14 ELR 10407 | Environmental Law Reporter | copyright © 1984 | All rights reserved

Private Enforcement of Federal Pollution Control Laws Part III

Jeffrey G. Miller

Editors' Summary: This article is the third in a three-part series on citizen enforcement suits. Mr. Miller discusses attorneys fee recovery under the statutes, presents a summary of a recent empirical study on citizen enforcement, outlines strategic lessons for plaintiffs and defendants, and proposes a model citizen suit provision.

Mr. Miller is a partner in the Washington, D.C. firm of Bergson, Borkland, Margolis & Adler. He was an EPA enforcement official for 10 years, finishing his government career as head of EPA's Enforcement Office.

[14 ELR 10407]

Eleven federal environmental statutes1 allow citizens access to court to enforce the requirements of the statutes against both violations by the regulated public and tardy or erronous government implementation.2 This is the last of a three-part series on the use of citizen suits under those statutes to enforce compliance by the regulated public. Part I of this series3 outlined the citizen suit sections and evaluated the uses made of them. It analyzed who could be plaintiffs and defendants in citizen suits and which violations are actionable in such suits. Part II of the series4 analyzed the mechanics of bringing citizen suits and the remedies available to successful litigants. This part of the series discusses the award of attorneys fees; the results of empirical research on the use of citizen suits to enforce environmental statutes; lessons for plaintiffs and defendants; and recommended statutory changes.

Attorneys Fees5

The American Rule

Under the American Rule, with narrowly defined exceptions and absent express statutory directive to the contrary, each party must bear its own litigation expenses. The exceptions include: (1) expenses incurred in enforcing a court order which has been willfully disobeyed;6 (2) expenses incurred by the prevailing party where the losing party has prosecuted or defended the case in eggregious bad faith;7 and (3) expenses incurred in litigating to recover a fund in which others are entitled to share.8 These exemptions are of some vintage and are well established.

In the absence of specific statutory authorization, the exceptions did not clearly authorize attorney fee awards in cases where public interest groups forced a reluctant government to fulfill its responsibilities under environmental or social legislation. This situation commonly arose in National Environmental Policy Act9 suits or in rulemaking challenges under the environmental statutes.10 But some courts responded by building on the [14 ELR 10408] common fund theory11 or the bad faith theory,12 or by using them by analogy to allow awards to private attorneys general in vindicating a strong policy benefitting the public as a whole.13 Similar developments occurred in some states.14

The Supreme Court decisively ended this trend in Alyeska Pipeline Service Co. v. Wilderness Society (Alyeska).15 The Court concluded that the very vintage of the American Rule and the long history of making specific legislative exceptions to it precluded the courts from ignoring it without express statutory authority. The decision was followed by dire predictions that private litigation to enforce public rights would be discouraged, a prediction that has not proven accurate.16 The decision did lead, however, to the authorization of litigation cost awards in challenges to rulemaking under some of the environmental statutes.17

Attorneys Fees Under Citizen Suit Provisions

The citizen suit sections reverse the American Rule by authorizing courts to award costs of litigation, including reasonable attorney and expert witness fees, to any party when appropriate. The award may be made in any final order. As with most other aspects of the sections, Clean Air Act18 § 30419 set the pattern for the authorization of litigation cost awards and has been followed by successive statutes almost verbatim.

The propriety of fee awards under the environmental statutes has sparked considerable controversy, with more reported decisions on attorneys fees than on any other aspect of the citizen suit sections. Indeed, there is at least one reported case on fee awards under most of the environmental statutes considered in this article.20 This development has not pleased the courts. The D.C. Circuit has expressed considerable impatience with the time it has been forced to spend tidying up this non-substantive leftover of citizen suit cases.21 Predictably, the bulk of the litigation over costs has focused on when fee awards are appropriiate and what fees are reasonable.

The authorization of attorney fee awards is not unique to the citizen suit sections of federal environmental statutes. Such awards are provided for in well over 100 federal statutes,22 such as the Clayton Act,23 the Civil Rights Act of 1964,24 and the Securities Act of 1933.25 The attorney fee award provisions of these statutes differ from the environmental citizen suit sections by expressly "predicating [14 ELR 10409] fee awards on some success by the claimant," rather than allowing an award wherever the court finds it appropriate.26 In other respects, the other statutory provisions are similar to the citizens suit sections' fee award provisions, although not always parallel in wording. As a result, there is a large body of case law and a developed literature27 on the many issues involved in the appropriate size of fee awards.

The legislative history of the attorney fee award provision of Clean Air Act § 304 is scanty. Taken as a whole it suggests that the provision was included to encourage legitimate citizen suits and to discourage illegitimate ones. There was no citizen suit section in the House bill. The original Senate bill authorized the award of attorneys fees "whenever the court determines such action is in the public interest."28 During Seante debates on the Clean Air Act, the citizen suit section was attacked. Senator Hruska contended, among other things, that a citizen suit section would "result in a multiplicity of suits which will interfere with the Executive's capability of carrying out its duties and responsibilities."29 Senators Muskie and Hart replied that the possibility of awarding attorneys fees to defendants would discourage harassing or frivolous suits.30 The Senate committee report repeated this reply.31 The same report also indicated that citizens bringing "legitimate" actions under the section performed a public service and "should" be awarded attorneys fees, even where cases did not reach a verdict but resulted in successful abatement of a violation.32 In conference, the criterion for awarding attorneys fees was changed from "in the public interest" to "appropriate." The significance of this change is not apparent, since both concepts are rather nebulous and subjective. Moreover, the change was not mentioned in the conference report, and the section by section analysis, in the Senate committee report, continued to explain the standard as "in the public interest without regard to the outcome of the litigation."33

In a subsequent amendment to § 307 authorizing the award of attorneys fees in judicial review cases, the House report explained the purpose was both to discourage frivolous litigation and to encourage "litigation which will insure proper implementation and administration of the Act or otherwise serve the public interest." And it indicated that fee awards were not to be limited to "prevailing parties."34 With one exception, the legislative history of attorney fee provisions of citizen suit sections under other environmental statutes is virtually non-existent35 and courts in ruling on fee petitions under those statutes refer to the legislative history of the provision under the Clean Air Act.36 The exception is Toxic Substances Control Act (TSCA)37 § 19,38 which does have some substantive legislative history, but it is consistent with that of Clean Air Act § 304.39

Causes of Action in which Fees Are Awardable

* Distinguishing Citizen Suits from Judicial Review. Most of the environmental statutes under consideration provide two avenues for citizen access to courts: the citizen suit sections and the judicial review sections.40 The latter provide mechanisms to challenge agency actions, such as the issuance or denial of a permit, the terms of a permit, or the promulgation or conditions of the regulation. Attorney fee awards are authorized by all of the citizen suit provisions, but under few of the judicial review provisions.41 As a consequence, it has not been unusual for persons challenging administrative action to attempt to recoup their attorneys fees under the citizen suit sections. These attempts met with varying success in the courts of appeals. The leading proponent of attorney fee awards under authority of citizen suit sections in judicial review cases has been the First Circuit, beginning with Natural Resources Defense Council, inc. v. EPA (NRDC I).42

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The First Circuit's approach has not carried the field. Absent clear statutory language or strong and clear manifestation of legislative intent, it appears clear that attorneys fees should not be awarded under citizen suit sections for cases brought under judicial review sections. The citizen suit sections authorize attorney fee awards "in any final action brought pursuant to" the citizen suit sections, not pursuant to other sections. Congress easily could have provided otherwise, but it did not. There is no hint in the histories of either type of provision that Congress considered the authority to seek fees it had granted in citizen suit provisions to be transferable to judicial review actions. The First Circuit's creative attempt to use the common fund doctrine to avoid the American Rule subsequently was adopted by the District of Columbia Circuit, but reversed by the Supreme Court in Alyeska,43 thus apparently ending the exercise.44

It should be noted in passing that both the Clean Air Act and Surface Mining Control and Reclamation Act (SMCRA)45 authorize an award of attorneys fees to successful defendants in government enforcement cases, where the government's case was unreasonable.46 There do not appear to be many such awards made47 and the provisions overlap similar provisions under the Equal Access to Justice Act (EAJA).48

* Retroactive Application. There is precedent for the retroactive award of attorneys fees in cases where litigation has been completed at the time an award authorization is enacted.49 Although all the citizen suit sections [14 ELR 10411] under consideration were enacted complete with fee award authorizations, this issue could arise in the application of future amendments, if any, to the attorney fee authorizations contained in the sections.

* Pendent Claims. Citizen suits to enforce the environmental statutes will often include counts by way of pendent jurisdiction seeking relief under state statutory and common law. Indeed, this will probably be the normal case under the recent amendments to the Resource Conservation and Recovery Act (RCRA),50 which allow citizen suits, with attorney fee awards, to abate imminent and substantial endangerments involving hazardous waste, regardless of whether RCRA is violated — in essence a federal forum, with attorneys fees, for state common law nuisance claims. Plaintiffs may be tempted to seek attorneys fees related to work supporting these pendent counts.If the work supporting these counts cannot be effectively separated from work supporting citizen suit counts, such an award may be appropriate.51 If the work is separable, however, the American Rule prohibits the award.52

Parties To Whom Attorneys Fees May Be Awarded

* Successful Plaintiffs. It would appear axiomatic that courts should make attorney fee awards to successful citizen suit plaintiffs, absent some egregious countervailing consideration such as bad faith on the part of the plaintiff. Indeed, both case law53 and legislative history support this,54 and no reported decision refuses to make an attorney fee award to a successful plaintiff in a citizen suit enforcing the environmental statutes.55 To refuse an award in such a case would defeat the legislative purpose of encouraging legitimate citizen suits. There can be little doubt that the high cost of such litigation would impede the commencement of citizen suits, particularly against defendants with vast resources, without the probability of a fee award upon the successful completion of the case.56

There are substantial questions, however, regarding when a plaintiff is successful. Is it successful if it prevails on one issue out of two? One of ten? If the plaintiff has achieved the substantive relief sought, it should not make any difference if it has not prevailed on a number of issues. But what if the issues on which it has prevailed are only procedural and it has lost on the substantive issues, failing to achieve the relief sought? Although there is a body of law addressing these questions under statutes authorizing attorney fee awards to prevailing or partially prevailing parties,57 Congress clearly intended awards under the environmental citizen suit sections not to be so limited58 and the Supreme Court has acknowledged that in Ruckelshaus v. Sierra Club,59 discussed in more detail below. In that case the Court commented that "trivial success on the merits" would not necessarily justify an award.60 The Court's failure to explain how successful a plaintiff must be to be awarded fees only invites further litigation.

It should be noted that success does not require that a plaintiff obtain the relief it seeks in a final judgment after trial. Negotiating a favorable consent decree prior to a hearing on the merits,61 or even obtaining a reversal of the defendant's behavior after filing suit62 can support a fee award.

But mere non-trivial success on the merits will not automatically justify an award of attorneys fees. The award must be "appropriate." Neither Congress nor the Supreme Court has provided guidance on when an award is appropriate. Lower courts have developed two criteria [14 ELR 10412] for judging the apprpriateness of a fee award: (1) whether the relief obtained by the plaintiff furthered the goals of the statute being enforced and (2) whether an award is fair under traditional equitable principles.63 These criteria are well rooted in the legislative history of the provisions.64 While successful citizen suit enforcers will usually meet these two criteria, it is possible to envision cases in which they might not.65

* Unsuccessful Plaintiffs. There has been protracted controversy over the extent to which unsuccessful or partially unsuccessful plaintiffs may be awarded attorneys fees.66 The controversy arises because the citizen suit sections authorize attorney fee awards when "appropriate," while the overwhelming majority of other statutory exceptions to the American Rule67 and the few judicial exceptions to it68 authorize awards only to parties that prevail or substantially prevail. The legislative history is not particularly expansive as to when an award of attorneys fees is "appropriate." It does indicate at one point that "[t]he court may award costs of litigation to either party whenever the court determines such an award is in the public interest without regard to the outcome of the litigation."69 Most courts considering the question have seized on this language to award attorneys fees in cases where citizen suit plaintiffs only partially prevailed or did not prevail in any way, if the suit achieved a public purpose "by assisting the interpretation or implementation" of the statute sought to be enforced.70

In Ruckelshaus v. Sierra Club, the Supreme Court decisively ended awards to unsuccessful petitioners, but left open the possibility of awards to partially successful petitioners. The case arose from a challenge to the Environmental Protection Agency's (EPA's) emission standards for sulfur dioxide from coal burning power plants under Clean Air Act § 307, the judicial review section. The Court's reasoning, however, is equally applicable to awards in citizen suit enforcement cases. Indeed, the Court noted that "It is clear … that, whatever general standard may apply under § 307(f), a similar standard applies under § 304(d)."71 The Court's analysis began with the almost irrebuttable presumption under the American Rule that even successful plaintiffs pay their own attorneys fees. In this light, it held that the "appropriate" standard could not possibly include an award from the prevailing party to the unsuccessful party in the absence of clear statutory authority. It interpreted legislative history indicating that § 307(f) reversed the prevailing party [14 ELR 10413] rule to mean that fee awards could be made to partially prevailing parties but not to wholly unsuccessful parties.

Because the Court was dealing with § 307(f), it did not confront the full legislative history of § 304, which includes an explicit statement that awards may be made when "in the public interest without regard to the outcome of the litigation."72 "Without regard to outcome" is strong and explicit language. Because the Court appears to foreclose further argument on the issue under § 304, it may never fully explore the legislative intent for § 304(d).

The Court's analysis is tortured to a degree that can be explained only by a strong desire to reach the result achieved.73 It reasoned that the presumption aainst the award of attorneys fees to unsuccessful litigants could be reversed only by clear statutory wording or strong evidence of legislative intent. The undeniable purpose behind § 307(f) was to extend the attorney fee award provisions of § 304 to cases of judicial review of EPA rulemaking. In this context, the failure to acknowledge clearly stated legislative intent that attorneys fees under § 304 could be awarded without regard to outcome is startling. It almost passes the bounds of credulity for the Court to indicate that its holding under § 307(f), based on its reading of the legislative history of § 307(f), will apply to cases arising under § 304, without considering the legislative history of that section. Other flaws in the opinion are explored at length in Justice Stevens' spirited dissent and in a law review note.74 Significantly, the Court did not address when an attorney fee award is appropriate; it merely enunciated one instance i which it is not appropriate. It thus did not forestall continued litigation over when awards are appropriate and probably encouraged it by unsettling retionales for appropriateness developed in previous lower court cases.

Ruckelshaus v. Sierra Club may not be of much significance in citizen suit enforcement cases in any event. All cases in which awards to unsuccessful litigants were made under the environmental statutes have been against a successful government litigant, on the basis that the award-seeking litigants have served the public interest by focusing public debate on important regulatory issues or government shortcomings.75 It is difficult to hypothesize a case where an award could be made on the same basis against a successful private defendant in a citizen suit enforcement case. Indeed, the question in such a case will be whether an award is appropriate against the unsuccessful plaintiff.

* Intervenors. The citizen suit sections allow intervention in enforcement actions pursued in federal court. Indeed, intervention is a means to allow some citizen participation where a citizen suit has been foreclosed by prior government enforcement.76 This rises the question of whether intervenors may be awarded attorneys fees. It follows for Ruckelshaus v. Sierra Club that wholly unsuccessful intervenors may not be awarded attorneys fees. Because the citizen suit sections allow awards to be made to "any party," it would appear that awards could be made to successful or partially successful intervenors. Intervening plaintiffs and defendants have sought fee awards in a number of cases.77

Intervenors face special difficulties, however, in justifying fee awards. If they appear in support of the defendant, they run afoul of the bias against awards to defendants. If they appear in support of the plaintiff, the plaintiff must prevail or partially prevail before an award is justified.78 In addition, fee awards for intervenors are unlikely for work that duplicates work already done by the benefiting party, an unlikelihood that increases if the award is sought from the benefiting party. In such a case the intervenor must make a clear showing of a unique contribution to the benefiting party's position as a result of intervention.79 But in a case that did not proceed to trial it is almost impossible to determine whose efforts led to a resolution of the action and an award to an intervenor might be appropriate if the court determines that the intervenor actively participated in the proceeding.80

* Successful Defendants. In authorizing an award to "any party" when "appropriate," Congress clearly intended that an award could be made to a defendant when the action against it proved to be frivolous. This was the very essence of the legislative compromise between proponents of the Clean Air Act citizen suit section and those who feared it would flood the courts with litigation. Provision for an award against plaintiffs with a frivolous case was intended as a prophylactic against harassing and unfounded litigation.81 At the same time, legislative intent was also clear that "appropriate" had a different meaning for successful plaintiffs than for successful defendants. While successful plaintiffs were to receive attorney fee awards as a matter of course, successful defendants were to receive them only if the action against them had been frivolous, a stricter standard.82

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In only one reported case under the environmental statutes has a successful defendant sought an award of attorneys fees. Acknowledging legislative history, the court in that case stated that a motion for an attorney fee award "may succeed only when the action was objectively frivolous."83 Finding the action, although unsuccessful, not to be frivolous, the court denied the award. The action had merit when commenced, but lost it when EPA administratively confirmed defendant's position. The court's decision was strongly influenced by the fact that plaintiff voluntarily dismissed its action at this point. The court also noted in passing that an unsuccessful action did not have to be brought in bad faith to justify an award to the defendant. This even more difficult standard would only duplicate one of the exceptions to the American Rule and is not supported by the legislative history.

