Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2003 Decided March 18, 2003
No. 00-1262
SIERRA CLUB AND
NEW YORK PUBLIC INTEREST RESEARCH GROUP,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND
CHRISTINE TODD WHITMAN, ADMINISTRATOR,
U.S. ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
On Petitioners’ Motion for Attorney’s Fees
David S. Baron argued the cause and filed the briefs for
petitioners.
David J. Kaplan, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Jan M. Tierney, Attorney, U.S. Environmental Protection
Agency.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The Clean Air Act authorizes an
award of attorney’s fees ‘‘whenever [the court] determines
that such award is appropriate.’’ In this case, organizations
that settled their Clean Air Act suit against the Environmen-
tal Protection Agency prior to adjudication on the merits
move for an award of fees. The EPA opposes the motion,
arguing that only parties who obtain court-awarded relief
may recover fees. Applying relevant Supreme Court prece-
dent, we hold that the Clean Air Act, unlike statutes that
authorize fee awards only to ‘‘prevailing part[ies],’’ permits
awards to so-called catalysts—parties who obtain, through
settlement or otherwise, substantial relief prior to adjudica-
tion on the merits. Because we find an award of fees
‘‘appropriate’’ under the circumstances of this case, we grant
the motion.
I.
Title V of the 1990 Amendments to the Clean Air Act, 42
U.S.C. §§ 7661–7661f, establishes procedures through which
the Environmental Protection Agency may authorize states
and localities to issue stationary air pollution source operating
permits. See generally Appalachian Power Co. v. EPA, 208
F.3d 1015, 1017 (D.C. Cir. 2000). Governors must submit
proposals for state or locally administered permit programs
‘‘[n]ot later than 3 years after November 15, 1990,’’ and the
EPA must ‘‘approve or disapprove’’ the proposed programs
within one year of receipt. 42 U.S.C. § 7661a(d)(1); see also
40 C.F.R. § 70.2 (specifying that ‘‘State means any non-
Federal permitting authority, including any local agency’’).
If a program ‘‘substantially meets the requirements [for
approval], TTT but is not fully approvable,’’ the EPA may
‘‘grant the program interim approval,’’ which ‘‘shall expire TTT
not later than 2 years after such approval, and may not be
renewed.’’ 42 U.S.C. § 7661a(g). If a state fails to meet
Title V deadlines for obtaining program approval, however,
3
the EPA must itself ‘‘promulgate, administer, and enforce a
program TTT for that State.’’ Id. § 7661a(d)(3), (g), (i)(4).
In 1992, the EPA promulgated 40 C.F.R. § 70.4(d)(2),
which provided—in language virtually identical to Title V’s—
that ‘‘[i]nterim approval shall expire on a date set by the
Administrator (but not later than 2 years after such approv-
al), and may not be renewed.’’ Four years later, in 1996, the
EPA issued a rule that (1) appended a second sentence to 40
C.F.R. § 70.4(d)(2) providing that ‘‘[n]otwithstanding the pre-
vious sentence, the Administrator may, through rulemaking,
provide for a longer period of time on an individual basis, but
only once per State’’ and (2) extended most existing interim
approvals by ten months. Operating Permits Program Inter-
im Approval Extensions, 61 Fed. Reg. 56,368, 56,368, 56,370
(Oct. 31, 1996). Twice again, in 1997 and 1998, the EPA
extended existing interim approvals. Extension of Operating
Permits Program Interim Approvals, 62 Fed. Reg. 45,732
(Aug. 29, 1997); Extension of Operating Permits Program
Interim Approval Expiration Dates, 63 Fed. Reg. 40,054 (July
27, 1998). Neither rule, however, cited any statutory or
regulatory authority for the blanket extension. In fact, both
rules expressly stated that the EPA was not acting pursuant
to 40 C.F.R. § 70.4(d)(2), though the rules reserved the
agency’s purported authority to do so in the future. Roughly
a week before the 1998 blanket interim approval would have
expired, the EPA issued yet another rule, this time extending
existing interim approvals for more than thirty states until
December 1, 2001. Extension of Operating Permits Program,
Interim Approval Expiration Dates, 65 Fed. Reg. 32,035 (May
22, 2000). Like the previous extension rules, this rule cited
neither statutory nor regulatory authority for the blanket
extension. Unlike the previous rules, however, it not only
failed to expressly reserve the EPA’s authority to offer
additional extensions under 40 C.F.R. § 70.4(d)(2), but also
gave ‘‘notice that no additional extensions of interim approval
deadlines will be granted.’’ Id. at 32,038.
