National Wildlife Federation, Idaho Wildlife Federation, and the Nez Perce Tribe, Intervenor-Petitioner v. Federal Energy Regulatory Commission

The National Wildlife Federation and the Idaho Wildlife Federation petitioned this court to review the issuance of seven preliminary permits by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C. §§ 791a-825r (1982) (“FPA”). We vacated and remanded to the Commission. National Wildlife Fed’n v. FERC, 801 F.2d 1505 (9th Cir.1986). The Federations now seek attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) (1982 & Supp.1987) (“EAJA”).

I.

In Tulalip Tribes v. FERC, 749 F.2d 1367, 1368 (9th Cir.1984), this court read 28 U.S.C. § 2412 (d)(1)(A), which allows attorney’s fees “in addition to any costs awarded,” to forbid an award of attorney’s fees where costs are barred by statute, as they are by § 317 of the Federal Power Act, 16 U.S.C. § 825p.

However, after Tulalip Tribes , Congress amended § 2412(d)(1)(A) by adding the underlined phrase:

Equal Access to Justice Act, Extension and Amendment § 2(a)(2), Pub.L. No. 99-80, 99 Stat. 183, 184 (1985).

Although the amended section does not expressly state fees are available in the absence of costs, the House Committee on the Judiciary said:

H.R.Rep. No. 120, 99th Cong., 1st Sess., Pt.…