ELR Citation: ELR 20213
No(s). 99-2709 (7th Cir. Oct 17, 2000)

The court affirms a district court decision denying a steel company's motion to recover attorney fees from an environmental group under the Emergency Planning and Community Right-to-Know Act (EPCRA) §326. The group notified the company that it had missed several EPCRA reporting deadlines. Before the group could file a citizen suit, the company furnished all the documents. Nonetheless, the group filed suit seeking civil penalties for the company's violations. The U.S. Supreme Court eventually held that even if the group had been injured by the company's failure to disclose, that injury could not be redressed by a citizen suit for civil penalties because the penalties would be paid to the government and not the group. As a result, the group's EPCRA suit was dismissed for lack of jurisdiction and the company subsequently sought an award of attorney fees. The court first holds that when a dismissal for want of jurisdiction forecloses the plaintiff's claim, the defendant—in this case the company—is the prevailing party. The court next holds, however, that according to Supreme Court precedent, when the fee-shifting provisions of environmental statutes that promote private enforcement are at issue, the prevailing party should recover fees only if the suit was frivolous, unreasonable, or pursued in bad faith. Although the group's suit was misconceived, it was not frivolous and, therefore, the company's request for fees was properly denied.

[Prior decisions in this litigation are published at 26 ELR 21408 and 28 ELR 20434.]

Counsel for Plaintiff
Stefan A. Noe
Citizens for a Better Environment
407 S. Dearborn St., Ste. 1775, Chicago IL 60605
(312) 939-1530

Counsel for Defendant
Leo P. Dombrowski
Wildman, Harrold, Allen & Dixon
225 W. Wacker Dr., Chicago IL 60606
(312) 201-2000

Before Bauer, J., with Ripple, J., concurring separately