Sierra Club and New York Public Interest Research Group
filed a petition in this court challenging the EPA’s May 22,
2000 rule as contrary to Title V. After Petitioners had filed
4
their opening brief and six days before the EPA’s brief was
due, the parties reached a settlement and filed a joint motion
requesting a stay of proceedings. Under the settlement, the
EPA agreed to (1) grant no further interim approval exten-
sions; (2) remove the language from 40 C.F.R. § 70.4(d)(2)
purportedly authorizing the EPA to extend interim approvals
beyond two years on a case-by-case basis; (3) initiate a
ninety-day formal notice-and-comment process for interested
parties to identify deficiencies in both fully approved and
interim programs; and (4) provide responses to all comments
received through the notice-and-comment process. The set-
tlement agreement provided that if the EPA breached any of
its promises, Petitioners could ask the court to lift the stay
and set a new briefing schedule. The settlement agreement
also obligated the parties to seek joint dismissal if, by Decem-
ber 1, 2001, the EPA had fulfilled its promises. Dismissal,
the agreement stated, would ‘‘provide an opportunity for
Sierra Club to petition [this] Court for attorneys’ fees within
a reasonable period of time, which petition EPA may oppose.’’
In January 2002, after the EPA fulfilled its obligations
under the settlement agreement, this court, at the parties’
request, dismissed the case. Acting pursuant to the settle-
ment agreement and citing CAA section 307(f), 42 U.S.C.
§ 7607(f), Petitioners then filed a motion requesting attor-
ney’s fees. Section 307(f) provides: ‘‘In any judicial proceed-
ing under this section, the court may award costs of litigation
(including reasonable attorney and expert witness fees) when-
ever it determines that such award is appropriate.’’ Id.
Because the parties have agreed on the amount that the
EPA will pay if this court rules for Petitioners, the only
question before us is whether a fee award is appropriate in
the first place. The EPA argues that section 307(f)’s ‘‘when-
ever TTT appropriate’’ standard does not authorize fee awards
to parties, such as Petitioners, whose litigation produces no
court-awarded relief. According to Petitioners, their role as a
catalyst in halting the EPA’s practice of serially extending
interim approvals makes a fee award ‘‘appropriate.’’
5
II.
Whether Petitioners’ role as a catalyst permits fee awards
under section 307(f) turns on the meaning of two Supreme
Court decisions. In Ruckelshaus v. Sierra Club, 463 U.S. 680
(1983), the Supreme Court held that section 307(f)’s ‘‘whenev-
er TTT appropriate’’ standard prohibits awards to parties who
lose on the merits. In Buckhannon Board & Care Home,
Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001), the Court held that a different
statutory standard, one that authorizes fee awards to ‘‘pre-
vailing part[ies],’’ prohibits awards to catalyst parties, defined
as those who ‘‘achieve[ ] the desired result[s] because the
lawsuit[s] brought about TTT voluntary change[s] in the defen-
dant[s’] conduct.’’ Id. at 601. Because Ruckelshaus did not
involve a catalyst party, and because Buckhannon, which did,
concerned a different statute, neither case addresses the
precise issue we face here. Even so, the parties, though they
read Ruckelshaus and Buckhannon quite differently, agree
that the two cases are dispositive, as do we.
Ruckelshaus began when this court found a fee award to be
‘‘appropriate’’ because the parties requesting fees, though
having lost on the merits, had served as ‘‘expert and articu-
late spokesmen for environmental TTT interests’’ without
whom ‘‘the process of judicial review might have been fatally
skewed.’’ Sierra Club v. Gorsuch, 672 F.2d 33, 41 (D.C. Cir.
