A sharply divided Court of Appeals for the District of Columbia Circuit has given a boost to the growing trend to awards of counsel fees in public interest litigation and also to the National Environmental Policy Act.¹ Sitting en banc, the court ruled 4-3 that the environmentalist plaintiffs who sued to stop construction of the Trans-Alaska Pipeline were entitled to recover half of their attorneys fees from Alyeska, the pipeline consortium. Judge J. Skelly Wright, writing for the majority, stated that in fairness, the cost of the litigation should be divided equally between Alyeska, which had requested permission to build the pipeline across public land, and the Department of the Interior, which approved Alyeska's application despite a clear violation of the pipeline right-of-way width limitation of the Mineral Leasing Act of 1920.² Since recovery of counsel fees from the United States is specifically prohibited by 28 U.S.C. §2412, the court ruled that the plaintiffs in the suit would have to bear that half of the cost of counsel fees themselves.

The court held that an award of fees was appropriate, not only for the hours devoted to the Mineral Leasing Act issues on which the case was decided, but also for the time spent on NEPA questions, though those were never adjudicated, and Congress subsequently declared the Interior Department's impact statement to be adequate. In a bitter dissent, Judge Wilkey, joined by Judges MacKinnon and Robb, disagreed as to the facts, the law, and the policy considerations involved in the legal battle over the pipeline, and in a separate dissenting opinion, Judge MacKinnon bitterly charged that "when we subsidize lawyers to bring such suits against our national interests we promote our own destruction."