* Government Parties. State and local governments may try to enforce the federal environmental laws as plaintiffs.Governments at any level may be defendants in citizen suits brought to compel environmental compliance by violating governmental facilities. They may also intervene on either side.

The federal government could conceivably be a successful plaintiff in a citizen suit,84 but an attorney fee award would not be appropriate. If Congress had intended the federal government to recoup its costs of enforcement from defendants, it would have so provided in the enforcement sectins of the statutes. EPA should not be allowed to circumvent the enforcement mechanism provided for it merely to secure attorneys fees under a mechanism provided for use by others. It seems the government will try anything once, however: it did request attorneys fees in one case under Clean Water Act § 505, a request that was roundly rejected.85

State and local governmental plaintiffs are a more difficult matter, but probably should not qualify for fees under federal statutes that grant them enforcement authority. Most federal environmental statutes contemplate specific implementation roles for state and local governments. Under the Clean Water Act, for instance, states may assume primary implementation responsibility if they have the authority and resources to issue and enforce discharge permits similar to the federal model.86 The Clean Water Act also provides funding for state programs, including enforcement.87 The statutory schemes provide three mechanisms for enforcement: state enforcement, federal enforcement, and citizen enforcement. Citizen enforcement, however, was to be supplemental. Governmental action is the preferred method of enforcement and the citizen suit sections are designed to prompt and encourage government action.88 There are different incentives and funding mechanisms for all three types of enforcement. Government enforcement is required by statute, funded by federal and state appropriations and federal grants to the states. Government action is further encouraged by the media and the political process. Attorneys fees are intended to facilitate citizen enforcement; government enforcement is more directly supported and should not need the incentive of fees. Indeed, the award of attorneys fees to state governments could effectively thwart the ability of state legislative and executive budget authorities to determine how state resources are utilized. While this might be beneficial for environmental enforcement, it is contrary to the basic composition and theory of our federalist political structure.

The only reported attorney fee award to a state under the environmental statutes was to the District of Columbia in Alabama Power Co. v. Gorsuch.89 Because that was not an enforcement case, but one challenging the legality of EPA regulations applicable to sources in the District under the judicial review provision, it does not run counter to the analysis above. Indeed, in a subsequent citizen enforcement case, Friends of the Earth v. PEPCO,90 the District of Columbia was denied attorneys fees as an intervenor. The District Court did not reach the "fundamental question of Congressional authorization for costs awards to states which bring citizen suits."91 It noted the award in Alabama Power, but evidently did not feel it was dispositive.92 States are probably in the poorest position to petition for attorney fee awards as intervenors in citizen enforcement suits becase they would be rewarded financially for withholding enforcement until citizens were forced to sue. Thus, while the holding in Friends of the Earth does not necessarily foretell doom to state attorneys general seeking remuneration in environmental cases, much of its reasoning does. The Supreme Court's admonition in Ruckelshaus v. Sierra Club to remember the American Rule when determining when it is "appropriate" to award fees, seems an invitation to courts to reject states' requests for fee awards.

* "Non-Environmental" Parties or Positions. There has been considerable controversy over whether "non-environmental" parties or parties advocating "non-environmental" positions can be awarded attorneys fees. Part of the problem with understanding this controversy is determining the meaning of "non-environmental." Is a [14 ELR 10415] party non-environmental because it brings a pro-environmental suit that will coincidentally serve its own economic interests by ending another's pollution that is damaging its real property? It should be remembered that private individuals may be similarly motivated to file suit. Is an industrial plaintiff non-environmental because it brings a pro-environmental suit that will serve its own economic interests by precluding a competitor from enhancing its competitive position by ignoring pollution control laws and saving money? It should be remembered that fundraising strategies of some public interest environmental groups have relied heavily on the prominence of their litigation to divert funding from less litigious groups. Is a position non-environmental because it challenges an action taken pursuant to an environmental statute? It should be remembered that many environmental public interest groups routinely challenge EPA actions taken pursuant to environmental statutes. And even a pro-environmental action, such as building a sewage treatment plant, can run counter to environmental statutes and concerns.93

The statutes themselves are silent on this issue and most of the legislative history is of marginal value. But a floor statement in conjunction with Senate consideration of the conference report on TSCA indicated that an award should not be made to a party that stood to gain economically if its position was successfully advocated.94 Since TSCA uses the same "appropriate" standard as the other statutes, this has been cited as support in interpreting them as well.95 The premise of this inquiry, however, is not valid except perhaps under TSCA. Congress clearly contemplated that even a corporate environmental blackguard that stood to gain a multi-million dollar benefit in reduced pollution control expenses upon successfully defending an enforcement action against it could be awarded attorneys fees if the citizen or, at least under the Clean Air Act, government enforcement action against it was proven to have been frivolous.96 If such a party can recover fees as a defendant, why not as a successful plaintiff?

It is not surprising that courts have come to contradictory conclusions when facing this set of issues. EPA appears to take the position, at least in Clean Air Act § 307(f) award requests, that awards are not appropriate for advocates of "non-environmental" positions. The D.C. Circuit found this position to have "no support in the words of the statute or its legislative history" and rejected it in granting a fee request by the District of Columbia.97 In the same case the D.C. Circuit hinted broadly that it might come to a different conclusion if the petitioner were a for-profit corporation out to advance its own economic interests.98 The Fourth Circuit found EPA's position to have both logical and policy support, but rejected it for want of statutory support.99 In the Fourth Circuit case the petitioner was a for-profit corporation that benefited economically from prevailing in its position. Oddly, the Fourth Circuit cited the D.C. Circuit's opinion, apparently not recognizing that the opinion distinguished between the two types of petitioners.

Three district courts have considered the question in different contexts under the citizen suit sections, which utilize the same "appropriate" standard as Clean Air Act § 307(f). In a recent Clean Water Act § 505 enforcement case a court made a substantial attorney fee award to a for-profit corporation claiming an economic interest in the aesthetics of the neighborhood damaged by illegal pollution it had sought to enjoin.100 The court passed over the issue of the appropriateness of making an award to a commercial plaintiff, even though it had previously made a substantial award in the same case to a more traditional "public interest" plaintiff.101 Another court refused an award to a profit-making plaintiff that had successfully thwarted government action against it in an Endangered Species Act102 § 11g103 case, stating that such an award would "twist the spirit of the private attorney general action."104 A third court similarly denied an award to profit-making intervenor-defendants protecting their own economic interests in a Clean Water Act § 505 case, on the grounds that, in opposing the settlement of the Natural Resources Defense Council (NRDC) "toxics" settlement under the Clean Water Act they were, in essence, unsuccessful defendants.105 The court noted that the purposes of the Act and the fee award provision would be subverted if multiple industry intervenors were compensated by the government for opposing government regulations supported in litigation by public interest groups with modest resources. The different judicial responses reflect both the differences in the contexts in which the issue was raised and confusion in resolving conflicting policies under the environmental statutes in the absence of clearer congressional guidance. This is an issue that warrants further legislative action. In the meantime, there is no apparent reason to deny awards to for-profit plaintiffs in citizen suit enforcement cases. Such cases clearly implement the statutes, and the motives behind the cases are immaterial, even if they could be definitively known and were substantially different than those of "real citizen" plaintiffs in similar cases.

Parties Against Whom Attorney Fees May Be Awarded

The citizen suit sections do not specify against whom attorneys [14 ELR 10416] fees may be awarded. In the normal case an award can be made against the non-prevailing party. But there are other considerations involved when that party is a governmental entity or has been joined by intervenors.

* Governmental Defendants. Absent a waiver of sovereign immunity, an award of attorneys fees cannot be made against the United States.106 Waivers of immunity are construed strictly in favor of the United States.107 This was one of the Supreme Court's considerations in Ruckelshaus v. Sierra Club, in holding that Clean Air Act § 307(f) did not authorize a departure from the American Rule in order to award attorneys fees against the government to a wholly unsuccessful petitioner.108 Since many requests for attorneys fees under the citizen suit sections are in cases against federal departments and agencies, the specter of sovereign immunity could contribute to conservative interpretation of attorney fee issues under the citizen suit sections. Significantly, the Court did not rest on sovereign immunity in Sierra Club. Awards against the United States under the citizen suit sections are such a common occurrence that repeated judicial and congressional silence in the face of these results must be regarded as putting that issue to rest. In any event, the Equal Access to Justice Act provides that attorneys fees may be awarded against the United States under the same conditions as against other persons.109

There are serious bars to recovering attorneys fees in citizen enforcement actions against states. The Eleventh Amendment bars suit in federal court against a state by a citizen of another state or a foreign country. This bar has been extended as an incident of sovereign immunity by the courts to suits against states by their own citizens.110 Most states have waived sovereign immunity in regulatory contexts to roughly the same extent as has the United States. Even though sovereign immunity may be available as a defense, state defendants do not always raise it. As a consequence states are sometimes defendants in citizen suits. Few states, however, have waived sovereign immunity to awards of attorneys fees. As a consequence, the defense is available when attorney fee claims are made against states, and the defense is used.111 There is a line of civil rights cases in which attorney fee awards are routinely made, but they are easily distinguished since the awards are authorized by statute in cases enforcing Fourteenth Amendment rights.112 In some situations this bar can be avoided by suing state officials as individuals,113 but that is not always possible and seldom produces a defendant with a deep pocket. Thus, absent congressional action, for example, amendments to environmental statutes requiring states seeking EPA delegation of federal regulatory programs to waive sovereign immunity as a condition of approval under the statute, citizen enforcers will have to finance their own attorneys fees in actions against states.

* Intervenors and Co-Parties. Just as intervenors may be awarded attorneys fees in appropriate cases, they may have fees awarded against them in appropriate cases. This is most likely when intervention is on behalf of an ultimately unsuccessful defendant and the intervenor raises or persists in issues that the defendant does not raise or adhere to. Indeed, if intervention is on behalf of an ultimately unsuccessful state defendant, it is conveivable that the intervenor could bear all the costs of an attorney fee award to the plaintiff. Other co-parties with a state could be placed in the same position. Legislative history is silent on these possibilities and no reported cases under the environmental statutes consider them. Such awards have been made under other statutes with similar attorney fee award provisions, however,114 and NRDC recently sought attorneys fees from intervenors in the Clean Water Act toxics decree litigation.115

Computing the Award

The statutes merely authorize the award of "reasonable" attorneys fees, without defining "reasonable." Nor does the legislative history shed light on the question, except for one set of written remarks on the TSCA citizen suit section.116 Fortunately, there is a considerable body of law growing out of attorney fee awards in civil rights litigation that easily can be, and normally is, drawn upon in calculating fees under the environmental statutes.

The most widely quoted rationale for determining fee awards is a list of twelve criteria established by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc.:117

1. Time and labor required;

2. Novelty and difficulty of issues;

3. Skill required for proper representation;

4. Preclusion of other employment;

5. Customary fees;

6. Contingency of fee, if applicable;

7. Time limitations, if any;

8. Amount involved and results obtained;

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9. Experience and reputation of attorney;

10. Undesirability of case;

11. Nature of professional relationship with client; and

12. Awards in similar cases.

These criteria were derived from the American Bar Association's Canons of Ethics and more recent Code of Professional Responsibility and have been adopted by many courts.118 The Johnson criteria are only a starting place for determining a fee award, suggesting factors for subjective evaluation, but not a formula from which a specific award can be calculated. The District of Columbia and Third Circuits have gone the farthest in translating the criteria into a general formula for calculating fee awards.119 Under their formula, reasonable hourly rates are multiplied by the reasonable number of hours expended to obtain a "lodestar" amount. The lodestar may then be adjusted for a variety of factors, including the contingent nature of the case, quality of representation, and delay in payment. Out-of-pocket expenses are then added, although they too may be subject to some of the adjustments, e.g., delay in payment.

* Hourly Rates. A few early decisions held down hourly rates because of the pro bono nature of citizen suit cases.120 Later decisions abandoned this tendency and focused instead on the "market rate" in the community for performing the same or similar work.121 In theory the market rate would then be adjusted by some of the factors enunciated in Johnson. In practice, however, courts tend to look for hourly rates actually charged for similar work in the private market. This is not inappropriate, since the market takes the Johnson factors into account, probably more precisely than could a judge.

The burden is on the fee claimant to provide the court with specific evidence of the market rate for his or her services.122 That evidence may take the form of rates actually billed by the claimant attorney for comparable work for paying clients; fee awards in comparable cases to attorneys with comparable experience and skill; or affidavits as to rates received by such attorneys in such cases from paying clients.123 The affidavits need not state names and cases, but must be based on personal knowledge, and cannot be general "information and belief" affidavits. The affidavit of the administrator of a large Washington D.C. law firm's pro bono activities, who had prepared fee applications for his firm and reviewed fee applications presented to his firm by other attorneys, has been held sufficient despite the absence of specific names.124

In an approach later embraced by the District of Columbia Circuit, one district court established four levels of experience to help structure fee awards: very experienced attorney (over 20 years); experienced attorney (over nine years); less experienced attorney (over four years); and inexperienced attorney (less than four years).125 While such experience standards may simplify the court's job, they are incomplete because they do not reflect that market value of the different levels of experience, a variable that is not so easily stratified. To the extent courts rely on experience levels and on awards in previous cases, they must compensate for inflation and movement by attorneys from one experience level to another during the course of litigation or the result will fall short of market value.126

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Although different hourly rates may be recognized for different types of work, the focus is on different fields of law rather than in-court and out-of-court work.127 Work assembling fee petitions and prosecuting fee claims is compensable.128 Some courts have awarded lower hourly rates for such work, but the more recent cases have abandoned this distinction.129

It has been argued that there area number of market rates operating for attorneys' time; market rates for: attorneys in private practice, in-house counsel is private industry, government attorneys, and in-house counsel in public interest law firms. Market rates for attorneys in private practice are rates they charge and receive. Market rates for the others are what they are paid per hour, plus an allocation for overhead and, if applicable, for profit. This approach has been decisively rejected. The only market value considered by courts is the market for attorneys in private practice.130 This is supported by a modicum of legislative history.131 and by the rationale that the citizen suit sections encourage citizen enforcement by allowing the award of attorneys fees, an encouragement that would be token at best if awards were limited to salaries paid to public interest attorneys. When claimants request fees based on lower salary rates, of course, courts accommodate them.132

* Compensable Hours. Fee award applications have been resisted both for lack of sufficient documentation of hours worked and for lack of reasonable necessity for doing the work. The burden of establishing the hours reasonably spent on a case, of course, rests on the claimant.133 It must present sufficient documentation to enable opposing counsel and the court to assess the merits of the fee petition, i.e., to set forth the number of hours devoted by different attorneys to different tasks in the case. This standard should be met easily by private practitioners who customarily keep detailed account of their time for billing purposes. It may be more difficult for government attorneys, in-house counsel, and public interest law firm attorneys who ordinarily do not need or keep such detailed records. For any attorney, however, there is a tension between making an exhaustive, detailed, complete, and unimpeachable petition, which adds to the time required and hence to the fee request, and a less exhaustive effort, which keeps that part of the fee request devoted to the fee petition to a minimum.

The better practice is to make a reasonably complete but not exhaustice showing that includes submission of time sheets and other supporting documentation and supplying exhaustive detail in a reply brief only for hours challenged. This puts on the challenger the onus of demanding extra compensable hours for the fee petition, for it cannot both demand extra detail and take the position that time was not reasonably spent supplying that detail.134

Petitions that present charts of the types of work done during different stages of a proceeding by different attorneys have been well received.135 Courts have allowed petitions based on reconstruction of the detail in such charts when the underlying rationale for the reconstruction is reasonable and does not evidence lack of diligence on the part of the claimants, and have indicated that complete denial of an application should be reserved for egregious cases, e.g., where no justification is presented.136 Petitioners who eliminate from claims hours for duplicative work, learning time, and unproductive work appear to build credibility with the court.137

Any activity that is reasonably undertaken to prepare, prosecute, or resolve an action, or to monitor and enforce the resulting order, is compensable. This includes investigation and analysis of the underlying facts and law,138 preparation of pleadings,139 court appearances,140 pre- and post-decree negotiation,141 monitoring compliance [14 ELR 10419] with and enforcing the resulting court order,142 and petitioning for fees.143

Participation in related administrative proceedings is not compensable, because compensable costs are limited to costs in "the action."144 Although this result is consistent with the wording of the citizen suit sections, it is unduly restrictive. If participation in ancillary proceedings is necessary to prosecute an action or enforce a resulting order, there is no reason it should not be compensated. That the party opposing the fee award initiated or actively participated in the administrative proceeding may be an indication of how integral that proceeding is to the judicial action.

Prior to 1983, courts were not overly troubled by awarding ultimately successful citizen suit enforcement plaintiffs attorneys fees for motionsand other legal activities that were not themselves successful. If fee awards could be made to wholly unsuccessful parties, surely fee awards could be made to substantially prevailing parties for their unsuccessful efforts as well. In ruling that fee awards may not be made to wholly unsuccessful parties, the Supreme Court in Ruckelshaus v. Sierra Club invited protracted litigation over what, if any, unsuccessful activities of a successful or partially successful party are compensable under the citizen suit sections.

