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

25 ELR 10256 | Environmental Law Reporter | copyright © 1995 | All rights reserved

25 ELR 10256 | Environmental Law Reporter | copyright © 1995 | All rights reserved

Attorneys Fees Awards Under RCRA § 7002(e): The Corporate "Prevailing Party"
Janet S. Kole
Janet S. Kole represents the plaintiffs in Fallowfield Development Corp. v. Strunk. The case resulted in a victory for the plaintiffs on every issue but their entitlement to attorneys fees under the Resource Conservation and Recovery Act (RFRA) and Pennsylvania's Hazardous Sites Cleanup ACt (HSCA). The matter is currently on appeal to the U.S. Court of Appeals for the Third Circuit. Janet Kole is a partner with Cohen, Shapiro, Polisher, Shiekman & Cohen in Philadelphia, Pennsylvania, concentrating her practice in environmental litigation. She is the coeditor of Environmental Litigation, a text the American Bar Association published in 1992.

[25 ELR 10256]

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

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

Background

Alyeska and the Congressional Response

In Alyeska,⁹ the U.S. Supreme Court reversed a ruling by the U.S. Court of Appeals for the District of Columbia¹⁰ [25 ELR 10257] that environmentalist plaintiffs in litigation surrounding construction of the trans-Alaska oil pipeline could recover attorneys fees against an oil company consortium that had intervened as a defendant. The Supreme Court held that only Congress, not the courts, can authorize such a far-reaching exception to the general American rule against awarding prevailing parties attorneys fees in federal litigation.¹¹ The Supreme Court also held that if Congress intends prevailing parties to recover attorneys fees under statutes embodying important public policies, it should provide fee-shifting provisions in those statutes as an incentive for citizen enforcement.¹² Thus, the Alyeska decision halted the federal judiciary's equitable practice of awarding attorneys fees under the private attorneys general doctrine in those cases where private parties successfully enforced federal statutes.¹³

Congress responded to the Alyeska decision by enacting specific citizen suit fee-shifting provisions in a variety of federal laws, including the Civil Rights Act¹⁴ and environmental statutes.¹⁵ In enacting these citizen suit fee-shifting provisions, Congress was attempting to encourage citizen enforcement of federal statutes and did not limit fee awards to private attorneys general — parties of pure motive seeking to benefit a community by vindicating a statute's purpose.¹⁶ Rather, "these citizen suit provisions evince a legislative intent that [courts shall not treat citizens] as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests."¹⁷

Congress intended all citizen suit provisions "to promote citizen enforcement of important federal policies."¹⁸ For example, the U.S. Supreme Court has expressly acknowledged that the Clean Air Act's (CAA's) legislative history urges federal courts to "recognize that in bringing legitimate actions under [the Act] citizens would be performing a public service and in such instances the courts should award costs of litigation to such [parties].¹⁹ In other words, by bringing a successful citizen suit under a statute, that citizen is vindicating the statute's important federal policy regardless of whether the citizen also confers a benefit on himself or herself.

Case Law Construing Federal Environmental Statutes' Citizen Suit and Fee-Shifting Provisions

Several federal courts have acknowledged that a prevailing party's self-interest in suing under federal environmental statutes does not bar it from obtaining relief under citizen suit provisions. In Florida Power & Light Co. v. Costle,²⁰ the U.S. Court of Appeals for the Fifth Circuit upheld an attorneys fees award to a large, solvent for-profit corporation under the CAA's citizen suit provision, rejecting the U.S. Environmental Protection Agency's (EPA's) argument that vindicating one's own pecuniary interests disqualifies a [25 ELR 10258] prevailing plaintiff from obtaining attorneys fees. The Fifth Circuit wrote:

[The losing party, EPA, claims] that Congress never intended [courts to award] costs and fees . . . to a large, solvent corporation whose main motivation in pursuing section 307 litigation [under the CAA] is financial interest; instead, Congress meant only to reward so-called "watchdog" or public interest groups, whose involvement in such suits is motivated by public spirit. These "watchdog" groups, the argument goes, need the financial incentive of fee awards in order to pursue section 307 suits, while corporations . . . have sufficient financial motivation to initiate such litigation even if there is no prospect of winning attorneys' fees. Moreover, EPA asserts that the results [the corporation] achieved in this case conferred only "company-specific" benefit and that any public benefit was incidental.²¹

