           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 7, 2008
                                       No. 06-10974
                                                                      Charles R. Fulbruge III
                                                                              Clerk


BLUE SKIES ALLIANCE, DOWNWINDERS AT RISK,
PUBLIC CITIZEN, and SIERRA CLUB,

                                                  Plaintiffs-Appellees,
v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

                                                  Intervenor-Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:04-CV-2169




Before REAVLEY, SMITH, and GARZA, Circuit Judges.
PER CURIAM:*


       Blue Skies Alliance and other environmental organizations sued the En-
vironmental Protection Agency (“EPA”) under the Clean Air Act (“CAA”) for fail-


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-10974

ing to take several non-discretionary actions with respect to the air quality in
the Dallas-Fort Worth area (“DFW”). The Texas Commission on Environmental
Quality (“TCEQ”) and other parties intervened. After multi-lateral discussions,
plaintiffs and the EPA agreed to a consent decree that included attorneys’ fees
for plaintiffs; there were also agreements with several of the intervenors, includ-
ing the TCEQ.
      Plaintiffs moved for attorneys’ fees of $56,276.10 from the TCEQ, which
the district court awarded. The TCEQ appeals the awarding of fees. Because
plaintiffs did not have success against the TCEQ on the merits, attorneys’ fees
are not justified, so we reverse the fee award.


                                        I.
      This case arises from DFW’s failure to satisfy the minimum national ambi-
ent air quality standards (“NAAQS”) set by the EPA. Under the CAA, the EPA
sets the NAAQS, and the state is required to develop a state implementation
plan (“SIP”) that models existing and future air quality conditions and specifies
techniques and strategies for attaining the NAAQS by the statutory deadline.
The SIP is developed by the state with the input of many groups, including local
governments, industry, and citizen groups. The EPA must approve the SIP.
      Based on the level of ozone pollution, an area is classified as marginal,
moderate, serious, severe, or extreme. Each classification level has specific and
increasingly more onerous requirements and has different deadlines for manda-
tory attainment. If the state fails to attain the NAAQS by the deadline or has
excessive pollution and requests voluntary reclassification, the area is placed in-
to the next higher class.
      The EPA changed the NAAQS for ozone in 1997. Before 1997, the NAAQS
for ozone was 120 parts per billion averaged over a one-hour period (the “one-
hour standard”). The 1997 revision adopted a NAAQS for ozone of 80 parts per


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                                  No. 06-10974

billion averaged over an eight-hour period (the “eight-hour standard”).
      DFW has consistently failed to meet the NAAQS. Likewise, the TCEQ has
repeatedly failed to submit an adequate SIP. Consequently, in 1998 the EPA re-
classified DFW from “moderate” to “serious” with a new attainment deadline of
November 15, 1999.
      Under 42 U.S.C. § 7509(c), the EPA administrator was required to deter-
mine, within six months of the deadline, whether DFW had met the one-hour
NAAQS. If he found that it had not, DFW was to be automatically reclassified
as “severe.” 42 U.S.C. § 7511(b)(2). In October 2004, when this suit was filed,
the EPA had yet to determine whether DFW had achieved the one-hour stan-
dard as of November 15, 1999. Thus, plaintiffs sued under the CAA’s citizen suit
provision, 42 U.S.C. § 7604(a)(2), to compel the EPA to render its determination.
      Additionally, the EPA is required to approve, approve in part, or disap-
prove a SIP within twelve months of its submission and the EPA’s determination
that it is complete. 42 U.S.C § 7410(k)(2). The TCEQ submitted two SIP revi-
sions in response to the 1998 reclassification, on October 25, 1999, and April 25,
2000. On December 16, 1999, and June 23, 2000, respectively, the EPA deter-
mined the revisions were complete At the time this suit was filed, the EPA had
not taken final action on either SIP, and the suit sought to compel such action.
      The counties of Collin, Ellis, and Tarrant and the City of Garland inter-
vened as defendants; the Association of Cement Companies of Texas, the Port-
land Cement Association, and the BCCA Appeal Group intervened as defendants
to represent various business interests. The TCEQ intervened as a defendant
at the request of Tarrant and Collin counties and the EPA. The plaintiffs did not
oppose any of the interventions but asked that each intervenor be willing to par-
ticipate constructively in settlement negotiations.
      Those negotiations resulted in a consent decree agreed to by plaintiffs and
the EPA whereunder the EPA agreed to act on the April 2000 SIP revision and