Not surprisingly, this question has arisen frequently under fee shifting statutes that use a "prevailing party" standard of fee awards. The Supreme Court faced the question in that context in its recent decision in Hensley v. Eckerhart.145 The Court held that the lower court had correctly found that the fee petitioners were prevailing parties even though they had not succeeded on all claims. The defendant had contended that the amount of the award should be reduced by a percentage derived by dividing the number of issues on which the petitioners had not prevailed by the total number of issues in the case. The lower court had rejected this approach as too simplistic in that it disregarded the relative importance of the issues, their interrelationship, their difficult of identification, and the different extent to which the petitioners prevailed on the issues. It did, however, reduce the award for other reasons.

The Supreme Court agreed that the suggested approach was not appropriate, but remanded for redetermination in light of its discussion of how the unsuccessful claims question should be answered. It started with the legislative history that cited with approval the approach of Johnson and several cases applying it. The fee petitioners in all those cases had obtained essentially complete relief. Neither the legislative history nor the cases cited addressed how to compensate prevailing petitioners who had obtained less than they had sought. Courts considering the question had split.

The Court resolved the issue in part, indicating that no fees should be awarded for distinctly different substantive claims on which the fee petitioner had not prevailed. But as to related claims on which it had not prevailed, the Court looked to the degree of success achieved by petitioners.

Where a plintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances, the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit …. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.146

On the other hand, the Court indicated that where the fee petitioner had achieved only limited success on the merits, these should be some discount for time spent on unsuccessful claims, even if they were interrelated, non-frivolous, and raised in good faith. It declined to specify a method for discounting fees under these circumstances, however, essentially leaving the matter to the trial court's discretion. Finding that the trial court in Hensley had not articulated its fee award analysis in the proper manner, the Court remanded the case, acknowledging that the fee awarded might be upheld if its justification coincided with the Court's directives.

Finally, Hensley indicates that activities reasonably undertaken to support an ultimately successful claim are compensable regardless of whether the activities themselves were successful. This is clearly implied by the above quotation, although it is not squarely addressed by the decision.

[14 ELR 10420]

Hensley settled two important issues concerning attorneys fees, but left to trial courts the issue of how to discount fee awards to parties whose success on the merits was limited. This is sure to engender more litigation. Moreover, it places an extra burden on petitioners and courts to apply the Court's general guidance on discounting. The issue may have less significance in environmental citizen suit cases, however. Since the Court has acknowledged that the "when appropriate" standard applicable in such cases is more liberal than the "prevailing party" standard at issue in Hensley, it may well place less emphasis on the need to discount in environmental citizen suits.

Another issue raised by partially successful actions, and one not addressed at all in Hensley, is how to handle time spent pursuing counts that are not fee eligible under the applicable statute, for example a state law tort claim attached to a Clean Water Act enforcement case by way of pendent jurisdiction. Time spent pursuing the non-fee-eligible claim should not be included in the award, regardless of the resolution of the claim. Many activities supporting the Clean Water Act claim, however, also would support the tort claim. Compensation for these activities should not be denied merely because they have a dual purpose. Erring on the side of a fee award in such cases should not be an abuse of discretion because the courts are not compelled to "engage in a minute examination of each theory or claim advanced and what result it did not produce."147

On the other hand, courts properly have also refused to award fees for excessive, inefficient, or duplicative use of time.148 Excessiveness and inefficiency are judgmental and courts have not provided useful guidance in defining them. It may be reasonable to refuse fees to intervenors supporting a government position, where the government's representation is adequate and the intervenor provides no more than "me too" support.149 The purpose of the citizen suit sections is to encourage private action in the absence of government action, not to compensate citizens for riding on the government's litigation coattails. But the refusal of courts to allow compensation for the presence of more than one attorney in court appearances or the participation of multiple attorneys on a case150 ignores more sophisticated modern legal practice in which junior attorneys frequently assist senior attorneys in court by providing necessary backup without active participation in arguments.151 The familiarity of more than one attorney in a case also provides needed continuity when lead attorneys are unavailable.

In many fee inquiries, examination of the time and charges of counsel opposing the fee petition may be relevant, although apparently they are seldom made. What were the rates and hours of the opposing counsel? Did opposing counsel initiate or engage in what later proved to be false starts or blind alleys? How many hours did opposing counsel spend on a motion when the hours spent by petitioning counsel on that motion are alleged to be excessive? How many attorneys did opposing counsel have at a hearing where the attendance of more than one attorney for petitioning counsel is challenged as duplicative?

* Out-of-Pocket Expenses. Awards may include reimbursement for the full range of out-of-pocket expenses normally incident to litigation, e.g., duplicating, postage, long distance telephone calls, travel, secretarial overtime, and charges for law clerk and paralegal time.152 Care must be taken to avoid double charging as out-of-pocket expenses items that are customarily charged to overhead, for example, business hour secretarial time, library costs, and rent. The best and easiest guide to true overhead items is the list of such charges a law firm customarily charges its private clients.

Two items warrant special mention. Courts show some sympathy to objections to awards of travel costs.153 This probably results from an expectation that lower fees would result from use of local attorneys. In many environmental enforcement cases, however, local counsel is [14 ELR 10421] not a practical option. Experienced environmental enforcement lawyers are few in number and tend to be found in major metropolitan areas and state capitals. Defendants' dislike of travel cost awards is matched by their aversion to awards for paralegal and law clerk time. These costs, however, are routinely included in awards,154 even for unpaid law student assistants.155

* Lodestar Adjustments. Awards have been adjusted for a variety of factors, including the contingent nature of the case, delay in payment, quality of representation, and the complexity of the case.156 These normally have been upward adjustments are calculated by multiplying the lodestar by an appropriate percentage. Some of the factors could justify a downard adjustment, for example, poor representation. Indeed, some courts have applied downward adjustments to account for matters unsuccessfully pursued during the case by a prevailing party.157

Some early opinions held that upward adjustments were not appropriate in environmental cases because awards were possible even for non-prevailing parties.158 Even if this position were logical, it must be reexamined in light of the holding in Ruckelshaus v. Sierra Club that awards cannot be made to wholly unsuccessful parties. Indeed, the position was not logical in the first place to the extent that citizen suit fees are analogous to contingent fees. Contingent fees normally are percentages of recoveries, not hourly charges. When an attorney working under a contingent fee arrangement loses a case, he receives no compensation; but when he wins, his compensation is not limited to an hourly fee charge. For an attorney working under such an arrangement a successful suit resulting only in hourly fee reimbursement would not be economically attractive, for it would not compensate for unpaid time expended in other losing cases, let alone for the risk of loss of the case at issue. For an attorney normally working for an hourly rate, a successful citizen suit case resulting only in hourly fee charges would not be economically attractive either, for it would not compensate for the risk of loss of the case at issue. An upward adjustment for citizen suit attorney fee awards is appropriate.

A recent opinion of the Supreme Court, Blum v. Stenson,159 casts a pall over expectations for upward adjustments. On the record before it, the Court rejected upward adjustments based on the complexity and novelty of issues, as already reflected in the hours underlying the award. It similarly rejected upward adjustments based on the quality of representation, as already reflected in the hourly rates underlying the award. It rejected upward adjustment based on the results obtained and the economic risk of loss as having no support in the record.The opinion does not, however, reject adjustments outright.

We cannot agree with petitioner's argument that an "upward adjustment" is never permissible. The statute requires a "reasonable fee" and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is unreasonably low or unreasonably high.160

In the case at bar the record was too thin to support any adjustment. The force of the court's reasoning on adjustments for complexity and novelty of issues or quality of representation, however, casts doubt on whether they could be justified under any circumstances.

Fee petitioners should note they have the burden of supporting requests for adjustments. Such requests may be justified most easily for delay in payment, where losses because of inflationary erosion and discounts in present value because of future payments can be documented. Adjustments for this reason were not addressed in Blum. Blum also keeps open the possibility of an upward adjustment for the results of the case, if properly justified and documented. Adjustments based on the complexity and novelty of the issues litigated or on the quality of representation, however, will be difficult to justify.

The most interesting, and perhaps most important question regarding upward adjustments was not reached by Blum: whether adjustments for the risk of loss are permissible.161 Two recent decisions in the Court of Appeals for the District of Columbia have ruled that such adjustments are contrary to Hensley v. Eckerhart162 under statutes applying the "prevailing party" standard for fee awards.163 Since Blum was decided subsequent to Hensley, and Blum noted that the question was still open, the court of appeals is simply wrong. Indeed, its opinions are flawed in other respects.164 The analysis of a district [14 ELR 10422] court opinion, whose viability is questionable as a result of those two opinions, is more persuasive.165 The court of appeals' reasoning, based on the implications of the "prevailing party" standard, would not apply in any event to cases arising under what the Court in Ruckelshaus v. Sierra Club166 acknowledged to be the more liberal "appropriate" standard under the environmental statutes.167

Although Blum casts a pall over upward adjustments, it does not rule them out. But, taken together with Ruckelshaus v. Sierra Club, Blum may encourage judges with a hostility toward attorney fee awards to impose further restrictions or denials. Even at its most severe on the issue of upward adjustments, however, Blum's significance in citizen enforcement litigation under the environmental statutes is not great, because such adjustments are not common in environmental citizen suits. Indeed, out of 228 recent fee awards under all federal statutes against federal, state, and local governments surveyed by the Department of Justice, there were upward adjustments in only 20.168 Since the purpose of the survey was to build the case that upward adjustments were excessive, the survey can be expected to have uncovered all upward adjustments of note.169

Conclusion

The authorization to award attorneys fees was meant to encourage citizen enforcement of the environmental laws. A study of recent citizen suits by the Environmental Law Institute (ELI) makes it clear that fee awards are important to citizen suit plaintiffs.170 It is doubtful that the current level of citizen enforcement would have been reached or would continue without the possibility of fee awards. The authorization was also meant to discourage frivolous citizen suits. The ELI study concluded that there were few such cases.171 The study did not explore, however, whether there was a relation between the lack of frivolous cases and the possibility of a fee award against the persons bringing such cases.

The courts initially were reluctant to make substantial fee awards in citizen suit cases. Although they have become much more generous in recent years, fee awards in environmental citizen suits have not approached awards in antitrust or securities law cases, either in the hourly rates allowed or the amounts of awards made. There is no articulated reason for this disparity. Many such awards have been to public interest group plaintiffs and their attorneys. Despite clear law that awards should not be discounted because they are made in pro bono cases or for legal work done by attorneys in public interest organization,172 the disparity may result in part from lingering attitudes that such plaintiffs and their attorneys are to some extent intermeddlers, unworthy of the same level of compensation as plaintiffs' attorneys in more traditional fields of contingent fee practice. Perhaps time and familiarity are the only antidotes to this attitude.

The excessive amount of litigation under the more recent fee shifting statutes173 is undoubtedly another factor in the somewhat negative judicial attitude toward fee petitions under such statutes. The excessive litigation has been caused, to some degree, by the abandonment of the more traditional "prevailing party" criteria for fee awards in favor of the novel "when appropriate" standard. This is augmented by congressional failure, under both standards, to establish clear criteria for determining the amount of attorney fee awards.

The government itself is responsible for much of the excessive litigation of which it sometimes complains. A quick review of the cases cited in this article reveals that most squabbles over attorney fee awards involve a protesting government entity or official. The cases even include an instance where the government reneged on a fee settlement agreement.174 The relative absence of reported cases where the protesting party is not a government entity or official suggests that excessive litigation in this regard results from the ability of the government to pursue its philosphical bias in a case without having to balance [14 ELR 10423] the cost of litigation and the likelihood of success in the case against the amount saved if successful. For the government to contest fee awards and then complain about the resulting litigation is reminiscent of its objecting to the particulars of a fee petition and then fretting over the resulting fee request for the amount of time spent by plaintiff's counsel rebutting the objections.175

Some of the uncertainties leading to attorney fee litigation are now being put to rest as the issues rise to and are dealt with by the Supreme Court. Its recent opinion in Ruckelshaus v. Sierra Club answered the most litigated issue regarding attorneys fees under the citizen suit sections. It is clear now that awards cannot be made to wholly unsuccessful plaintiffs. Unfortunately the Court failed to indicate how much success would be required to justify a fee awrd. This remaining issue will undoubtedly engender much litigation in turn.

The Court's recent opinion in Hensley was aimed at answering the question of whether prevailing or substantially prevailing parties may recover for counts unsucessfully pursued. The Court's answer, "in some cases yes, in some cases no," is well reasoned and equitable, but unlikely to forestall continued litigation over the issue. Since the case arose under a a "prevailing party" fee award standard, its precedential value under the environmental statutes, with their "when appropriate" standard, is questionable.176

In Blum, the Court foreclosed an upward adjustment not adequately justified either in the fee petition or in the district court's opinion.177 While it professed adherence to its statement in Hensley that upward adjustments could be justified in some cases, it cast serious doubt over whether they could be justified by the complexity or novelty of issues in a case, presumably already reflected in the hours spent on the case, or the quality of representation, presumably already reflected in the hourly rates. The Court also rejected an adjustment for risk because it was not supported by the record. While the opinion discourages upward adjustments, it does not rule them out where the record demonstrates that petitioners would not be fairly compensated without them.178

All of the recent Supreme Court cases cited restrict the award of attorneys fees. The increasingly conservative cast of the judiciary will undoubtedly result in further restrictions in the future. Most reported attorney fee cases are under statutes with a "prevailing party" criteria for awards. Many of the restrictions developed under such statutes can be rightfully distinguished by those seeking fees under the more liberal "when appropriate" criteria of the environmental statutes. Courts may be tempted to ignore this fine distinction in the quest for simplicity and reduced litigation over fee awards. If so, they will ignore rather clear legislative intent.

As remaining issues are resolved by the courts, the amount of litigation over attorney fee awards should subside. In the meantime, however, opponents of the statutory authorization for fee awards use continuing litigation to paint a picture of "courts flooded with needless cases" and "runaway awards." They label the granting of fee awards to losing parties an anomaly — a practice ended by Ruckelshaus v. Sierra Club. They also highlight occasional apparently excessive awards or requests. Even the normally liberal Washington Post can be appaled by the award of $275 an hour to "a moonlighting academic who wins a liquor license case."179

The Administration has taken the lead in attacking fee award statutes. In public pronouncements,180 proposed legislation,181 and presidential votes,182 it has attacked fee awards and sought to emasculate fee award legislation.183 The attack is supported more by rhetoric and misleading examples than by reasoned analysis. Much is made of the $275 an hour award to the moonlighting professor. But of 300 recent fee award cases analyzed by the Department of Justice, rates awarded were above $75 an hour in only 20 percent of the cases. And in most of those cases there was a graduation in hourly rates awarded, with the highest rate seldom in excess of $100 an hour.184 These hourly rates are not out of line with attorneys fees generally and are certainly much lower than those charged by most of the private environmental bar in major metropolitan areas.

The Administration also complains about upward adjustments of awards, contending that such adjustments average in excess of 40 percent. But it bases its calculation on only 20 cases out of 230 in which attorney fee awards were made, thus failing to include in its average multiplier over 200 multipliers of zero. The result is not an average multiplier, but an average of the multipliers used in the small minority of cases in which the courts found upward adjustments to be appropriate.185

Another misleading tactic employed is comparing hourly salaries of government attorneys to hourly rates requested in attorney fee cases. The salaries of government attorneys do not take into account non-salary benefits; salaries and benefits of support personnel, who are not limited to secretaries; rent; and library, office, and word processing expenses. Except for the most highly compensated private attorneys, these associated expenses will normally equal or exceed an attorney's personal compensation.

[14 ELR 10424]

These attacks should not be seen as only a narrow attack on excessive attorney fee awards. They are also an oblique attack on citizen enforcement of the underlying legislation and on the effective imlementation of that legislation. Attorney fee awards are necessary inducements to many citizen enforcement cases. To abolish or restrict the awards will diminish the number of citizen suit cases. This in turn will lessen the chances that government failures to implement the underlying legislation or to properly implement it will be redressed by the affected public.

While there undoubtedly are and will continue to be outlandish attorney fee award requests, they are and will continue to be unusual. They do not impugn the health of the concept and they are easily curbed by a watchful judiciary. The vast majority of fee awards are relatively modest and not sufficient to lure attorneys from law firms or large corporations to citizen suit practice. But the awards do serve the purpose that Congress articulated: to encourage legitimate citizen suits. While better congressional guidance would lessen litigation, litigation should lessen in any event as issues are resolved by the courts. There is little evidence that the attorney fee award provisions of the environmental citizen suit sections are in need of major adjustment.

Use of Citizen Suits

Recent Increase in Citizen Enforcement

Since the publication of the first in this series of articles, there has been a growing recognition among the regulated community, the environmental community, and EPA of the importance and potential of citizen suit enforcement. This recognition has developed primarily from the enforcement efforts of NRDC and a coalition of national and regional environmental organizations.

A number of factors converged to produce this effort.186 NRDC had long focused on what it perceived to be defects in EPA's effluent guidelines program under the Clean Water Act, particularly with respect to toxic pollutants. This focus was incomplete without assuring that the guidelines were applied correctly in permits and the permits were enforced. Some of NRDC's effluent guidelines efforts were drawing to a close and it envisioned having time to devote to other matters. At the same time, many of the national environmental groups, including NRDC, perceived a breakdown in EPA enforcement in 1981 and 1982, particularly under the Clean Water Act, and were anxious to reverse this trend. With a seed money grant to fund a few initial citizen suit enforcement cases, NRDC hoped to produce a self-sustaining effort by recovering attorneys fees and using them to fund future cases.