EPA's argument before the Fifth Circuit that the court should only award attorneys fees to "watchdog" groups rather than solvent, for-profit entities is the same reasoning the Fallowfield court used to deny the Fallowfield corporations recovery of attorneys fees. While the Fifth Circuit found some of EPA's arguments persuasive as a matter of policy, it held that Congress had not intended to adopt such a policy, because neither the statute nor its legislative history supported such a reading. The court concluded that:

There is no indication that Congress meant to limit section 307(f) awards to public interest groups, Alabama Power Co. v. Gorsuch, 672 F.2d 1, 5 (D.C. Cir. 1982), nor is there any basis for disqualifying a party from receiving an award merely because the party is solvent and has financial interest in the outcome of the litigation.²²

The Fifth Circuit went on to find that the plaintiff's suit would "aid in assuring 'proper implementation and administration of the Act,'" and that it was therefore immaterial that the suit would also specifically benefit the corporation. The court upheld the district court's award of attorneys fees to the private corporate plaintiff.

In Dague v. City of Burlington,²³ the U.S. Court of Appeals for the Second Circuit upheld an award of attorneys fees to a private citizen plaintiff who could only achieve cleanup of his property by suing under RCRA. The plaintiff owned property that a neighboring landfill polluted. He successfully sought abatement under RCRA's citizen suit provision, the district court awarded attorneys fees, and the city appealed. The Second Circuit upheld the award of attorneys fees under RCRA on the ground that it was the only remedy that could make the plaintiff whole.²⁴

In Acme Printing Ink Co. v. Menard, Inc.,²⁵ the U.S. District Court for the Eastern District of Wisconsin rejected the defendants' argument that the corporate plaintiff could not sue under RCRA § 7002(a) because it was suing for its own rather than the community's benefit. The district court stated that "no policy or language within [§ 7002] . . . prevents a party from seeking remedies which are to its benefit as well as the benefit of others."²⁶

In Bayless Investment & Trading Co. v. Chevron USA, Inc.,²⁷ the U.S. District Court for the District of Arizona held that a for-profit company could bring a RCRA citizen suit under § 7002(a) because it furthered Congress' goal of invigorating citizen litigation and promoting prompt, private-party cleanup.²⁸ The court rejected the defendants' request that the court adopt the reasoning of a New York district court in Commerce Holding Co. v. Buckstone,²⁹ that the RCRA citizen suit provision's purpose was to allow relief to only those parties who are "genuinely acting as private attorneys general rather than pursuing a private remedy."³⁰ The Bayless court first held that the congressional intent behind RCRA § 7002(a) is to allow a broad grant of standing for "any person" to "commence a civil action on [their] own behalf," and that "no policy or language" in the citizen suit provision "prevents a party from seeking remedies which are to its benefit as well as the benefit of others."³¹ The court concluded:

Under the . . . reasoning in Commerce Holding, an environmental group that is prevented from using a recreation area because of contamination or an adjacent landowner who has had his property value diminish because of a neighbors contamination could not bring a RCRA claim pursuant to the citizen suit provision if they would benefit from the substantive relief. To exclude parties who will often be the most interested in seeing the appropriate remedial action undertaken would not "invigorate citizens litigation" and flies in the face of clear congressional intent as exhibited by the broad grant of standing in the statute.³²

The Civil Rights Act's Fee-Shifting Provision, 42 U.S.C. § 1988

The U.S. Supreme Court has held that federal courts should look to civil rights cases interpreting the Civil Rights Act's fee-shifting provision for guidance in interpreting fee-shifting [25 ELR 10259] provisions in environmental statutes.³³ In contrast to the relative paucity of case law construing fee-shifting provisions in federal environmental laws, a great deal of jurisprudence has emerged on the proper construction of the Civil Rights Act's fee-shifting provision.

The Civil Rights Act's fee-shifting provision provides that "[i]n any action . . . to enforce [the Act], the court, in its discretion, may allow the prevailing party . . . a reasonable attorneys fee as part of the costs."³⁴ The U.S. Senate Report on the Civil Rights Attorney's Fees Award Act of 1976 explained that this fee-shifting provision was meant to remedy the bar on attorneys fees awards the Alyeska decision imposed because "citizens must have the opportunity to recover what it costs them to vindicate these rights in court."³⁵ Thus, a court should award attorneys fees to make prevailing plaintiffs whole when their lawsuit vindicates the underlying purpose of the statute, whether or not such plaintiffs have a financial interest in the remedy. Private litigation is a means of securing broad compliance with the law, and the Civil Rights Act's express provision for attorneys fees awards encourages injured individuals to seek judicial relief.³⁶