1982). The Supreme Court reversed, explaining that ‘‘[i]t is
difficult to draw any meaningful guidance from § 307(f)’s use
of the word ‘appropriate,’ which means only ‘specially suit-
able: fit, proper.’ ’’ Ruckelshaus, 463 U.S. at 683 (citation
omitted). ‘‘Our basic point of reference,’’ the Court said, ‘‘is
the ‘American Rule,’ ’’ under which parties bear their own
attorney’s fees. Id. at 683–84. The Court explained that
although Congress has often departed from the American
Rule by shifting fees from the ‘‘prevailing,’’ ‘‘substantially
prevailing,’’ or ‘‘successful’’ party to the losing party, the
additional departure of ‘‘shifting fees from the losing party to
the winning party’’ would require ‘‘a clear showing that this
result was intended.’’ Id. at 684–85. Moreover, the Court
explained, because section 307(f) ‘‘affects fee awards against
6
the United States, as well as against private individuals,’’ it
triggers the interpretive canon that ‘‘[w]aivers of immunity
must be construed strictly in favor of the sovereign’’ and ‘‘not
enlarged beyond what the language requires.’’ Id. at 685
(internal quotation marks and citations omitted). Applying
these two interpretive presumptions, the Court concluded
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.’’ Id. at 686.
The Court found support for this conclusion in its analysis
of the statute’s legislative history. The Court began by
quoting from a 1977 House Report stating that, ‘‘[i]n the case
of the section 307 judicial review litigation, the purposes of
the authority to award fees are not only to discourage frivo-
lous litigation, but also to encourage litigation which will
assure proper implementation and administration of the act
or otherwise serve the public interest.’’ Id. at 687 (quoting
H.R. REP. NO. 95–294, at 337 (1977)). The Report goes on to
explain, in language italicized by the Court, that ‘‘[t]he com-
mittee 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.’ ’’ Id.
Seeking to ‘‘determin[e] the meaning of [Congress’s] rejection
of the ‘prevailing party standard,’ ’’ the Court then surveyed
lower court decisions that had applied the ‘‘prevailing party’’
standard ‘‘in a variety of rather narrow ways,’’ concluding
that ‘‘[s]ection 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.’’ Id. at 687–88 (emphases in original).
The Court also quoted from the 1970 Senate Report on
CAA section 304(d), upon which section 307(f) was modeled,
noting that ‘‘[b]ecause TTT §§ 304(d) and 307(f) have similar
meanings, the history of § 304 is relevant to a construction of
§ 307(f).’’ Id. at 692 n.13. The quoted Senate Report ex-
plains that ‘‘[t]he Courts should recognize that in bringing
legitimate actions under this section citizens would be per-
forming a public service and in such instances the courts
should award costs of litigation to such party.’’ Id. at 686 n.8
7
(quoting S. REP. NO. 91–1196, at 38 (1970)) (emphasis in
original). The Report then explains that fee awards ‘‘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.’’
Id. Analyzing the Senate Report, the Court concluded in
footnote eight—a passage central to our view of the instant
case—that
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, 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.
Id. (internal citation omitted) (emphases in original).
Buckhannon involved a motion for fees under the Fair
Housing Amendments Act and the Americans with Disabili-
ties Act, both of which authorize courts to grant ‘‘the prevail-
ing party TTT a reasonable attorney’s fee.’’ 42 U.S.C.
§§ 3613(c)(2), 12205. The plaintiff brought a preemption
challenge to a state law, but the action became moot after the
state legislature repealed the allegedly preempted law. Even
though the court never ruled on the merits, the plaintiff
sought an award of attorney’s fees, arguing that its suit was
the catalyst for the repeal.
The Supreme Court began its analysis by observing that
‘‘the term ‘prevailing party’ ’’ is ‘‘a legal term of art.’’ Buck-
8
hannon, 532 U.S. at 603. Quoting from Black’s Law Dictio-
nary, the Court explained that ‘‘prevailing party’’ means ‘‘[a]
party in whose favor a judgment is rendered.’’ Id. Survey-
ing its own precedents involving ‘‘prevailing party’’ fee-
shifting statutes, the Court observed that it had never ap-
proved an award of attorney’s fees without some degree of
formal success, concluding:
A defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial
imprimatur on the change. Our precedents thus
counsel against holding that the term ‘‘prevailing
party’’ authorizes an award of attorney’s fees with-
out a corresponding alteration in the legal relation-
ship of the parties.