NRDC initially focused its attention on major industrial discharges with repeat violations of national pollutant discharge elimination system (NPDES) permits in New York and New Jersey. Using student interns under the supervision of a former EPA regional enforcement attorney, it reviewed state and federal files of the targeted discharges. It narrowed its target list on the basis of the number and apparent seriousness of the violations as indicated byreview by its technical consultants. NRDC focused its attention on discharges violating effluent limitations for toxic pollutants and transferred the cases not involving toxic pollutant violations to other environmental groups. NRDC then sent out notices of violation to its enforcement targets and reviewed information it received as a result. By the time it actually filed cases, it was dealing with a small percentage of the violators it initially investigated.187 After a successful pilot effort in New York and New Jersey, NRDC expanded the project to other areas.

A cursory look at the statistics of citizen and federal enforcement confirms that citizen enforcement has grown quickly, is concentrated in Clean Water Act cases, and corresponds to a marked decline in federal enforcement from 1980 to 1982. Indeed, since 1982 private judicial enforcement has been almost as much of a regulatory presence as EPA judicial enforcement under the Clean Water Act. While a not insignificant level of private enforcement has been evident for some time, citizen enforcement suits have mushroomed over the last two years, largely as a result of the NRDC effort.

*5*CITIZEN AND FEDERAL ENFORCEMENT188
*2*Citizen Enforcement*2*Federal Enforcement
*2*Citizen Suit Notices and*2*Referral of Cases to the
*2*Case Filings*2*Department of Justice and
*2*Case Filings
AllCleanAllClean
Statutes *Water Act *Statutes **Water Act **
19787/71/1262/131137/69
197928/239/8242/184 1/81
198035/176/4204/16355/49
198123/176/6116/11836/32
198232/2619/16110/47 46/14
1983131/70 108/62 162/19956/77
1984 ***93/2987/26167/92 63/41
Government, Industry, and Environmental Group Reaction

EPA was concerned about the implications of the environmentalists' enforcement activity. If a private citizens' group could commence that many enforcement actions as [14 ELR 10425] quickly as NRDC and its allies had, the question naturally arose whether EPA had fallen down on its job or whether NRDC was simply pursuing minor problems. To make an initial determination in this regard, EPA's Office of Water Analysis and Evaluation studied NRDC's activities through the early months of 1984.189

The EPA study concluded that 10-15 percent of the files reviewed by NRDC resulted in notices of violation and that a "significant number" of notices were followed by the filing of a complaint. It found that many of the targeted permitters had what EPA considered to be significant violations, although NRDC used different criteria than EPA. It found that prior administrative enforcement by the government did not deter NRDC, but that NRDC did not pursue cases where EPA or the state had initiated judicial action. One of the results of EPA's internal review was a new emphasis on EPA's water enforcement program.190 Another was that EPA commissioned a more comprehensive study of the use of citizen suits, to assist in determining what, if any, policy initiatives it should take in the area.191

In the meantime, the regulated community had become concerned with the proliferation of citizen suits. Its concern was forcefully articulated in a letter from the Chemical Manufacturers Association (CMA) to EPA in June of 1984.192 CMA complained that citizen suits were being brought against NPDES permit violations that, for a variety of reasons, CMA did not view as appropriate for enforcement. The letter also solicited testimony of EPA witnesses in defense of the cases. It expressed concern that such cases would hamper EPA's own enforcement effort and suggested that the new wave of citizen suits would force the regulated community to be more aggressive in negotiating and contesting future NPDES permits.

The environmental community itself became apprehensive that the sudden attention on citizen suits by EPA might result in efforts to curtail citizen suits or to be less cooperative in providing information used to target and develop the suits. The environmental community met with the EPA Administrator in June. The Administrator did not give the environmentalists all they sought, but did write the environmental groups expressing general support for their efforts "to bring instances of non-compliance to our attention and to support EPA efforts to reduce that non-compliance."193 The Administrator also instructed EPA personnel to continue to cooperate with citizen enforcers by promptly responding to information requests and reviewing their notices of violation.194

The ELI Study of Citizen Suits.

The ELI study was the first broad compilation of basic data on citizen enforcement suits and the first attempt to analyze their impact in an objective manner. The study focused on citizen enforcement suits under five EPA-administered statutes from 1978 until April of 1984. Just to determine how many citizen suits had been filed and how many notices of intention to file suit had been sent, ELI had to survey well over a score of sources.195

ELI's research identified 349 notices of intent to sue issued between January 1, 1978 and April 30, 1984, 214 of which were issued under the Clean Water Act after the beginning of 1982. Of the 214 recent Water Act notices, 162 were issued by NRDC and its allies. Of the 349 notices, 189 had matured into filed cases, 74 had been dropped, and 86 were still pending. Cases were dropped between the notice and filing stage for a variety of reasons, including lack of resources to pursue the case, compliance with or amendment of the regulatory requirement, shut down of source, negotiated agreement, and government enforcement. Of the 29 cases where the government filed a judicial action after a citizen notice, the citizens intervened in 22.

There were marked disparities between actions commenced by national and regional environmental groups and those commenced by others. Ninety percent of the environmental groups' actions were under the Clean Water Act, and 73 percent of them were against larger dischargers. Only 39 percent of actions taken by others were under the Clean Water Act and 57 percent of the actions were against larger dischargers.

In addition to compiling and analyzing the statistics of citizen suits, ELI conducted case studies and interviewed 200 representatives of industry, the private bar, environmental groups, and federal and state governments involved in citizen suits. From the statistics and interviews it reached a number of conclusions. It attributed the sharp increase in in citizen enforcement activity beginning in 1982 to a perceived lack of EPA enforcement. It concluded that the preponderance of Clean Water Act suits is due to the public availability of compliance information to identify and prove violations of NPDES permits. Most importantly, ELI concluded that citizen enforcement is operating as Congress intended, providing both a goad and an alternative to government enforcement. Although it registered widespread industry concern that citizen enforcement could interfere with government enforcement and focuses on trivial or non-existent problems, in its somewhat limited analysis of the data it did notfind these anxieties to be substantiated. It did observe that the regulated community appears to be committed to a more aggressive posture in future NPDES permit proceedings to avoid subsequent compliance problems inviting citizen suits. It also observed frustrations with the cost of litigation from both plaintiffs and defendants, although it did not compare these costs with the cost of government enforcement. (Since settlement with private enforcers can be achieved more expeditiously than with the federal EPA, however, private enforcement litigation costs have the potential for being significantly less than federal enforcement litigation costs.)

[14 ELR 10426]

Lessons For Citizen Suit Plaintiffs and Defendants

The Legitimacy of Citizen Enforcement

Underlying many of the concerns of the regulated community over citizen suits discussed in the ELI study, is an unstated, but implicit questioning of the legitimacy of citizen enforcement, citizen enforcers, and their attorneys. This manifested itself in the annoyance of some defendants over paying attorneys fees to the plaintiffs and making settlements that included payments to environmental betterment projects in lieu of penalties. A number of defendants believed that citizen suits interfered with understandings between companies and regulatory agencies that certain violations would not be enforced against for a variety of reasons, forcing a reexamination of the future relations between the companies and the government. Another fear centered on the degree to which a settlement of any enforcement action, whether brought by citizens or the government, was final with respect to subsequent enforcement actions brought by non-settling parties.

The issue of legitimacy is an unfortunate one. The legitimacy of parties to litigation — enforcement cases as well as any other type of case — is determined by Congress and the courts. There is no question that both have invested citizen enforcers of federal pollution control laws with legitimacy. Indeed, it is not surprising they have done so. NRDC is no less a legitimate enforcer of environmental laws than the NAACP is of civil rights laws, the American Civil Liberties Union is of first amendment guarantees, the AFL-CIO is of labor rights laws, or private corporations are of antitrust laws. The anxiety, however, of corporate defendants with citizen suit enforcers is understandable. For the most part corporate defendants have not had direct dealings with private environmental plaintiffs and never expected to deal with them on a plant-specific basis. They may view the plaintiffs as philosophical adversaries as well as antagonists in the case at hand. They do not fully understand the plaintiffs' motivations. And they are surprised to be confronted by this type of suit for the first time. Corporate defendants should remember, however, that citizens suit enforcers include states, towns, and businesses as well as NRDC and the Sierra Club. And while these cases are filed much more frequently now than in the past, surprise can only result from disregard of clear warning signals. The potential for citizen suit cases has been there since the environmental laws too effect. Indeed, EPA has long warned of it.196

At the same time, the national citizen suit plaintiffs appear to target industrial defendants to a greater degree than is warranted by their relative environmental impact. Pollution from untreated water discharges are split about half and half between industrial and municipal point sources. But the record of industrial discharges, both in building treatment facilities on time and in meeting effluent limitations, far surpasses that of municipal discharges.197 EPA itself is less inclined to take cities to court than it is to sue industrial dischargers,198 probably for political reasons. These factors suggest that a national third party effort to improve compliance with the Clean Water Act give at least as much attention to municipal violators as to industrial violators. But the national environmental organizations are not yet suing cities in their enforcement program.

While corporate citizen suit defendants may have some basis for complaining "why me," their lawyers do them a disservice if they question the legitimacy of citizen suit plaintiffs by interfering with the defendant's ability to analyze the strengths and weaknesses of the case objectively, develop an effective defense strategy, and negotiate a satisfactory settlement. These tasks are difficult enough without warping objectivity on both sides by questioning legitimacy. Ironically, to the extent that such questioning prolongs resolution of a case, it increases the amount of the plaintiff's attorneys fees, which the defendant ultimately may pay.

Penalties

Penalties are authorized only under the Clean Water Act. Payments assessed by courts are payable to the U.S. Treasury, not to any private party.199 Settlements, however, give the parties considerable flexibility, including the flexibility to make payments for environmental improvements rather than penalties. Corporate defendants often seek to make such payments when settling with the government, because donations may be tax deductible and are preferable to penalties for public relations purposes. The desirability of such payments should be the same whether the plaintiff is the government or a private citizen. Some citizen plaintiffs seek payments to environmental charities in lieu of penalties. Such payments may be constructive for both parties. If plaintiffs made settlement contingent on such payments, however, their position would be improper. If plaintiffs ask that the payment be made directly to themselves, they are overreaching and bordering on impropriety. The defendant has ultimate control in this regard. If it insists on making penalty payments to the Treasury, plaintiffs have no grounds on which to reject such a demand. Most judges in a chambers settlement conference would readily agree. Indeed, a defendant should consider insisting that a substantial part of any payment be made to the Treasury to help strengthen later argument that the settlement binds the government as well as the private plaintiffs.

The Effect of Settlement

Another potentially disturbing issue in citizen enforcement [14 ELR 10427] actions is just what a settlement or other resolution of any enforcement action — whether brought by government or citizen — really means.200 It appears from the citizen suit sections themselves that the resolution of a government enforcement action should ordinarily preclude subsequent citizen enforcement against the same violations. Citizens can protect their interests by intervention in federal enforcement, and the Department of Justice publishes notice to proposed consent decrees in the Federal Register for comment to promote exercise of such rights of intervention.

The citizen suit sections do not address the effect of the resolution of citizen suits on subsequent government enforcement action against the same violations. The government may protect its interests by intervention in citizen suit cases, but there is no effective way for it to know when such cases are filed or when the entry of a consent decree may be imminent. The government takes the position that it is not bound by the resolution of a citizen suit case. It does not find sufficient privity between citizen enforcers and the government to create collateral estoppel. If citizen suit enforcers really are private attorneys general, however, such privity is not in the realm of fantasy. Indeed, if the government has actual notice of the proceeding and proposed settlement, it should have no complaint about later being estopped from questioning the results. If the government's view prevails, however, the incentive for corporate defendants to settle citizen suit cases will diminish.

Even if resolution of cases brought by private or government enforcers barred any subsequent suit to enforce against the same violations, the option of enforcement against subsequent violations would remain. It is difficult to see how either government or private enforcers would be disadvantaged by being foreclosed from enforcing against a past violation if the defendant stays in compliance thereafter. If violations recur, either can take a new enforcement action.

These questions, however, probably have more academic interest than practical consequence. If the subsequently suing party had notice of the first case and did not exercise its right of intervention, and had notice of a proposed settlement and continued to remain silent, it would be in a weak equitable position when it later asked the court for different relief. Indeed, it would normally be before the same court and before the same judge. Quite apart from the doctrine of collateral estoppel, that judge will not be sympathetic to the subsequent plaintiff who sat by the sidelines and watched the first case and now asks for a different result.201

Enforcement Against Excusable Violations

Industry representatives complain that citizen plaintiffs attempt to enforce permit effluent limitations that government regulators informally agree are unreasonable, should be modified, and will not be enforced. This could happen, especially under the Clean Water Act. Mandatory self-monitoring reports often document numerous minor violations of permit standards. The availability of such evidence, and of attorneys fees and penalties, could induce citizen plaintiffs to take a very literal view of compliance. The ELI study encountered such complaints, but it did not produce independent verification of any such cases.202

The problem centers on two types of NPDES permit effluent limitation violations. The clearest complaint stems from the fact that effluent guideline standards often were established, in part, on a statistical prediction that the prescribed technology would achieve a certain effluent quality 95 percent, or some other fraction, of the time. The converse is that the technology can be predicted not to achieve the standard a certain percentage of the time. If the defendant properly designs, installs, operates, and maintains the prescribed technology, what is the rationale for taking enforcement action when the statistically predicted exceedances in fact occur? EPA has not addressed this problem squarely or publicly. Rather, EPA has avoided the problem by issuing enforcement guidance not to pursue occasional, moderate exceedances. While this has kept the matter from becoming a major irritant between EPA and the regulated community, and has kept the issue from the courts,203 it potentially has left the issue open to be resolved between citizen suit plaintiffs and the regulated community, perhaps in the courts. The issue is not an easy one204 and EPA's reluctance to resolve it directly is understandable. EPA should address it now in an interpretative ruling or an opinion of the General Counsel to avoid needless and nonproductive litigation which could redound to the detriment of EPA. Although courts would not be bound by such statements, they undoubtedly would give them deference as an expert agency interpretation of technical standards.

The second contention is more amorphous and more difficult. It relates back to the issuance of permits prior to the promulgation of national effluent guidelines. Some defendants claim they did not believe the permits to be economically achievable and accepted them only with a tacit understanding that as long as the industry proceeded in good faith to install and operate the treatment technology contemplated, there would be no enforcement action. The defendants contend that such tacit understandings with the government should bind citizen enforcers as well.

[14 ELR 10428]

These arguments are not persuasive. If there was such an understanding it should have been part of the permit and subject to public scrutiny at the time the permit was issued. To expect deference to a side-bar agreement at this date would make a mockery of the permit issuance public participation process.Even if some deference were due, old unwritten agreements suffer the great defect that their terms probably are not remembered in exactly the same way by all participants if all participants are still present. Tacit understandings in regulatory matters often have the value of the paper they are written on, which is no paper at all.

While there may have been some instances when "informal understandings" were reached in the early days of the Clean Water Act permit program, that occurred a number of years ago when the first permits were issued prior to the publication of effluent guidelines.Such situations should arise much less frequently now — when more effluent guidelines are in place, permits are being based on them, and there is often a lengtheir history on the performance of the plant in question. The problem can be solved in future permit negotiations by making it a policy to put any assumptions or understandings on the record. If they cannot be put on the record, they are questionable anyway and should not be relied on.

That industry complaints about enforcement against informally excused violations do not appear warranted at this time does not mean citizen enforcers should turn a deaf ear to such claims. Citizen enforcement resources, even more so than those of the government, are limited. It seems unwise to waste them on trivial violations or violations that occur in spite of the application of what in fact was the control technology contemplated by applicable standards. In both types of cases there is little to be gained, even if plaintiffs prevail. It is unlikely that judges will award fees or impose penalties in such cases, and a public perception that citizen enforcers are after penalties or fees from companies doing their best to comply could discredit the entire citizen enforcement process. The problem does not appear to be that citizen enforcers are so venal or shortsighted as to target trivial or unavoidable violations, but that it is difficult to tell in individual cases whether a particular violation is trivial or unavoidable. Answering these questions may require substantial technical expertise and awareness and understanding of government enforcement policies. Thus it makes sense for citizen enforcers to have technical experts available, and to carefully consider defendants' claims of best efforts. The ELI study suggested that this is the approach taken by NRDC and its allies to date, and that citizen plaintiffs seem willing to listen to defendants and EPA and to drop cases concerning violations that are not significant or cannot be corrected.205 All citizen enforcers would benefit by following this approach.

Model Citizen Suit Section

The analysis of citizen enforcement in this series of articles suggests a variety of amendments to the sections authorizing citizen suits. Such amendments would serve a variety of purposes. Some would make the sections conform more closely with their purposes, e.g., making government and citizen enforcement available for the same universe of violations. Others would settle frequently contested procedural issues to avoid needless litigation, e.g., clarifying the degree to which prior notice of violation is a jurisdictional prerequisite to a citizen suit. Still others would remedy particular problems noted, e.g., expressly allowing preliminary injunctive relief prior to the passage of the full notice period to avert new and substantial injury or damage during that period. Suggested below is a model citizen suit section containing the amendments suggested by these analyses. It could be utilized in any of the federal environmental statutes considered in these articles simply by making the choices or additions indicated in brackets, and could easily be adapted for state legislation.

