similar fashion, the Environmental Defense Fund played a critical role in informing the court's deliberations on a substantial issue — alleged ex parte contacts in the rulemaking process. EDF's substantial contribution included factual research, legal analysis, and the disclosure of Government documents without which, according to the court, "our deliberations would have been less enriched and more time consuming." 217 U. S. App. D. C., at 188, 672 F. 2d, at 41.
For statutes limiting fees to "substantially prevailing" parties, see, e. g., 5 U. S. C. § 552(a)(4)(E) (Freedom of Information Act) ("The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed"); 5 U. S. C. §§ 552a(g)(2)(B), 552a(g)(3)(B) (Privacy Act); 5 U. S. C. § 552b(i) (Government in the Sunshine Act).
For statutes requiring that a party be successful, see 12 U. S. C. § 2607(d)(2) (Real Estate Settlement Procedures Act) ("In any successful action to enforce the liability under this paragraph, the court may award the court costs of the action together with a reasonable attorney's fee as determined by the court"); 12 U. S. C. § 3417(a)(4) (1982 ed.) (Right to Financial Privacy Act); 15 U. S. C. § 298(c) (Jewelers' Liability Act) (any jewelry trade association may sue "and if successful shall recover the cost of suit, including a reasonable attorney's fee").
The Clean Air Act Amendments passed by the Senate the previous year, S. 3219, had similarly required an award of fees for prevailing parties and further provided that, in any case "in which such party prevails in part, the court shall have discretion to award such reasonable costs." S. 3219, § 35, 94th Cong., 2d Sess. (1976), 6 1977 Leg. Hist., at 4689. At conference, however, the House version — providing for an award of fees in "appropriate" cases — was adopted. H. R. Conf. Rep. No. 94-1742, pp. 115-116 (1976), 5 1977 Leg. Hist., at 4400-4401; id., at 6071 (text of conference bill, H. R. 10498). The conference bill was not enacted by Congress in 1976, but the 1976 legislative history buttresses the conclusion that Congress consciously chose the "appropriate" standard rather than the "prevailing party" standard when it enacted amendments to the Clean Air Act a year later.
The majority places considerable weight on the statement made in a Staff Report that language actually adopted in § 307(f) was "narrower" than the rejected formulation. Ante, at 691. If the Staff Report was actually referring to § 307(f), its view would be inconsistent with the position of the House Committee, surely a more reliable source of congressional intent. But in fact, I think the majority misinterprets the Staff Report, which stated:
"The conference report [§ 307(f)] contained a narrower House provision. It authorized but did not require, courts to award reasonable attorneys fees to any party against whom EPA acted unreasonably in initiating an enforcement action. The award of attorneys fees was also authorized in judicial review proceedings brought under section 307 of the Clean Air Act." Section-by-Section Analysis of S. 252 and S. 253, Prepared by the Staff of the Subcommittee on Environmental Pollution of the Committee on Environment and Public Works, Ser. No. 95-1, p. 37 (Comm. Print 1977), 5 1977 Leg. Hist., at 3893.
The "narrower House provision" seems to be the provision for awarding fees to the targets of unreasonable EPA enforcement actions. This section was codified as part of § 113(b), 42 U. S. C. § 7413(b) (1976 ed., Supp. V) — not as part of § 307(f). See 5 1977 Leg. Hist., at 4354.
"The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."
"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." S. Rep. No. 91-1196, p. 38 (1970).
The majority suggests, however, that Congress decided not to adopt the "prevailing party" standard because it was aware of cases denying "prevailing party" status unless the plaintiff had prevailed "as to a substantial part of the litigation" or had succeeded on the "central issue." Ante, at 688. But the House Report's citation of Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (CA1 1973), casts doubt on that contention.