Id. at 605 (emphasis in original). Turning to legislative
history, the Court found it ‘‘at best ambiguous as to the
availability of the ‘catalyst theory’ for awarding attorney’s
fees.’’ Id. at 608. Although the Court also briefly discussed
the parties’ various policy arguments, it concluded that,
‘‘[g]iven the clear meaning of ‘prevailing party’ in the fee-
shifting statutes, we need not determine which way these
various policy arguments cut.’’ Id. at 610. At no point in the
opinion did the Court discuss Ruckelshaus, much less cite it.
It is on the field of Ruckelshaus and Buckhannon that the
parties in this case do battle. According to the EPA, section
307(f)’s plain language and legislative history, interpreted in
light of the canons of construction employed in Ruckelshaus,
require that, to be eligible for a fee award, a party must have
received some form of court-awarded relief. Ruckelshaus’s
footnote eight discussion of the catalyst theory, the EPA
insists, is dictum. The EPA also contends that because
Ruckelshaus says that section 307(f) applies only to fully and
‘‘partially prevailing parties,’’ 463 U.S. at 688, Buckhannon’s
rejection of the catalyst theory for ‘‘prevailing party’’ statutes
applies to section 307(f) as well. Petitioners have a very
different view of these two cases. They argue that Ruckel-
shaus’s footnote eight interpretation of section 307(f) controls.
9
Buckhannon, they insist, applies only to ‘‘prevailing party’’
fee-shifting provisions.
Were we operating on a clean slate concerning section
307(f)’s meaning, we would accept the EPA’s invitation to
apply standard tools of statutory construction, including
Ruckelshaus’s presumptions against inferring departures
from the American Rule and waivers of sovereign immunity.
Our slate, however, is far from clean, for in resolving the
issue before it in Ruckelshaus, the Supreme Court engaged in
an analysis of section 307(f) and its legislative history that
determines the outcome of the catalyst issue we face here.
Specifically, Ruckelshaus interprets the 1970 Senate Report
as demonstrating that Congress did in fact authorize fee
awards under section 307(f) for ‘‘suits that forced defendants
to abandon illegal conduct, although without a formal court
order.’’ 463 U.S. at 686 n.8. The Court explained that the
‘‘less sweeping innovation’’ (recovery without formal court
order) ‘‘was adopted,’’ while the more ‘‘far-reaching result’’
(recovery by parties losing on the merits) was not. Id.
(emphases in original). The EPA resists this interpretation,
but neither in its brief nor at oral argument—where we spent
considerable time on the topic—was it able to offer any
interpretation of the ‘‘less sweeping innovation’’ that Con-
gress adopted other than the catalyst theory. Id.
At bottom, the EPA’s only real argument against treating
footnote eight as controlling authority is to dismiss it as
dictum. For this ‘‘inferior Court[ ],’’ U.S. CONST. art. III, § 1,
cl. 1, however, that argument carries no weight since ‘‘careful-
ly considered language of the Supreme Court, even if techni-
cally dictum, generally must be treated as authoritative.’’
United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)
(internal quotation marks and citation omitted); see also
Bangor Hydro–Elec. Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir.
1996) (‘‘It may be dicta, but Supreme Court dicta tends to
have somewhat greater force—particularly when expressed
so unequivocally.’’).
Moreover, we are not at all certain that footnote eight is
dictum. The footnote’s logic is this: (1) We know Congress
10
authorized catalyst fee recoveries because it said so; there-
fore (2) we assume Congress rejected losing party recoveries
because it remained silent on the issue. To reject the validity
of the first proposition—as the EPA urges—would pull the
rug from under footnote eight. To be sure, footnote eight is
only one among several justifications that Ruckelshaus gives
for its ultimate holding, but we ‘‘cannot ignore the unmistak-
able import of [a Supreme Court decision’s] analysis.’’ Oa-
kar, 111 F.3d at 153.