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on its206 own behalf

(1) against any person for an alleged violation:207 of any requirement of this chapter for which the [insert "Secretary" or "Administrator" as appropriate] is authorized to commence a civil action208 by section [insert federal enforcement section] of this chapter;209 or

(2) against [insert "Secretary" or "Administrator" as appropriate] for an alleged failure of the [insert "Secretary" or "Administrator" as appropriate] to perform any act or duty under this chapter which is not discretionary with the [insert "Secretary" or "Administrator" as appropriate].

Any action brought pursuant to this subsection shall be brought in the district court for the district in which the alleged violation has occurred or is occurring or, if the action is brought under paragraph (a)(2) of this subsection, in the District Court for the District of Columbia.210 The district court shall have jurisdiction in actions brought under paragraph (a)(1) of this subsection to provide the same relief that it is authorized to provide in actions brought under section [insert federal enforcement section] of this chapter.211 The district court shall have jurisdiction in actions brought under paragraph (a)(2) of this subsection to order the [insert "Secretary" or "Administrator" as appropriate] to perform such act or duty.

(b) Except as provided in this subparagraph of this section, no action may be commenced under paragraph (a) of this section:

(1) prior to sixty days after the plaintiff has given [14 ELR 10429] notice of its intent to bring an action212 under this section for such alleged violation or failure of the [insert "Secretary" or "Administrator" as appropriate] and, in actions brought under paragraph (a)(1) of this section [if the statute authorizes state administration of the enforceable sections, insert "to a state with an approved program under this Chapter to enforce against such violations, and"], to the person against whom the action may be brought, or

(2) if the [insert "Secretary" or "Administrator" as appropriate] [if the statute authorizes state administration of the enforceable sections, insert "or such state"] has commenced and is diligently pursuing a civil action in a judicial court of the United States213 [if the statute authorizes state administration of the enforceable sections, insert "or such state"] seeking all civil relief provided by section [insert federal enforcement section] of this chapter.214 Such action is not barred by any administrative action against such person for such alleged violation, but the court shall take any administrative remedy imposed into account when providing relief.215

[The "Secretary" or "Administrator"] may promulgate regulations establishing a reasonable manner to provide such notice; provided, however, that notice which gives the ["Secretary" or "Administrator"], [if the statute authorizes state administration of the enforceable sections, insert "such state"] and the alleged violator actual notice that an action may be brought for the alleged violation will satisfy the requirement of this section.216 Notwithstanding the requirements of paragraph (b)(1) of this subsection, an action for temporary or preliminary relief may be commenced under paragraph (a) of this section immediately after notice is given if the alleged violation reasonably may be expected to cause new and substantial injury or damage to the plaintiff within the following 60 days.217

(c) In any action brought by the [insert "Secretary" or "Administrator"] [if the statute authorizes state administration of the enforceable sections, insert "or such state"] in a court of the United States [or the state] against the person alleged to be in violation, for such violation, after notice thereof pursuant to subsection (b) of this section, the person giving such notice may intervene as a plaintiff in such action as a matter of right.218

(d) In any action brought under this section, the plaintiff shall serve the complaint on [insert "Secretary" or "Administrator"] [if the statute authorizes state administration of the enforceable sections insert "or such state"] and shall serve [insert "it" or "them" as appropriate"] with any motion for entry of final judgment or partial final judgment thirty days prior to hearing on or entry of such judgment. Unless the recipient of such service intervenes pursuant to this paragraph prior to entry of such judgment, opposing or partially opposing entry of such judgment, it may not seek additional relief for the violations alleged in the complaint after entry of such judgment.219 In any action brought under this section, the [insert "Secretary" or "Administrator"] [if the statute authorizes state administration of the enforceable sections, insert "or such state"] may intervene in such action as a matter of right.

(e) The court shall award any substantially prevailing plaintiff (or a plaintiff-intervenor contributing significantly to success of the plaintiff in the action), other than a governmental plaintiff under this section, the costs of litigation under thissection, unless the court finds such award to be inappropriate under the circumstances.220 For the purposes of this paragraph, costs shall include the reasonable fees and expenses of attorneys and technical experts reasonably undertaken to prepare, prosecute, and resolve the action and to monitor and enforce any resulting order, regardless of whether a particular activity reasonably undertaken led to a successful result. The reasonableness of fees shall be based on prevailing rates among private parties for like services and may be adjusted for late payment and the contingent nature of the fee. The court may assess the fee against any substantially non-prevailing defendant as appropriate, including the United States.

1. Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. 42256; Federal Water Pollution Control Act [hereinafter cited as the Clean Water Act] § 505, 33 U.S.C. § 1365, ELR STAT. 42147; Marine Protection, Research, and Sanctuaries Act (MPRSA) § 105(g), 33 U.S.C. § 1415(g), ELR STAT. 41865; Noise Control Act (NCA) § 12, 42 U.S.C. § 4911, ELR STAT. 41505; Endangered Species Act (ESA) § 11(g), 16 U.S.C. § 1540(g), ELR STAT. 41832:6; Deepwater Port Act (DPA) § 16, 33 U.S.C. § 1515, ELR STAT. 41709; Resource Conservation and Recovery Act (RCRA) § 7002, 42 U.S.C. § 6972, ELR STAT. 41921; Toxic Substances Control Act (TSCA) § 20, 15 U.S.C. § 2619, ELR STAT. 41348; Safe Drinking Water Act (SDWA) § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41116; Surface Mining Control and Reclamation Act (SMCRA) § 520, 30 U.S.C. § 1270, ELR STAT. 42421; Outer Continental Shelf Lands Act (OCSLA) § 23, 43 U.S.C. § 1349(a), ELR STAT. 42466.

2. For a general outline of the citizen suit provisions, see Part I of this series, 13 ELR 10309, 10311-13 (1983).

3. 13 ELR 10309 (1983).

4. 14 ELR 10063 (1984).

5. The award of attorneys fees under the citizen suit sections has been well addressed in a student note, Awards of Attorney's Fees in Environmental Litigation: Citizen Suits and the "Appropriate" Standard, 18 GA. L. REV. 307 (1984) [hereinafter cited as Student Note].

6. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-28 (1923). See also Hutto v. Finney, 437 U.S. 678 (1978), reh'g denied, 439 U.S. 1122 (1979).

7. F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129 (1974). See also Fairly v. Patterson, 493 F.2d 598, 606 (5th Cir. 1974).

8. Trustees v. Greenough, 105 U.S. 427, 532 (1882).

9. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

10. See, e.g., Trinity Episcopal Schools Corp. v. Hills, 422 F. Supp. 179, 7 ELR 20189 (S.D.N.Y. 1976).

11. Natural Resources Defense Council, Inc. (NRDC) v. EPA, 484 F.2d 1331, 1333, 3 ELR 20803, 20803 (1st Cir. 1973). The opinion contains an excellent summary of the arguments supporting this extension of the fund exception.

12. Bell v. School Board, 321 F.2d 494 (4th Cir. 1963).

13. Wilderness Society v. Hickel, 495 F.2d 1026, 4 ELR 20279 (D.C. Cir. 1974), rev'd sub nom. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (1975); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); La Raza Unida v. Volpe, 57 F.R.D. 94, 2 ELR 20691 (N.D. Cal. 1972).

14. See, e.g., Miotke v. City of Spokane, 101 Wash. 2d 307, 678 P.2d 803 (1984); Rich v. City of Benica, 5 ELR 20205 (Cal. Super. Ct. 1974).

15. 421 U.S. 240, 5 ELR 20286 (1975).

16. Approximately 1200 NEPA cases were filed between 1970 and 1979, or an average of about 120 a year. NEPA cases filed after Alyeska are consistent with this long-term average: 119 in 1976; 108 in 1977; 114 in 1978; and 139 in 1979. See 9 CEQ ANN. REP. 407-15 (1978); 10 CEQ ANN. REP. 588-90 (1979); 11 CEQ ANN. REP. 383-84 (1980).

17. Clean Air Act § 307 was amended in 1977, for instance, to add a new § 307(f) allowing the court to award attorneys fees in cases challenging EPA regulatory action. The change was prompted by Alyeska and its progeny. See H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1977), reprinted in 4 CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, A CONTINUATION OF THE CLEAN AIR ACT AMENDMENTS OF 1970 at 2465, 2804 (1978) [the entire CRS history is hereinafter cited, with appropriate volume numbers, as LEGIS. HIST. CLEAN AIR ACT]. See also S. REP. NO. 127, 95th Cong., 1st Sess. 99 (1977), reprinted in 3 LEGIS. HIST. CLEAN AIR ACT 1371, 1473.

18. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

19. 42 U.S.C. § 7604, ELR STAT. 42256.

20. Clean Air Act: Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 13 ELR 20664 (1983); Alabama Power Co. v. Gorsuch, 672 F.2d 1, 12 ELR 20218 (D.C. Cir. 1982); Florida Power & Light Co. v. Costle, 12 ELR 21071 (5th Cir. 1982); Northern Plains Resource Council v. EPA, 670 F.2d 847, 12 ELR 20427 (9th Cir. 1982), vacated and remanded, 104 S. Ct. 54 (1983), rev'd, 734 F.2d 408 (9th Cir. 1984); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802, 11 ELR 20171 (D.C. Cir. 1981); NRDC v. EPA, 539 F.2d 1068, 6 ELR 20777 (5th Cir. 1976); Washington v. Citizens Association of Georgetown, 535 F.2d 1318, 6 ELR 20524 (D.C. Cir. 1976); NRDC v. EPA, 512 F.2d 1351, 5 ELR 20323 (D.C. Cir. 1975); NRDC v. EPA, 484 F.2d 1331, 3 ELR 20803 (1st Cir. 1973), rev'd on other grounds sub nom. Train v. NRDC, 421 U.S. 60, 5 ELR 20264 (1975); Friends of the Earth, Inc. v. PEPCO, 546 F. Supp. 1357, 13 ELR 20082 (D.D.C. 1982); Neighborhood Preservation Coalition v. Claytor, 553 F. Supp. 919, 13 ELR 20267 (E.D. Pa. 1982); Consolidated Edison Co. v. Realty Investments Associates, 524 F. Supp. 150, 12 ELR 20208 (S.D.N.Y. 1981); Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 4 ELR 20551 (D. Del. 1974); aff'd without opinion, 510 F.2d 969 (3d Cir. 1975).

Clean Water Act: Roosevelt Campobello International Park Commission v. EPA, 711 F.2d 431 (1st Cir. 1983); Montgomery Environmental Coalition v. Costle, 646 F.2d 595 (D.C. Cir. 1981); Citizens Coordinating Committee on Friendship Heights, Inc. v. Washington Metropolitan Area Transit Authority, 568 F. Supp. 825, 14 ELR 20333 (D.D.C. 1983) (CCCFH I) and 14 ELR 20346 (D.D.C. 1983) (CCCFH 11); NRDC v. Costle, 8 ELR 20881 (D.D.C. 1978); Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136, 7 ELR 20488 (D.R.I. 1977); and NRDC v. Fri, 5 ELR 20173 (D.D.C. 1974).

NCA: PROD, Inc. v. Train, 6 ELR 20341 (D.D.C. 1976).

ESA: Roosevelt Campobello International Park Commission; Village of Kaktovik v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982); Palila v. Hawaii Dep't of Land and Natural Resources, 512 F. Supp. 1006 (D. Hawaii 1981); and Carpenter v. Andrus, 499 F. Supp. 976 (D. Del. 1980).

RCRA: Environmental Defense Fund, Inc. (EDF) Inc. v. Lamphier, 12 ELR 20843 (E.D. Va. 1982), aff'd, 714 F.2d 331, 13 ELR 21094 (4th Cir. 1983).

TSCA: EDF v. EPA, 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1982).

SMCRA: Council of Southern Mountains, Inc. v. Watt, 13 ELR 20393 (E.D. Ky. 1982).

OCSLA: Village of Kaktovik.

21. "We express our concern that an unnecessary volume of attorney fee disputes are coming before the District Court as well as this Court. More of these cases should be settled out of court." National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C. Cir. 1982). See also Justice Brennan's overview in his separate opinion in Hensley v. Eckerhart, 103 S. Ct. 1933, 1944, 1951 (1983); Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 389 (D.D.C. 1983); and Ashton v. Pierce, No. 81-179 (D.D.C. Feb. 3, 1984) slip op. at 8-10.

22. The Attorney Fee Awards Reporter, December, 1982, at 2-3 lists 131 federal statutes authorizing awards of attorneys fees. The Supreme Court has noted that there are more than 150 "fee-shiting" provisions in federal statutes, Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 3276, 13 ELR 20664, 20665 (1983).

23. 15 U.S.C. § 15.

24. 42 U.S.C. §§ 2000a-3(b), 2000e-5(k).

25. 15 U.S.C. § 77k(e), which authorizes a court to require payment of costs, including reasonable attorneys fees.

26. Ruckelshaus v. Sierra Club, 103 S. Ct. at 3276-77, 13 ELR at 20665. Indeed, the Court used this as one factor in concluding that success on the merits was so engrained in American jurisprudence as a necessary prerequisite to any attorney fee award, that specific legislative authority would be required to award attorneys fees to a party that was unsuccessful on the merits. Although this case involved an award under Clean Air Act § 307(f), its logic applies as well to awards under the citizen suit sections. For a useful analysis of this decision, see Comment, The Supreme Court Limits Fee Awards in Unsuccessful Environmental Suits, 13 ELR 10244 (1983).

27. See, e.g., E. LARSON, FEDERAL COURT AWARDS OF ATTORNEY'S FEES (1981); Berger, Court Awarded Attorneys' Fees: What Is "Reasonable," 126 U. PA. L. REV. 281 (1977).

28. S. 4358 § 304(d), reprinted in 1 LEGIS. HIST. CLEAN AIR ACT supra note 17, at 615.

29. 1 LEGIS. HIST. CLEAN AIR. ACT, supra note 17, at 278.

30. 1 LEGIS. HIST. CLEAN AIR. ACT, supra note 17, at 280-81, 355-57.

31. S. Rep. No. 1196, 91st Cong., 2d Sess. 36-39; reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 436-69.

32. Id. at 64-65, reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 464-65.

33. Id.

34. H.R. REP. NO. 294, 95thCong., 1st Sess. 337 (1977), reprinted in 4 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 2804.

35. For the legislative history of RCRA § 7002, see S. REP. NO. 998, 94th Cong., 2d Sess. 18 (1976); and of Clean Water Act § 505, see S. REP. NO. 414, 92nd Cong., 2d Sess. 87 (1971), reprinted in 1977 U.S. CODE & AD. NEWS 3668, 3747.

36. See, e.g., Village of Kaktovic v. Watt, 689 F.2d at 224 n. 14, 12 ELR at 21104 n. 14; Carpenter v. Andrus, 499 F. Supp. at 979; Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. at 1141, 7 ELR at 20493.

37. 15 U.S.C. §§ 2601-2629, ELR STAT. 41335.

38. 15 U.S.C. § 2618, ELR STAT. 41347.

39. The legislative history of the attorney fee award provision of TSCA § 19 is extensively quoted in EDF v. EPA, 672 F.2d at 48-49, 12 ELR at 20316-17. It consists primarily of remarks by Senators Magnuson and Tunney. They indicated that attorneys fees were not restricted to plaintiffs or successful parties; should not be awarded to parties who otherwise would substantially benefit economically through the proceeding; should be awarded to effectuate the purposes of the Act; should be routinely awarded to parties successfully enforcing the Act; should not be awarded to prevailing defendants absent extraordinary circumstances; may be awarded even though relief has not been granted after a hearing on the merits; are to be made in the public interest; and are to be made on the same basis as fee awards in other substantive areas such as antitrust and securities regulation.

40. Clean Air Act § 307, 42 U.S.C. § 7607, ELR STAT. 42257; Clean Water Act § 509, 33 U.S.C. § 1369, ELR STAT. 42148; NCA § 16, 42 U.S.C. § 4915, ELR STAT. 41507; RCRA § 7006, 42 U.S.C. § 6976, ELR STAT. 41922; TSCA § 19, 15 U.S.C. § 2618, ELR STAT. 41347; SDWA § 1448, 42 U.S.C. § 300j-7, ELR STAT. 41116; DPA § 17, 33 U.S.C. § 1516, ELR STAT. 41709; SMCRA § 526, 30 U.S.C. § 1276, ELR STAT. 42424; OCSLA § 23(b)-(c), 43 U.S.C. § 1349(b)-(c), ELR STAT. 42466.

41. Awards in judicial review sections are authorized if the court finds it "appropriate" in Clean AirAct § 307(f), 42 U.S.C. § 7607(f), ELR STAT. 42257 and in TSCA § 19(a), 15 U.S.C. § 2618(g), ELR STAT. 41347.

42. 484 F.2d 1131, 3 ELR 20803 (1st Cir. 1973). The First Circuit made a learned and persuasive argument that the legislative policy behind the Clean Air Act was to encourage private suits to carry out the policy of the Act and there was no difference in that regard between suits brought under the citizen suit section to compel agency action wrongly withheld and under the judicial review section to challenge wrongful agency approval of a state implementation plan. The court applied what it took to be legislative policy by extending the common fund exception to the American Rule. The Fifth Circuit agreed with the logic of the First Circuit's policy argument, but differed with the result in Natural Resources Defense Council, Inc. v. EPA, 539 F.2d 1068, 6 ELR 20777 (5th Cir. 1976), and the D.C. Circuit initially disagreed with both in Natural Resources Defense Council, Inc. v. EPA, 512 F.2d 1351, 5 ELR 20323 (D.C. Cir. 1975).

