The public interest suffered a major judicial setback on May 12, when the Supreme Court announced its decision in Alyeska Pipeline Service Co. v. Wilderness Society,¹ declaring erroneous a line of decisions awarding attorneys' fees to environmental and other public interest plaintiffs.² The five-Justice majority held that only Congress, not the courts, can authorize an exception to the "American rule" that attorneys' fees cannot ordinarily be recovered by a prevailing party from a losing party. In so holding, the Court reversed a United States Court of Appeals decision that such awards are within the equitable powers of the federal courts when plaintiffs have served as private attorneys general by enforcing an important public policy.³ Justices Marshall and Brennan agreed with the Court of Appeals, and reasoned that the case was a proper one for the exercise of the Court's power in equity to award attorneys' fees to plaintiffs. Justices Douglas and Powell did not take part in the case.

Justice White, writing for the majority, offered no assessment of the American rule itself, limiting the decision to a holding that establishing an exception to the American rule for plaintiffs serving as private attorneys general is properly a matter for the Conress and not the courts.⁴ Thus, the majority never reached the merits of the plaintiffs claim for an award of attorneys' fees. In effect, however, the result was to deny the request, since the basis on which it was granted in the Court of Appeals was struck down by the High Court.