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The Illegality of Contingency Fee Arrangements When Prosecuting Public Natural Resource Damage Claims and the Need for Legislative Reform

November 2008

Citation: ELR 10773

Author: Julie E. Steiner

Editors' Summary: State governments are contracting with private contingency fee attorneys to pursue natural resource damage (NRD) claims as the government's "special counsel." This arrangement is hailed for funding the government's ability to bring NRD claims where such claims had previously stagnated. Others, however, charge that the lucrative special counsel contract is awarded to the Attorney General's political cronies, and that the arrangement illegally diverts millions of dollars away from its earmarked purpose of natural resource restoration to instead pay an attorney fee. This Article demonstrates that while the contingency fee arrangement facilitates the government's ability to pursue NRD damage claims, such alliances are improper under CERCLA. The Article suggests legislative reform to permit the recovery of the government's reasonable enforcement costs when prosecuting NRD claims.

Julie E. Steiner is an Associate Professor of Legal Writing at St. John's University School of Law. Professor Steiner previously represented industrial parties in natural resource damage cases. [Editors' Note: An earlier version of this Article was published at 32 Wm & Mary Envtl. L. & Pol'y Rev. 169 (2007). Reprinted with permission.]

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