The First Circuit's analysis had two flaws. The first was ignoring the force of the American Rule. The citizen suit sections authorize one set of suits and allow attorney fee awards in them; the judicial review sections authorize another set of suits and generally do not speak to attorneys fees. Because there is specific authorization for attorneys fees in the first set but not in the second, the American Rule does not apply to the first set, but does to the second. The specific inclusion of authorization of attorneys fees in judicial review cases in two of the statutes only underscores their unavailability in such cases under the other statutes.

The First Circuit's policy argument may be flawed as well. It was persuaded that the legislative intent was to encourage private litigation to carry out the policy of the Act, and saw no difference in this regard between litigation brought under the citizen suit or the judicial review sections of the Act. Although successful suits under both sections almost by definition carry out the policy of the Act, generally there is a fundamental difference between such suits. Citizen suits normally are brought by nonprofit groups to secure pollution reduction required by the Act. These plaintiffs generally have little or no economic interest in the outcome. Judicial review may be sought by such groups for the same purpose. Indeed, this was the case before the First Circuit. But judicial review is much more often sought by profit-making corporations or trade associations representing them for the opposite purpose: to prevent any more pollution reduction than required by the Act. These plaintiffs generally have considerable economic interest in the outcome. Successful judicial review in cases brought by either type of plaintiff obviously carries out the policy of the Act, which is to secure the degree of pollution reduction required by the Act, no more and no less.The possibility of attorney fee awards might well encourage the nonprofit groups to seek judicial review, but is not necessary to encourage profit-making corporations to seek judicial review to serve their own economic interests. Authorizing attorney fee awards for petitioners seeking judicial review that serves the policy of the Act would reward both groups, and probably would reward most often profit-making plaintiffs that do not need the encouragement. Although nowhere articulated, this analysis probably underlies the universal authorization of attorney fee awards in citizen suit cases and the general, although not universal failure to authorize such awards in judicial review sections.

See Florida Power & Light Co. v. Costle, 683 F.2d 941, 12 ELR 21071 (5th Cir. 1982), in which the court thought the logic of distinguishing between the two types of plaintiffs persuasive, but found nothing in Clean Air Act § 307(f) or its legislative history to support it. It consequently made an award of attorneys fees to a successful petition for judicial review by a for-profit corporation.

43. Wilderness Society v. Hickel, 495 F.2d 1026, 4 ELR 20279 (D.C. Cir. 1974), rev'd sub nom. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (1985).

44. While it would appear that Alyeska laid this issue to rest, the First Circuit did not believe so. In Roosevelt Campobello International Park Commission v. EPA, 711 F.2d 431 (1983), it awarded attorneys fees under Clean Water Act § 505 for a successful challenge to the issuance of a NPDES permit under the Act's judicial review provisions. The First Circuit rested on its reasoning in NRDC v. EPA, 484 F.2d 1131, 3 ELR 20803 (1st Cir. 1973), and on a subsequent amendment to the judicial review section of the Clean Air Act that made attorney fee awards available in such cases. Indeed, the Senate committee report on the amendment indicated its purpose was to carry out its original (and subsequently misinterpreted) intent to authorize Clean Air Act § 304 attorney fee awards in § 307 cases, S. REP. NO. 127, 95th Cong., 1st Sess. 99 (1977), reprinted in 3 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 1473. Indeed, the First Circuit's opinion in NRDC v. EPA was cited favorably in the legislative history of the amendment, H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1977), reprinted in 4 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 2804. The First Circuit admitted that it was "something of a leap" to infer that congressional amendment of § 307, confirming its original intent that citizen suit attorney fee awards could be made in Clean Air Act judicial review cases, means Congress also intended citizen suit attorney fee awards to be made in Clean Water Act judicial review cases. But it argued it was "not much of a leap." The District of Columbia and Third Circuits were not prepared to make that leap; Montgomery Environmental Coalition v. Costle, 646 F.2d at 597; Natural Resources Defense Council, Inc. v. EPA, 703 F.2d 700, 13 ELR 20446 (3d Cir. 1983). Nor is it the sort of leap the Supreme Court is likely to make if Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 13 ELR 20664 (1983), in which the Court narrowly construed the Clean Air Act judicial review fee provision, is any bellwether. The First Circuit is simply marching to a different drummer on this issue and, absent more definitive congressional action, attorney fee awards wil not be allowed on judicial review cases unless specifically authorized. Indeed, since Roosevelt Campobello was decided a month before Ruckelshaus v. Sierra Club, it is possible that the First Circuit might come out differently if faced with the same issue today.

45. 30 U.S.C. §§ 1201-1328, ELR STAT. 42401.

46. Clean Air Act § 113(b), 42 U.S.C. § 7413(b), ELR STAT. 42216 and SMCRA § 525(e), 30 U.S.C. § 1275(e), ELR STAT. 42424.

47. A search conducted by EPA discovered only one instance where such an award was made under Clean Air Act § 113(b), U.S. v. Apache Powder Co., Civ. No. 78-058 (D. Ariz. 1978). See the discussion of this case and of Clean Air Act § 113(b) generally in EPA, OFFICE OF TOXIC SUBSTANCES; BACKGROUND REPORT FOR THE INDEMNIFICATION REPORT TO CONGRESS, at 66-77 (EPA 560/4-83-002) (1983).

48. 28 U.S.C. § 2412, ELR STAT. 41007 and 5 U.S.C. § 504. The overlap is not complete, since the EAJA permits awards only to specified types of defendants and has a different standard for making an award. Both SMCRA § 525(e) and the EAJA permit awards in administrative enforcement proceedings, but Clean Air Act § 113(b) limits them to judicial enforcement proceedings.

49. See Bradley v. Richmond School Board, 416 U.S. 696 (1974) (school desegregation case); WATCH v. Harris, 535 F. Supp. 9, 12 ELR 20647 (D. Conn. 1981).

50. 42 U.S.C. §§ 6901-6987, ELR STAT. 41901.

51. See infra note 145 and accompanying text.

52. Id.

53. Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1145-46, 7 ELR 20488 (D.R.I. 1977). See also Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968), making a similar ruling under the Civil Rights Act of 1964.

54. See supra notes 30 & 35, infra note 64. See also the statement of Sen. Tunney relative to fee awards under TSCA, quoted in EDF v. EPA, 672 F.2d at 49, 12 ELR at 20317 and Village of Kaktovic v. Watt, 689 F.2d at 225, 12 ELR at 21104.

55. But see Carpenter v. Andrus, 499 F. Supp. at 796.

56. "The primary purpose of fee awards is … to promote citizen enforcement," Roosevelt Campobello International Park Commission v. EPA, 711 F.2d at 434. "The purposes of the authority to award fees are … also to encourage litigation which will assure proper implementation and administration of the act," [Clean Air Act § 307(f)] H. REP. NO. 294, 95th Cong., 1st Sess. 337, reprinted in 4 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 2804. A study of citizen suits brought under EPA-administered laws from 1978-1984, found that the cost of prosecuting a small sample of citizen enforcement cases ranged from $4,000 to $200,000. It noted that citizen groups had difficulty paying "up front" costs of the cases despite the possibility or probability of an ultimate fee award. Environmental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement Actions Under EPA-Administered Statutes, V-25 to 27 (1984) [hereinafter cited as ELI Study]. Other commentators have suggested that the "potential recovery of attorneys fees can serve as a powerful incentive to public interest groups operating with limited resources." Student Note, supra note 5, at 326 n. 91 and authorities cited therein.

57. See the attorney fee award sections of the statutes listed in the Student Note, supra note 5, at 318 n. 55. See also Iranian Students Ass'n v. Edwards, 604 F.2d 352, 353-54 (5th Cir. 1979); Nadeaw v. Helgemos, 581 F.2d 275, 278-79 (1st Cir. 1978).

58. The House report on Clean Air Act § 307(f) indicated that a "Court's discretion to award fees … should not be restricted to a 'prevailing party,'" H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1977), reprinted in 4 LEGIS. HIST. CLEAN AIR ACT, supra note 7, at 2804.

59. 103 S. Ct. 3274, 3278-79, 13 ELR 20664, 20666 (1983).

60. Id. at 3279 n. 9, 13 ELR 20666 n. 9. The case concerned awards under Clean Air Act § 307, the judicial review section, rather than Clean Air Act § 304, the citizen suit section, but the Court indicated its reasoning and holding applied equally to both sections.

61. CCCFH I, 568 F. Supp. 825, 14 ELR 20333 (D.D.C. 1983), and CCCFH II, 14 ELR 20346 (D.D.C. 1983). See also Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979), cert. den., 455 U.S. 96 (1982); Gagne v. Maher, 455 F. Supp. 1344 (D. Conn. 1978), aff'd, 594 F.2d 336 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980).

62. NAACP v Wilmington Medical Center, Inc., 689 F.2d 1161 (3d Cir. 1982); Sullivan v. Pennsylvania Department of Labor, 663 F.2d 443 (3d Cir. 1981), cert. den., 455 U.S. 1020 (1982). Indeed, the legislative history of Clean Air Act § 304 reinforces this. Awards may be made "in actions which result in successful abatement, but do not reach a verdict. For instance, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expenses borne by the plaintiffs …" S. REP. NO. 1196, 91st Cong., 2d Sess. 38 (1970), reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 438. To recover where there is no final judgment for the petitioner, the petitioner must show that it substantially received the relief it sought and that its suit was a catalyst in obtaining the relief. Commissioners Court of Medina County, Texas v. U.S., 683 F.2d 435 (D.C. Cir. 1982); Chicano Police Officers Ass'n v. Stover, 624 F.2d 122, 131 (10th Cir. 1980).

63. Village of Kaktovik v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982); EDF v. EPA, 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1982); Sierra Club v. Gorsuch, 672 F.2d 33, 12 ELR 20213 (D.C. Cir. 1982), rev'd sub nom. Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 13 ELR 20664 (1983); Alabama Power Co. v. Gorsuch, 672 F.2d 1, 12 ELR 20218 (D.C. Cir. 1982); Commissioners Court of Medina County, Texas v. U.S., 683 F.2d 435 (D.C. Cir. 1982); NRDC v. EPA, 484 F.2d 1131, 3 ELR 20803 (1st Cir. 1973), rev'd on other grounds, 421 U.S. 60, 5 ELR 20264 (1975); Carpenter v. Andrus, 499 F. Supp. 976 (D. Del. 1980); Citizens Association of Georgetown v. Washington, 383 F. Supp. 136, 4 ELR 20860 (D.D.C. 1974), rev'd on other grounds, 535 F.2d 1318 (D.C. Cir. 1976); Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 4 ELR 20551 (D. Del. 1974), aff'd without opinion, 510 F.2d 696 (3d Cir. 1975). Some of these cases applied these criteria to award attorneys fees to unsuccessful plaintiffs. Because this practice was reversed in Ruckelshaus v. Sierra Club, these cases must be used with care. While their use of the statutory purpose and fairness as the chief criteria for attorney fee awards is not touched by Ruckelshaus v. Sierra Club, some of their ideas of what forwards the statutory purpose, e.g., unsuccessful public ventilation of important government issues, are very definitely disapproved by Ruckelshaus v. Sierra Club.

64. Awards are to be made to successful plaintiffs in "legitimate" actions because such plaintiffs perform "a public service" (Clean Air Act § 304). S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39 (1970), reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 436-39. Awards are to be made when the court determines they are "in the public interest" (Clean Air Act § 304). Id. at 64-65, reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17 at 464-65. The purpose of the award is to encourage litigation which will "serve the public interest" (Clean Air Act § 307(f)). H.R. REP. NO. 294, 95th Cong., 1st Sess. 337 (1970), reprinted in 4 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 2804. Awards should be made to "effectuate the purposes" of the act. Parties successfully enforcing the act should ordinarily receive fee awards unless "special circumstances would render such an award unjust." Awards should be made "in the public interest." (TSCA § 19). Remarks of Sen. Tunney, see EDF v. EPA, 672 F.2d at 49, 12 ELR at 20317.

65. E.g., where a corporation attains great economic advantage by using citizen suit enforcement to shut down or prevent the operation of a competing facility.

66. Indeed, the Student Note, supra note 5, at 310 n. 12, characterized this issue as the "most controversial" issue arising under the attorney fee award provision of the citizen suit sections.

67. "When Congress has chosen to depart from the American Rule by statute, virtually every one of the more than 150 existing federal fee-shifting provisions predicates fee awards on some success by the claimant." Ruckelshaus v. Sierra Club, 103 S. Ct. at 3279, 13 ELR at 20664. See also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 260 n. 33, 5 ELR at 20291 n. 33, in which all but two or three of the 23 non-environmental citizen suit sections listed authorize attorneys fees only to successful plaintiffs.

68. See Alyeska, 421 U.S. 240, 5 ELR 20286, and Delaware Citizens for Clean Air, Inc. v. Stauffer, 62 F.R.D. at 354, 4 ELR at 20552. See also supra notes 6-8.

69. S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 436-39.

70. Alabama Power Co. v. Gorsuch, 672 F.2d at 3, 12 ELR at 20219, partially successful petitioners under Clean Air Act § 307. See also Sierra Club v. Gorsuch, 672 F.2d 33, 12 ELR 20213 (D.C. Cir. 1982), unsuccessful petitioners under Clean Air Act § 307, rev'd sub. nom. Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 13 ELR 20664 (1983); EDF v. EPA, 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1983), partially successful TSCA § 19 petitioners; Northern Plains Resources Council v. EPA, 670 F.2d 847, 12 ELR 20427 (9th Cir. 1982), unsuccessful Clean Air Act § 307 petitioner, remanded in light of Ruckelshaus v. Sierra Club, 104 S. Ct. 54 (1983); Washington Metropolitan Coalition for Clean Air v. District of Columbia, 639 F.2d 802, 11 ELR 20171 (D.C. Cir. 1981), unsuccessful plaintiff under Clean Air Act § 304; NRDC v. EPA, 484 F.2d 1332 (1st Cir. 1973), rev'd on other grounds sub nom., Train v. NRDC, 421 U.S. 60 (1975); North Slope Borough v. Andrus, 515 F. Supp. 961, 11 ELR 20293 (D.D.C. 1981); rev'd sub nom. Village of Kaktovic v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982), unsuccessful plaintiffs under ESA § 11(g) and OCSLA § 23; Citizens Ass'n of Georgetown v. Washington, 383 F. Supp. 136, 4 ELR 20860 (D.D.C. 1974), rev'd on other grounds, 535 F.2d 1318, 6 ELR 20524 (D.C. Cir. 1976). See also Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 4 ELR 20551 (D. Del. 1974), aff'd, without opinion, 510 F.2d 969 (3d Cir. 1975), in which the court refused to award attorneys fees to an unsuccessful plaintiff under Clean Air Act § 304, but indicated that it might do so in another case where the balance of equities was decidedly in favor of an award or the suit served the purposes of the Act in a substantial way. The court indicated that success or failure in a suit should be given substantial weight in determining whether to award attorneys fees. But see Colorado Public Interest Research Group, Inc. (PIRG) v. Train, 373 F. Supp. 991, 4 ELR 20307 (D. Colo.), rev'd on other grounds, 507 F.2d 743 5 ELR 20043 (10th Cir. 1974), rev'd sub nom. Train v. Colorado PIRG, 426 U.S. 1, 6 ELR 20549 (1976). In that case the trial judge refused an award of fees against an unsuccessful litigant explaining that such an award went against his training and his experience as an attorney losing contingent fee cases.

71. 103 S. Ct. at 3280, 13 ELR at 20667.

72. See supra note 33 and accompanying text. In TSCA, see supra note 39.

73. The Court's apparent desire to discourage attorney fee awards to pulic interest petitioners in judicial review cases probably reflects its current antagonism toward judicial interference with administrative decisionmaking; see Chevron U.S.A., Inc. v. NRDC, 104 S. Ct. 2778, 14 ELR 20507 (1984). Since public interest suits have often lead to such "judicial interference," the Court's apparent desire to discourage such litigation is understandable.

74. Student note, supra note 5, at 346-51.

75. See supra note 70.

76. See the discussion of intervention in Part II of this series, 14 ELR at 10071-75.

77. Alabama Power Co. v. Gorsuch, 672 F.2d 1, 12 ELR 20218 (D.C. Cir. 1982); Commissioners Court of Medina County Texas v. U.S., 683 F.2d 435 (D.C. Cir. 1982); and NRDC v. Train, 8 ELR 20881 (D.D.C. 1978).

78. Commissioners Court of Medina County v. U.S., 683 F.2d 435 (D.C. Cir. 1982).

79. Alabama Power Co. v. Gorsuch, 672 F.2d at 4, 12 ELR at 20219.

80. Commissioners Court of Medina Co. v. U.S., 683 F.2d 435 (D.C. Cir. 1982).

81. See supra notes 22-27 and accompanying text.

82. See Consolidated Edison Co. v. Realty Investments Associates, 524 F. Supp. 150, 152, 12 ELR 20208, 20209 (S.D.N.Y. 1981): "While [Clean Air Act § 304] … does not make any distinction between the award of attorney's fees to plaintiff and to defendants, it is manifest that defendants face a substantially more difficult course in obtaining their counsel fee than do similarly situated plaintiffs." See also NRDC v. Train, 8 ELR 20881 (D.D.C. 1978). Generally, a defendant may not recover attorneys fees unless the plaintiff's suit was frivolous, vexatious or without foundation. Christensbury Garment Co. v. EEOC, 424 U.S. 412, 421-22 (1978); Commissioners Court of Medina County v. U.S., 683 F.2d 435 (D.C. Cir. 1982).