Our understanding of Ruckelshaus also comports with the
Supreme Court’s conclusion, this time in true dictum, that
nearly-identical ‘‘whenever TTT appropriate’’ language in the
pre–1987 Clean Water Act authorizes fee awards in cases
where the plaintiff obtains no court-awarded relief. In
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,
Inc., 484 U.S. 49 (1987), the Court held that citizens may sue
under the Clean Water Act only for present, not past, statuto-
ry violations. Discussing the possibility that statutory viola-
tors could strategically moot enforcement actions by comply-
ing with the statute after the actions had been filed, the
Court observed not only that mootness doctrine provides
plaintiffs with certain protections against game-playing viola-
tors, but also that
Under the Act, plaintiffs are TTT protected from TTT
suddenly repentant defendant[s] by the authority of
TTT district courts to award litigation costs ‘‘whenev-
er the[y] TTT determine[ ] such award[s] [are] appro-
priate.’’ 33 U.S.C. § 1365(d). The legislative histo-
ry of this provision states explicitly that the award of
costs ‘‘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 defen-
dant abated a violation, the court may award litiga-
tion expenses borne by the plaintiffs in prosecuting
such actions.’’ S. REP. NO. 92–414, p. 81 (1971), 2
Leg. Hist. 1499.
11
Id. at 67 n.6; see also Save Our Cumberland Mountains, Inc.
v. Hodel, 826 F.2d 43, 51 (D.C. Cir. 1987) (reviewing the
district court’s award of attorney’s fees under another ‘‘when-
ever TTT appropriate’’ fee-shifting provision and concluding
that ‘‘as the decisions under other fee statutes indicate, to
permit a fee award a party’s litigation efforts need not be the
demonstrably exclusive cause of the relief it sought; rather,
the party may receive an award for time spent on activities
that served as a ‘catalyst’ or contributing factor to that
result’’).
Nothing in Buckhannon alters our conclusion that Ruckel-
shaus’s footnote eight controls the issue now before us.
Although Buckhannon rejected the catalyst theory, the stat-
ute at issue there authorizes fee awards only to ‘‘prevailing
part[ies].’’ By comparison, Ruckelshaus’s footnote eight
analysis directly applies to the issue we face here, as it
interprets section 307(f) to authorize fee awards for ‘‘suits
that forced defendants to abandon illegal conduct, although
without a formal court order.’’ 463 U.S. at 686 n.8.
The most one can say of Buckhannon is that it impliedly
casts doubt on footnote eight. The EPA takes just this
position. Reading Buckhannon’s conclusion that ‘‘prevailing’’
means being ‘‘awarded some relief by the court,’’ 532 U.S. at
603, in light of Ruckelshaus’s statement that ‘‘[s]ection 307(f)
was meant to expand the class of parties eligible for fee
awards from prevailing parties to partially prevailing parties,’’
463 U.S. at 688 (emphasis omitted), the EPA argues that
section 307(f) requires some court-awarded relief. Even set-
ting aside footnote eight, however, we think this inference
quite dubious. The fact that the Supreme Court held in the
context of a fully adjudicated claim that the ‘‘whenever TTT
appropriate’’ standard expands the class of eligible parties to
those who partially prevail on the merits does not address the
status of parties who obtain significant success without adju-
dication. Even were we to accept the EPA’s interpretation of
‘‘partially prevailing parties,’’ the passage from Ruckelshaus
that the EPA relies on is entirely consistent with the possibil-
ity that section 307(f) expands the class from prevailing
parties to ‘‘partially prevailing parties’’ and to parties achiev-
12
ing no formal court-awarded success (a possibility footnote
eight later confirms). Moreover, because the Supreme Court
has warned against ‘‘dissect[ing] the sentences of the United
States Reports as though they were the United States Code,’’
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993), we
think it inappropriate to read a ‘‘prevailing party’’ require-
ment into section 307(f) just because the Ruckelshaus Court,
not Congress, used that term.
In the end, we need not decide whether Buckhannon—
which never so much as mentions Ruckelshaus—impliedly
overrules footnote eight, for Buckhannon’s failure to do so
expressly is dispositive. If ‘‘a precedent of [the Supreme
Court] has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own
decisions.’’ Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484 (1989). Here, the case that ‘‘directly
controls’’ is Ruckelshaus. Whether Ruckelshaus ‘‘rest[s] on
reasons rejected’’ by Buckhannon is a matter for the Su-
preme Court, not us.