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                                  No. 06-10974

two other SIP’s not mentioned in the original complaint. Plaintiffs agreed to
have their suit dismissed with prejudice, foregoing their claim to compel a deter-
mination of whether DFW had met the one-hour standard by November 15,
1999, and their claim to compel action on the October 1999 SIP revision. Plain-
tiffs and EPA agreed that plaintiffs were entitled to attorneys’ fees under 43
U.S.C. § 7604(d), the amount to be determined by a later settlement or court
order. The negotiations also resulted in agreements among plaintiffs and some
of the intervenors.
      Plaintiffs entered into agreements with the local government intervenors
on emissions reduction strategies. Plaintiffs and the TCEQ entered into an
agreement regarding actions to meet the new eight-hour standard by the June
2007 deadline. The agreement included six actions the TCEQ would undertake:
      (1) The TCEQ would consider implementing emissions controls before the
the statutory deadline.
      (2) The TCEQ would work with the EPA to determine the adequacy of the
DFW 1999 episode and to receive the EPA’s concurrence on the performance of
the photochemical model for planning the eight-hour SIP, with the ultimate goal
of submitting the eight-hour SIP in advance of the statutory deadline and
achieving attainment of the eight-hour standard as soon as practicable. The
TCEQ also agreed to keep plaintiffs informed of the progress of each effort.
      (3) The TCEQ agreed to consider control measures used in other one-hour
nonattainment areas, including Los Angeles, which has the most exhaustive
control measures in the country. The TCEQ agreed to explain any decision not
to include one of these measures in the eight-hour SIP.
      (4) The TCEQ agreed to a time line, with input from plaintiffs, the EPA,
and the Portland Cement Association, for a study of available air pollution con-
trol technologies for the cement kilns in DFW. The TCEQ was already develop-
ing a scope of work contract for such a study, but the agreement specified dates


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                                  No. 06-10974

and mandated the inclusion of plaintiffs in the process.
      (5) The TCEQ agreed to consider rulemaking or other action necessary to
implement the controls considered under item (3) above and the technologies
identified under item (4) for the cement kilns.
      (6) The TCEQ agreed to confer in good faith with plaintiffs’ counsel on any
issues that might arise from the agreement.
      The TCEQ’s actions were in exchange for plaintiffs’ commitment to com-
municate with the TCEQ and to sign the consent decree with the EPA. The
agreement was contingent on the district court’s signing the decree, the EPA’s
fulfilling its obligations under the decree, and the dismissal of the suit with pre-
judice. After the court had signed the decree and plaintiffs had reached an
agreement on attorneys’ fees with the EPA, plaintiffs filed their successful mo-
tion for fees from the TCEQ.


                                        II.
      The CAA’s citizen suit provision provides that the district court “may
award costs of litigation (including reasonable attorney and expert witness fees)
to any party, whenever the court determines such award is appropriate.” Clean
Air Act § 304(d) (codified at 42 U.S.C. § 7604(d)). The Supreme Court has analo-
gized § 304(d) to 42 U.S.C. § 1988, see Pennsylvania v. Del. Valley Citizen’s Coun-
cil for Clean Air, 478 U.S. 546, 560 (1986), and we review an award of attorneys’
fees under § 1988 for abuse of discretion, with the supporting facts reviewed for
clear error and the underlying conclusions of law reviewed de novo. Riley v. City
of Jackson, Miss., 99 F.3d 757, 759 (5th Cir. 1996). Thus, we review attorneys’
fees under § 304(d) for an abuse of discretion; we review supporting facts for
clear error and questions of law de novo.
      The “American Rule” is the starting point for fee awards: Even prevailing
litigants are ordinarily not entitled to attorneys’ fees from the losing party.