83. Consolidated Edison Co. v. Realty Investments Associates, 524 F. Supp. at 152, 12 ELR at 20209. Compare Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353, 4 ELR 20551, aff'd without opinion, 510 F.2d 969 (3d Cir. 1975).

84. See Part I of this series, 13 ELR 10314-15.

85. Puerto Rico v. SS Zoe Colocotroni, 602 F.2d 12 (1st Cir. 1979).

86. Clean Water Act § 402(b), 33 U.S.C. § 1342(b), ELR STAT. 42141.

87. See, e.g., Clean Water Act § 106(a), 33 U.S.C. § 1256(a), ELR STAT. 42111, provides multi-million dollar authorizations "for grants to States … to assist them in administering programs for the prevention, reduction, and elimination of pollution, including enforcement directly or through appropriate state law enforcement officers or agencies." If the state is seeking to recover attorneys fees from the federal government, such an award may amount to double dipping in light of the grant provisions. Of course, if the award is sought from another party, such an award would make the grant go farther. And, of course, the grant may not cover all enforcement expenses in any event.

88. See Part II of this series, 14 ELR at 10064 nn. 9-11 and accompanying text.

89. 672 F.2d 1, 12 ELR 20218 (D.C. Cir. 1982). The argument made against the award in that case was that the positions advocated by the District were not "pro-environment" and were in its own economic interest. In ruling for the District, the court specifically stated that its holding did not consider or extend to a "financially able non-governmental party having no more than its own economic interests at heart." Id. at 4, 12 ELR at 20220.

90. 546 F. Supp. 1357, 12 ELR 20082 (D.D.C. 1982).

91. Id. at 1359, 12 ELR at 20083-84.

92. Id. at 1359 n. 3 and accompanying text, 12 ELR at 20083 n. 3 and accompnaying text.

93. For example, by threatening an endangered species or ignoring a clearly preferable alternative. See Pacific Legal Foundation v. Watt, 539 F. Supp. 841, 13 ELR 20109 (C.D. Cal. 1982), aff'd in part, rev'd and remanded in part, 703 F.2d 576, 13 ELR 20392 (9th Cir. 1983).

94. Sen. Magnuson, ranking Senate manager on the conference committee, stated on the floor that the attorney fee provision was not "to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding." EDF v. EPA, 672 F.2d at 49, 12 ELR at 20317.

95. In construing Clean Air Act § 307(f), the District of Columbia Circuit cited it in Alabama Power Co. v. Gorsuch, 672 F.2d at 7 n. 33, 12 ELR at 20221 n. 33.

96. See supra note 81 and accompanying text.

97. Alabama Power Co. v. Gorsuch, 672 F.2d at 5, 12 ELR at 20220.

98. Id. at 7, 12 ELR at 20221.

99. Florida Power & Light Co. v. Costle, 683 F.2d 941, 12 ELR 21071 (5th Cir. 1982).

100. CCCFH II, 14 ELR 20346 (D.D.C. 1984).

101. CCCFH I, 568 F. Supp. 825, 14 ELR 20333 (D.D.C. 1983).

102. 6 U.S.C. §§ 1531-1543, ELR STAT. 41825.

103. 16 U.S.C. § 1540(g), ELR STAT. 41832:6.

104. Carpenter v. Andrus, 499 F. Supp. at 979.

105. NRDC v. Train, 8 ELR 20881 (D.D.C. 1978). The settlement agreement is published in 6 ELR 20588 (D.D.C. 1976).

106. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (1975).

107. McMahon v. U.S., 342 U.S. 25, 27 (1951).

108. 103 S. Ct. at 3277, 13 ELR at 20665.

109. 28 U.S.C. § 2412(b), ELR STAT. 41007.

110. Employees of the Department of Public Health and Welfare, Missouri v. Department of Public Health and Welfare, Missouri, 411 U.S. 279 (1973).

111. See, e.g., Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 496 F.2d 1017, 4 ELR 20643 (5th Cir. 1974), cert. denied, 420 U.S. 926 (1975); Harrisonburg Coalition Against Ruining the Environment v. Volpe, 5 ELR 20012 (M.D. Pa. (1974).

112. Hutto v. Finney, 437 U.S. 678 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

113. Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980); Huecker v. Milburn, 538 F.2d 1241 (6th Cir. 1976).

114. Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979), school desegregation; Vulcan Society v. Fire Department of the City of White Plains, 533 F. Supp. 1054 (S.D.N.Y. 1982), employment discrimination.

115. NRDC, Memorandum in Support of Motion for Entry of an Order Awarding Costs of Litigation Including Reasonable Attorneys Fees, NRDC v. Administrator, EPA, Nos. 2153-73, 75-171, 75-1267, 75-1698 (D.D.C. filed 1983). See supra note 105.

116. This history is contained in remarks of Sen. Tunney that appear in 122 CONG. REC. 8300-01 (1976); see EDF v. EPA, 672 F.2d at 48-49, 12 ELR at 20318. Sen. Tunney asserted that the section specified a "general rule for the amount of fees to be awarded," which it clearly did not. He further stated the section required "the method of calculating fees be no different than that now being utilized in other fields of law as, for example, antitrust and securities regulation litigation." Again this statement is without basis. He finally stated that fees should not be lowered because the attorneys involved were "salaried employees of public interest and/or foundation funded law firms."

117. 488 F.2d 714 (5th Cir. 1974).

118. Hensley v. Eckerhart, 103 S. Ct. 1033, 1037 n.3 and accompanying text (1983); Vant Hul. v. City of Dell Rapids, 465 F. Supp. 1231 (D.S.D. 1979); Younger v. Glamorgan Pipe & Foundry Co., 418 F. Supp. 743 (W.D. Va. 1976), vacated on other grounds, 561 F.2d 563 (4th Cir. 1977).

119. District of Columbia Circuit: Jordan v. U.S. Dep't of Justice, 691 F.2d 514 (D.C. Cir. 1982); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982); EDF v. EPA, 672 F.2d 42, 12 ELR 20315; Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980).

Third Circuit: Walker v. Robbin Hose Co. No. 1, Inc., 622 F.2d 692 (3d Cir. 1980); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied, 436 U.S. 913 (1978); Merola v. Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975); Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir. 1974); and Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973); Delaware Valley Citizens' Council v. Pennsylvania, 20 ERC 1763 (E.D. Pa. 1984). See also Brown v. Gillette Co., 536 F. Supp. 113 (D. Mass. 1982); Richardson v. Jones, 506 F. Supp. 1359 (E.D. Pa. 1981); Hughes v. Defender Ass'n of Philadelphia, 509 F. Supp. 140 (E.D. Pa. 1981); Charpliwy v. Uniroyal, Inc., 509 F. Supp. 442 (N.D. Ind. 1981), aff'd in part and rev'd in part, 670 F.2d 760 (7th Cir. 1982).

120. See NRDC v. EPA, 484 F.2d 1331, 3 ELR 20803 (1st Cir. 1973). See also NRDC v. Fri, 5 ELR 20173, 20174 (D.D.C. 1974), in which "a private practitioner with considerable experience" was awarded an hourly rate of $40 and other attorneys were awarded rates of $30 an hour. Implying the rates were low, the court noted they were more than allowed for the representation of indigent defendants; counsel have an obligation to bring suits in the public interest; and the rates were sufficient to "allow lawyers to carry out their professional responsibility without either personal inconvenience or undue financial hardship."

121. See, e.g., EDF v. EPA, 672 F.2d at 58, 12 ELR at 20323; North Slope Borough v. Andrus, 515 F. Supp. 961, 968, 11 ELR 20419, 20421 (D.D.C. 1981), rev'd on other grounds sub nom. Village of Kaktovik v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982). See also Gunther v. Iowa State Men's Reformatory, 466 F. Supp. 367 (N.D. Iowa 1979); Stephenson v. Simon, 448 F. Supp. 708 (D.D.C. 1977); Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136, 7 ELR 20488 (D.R.I. 1977).

122. Hensley v. Eckerhart, 103 S. Ct. at 1941; Jordan v. U.S. Dep't of Justice, 691 F.2d at 519; National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1325-26; Copeland v. Marshall, 641 F.2d at 892; NRDC v. Train, 8 ELR 20881 (D.D.C. 1978).

123. Jordan v. U.S. Dep't of Justice, 691 F.2d at 518; see also the detailed discussion of the type of evidence that is required to establish an hourly rate in National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1325-26, 1331-32, 1334, 1336.

124. Jordan v. U.S. Dep't of Justice, 691 F.2d at 521.

125. North Slope Borough v. Andrus, 515 F. Supp. at 966-70, 11 ELR at 20421. The bands developed by the district court in North Slope were valued at $125 an hour for very experienced attorneys, $110 an hour for experienced attorneys, $80 an hour for less experienced attorneys, and $65 an hour for inexperienced attorneys. The approach and the hourly rates were subsequently embraced by the D.C. Circuit in EDF v. EPA, 672 F.2d at 58 n.11, 12 ELR at 20323 n.11.

126. In a curious inconsistency, the court in CCCFH I, 568 F. Supp. at 830-31, 14 ELR at 20335-36, recognized a billing rate increase for an associate in a law firm during the course of litigation and allowed his full billing rate, which was in excess of the levels established in North Slope Borough, but held the partners on the case to the levels which were below their billing rates and the billing rates of attorneys with comparable exerience and skills on comparable cases. In a recent decision, the D.C. Circuit ruled that a for-profit law firm's normal hourly rates should be the basis of a fee, in order to award a "second litigation. Laffey v. Northwest Airlines, Inc., No. 83-1838 (D.C. Cir. Sept. 28, 1984). Ironically, the firms ratio were below prevailing market rates. It thus was paid at a lower rate than would a public interest firm handling the same case.

127. EDF v. EPA, 672 F.2d at 58-59, 12 ELR at 20323. Some courts have calculated rate increases of $10 per hour per year. Richardson v. Jones, 506 F. Supp. 1259, 1264 (E.D. Pa. 1981); Bolden v. Pennsylvania State Police, 491 F. Supp. 958, 965 (E.D. Pa. 1980).

128. See infra note 143 and accompanying text.

129. Id.

130. Jordan v. U.S. Dep't of Justice, 691 F.2d at 521; EDF v. EPA, 672 F.2d at 58, 12 ELR at 20323-24; Copeland v. Marshall, 641 F.2d at 899-904; North Slope Borough v. Andrus, 515 F. Supp. at 968, 11 ELR at 20421, rev'd sub nom. Village of Kaktovic v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982); Aumiller v. University of Delaware, 455 F. Supp. 676 (D. Del. 1978).

131. See the written statement of Sen. Tunney regarding TSCA § 20, supra note 116.

132. Alabama Power Co. v. Gorsuch, 672 F.2d at 3, 12 ELR at 20220.

133. Hensley v. Eckerhart, 103 S. Ct. at 1939, 1941; Jordan v. U.S. Dep't of Justice, 691 F.2d at 519.

134. "Having put forth numerous objections to the fee claim, EPA is scarcely in a position to fret over the amount of counsel time that District exhausted in its quest for fees," Alabama Power Co. v. Gorsuch, 672 F.2d at 6, 12 ELR at 20220.

135. See, e.g., Jordan v. U.S. Dep't of Justice, 691 F.2d at 519; EDF v. EPA, 672 F.2d at 50, 12 ELR at 20318; CCCFH I, 568 F. Supp. at 828, 13 ELR at 20335.

136. See Jordan v. U.S. Dep't of Justice, 691 F.2d at 518; Bowe v. Colgate-Palmolive Co., 443 F. Supp. 696 (S.D. Ind. 1976).

137. Hensley v. Eckerhart, 103 S. Ct. at 1939; Jordan v. U.S. Dep't of Justice, 691 F.2d at 520; CCCFH I, 568 F. Supp. at 828, 14 ELR at 20335.

138. EDF v. EPA, 672 F.2d at 50-51, 12 ELR at 20318; Thomas v. Honeybrook Mines, Inc., 428 F.2d 981, 984, 986 (3d Cir. 1970), cert. denied, 401 U.S. 911 (1971); CCCFH I, 568 F. Supp. at 828, 14 ELR at 20335; Palmigiamo v. Garrahy, 466 F. Supp. 732 (D.R.I. 1979); McPherson v. School District #186, 465 F. Supp. 749, 755 (S.D. Ill. 1978); Aumiller v. University of Delaware, 455 F. Supp. 676, 678 (D. Del. 1978).

139. EDF v. EPA, 672 F.2d at 50-51, 12 ELR at 20318; Jordan v. U.S. Dep't of Justice, 691 F.2d at 519.

140. Jordan v. U.S. Dep't of Justice, 691 F.2d at 519.

141. Some have argued that "costs of litigation" includes only activities related to documents filed or arguments in court, not activities in pursuit of settling pending litigation prior to trial. The argument has also taken the form under "prevailing party" fee award statutes that there can be no prevailing party when an action is settled prior to trial. It is well settled under case law that an action need not proceed through trial for a party to prevail.To be a "prevailing party," a party must have substantially succeeded in obtaining the sought after relief and the litigation must have been a substantial factor in obtaining the relief. Maker v. Gagne, 448 U.S. 122, 129-30 (1980); Commissioners Court of Medina County, Texas v. U.S., 683 F.2d 435 (D.C. Cir. 1982); Chicano Police Officers' Ass'n v. Stover, 624 F.2d 127, 131 (10th Cir. 1980); Bagel Inn, Inc. v. All Star Dairies, 539 F. Supp. 107 (D.N.J. 1982); Dietrich v. Miller, 494 F. Supp. 42 (N.D. Ill. 1980); Bolden v. Pennsylvania State Police, 491 F. Supp. 958 (E.D. Pa. 1980); Parker v. Matthews, 411 F. Supp. 1059 (D.D.C. 1976), aff'd sub nom. Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977). Indeed, if those factors are established, the litigation need not even end in a negotiated consent order for a prevailing party to secure attorneys fees, Iranian Students Ass'n v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. 1981). The absence of "prevailing party" language in the citizen suit sections of the environmental statutes would require at least as liberal interpretation of them with regard to this issue. The legislative history of Clean Air Act § 304 makes this conclusion abundantly clear: "Courts should award costs to [a party bringing a legitimate action] … This should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict." S. REP. NO. 1196, 91st Cong., 2d Sess. at 36-39, reprinted in 1 LEGIS. HIST. CLEAN AIR ACT, supra note 17, at 436-39.

Against this background it is not surprising that courts have had little difficulty with the notion of awarding attorneys fees to citizen plaintiffs for activities that lead to negotiated settlements prior to trial on the merits or who in some other way prevail short of trial. EDF v. EPA, 672 F.2d at 56-57, 12 ELR at 20323; Friends of the Earth v. Carey, 535 F.2d 165, 172-73, 6 ELR 20488, 20491-92 (2d Cir. 1976), cert. denied, 434 U.S. 962 (1977); Council of Southern Mountains, Inc. v. Watt, 13 ELR 20393 (E.D. Ky. 1982); NRDC v. Train, 8 ELR 20881 (D.D.C. 1978); PROD, Inc. v. Train, 6 ELR 20341 (D.D.C. 1976); NRDC v. Fri, 5 ELR 20173 (D.D.C. 1974). Post consent decree negotiations to modify the decree or to enforce it are also compensable, EDF v. EPA, 672 F.2d at 56-57, 12 ELR 20322-23.

142. Bond v. Stanton, 630 F.2d 1231, 1233-34 (7th Cir. 1980); Miller v. Carson, 628 F.2d 346, 349 (5th Cir. 1980); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 637 (6th Cir. 1980); CCCFH I, 568 F. Supp. at 828, 14 ELR at 20335; Palila v. Hawaii Dep't of Land and Natural Resources, 512 F. Supp. 1006, 1008-09 (D. Hawaii 1981); Smith v. La Cote Basque, 519 F. Supp. 663, 666 (S.D.N.Y. 1981); McPherson v. School District #186, 456 F. Supp. at 756.

143. EDF v. EPA, 672 F.2d at 61-64, 12 ELR 20325-27; Bond v. Stanton, 630 F.2d at 1235; Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 637 (6th Cir. 1977); CCCFH I, 568 F. Supp. at 828, 14 ELR at 20335; Palila v. Hawaii Dep't of Land and Natural Resources, 512 F. Supp. 1006, 1009 (D. Hawaii 1981); Aumiller v. University of Delaware, 455 F. Supp. 676, 679 (D. Del. 1978); NRDC v. Train, 8 ELR at 20883; Rosenfield v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975).

144. Roosevelt Campobello, 711 F.2d at 438-39.

145. Hensley, 103 S. Ct. 1933 (1983). For lower court consideration of the issue, see cases cited at 103 S. Ct. at 1938-39 n.5; National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1327-28, 1332; Batiste v. Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1974); Communication Workers of America v. Illinois Bell Telephone Co., 553 F. Supp. 144 (N.D. Ill. 1982); Moseley v. General Motors Corp., 508 F. Supp. 171 (E.D. Mo. 1981), aff'd and remanded without opinion, 691 F.2d 504 (8th Cir. 1982).

