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Attorneys Fees Awards Under RCRA §7002(e): The Corporate "Prevailing Party"

May 1995

Citation: 25 ELR 10256

Issue: 5

Author: Janet S. Kole

None of the citizen suit provisions of federal environmental laws bars a prevailing, for-profit corporate litigant from obtaining attorneys fees awards under those statutes' fee-shifting mechanisms. This is true even when a corporation brings the action to vindicate its own pecuniary interests rather than to benefit the public. In FallowfieldDevelopment Corp. v. Strunk,1 however, a district court denied attorneys fees to prevailing corporate plaintiffs in a citizen suit under the Resource Conservation and Recovery Act CRCRA).2 The court held that only nonprofit citizen groups suing under RCRA § 7002(a)(1)(B)3 may recover attorneys fees under § 7002(e)4 for acting as "private attorneys general," because in so doing they are seeking to vindicate the general public's interest in preventing "imminent and substantial endangerment to health or the environment."5 The district court reasoned that because the Fallowfield corporations were seeking to vindicate their own pecuniary interests rather than to benefit the public, they were not acting as private attorneys general and therefore could not recover attorneys fees.6 The author of this Dialogue demonstrates that the Fallowfield decision is contrary to RCRA's plain language and the case law construing analogous fee-shifting provisions in other federal environmental statutes, as well as analogous U.S. Supreme Court jurisprudence construing the fee-shifting provision in the Civil Rights Act.7

This Dialogue begins with an analysis of the U.S. Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society,8 which halted the federal judiciary's equitable practice of awarding attorneys fees to prevailing parties under the private attorneys general doctrine, and the congressional response to that decision. It then turns to an examination of the case law construing federal environmental statutes' citizen suit and fee-shifting provisions, while also reviewing analogous Supreme Court jurisprudence interpreting the Civil Rights Act's fee-shifting provision. Next, it analyzes the Fallowfield court's decision and discusses why the decision contravenes RCRA's plain language. Lastly, it points out the fallacies in the court's rationale and demonstrates that the court wrongly denied the Fallowfield plaintiffs recovery of their attorneys fees. A brief history of the private attorneys general doctrine and shifting of attorneys fees is necessary to place the Fallowfield decision in context.

Janet S. Kole represents the plaintiffs in Fallowfield Development Corp. v. Strunk. The case resulted in a victory for the plaintiffs on every issue but their entitlement to attorneys fees under the Resource Conservation and Recovery Act (RFRA) and Pennsylvania's Hazardous Sites Cleanup ACt (HSCA). The matter is currently on appeal to the U.S. Court of Appeals for the Third Circuit. Janet Kole is a partner with Cohen, Shapiro, Polisher, Shiekman & Cohen in Philadelphia, Pennsylvania, concentrating her practice in environmental litigation. She is the coeditor of Environmental Litigation, a text the American Bar Association published in 1992.

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