Our two sister circuits to have addressed the relationship
between Ruckelshaus and Buckhannon have reached the
same conclusion. In Loggerhead Turtle v. County Council,
307 F.3d 1318 (11th Cir. 2002), the Eleventh Circuit relied on
Ruckelshaus for the proposition that catalyst recoveries are
permitted by ‘‘whenever TTT appropriate’’ statutes and distin-
guished Buckhannon as applying only to ‘‘prevailing party’’
statutes, specifically noting that ‘‘Buckhannon makes no ref-
erence whatsoever to Ruckelshaus or to the ‘whenever TTT
appropriate’ class of fee-shifting statutes.’’ Id. at 1326. In
Center for Biological Diversity v. Norton, 262 F.3d 1077, 1080
n.2 (10th Cir. 2001), although the parties did not raise the
issue, the Tenth Circuit distinguished Buckhannon as apply-
ing only to ‘‘prevailing party’’ statutes.
The EPA’s two remaining arguments require little discus-
sion. The agency claims that allowing catalyst recoveries
under section 307(f) will ‘‘create an unnecessary patchwork
13
among fee-shifting statutes,’’ since Buckhannon prohibits
such recoveries under the ‘‘prevailing party’’ standard. Re-
spondents’ Br. at 13. The simple and dispositive answer to
this argument is Ruckelshaus, which tells us that Congress
enacted section 307(f)’s ‘‘whenever TTT appropriate’’ language
for two reasons: to ‘‘reject[ ] TTT the ‘prevailing party’ stan-
dard,’’ 463 U.S. at 687, and to authorize fee awards to parties
‘‘that forced defendants to abandon illegal conduct, although
without a formal court order,’’ id. at 686 n.8. It was thus
Congress that created the ‘‘patchwork.’’
The EPA’s other argument suffers essentially the same
defect. The agency claims that the catalyst theory would
‘‘embroil courts in a second major litigation’’ over whether
plaintiffs caused defendants’ changes in conduct. Respon-
dents’ Br. at 14. It is true that Buckhannon notes that one
policy argument against the catalyst theory is that it might
‘‘spawn[ ] a second litigation of significant dimension.’’ 532
U.S. at 609 (internal quotation marks and citation omitted).
Yet in the very next paragraph, Buckhannon points out that,
in light of clearly expressed Congressional intent, ‘‘we need
not determine which way these various policy arguments cut.’’
Id. at 610. The same is true here. Ruckelshaus establishes
that Congress, by enacting section 307(f), intended for courts
to decide when fee awards, even in the catalyst context, are
‘‘appropriate.’’
III.
Having held that the ‘‘whenever TTT appropriate’’ standard
authorizes recovery under a catalyst theory, we turn to the
question of whether such an award is ‘‘appropriate’’ in this
case. On this issue, Buckhannon provides useful guidance.
Though the Court split five to four on the propriety of
catalyst recovery under the ‘‘prevailing party’’ standard, all
nine Justices agreed, albeit in dictum, on the correct stan-
dard for whether a lawsuit qualifies as a catalyst. In a
passage arguing that the majority should have given greater
weight to lower court decisions approving catalyst recoveries,
14
the dissent synthesized decisions that had articulated the
standard:
The array of federal court decisions applying the
catalyst rule suggested three conditions necessary to
a party’s qualification as ‘‘prevailing’’ short of a
favorable final judgment or consent decree. A plain-
tiff first had to show that the defendant provided
‘‘some of the benefit sought’’ by the lawsuit. Under
most Circuits’ precedents, a plaintiff had to demon-
strate as well that the suit stated a genuine claim,
i.e., one that was at least ‘‘colorable,’’ not ‘‘frivolous,
unreasonable, or groundless.’’ Plaintiff finally had
to establish that her suit was a ‘‘substantial’’ or
‘‘significant’’ cause of defendant’s action providing
relief. In some Circuits, to make this causation
showing, plaintiff had to satisfy the trial court that
the suit achieved results ‘‘by threat of victory,’’ not
‘‘by dint of nuisance and threat of expense.’’ One
who crossed these three thresholds would be recog-
nized as a ‘‘prevailing party’’ to whom the district
court, ‘‘in its discretion,’’ could award attorney’s fees.
Id. at 627–28 (Ginsburg, J., dissenting) (citations omitted).