146. Hensley, 103 S. Ct. at 1940.

147. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1332-33. Another court expressed the same sentiment in more detail. "For this court to itemize each motion, request or claim that has been presented in this complex and prolonged litigation and determine whether plaintiffs were 'successful' would be unnecessary as well as impossible. Such analysis is not required where, as here, plaintiffs have clearly prevailed in attaining what they sought and what would not have occurred without this effort." Delaware Valley Citizens' Council v. Pennsylvania, 20 ERC 1763, 1768 (E.D. Pa. Feb. 24, 1984). See also Roosevelt Campobello, 711 F.2d at 440; EDF v. EPA, 672 F.2d at 52, 12 ELR at 20319-20.

149. "If ever an intervenor can recover attorneys' fees from a party on whose side it participated — a question we do not here reach — the justification would have to be a clear showing of some unique contribution of the intervenor to the strength of that party's legal position." Alabama Power Co. v. Gorsuch, 672 F.2d at 4, 12 ELR at 20219. Of course, that does not answer the question of whether the intervenor could secure fees from the opposing party. See also EEOC v. Price, Kelton, Martin & Unis, 626 F.2d 1272 (5th Cir. 1980), reh'g denied, 634 F.2d 1355 (5th Cir. 1980).

150. Such exclusions were made in Copeland v. Marshall, 641 F.2d at 891; Delaware Valley Citizens' Council v. Pennsylvania, 20 ERC at 1770; and Parker v. Califano, 443 F. Supp. 789 (D.D.C. 1978).

151. See CCCFH I, 568 F. Supp. 825, 14 ELR 20333 and CCCFH II, 14 ELR 20346, in which time for three attorneys representing one plaintiff and another attorney representing another plaintiff was compensable. Other courts have recognized that attendance by more than one attorney at a hearing may be compensable. Tidewell v. Schweiker, 677 F.2d 560, 569-70 (7th Cir. 1982); Alabama Power Co. v. Gorsuch, 672 F.2d at 4, 12 ELR at 20219 (attorney "coordinating" procedural aspects and organizing joint brief); Bagel Inn, Inc. v. All Star Dairies, 539 F. Supp. at 111 (attorneys from two firms representing plaintiffs awarded $175 and $140 an hour for "coordinating" plaintiffs' counsel); Unemployed Workers Organizing Committee v. Batterton, 477 F. Supp. 509, 515 (D. Md. 1979); Palmigiano v. Garrahy, 466 F. Supp. at 743 (109 hours of co-counsel conferences). See also Communications Workers of America v. Illinois Bell Telephone Co., 553 F. Supp. 144 (N.D. Ill. 1982); Stastny v. Southern Bell Telephone and Telegraph Co., 458 F. Supp. 314 (W.D.N.C. 1978); Barth v. Bayou Candy Co., 379 F. Supp. 1201 (D. La. 1974).

152. Alabama Power Co. v. Gorsuch, 672 F.2d at 5 n. 19; International Travel Arrangers v. Western Airlines, 623 F.2d 1255, 1276 (8th Cir. 1980); Bagel Inn, Inc. v. All Star Dairies, 539 F. Supp. at 117; North Slope Borough v. Andrus, 515 F. Supp. at 117; North Slope Borough a. Andrus, 515 F. Supp. at 971-72; Palila v. Hawaii Dep't of Land and Natural Resources, 515 F. Supp. at 1010; Richardson v. Jones, 506 F. Supp. at 1267; Payne v. Travenol Laboratories, Inc., 74 F.R.D. 19 (D. Miss. 1976).

153. Payne v. Travenol Laboratories, Inc., 74 F.R.D. 19 (D. Miss. 1976).

154. Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810 (8th Cir. 1983); Jordan v. U.S. Dep't of Justice, 691 F.2d 514 (D.C. Cir. 1982); Richardson v. Jones, 506 F. Supp. 1259 (E.D. Pa. 1981); Stastny v. Southern Bell Telephone and Telegraph Co., 458 F. Supp. 314 (W.D.N.C. 1978); White v. Ed Miller & Sons, Inc., 457 F. Supp. 148 (D. Neb. 1978); Backman v. Pertschuk, 23 Fair Empl. Prac. Cas. (BNA) 1046, 1054 (D.D.C. 1979). See also Lamphere v. Brown Univ., 610 F.2d 46, 48 (1st Cir. 1979), noting that such charges could better be included in the overhead component of the attorney's hourly charges. If the market value approach is adhered to, charges for paralegal time should follow the practice in law firm billing in the area, whether that be billing hours for paralegal time or including them in the hourly rates of attorneys as overhead.

155. Jordan v. U.S. Dep't of Justice, 691 F.2d 514 (D.C. Cir. 1982).

156. Alabama Power Co. v. Gorsuch, 672 F.2d 1, 12 ELR 20218 (D.C. Cir. 1982); EDF v. EPA, 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1982); CCCFH I, 568 F. Supp. 825, 14 ELR 20333 (D.D.C. 1983); Washington v. Pura, 576 F. Supp. 473 (N.D. Ill. 1983); Parker v. Mathews, 411 F. Supp. 1059 (D.D.C. 1976); Lockheed Minority Solidarity Coalition v. Lockheed Missiles & Space Co., 406 F. Supp. 828 (N.D. Cal. 1976).

157. Parker v. Mathews, 411 F. Supp. 1059 (D.D.C. 1976).

158. EDF v. EPA, 672 F.2d 42, 12 ELR 20315 (D.C. Cir. 1982).

159. 104 S. Ct. 1541 (1984).

160. Id. at 1548.

161. Id. at 1550 n. 17.

162. 103 S. Ct. 1933 (1983).

163. Laffey v. Northwest Airlines, Inc., No. 83-1838 (D.C. Cir. Sept. 28, 1984) and Murray v. Weinberger, 741 F.2d 1423 (D.C. Cir. 1984).

164. In Laffey v. Northwest Airlines, Inc., No. 83-1838 (D.C. Cir. Sept. 28, 1984), the court below doubled the fee award to reflect a 50 percent risk of losing the case. The court of appeals rejected the very idea of such an adjustment. It reasoned that to do so would simply compensate attorneys for lost cases under another guise, a result contrary to Ruckelshaus v. Sierra Club and Hensley.

The legislative history of the attorney fee authorization in question cited Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), as a case properly calculating an attorney fee award. In Zurcher the court adjusted the award to compensate for the contingent nature of success. The court of appeals found Zurcher to be flatly contradictory to the teaching of Hensley that unsuccessful counts and suits are not compensable.

The opinion represents more of a vendetta by its author against fee awards than a reasoned application of Hensley. Hensley did not consider the propriety of fee award adjustments to reflect the contingent nature of the award. But the Supreme Court in that case did note that both the House and the Senate referred to the 12 factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), as the proper basis of the award and noted that one of these factors was "whether the fee is fixed or contingent," 103 S. Ct. at 1937 n. 3. It also discussed the applicability of Zurcher. The Court's opinion in Hensley does not hint that it would reject the approaches of Johnson and Zurcher, both expressly adopted by Congress.

The court of appeals in Laffey cites Hensley for the proposition that unsuccessful counts and suits do not quality for fee awards. Whereas both Hensley and Ruckelshaus can be cited for the proposition that unsuccessful suits do not qualify for fee awards, neither can be cited for the proposition that unsuccessful counts in an otherwise successful case cannot so qualify. Indeed, the Court in Hensley noted:

Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducting a fee.

103 S. Ct. at 1940. Instead, the Court ruled that the amount of the award must depend on the extent to which the suit achieved the substantive results sought. That the court of appeals could not grasp that distinction is an indication of how it may be anxious to overextend Hensley in other ways, e.g., by ruling that it foreclosed upward adjustments for risk of loss.

165. Palmer v. Shultz, No. 76-1439 (D.D.C. Sept. 17, 1984), citing Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983).

166. 103 S. Ct. 3274, 13 ELR 20664 (1983).

167. 103 S. Ct. at 3278-79.

168. Compare Table A to Tables B and D in statement of Carol Dinkins, Deputy Attorney General, before the Subcommittee on the Constitution of the Senate Judiciary Committee (Sept. 11, 1984).

169. The text of the Dinkins statement, supra note 167, implies that upward adjustments of fee awards against the government are in the neighborhood of 40 percent, a figure derived from averaging the multipliers in the cases listed on Table A. Those cases constitute only nine percent of the cases reviewed by the Department of Justice where fee awards were made. If all of the cases listed on Tables B and D, where no adjustments were made, are considered in the calculation, the average adjustment is less than four percent.

170. ELI Study, supra note 56, at I-7, IV-2, 5, V-25 to 27.

171. Id. at V-5 to 11.

172. See supra notes 120 to 132 and accompanying text.

173. See supra note 21 and accompanying text.

174. See North Slope Borough v. Andrus, 515 F. Supp. 961, 11 ELR 20419 (D.D.C. 1981), rev'd sub nom. Village of Kaktovic v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982), in which the government breached a settlement agreement of $59,000 and tried the fee award issue, resulting in an award against it of $230,000.

175. See supra note 134.

176. See e.g., Ruckelshaus v. Sierra Club, 103 S. Ct. at 3278-79, 13 ELR at 20666.

177. 104 S. Ct. 1541 (1984).

178. See supra notes 159-167 and accompanying text.

179. Washington Post, Editorial, Dec. 16, 1983, at A22, col. 1.

180. E.g., Address of Carol Dinkins, Deputy Attorney General, before the National Association of Attorneys General (Oct. 25, 1984) and statement before the Subcommittee on the Constitution of the Senate Judiciary Committee (Sept. 11, 1984).

181. S. 2802, 98th Cong., 2d Sess. (1984), 130 CONG. REC. S8466, S8498 (daily ed. June 28, 1984), would limit attorney fee awards to $75 an hour and preclude any upward adjustments. Downward adjustments could be made if the party seeking the fee had unreasonably protracted the controversy. No award could be made unless the party had prevailed on the merits and no award could be made for unnecessary, excessive, or redundant work.

182. The President announced, through a memorandum of disapproval, on November 8, 1984 that he would not be signing the Equal Access to Justice Act reauthorization bill, H.R. 5479, 98th Cong., 2d Sess. (1984), 130 CONG. REC. H9297 (daily ed. Sept. 11, 1984). The pocket veto became effective at midnight, November 9.

183. See Washington Post, Oct. 16, 1984, at A17.

184. See Tables B and C in the Dinkins statement before the Subcommittee on the Constitution, cited in note 168, supra.

185. Compare Table A with Tables B and D in the Dinkins statement before the Subcommittee on the Constitution, cited in note 168, supra.

186. ELI Study, supra note 56, at I-7, IV-11, 12.

187. See EPA Office of Water Analysis and Evaluation, Section 505 Citizen Suit Analysis (undated) [hereinafter cited as EPA Study]. The EPA Study, completed in early 1984, found that NRDC had reviewed files of over 1000 permitted discharges, had issued 131 notices of violation, and had filed 18 complaints. NRDC subsequently disclosed that it issued notices of violation in 12 percent of the cases it investigated. It terminated action on 20 percent of the notices after discussion with the discharger or learning of government action. In half of the remaining cases, complaints are filed and in the others negotiations are commenced, many of which may lead to settlement. ELI Study, supra note 56, at V-9.

188. This chart is based on figures in the ELI Study, supra note 56, at III-10, 27, 29.

* The figure to the left is the number of notices of intent to sue; the figure to the right is the number of suits actually filed. The disparity in 1983 and 1984 suggests that more cases are yet to be filed as a result of notices in those years. The cases not brought under the Clean Water Act are predominately Clean Air Act and RCRA cases.

** The figure to the left is the number of cases referred by EPA to the Department of Justice; the figure to the right is the number of cases filed by the Department of Justice.

*** The figures are through April 30, 1984 for private enforcement and through June 30, 1984 for government enforcement.

189. EPA Study, supra note 187.

190. Inside EPA, May 11, 1984, at 1, 6-7.

191. ELI Study, supra note 56.

192. Letter from David F. Zoll, Vice President and General Counsel of CMA to Jack Ravan, EPA Assistant Administrator for Water (June 18, 1984).

193. Letter from William D. Ruckelshaus, Administrator of EPA to Ross Sandler of NRDC (July 30, 1984).

194. Memorandum, EPA Response to Citizen Suits, from William D. Ruckelshaus, Administrator, EPA, to Regional Administrators and Regional Counsel (July 30, 1984).

195. The study reviewed data from seven EPA Headquarters Offices, 10 EPA Regional Offices, the Administrative Office of the U.S. Courts, U.S. DISTRICT COURT FILINGS ALERT, SHEPHERD'S CITATOR, ENVIRONMENTAL LAW REPORTER, a number of other trade journals and legal periodicals, and several score plaintiffs', defendants', and government counsel.

196. In announcing and implementing its 1977 policy not to sue certain violators of the Clean Water Act's 1977 deadline, for instance, EPA was careful to point out that its actions would not insulate a company from a citizen suit.

197. GENERAL ACCOUNTING OFFICE, WASTEWATER DISCHARGERS ARE NOT COMPLYING WITH EPA POLLUTION CONTROL PERMITS 7-14 (Dec. 2, 1983). By July 1, 1977 only 40 percent of major municipal dischargers met their water pollution control requirements, while 80 percent of non-municipal dischargers met their requirements by that date. 10 CEQ ANN. REP. 113, 137 (1979).

198. See Hearing on the Federal Water Pollution Control Act Amendments Before the House Committee on Public Works and Transportation, 95th Cong., 2d Sess. (1977), reprinted in CONGRESSIONAL RESEARCH SERVICE, 4 LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT 1415-17 (1978) (dialogue between Rep. Cleveland and EPA representatives).

199. Pawtuxent Cove Marina, Inc. v. Ciba Geigy Corp., 14 ELR 20685 (D.R.I. May 17, 1984).

200. For a discussion of the legal issue, see Part II of this series at 14 ELR 10081-82.

201. See e.g., National Wildlife Federation v. Gorsuch, 14 ELR 20736 (3d Cir. Sept. 20, 1984) (NWF, which closelymonitored litigation on ocean dumping and chose not to press its right of intervention when it should have realized that its interests would not be protected, is precluded from later filing suit to attack the result of a consent decree allowing ocean dumping).

202. See ELI Study, supra note 56, at V-8.

203. But see Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272 (9th Cir. 1977).

204. If an effluent guideline is premised on a technology predicted to yield, for instance, an effluent with 30 milligrams per liter of a pollutant 98 percent of the time, it might be tempting to write a percent permit that merely excuses violations two percent of the time. What time is relevant: two percent of days, hours, or sampling events? Sampling events would appear to be most relevant to a statistical argument. But what if sampling is required only weekly or monthly? Are violations tolerated for two percent of entire weeks or months? Does a regulatory agency itself have to sample and find violations over two percent of some relevant period before it can charge a violation? And what magnitude of violation is allowable? What is it results in a violation of water quality standards?What if it is an intentional violation? No doubt a sensible policy can be crafted to address this issue, but it is a quagmire, one EPA understandably has avoided as long as possible.

205. See supra note 160 and accompanying text.

206. The elimination of gender comports with modern drafting style.

207. This substitution for "alleged to be in violation" eliminates the argument that citizen suits may only address present violations and allows citizen enforcement for any violation which may be addressed by government enforcement.

208. This puts citizen enforcement on a par with federal enforcement.

209. If citizens are not to be authorized to enforce against all violations which the government may address, the exceptions should be listed here.

210. This wording eliminates any reference to the time of an alleged violation, allowing citizen enforcement for any violation which may be addressed by the government. It also eliminates redundant wording regarding suits brought in the district in which the alleged violation is located under both paragraphs (a)(1) and (2)(2).

211. This puts citizen enforcement on a par with federal enforcement and authorizes the assessment of penalties in citizen suits. It also eliminates concern regarding some plaintiffs' demand of contribution to their favorite causes in place of penalties. No contribution in lieu of penalties would be authorized beyond that allowed in any government action.

212. It is far more relevant to warn the specified parties that an action will be brought than of the existence of an alleged violation.

213. The addition of "judicial" would eliminate the argument that administrative proceedings could bar citizen suits.

214. An enforcement action seeking only partial relief should not bar actions by others seeking the missing relief, e.g., an action for penalties only should not bar an action for compliance or visa versa.

215. Although administative enforcement does not bar a citizen suit, if the relief obtained administratively is satisfactory, the court should be able to take that into account in providing relief in the suit.

216. This makes notice jurisdictional, but allows some flexibility in determining whether notice is adequate as long as there is actual notice.

217. This does not create a federal cause of action in nuisance. It merely allows immediate access to the courts to enjoin a violation that otherwise would occur during the notice period and would cause an injury or damage. For example, the provision would allow a citizen enforcer to obtain temporary relief to block a planned bypass of a sewage treatement plant that would degrade water quality in the receiving water, when the bypass is announced less than 60 days in advance. The counterproductive nature of a 60-day notice requirement in such a case is obvious.

218. Citizen intervention is limited to persons giving notice of intent to bring a citizen suit, who are barred from bringing the suit by a subsequent government court action. This carries out the original rationale for intervention.

219. This answers the lingering doubts of the defense bar as to the finality of citizen suit decrees, while protecting against a violator being able to secure a decree with incomplete remedies in an action by one type of enforcer that would bar other enforcers from seeking full relief.

220. This adopts the "substantially prevailing plaintiff" standard used in the citizen suit fee award provisions of most other statutes. It also bars fee awards to government agencies that already are funded by the public to enforce.

14 ELR 10407 | Environmental Law Reporter | copyright © 1984 | All rights reserved