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                                       No. 06-10974

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs.,
532 U.S. 598, 602 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.
240, 247 (1975)). Congress has abrogated that rule by statute for certain situa-
tions. Though § 304(d) does not limit the award to “prevailing,” “substantially
prevailing,” or “successful” parties as many other statutes do, see Ruckelshaus
v. Sierra Club, 463 U.S. 680, 684 & nn.3-5 (1983), “intuitive notions of fairness”
suggest that “a successful party need not pay its unsuccessful adversary’s fees.”
Id. at 685. Thus, a clear showing from Congress is required to conclude that it
intended to depart from “intuitive notions of fairness.” Id.
       Here, there is no such showing, so the question is how much success is nec-
essary to justify an award of fees. The Sierra Club Court, in construing § 307(f)
of the CAA, concluded that “some degree of success on the merits by the claim-
ant,” id. at 694, was necessary to justify an award. The Court looked in part to
§ 304(d), because these two fee shifting provisions share identical “whenever . . .
appropriate” language. Id. at 692. “[W]hatever general standard may apply un-
der § 307(f), a similar standard applies under § 304(d).” Id. “[A]t least as a gen-
eral principle, th[e] award[] of attorneys’ fees under § 304(d) will be ‘appropriate’
in circumstances similar to those that are ‘appropriate’ under § 307(f).” Id. Ac-
cordingly, we must answer whether plaintiffs achieved “some degree of success
on the merits,” id. at 694, such that § 304(d) authorizes the award.1


       1
          Plaintiffs contend they have satisfied the Sierra Club standard for success, but they
also claim the fee award is proper under Chemical Manufacturers Association v. United States
Environmental Protection Agency, 885 F.2d 1276, 1279 (5th Cir. 1989), where we held the Na-
tional Resource Defense Council was entitled to attorneys’ fees for advancing the goal of the
Clean Water Act. Finally, plaintiffs assert the award is justified under the “catalyst” theory,
see Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 1148, 1152-53 (5th Cir. 1985). In light of
the Court’s express comparison between § 307(f) and § 304(d) in Sierra Club and its statement
that §304(d) is governed by a standard similar to § 307(f), we apply the “some success” stan-
dard and do not need to consider whether plaintiffs advanced the goal of the CAA or whether
their suit was a catalyst. We also do not address whether the catalyst theory even remains
valid in the wake of Buckhannon, 532 U.S. at 605-10. See Planned Parenthood v. Sanchez, 480
                                                                                  (continued...)

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                                         No. 06-10974

       The “merits” of a case are the “elements or grounds of a claim or defense;
the substantive consideration to be taken into account in deciding a case.”
BLACK’S LAW DICTIONARY (8th ed. 2004) (“merits”). Plaintiffs’ claim is against
the EPA Administrator for failing to take non-discretionary action. As their first
cause of action, they allege that the EPA “Administrator is in violation of her
non-discretionary duties as set forth in 42 U.S.C. § 7509(c)(1) and § 7511(b)(2).”
As their second, they allege the “Administrator is in violation of his non-discre-
tionary duties as set forth in 42 U.S.C. § 7410(k)(3)” and (2). Accordingly, plain-
tiffs’ requested relief is a declaration that the Administrator was in violation of
his non-discretionary duties and injunctions requiring him to fulfill those duties
within thirty days.
       The grounds for these claims, and hence the merits of the suit, are the Ad-
ministrator’s inaction. Any success achieved on these merits does not relate to
the TCEQ. In fact, plaintiffs cannot achieve any success against the TCEQ on
those grounds, because the statutes mandate action only by the Administrator.
Because plaintiffs articulated no cause of action against the TCEQ, they could
not achieve any success on the merits, as required by Sierra Club, to justify an
award of attorneys’ fees.2
       For the foregoing reasons, the award of attorneys’ fees is REVERSED.




       1
        (...continued)
F.3d 734, 740 (5th Cir. 2007).
       2
         Plaintiffs assert the Sierra Club standard justifies their award because the Court rec-
ognized that § 307(f), and hence § 304(d), were “meant to expand the class of parties eligible
for fee awards from prevailing parties to partially prevailing partiesSSparties achieving some
success, even if not major success.” Sierra Club, 463 U.S. at 688. The Court explained, howev-
er, that this holding “does not mean that even if a party is unsuccessful in all respects, it still
may recover fees from its opponents.” Id. at 690-91. Plaintiffs, like the respondents in Sierra
Club, are parties that have achieved no success on the merits against the defendant from
which they seek fees, so they are not entitled to the award.

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