Not only did the majority express no disagreement with this
statement of the law, but, citing the dissent, it said that it did
‘‘not doubt the ability of district courts to perform the nu-
anced ‘three thresholds’ test required by the ‘catalyst theo-
ry’—whether the claim was colorable rather than groundless;
whether the lawsuit was a substantial rather than an insub-
stantial cause of the defendant’s change in conduct; whether
the defendant’s change in conduct was motivated by the
plaintiff’s threat of victory rather than threat of expense.’’
Id. at 610 (emphasis added). Although the majority summa-
rized the three thresholds somewhat differently—failing to
mention the ‘‘some of the benefit sought’’ element and treat-
ing ‘‘causation’’ and ‘‘threat of victory rather than threat of
expense’’ as separate elements rather than two aspects of the
same element—nothing suggests that the majority disagreed
15
with the dissent’s position that only a plaintiff achieving
‘‘some of the benefit sought’’ is entitled to fees.
Judged against this so-called three thresholds test, Peti-
tioners’ fee motion is easily resolved. Nowhere does the
EPA suggest that Petitioners’ motion fails to satisfy the
second and third thresholds, and for good reason: Petition-
ers’ claim was obviously colorable and their suit quite clearly
caused the EPA to accept the settlement’s terms. Cf. Save
Our Cumberland Mountains, 826 F.2d at 51 (‘‘[T]he temporal
sequence of plaintiff’s litigation followed by defendant’s reme-
dial activity is strong evidence of a causal relationship.’’).
Thus, we need only consider the first threshold: Did the
settlement provide Petitioners ‘‘some of the benefit sought’’?
Buckhannon, 532 U.S. at 627 (Ginsburg, J., dissenting) (inter-
nal quotation marks and citation omitted).
Answering no, the EPA points out that the settlement
agreement did not require it to withdraw the May 22, 2000
rule, but instead allowed the interim approvals to lapse in
December 2001, just as the rule provided. Although this is
true, it establishes only that Petitioners failed to achieve all
the relief sought, not that they achieved none. By arguing
that Title V expressly forbade interim approval extensions
lasting more than two years, Petitioners necessarily sought
more than just invalidation of the EPA’s specific rule. A
court order invalidating the EPA’s May 22 rule based on
Petitioners’ interpretation of Title V would also—whether
expressly or impliedly—have invalidated any regulation or
other rule permitting extensions lasting more than two years.
Thus, since the settlement agreement (1) prohibited the EPA
from granting additional interim approvals past December
2001 and (2) required the EPA to amend 40 C.F.R.
§ 70.4(d)(2), Petitioners unquestionably achieved some of the
relief they sought.
The EPA’s arguments to the contrary are unpersuasive.
The agency contends that the settlement agreement’s prohibi-
tion against further interim approval extensions was redun-
dant because the May 22 rule gave notice that the EPA would
offer no further interim approvals. As the record demon-
strates, however, the EPA’s promise was not binding. For
example, in 1995 the agency granted Title V interim approval
extensions in Delaware and Wisconsin, subject to the caveat
16
that the extensions would ‘‘not be renewed.’’ Title V Clean
Air Act Final Interim Approval of Operating Permits Pro-
gram; State of Delaware, 60 Fed. Reg. 62,032, 62,033 (Dec. 4,
1995); Clean Air Act Final Interim Approval of the Operating
Permits Program; Wisconsin, 60 Fed. Reg. 12,128, 12,136
(Mar. 6, 1995). Yet the 1997, 1998, and 2000 blanket exten-
sions did just that. In contrast, the settlement agreement,
like any relief that this court might have granted on the
merits, bound the EPA.
Finally, the EPA argues that requiring it to amend 40
C.F.R. § 70.4(d)(2) does not constitute relief that Petitioners
sought because the regulation ‘‘was not the basis for the May
22, 2000 extension challenged in this case.’’ Respondents’ Br.
at 5 n.2; see also id. at 15. Not so. The EPA could have
used the regulation, if left unchanged, to authorize further
interim approval extensions, thereby frustrating Petitioners’
basic goal of ending the agency’s serial interim approval
extensions.
IV.
Because we hold that CAA section 307(f) authorizes awards
of attorney’s fees to catalyst parties, and finding an award
‘‘appropriate’’ under the circumstances of this case, we grant
Petitioners’ motion.
So ordered.