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Volume 8, Issue 2 — February 1978


Attorney Fees Awards in Public Interest Litigation: Judicial and Legislative Developments in California

The general rule in the United States is that the prevailing party in a lawsuit may not recover his attorney fees from the loser unless a contractual or statutory provision explicitly allows such an award. The Supreme Court's 1975 decision in Alyeska Pipeline Service Co. v. Wilderness Society1 scuttled the incipient development of the "private attorney general" doctrine as a rationale for attorney fees awards to successful "public interest" plaintiffs in federal court in the absence of statutory authorization.2

But the issue of attorney fees awards is hardly a dead letter. The Court's ruling in Alyeska was based on the federal court costs statute,3 and the decision therefore does not prohibit state courts from using the private attorney general doctrine as a basis for fees awards. Nor did Alyeska foreclose recovery of attorney fees in either federal or state courts under the other well-recognized "bad faith" and "common benefit" exceptions to the general American rule, although it attempted to circumscribe the instances in which the latter could be applied.4 This attempted limitation, along with the statutory prohibition of awards against the federal government itself5 and the fact that federal court decrees awarding fees against states may be prohibited by the Eleventh Amendment,6 has served to curtail federal judicial awards of fees under these alternative doctrines, however.7

Federal-State Friction Building Over Indian Fishing Rights in Washington

Within the last year, the Supreme Court of the state of Washington has handed down opinions in three cases which have refueled a long-standing but recently dormant controversy over Indian fishing rights. The dispute centers around the proper allocation of the state's anadromous1 fish resource, composed largely of steel-head trout and several species of salmon. The Indian tribes take the position that pursuant to several treaties signed prior to the admission of the State of Washington into the Union, they possess a right to take fish at all traditional "grounds and stations" that may not be modified by state regulation. The commercial fishing industry, and at times the state, on the other hand, assert that the tribes are entitled to no greater rights than those shared by all other state citizens.

Over the years, this imbroglio hs swirled around a myriad of parties, including the tribes, the fishing industry, private sports fishermen, the state departments of game and fisheries, the United States Department of Justice, and Congress. Recent developments indicate that the issue may be coming to a head and that the principal combatants are now the Washington Supreme Court and the United States District Court for the Western District of Washington.2

First Steps in Implementing the Toxic Substances Control Act

Recognizing the pervasive environmental presence of an increasingly large number of chemical substances, Congress passed the Toxic Substances Control Act (TSCA)1 in late 1976 to impose a federal regulatory scheme over substances that present an unreasonable risk of injury to human health and the environment. This scheme includes the mandatory collection of data on those substances currently being used and the hazards they present, followed by vigorous regulation of the manufacture and use of dangerous substances in order to minimize or eliminate those hazards. Because of the ubiquitous presence of chemical substances, the enormous role they play in everyday life, and the delays that seem to be inherent in beginning a large government regulatory program, the development of regulations to implement TSCA's complex requirements has proved a lengthy process. In addition to difficulties in determining who should be covered by the regulations and what substances should be reported, the unexpectedly controversial issue of how best to maintain the confidentiality of the reported information served to delay the promulgation of TSCA regulations. The Environmental Protection Agency (EPA), however, has recently taken the first significant steps in establishing what will become, along with air and water pollution regulation, one of the major national programs for environmental protection.

Book Review: Pulling It All Together in a New Treatise on Environmental Law

William Rodgers, a professor at the Georgetown University Law Center, has entitled his new book simply Environmental Law, holding out the promise to the reader of comprehensive coverage of an expansive, evolving, and amorphous body of law. A first reading of the book reveals that Rodgers has succeeded in imposing some structure on the masses of material involved and in producing an insightful analysis of the field. He has done so by limiting the scope of the book, however, consciously avoiding discussion of certain topics and concentrating his analysis of the material under several broad subject headings.

The treatise is well researched and documented and is, at the same time, a highly personal exposition of environmental law. Often, after analyzing the current state of the law, Rodgers adds a reasoned opinion of what the law should be or indicates his approval of a particular trend. The organization of the material clearly reflects the author's view that common-law concepts underlie most statutory provisions, administrative action, and judicial interpretations in the environmental field. The text draws parallels between statutory and common law where they exist, and it points out the ways that the statutes deviate from or revise common-law principles. In short, the changing substance of a highly administrative body of law is projected against a background of legal principles and techniques which, as the author says, "are not subject to summary overruling in tomorrow's Federal Register."