In addition, a civil rights plaintiff who prevails may recover attorneys fees even when the lawsuit ameliorates only the plaintiff's circumstances rather than producing a direct benefit to the public.³⁷ This is true even when the plaintiff is a for-profit organization rather than an individual:³⁸

[T]he case law leaves scant doubt but that, in an appropriate case, corporate plaintiffs am entitled to fee awards under [42 U.S.C.] § 1988. . . . Private citizens, individually or collectively, may assert their civil rights in the § 1983 context. This being so, the sovereign should be no more free unconstitutionally to trample upon the property rights of business entities than upon those of individuals.³⁹

The Fallowfield Decision

In Fallowfield Development Corp. v. Strunk,⁴⁰ corporate purchasers of a 300-plus acre farm sued the sellers for the soil and groundwater contamination they caused when they disposed of hazardous pollutants on the property. The purchasers brought suit under the RCRA § 7002(a)(1)(B) citizen suit provision, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁴¹ and the Pennsylvania Hazardous Sites Cleanup Act (HSCA),⁴² and also asserted state-law claims for misrepresentation and fraud. In addition to seeking recovery of their out-of-pocket costs and past and future cleanup costs, the purchasers sought an award of attorneys fees under RCRA and the HSCA.⁴³ The U.S. District Court for the Eastern District of Pennsylvania refused to award attorneys fees, even though the court expressly found the purchasers to be prevailing parties under both statutes.

RCRA § 7002(e) provides that a prevailing or substantially prevailing party may recover "costs of litigation (including reasonable attorney and expert witness fees) . . . whenever the court determines such an award is appropriate."⁴⁴ In reviewing cases interpreting this citizen suit provision, the district court stated that "[t]he majority of courts that have interpreted [§ 7002(a)(1)(B)] have determined that relief is appropriate where the individual plaintiff is acting as 'a private attorney general' on behalf of the community or the general public."⁴⁵ The district court rested its denial of attorneys fees on its finding that the site remediation would benefit the purchasers' pecuniary interests, and that their RCRA citizen suit was only incidentally intended to vindicate public interests.⁴⁶

Notably, the district court did not find that remediation would benefit only the purchasers. Rather, it specifically made a finding of fact that the groundwater contamination at the site could pose a health hazard to the surrounding community if the residents used the groundwater as a primary drinking source.⁴⁷ The court, however, rejected the purchasers' argument that their action was an attempt to safeguard the environment, because it found that the [25 ELR 10260] case was really a dispute between two private parties arising out of a land sale contract.⁴⁸ The court also found the case distinguishable from cases in which private citizens prevailed in citizen suits to stop pollution or toxic dumping, on the grounds that the motivations in those cases were to vindicate the public interest by abating an imminent and substantial harm to the community, in contrast to the purchasers' motivation to clean up the contaminated soil and groundwater to vindicate their own pecuniary interests.⁴⁹ The district court also suggestedthat the purchasers brought the RCRA citizen suit only for the purpose of recovering attorneys fees, because they could not obtain an attorneys fees award under their state common-law claims.⁵⁰

The Fallowfield Decision and RCRA's Plain Language

RCRA's plain language does not place limitations on who may sue as a citizen, nor does it require that a plaintiff be acting as a "private attorney general" in order to sue. Section 7002(a) provides that "any person [may] commence a civil action on his own behalf."⁵¹ RCRA § 1004(15) expressly defines "person" as including "individual[s], . . . corporation[s], [and] association[s]."⁵² Congress broadly defined "person," and did not limit its definition of "corporation" to nonprofit entities. Congress' phrasing of § 7002(a) to allow a citizen to bring suit "on his own behalf" indicates a congressional intent to allow any party to obtain relief, including attorneys fees, that benefits that party's particular interests. A party's motivation for suing under RCRA's citizen suit provision, whether philanthropic or pecuniary, is clearly irrelevant to determining whether that party may recover attorneys fees. Nothing prevents the Fallowfield plaintiffs from acting to benefit their own interests.⁵³

The Fallowfield Court's Rationale That a Corporate Plaintiff's Pecuniary Interest Precludes an Award of Attorneys Fees

The Fallowfield court's rationale that for-profit corporations cannot recover attorneys fees under RCRA because they are motivated by their desire to vindicate their pecuniary interests rather than by any desire to further the public interest in abating potential hazards from hazardous waste, harks back to the federal jurisprudence of the pre-Alyeska private attorneys general cases. The U.S. Supreme Court has retreated from such a narrow reading of the private attorneys general doctrine, however, and has expressly recognized that attorneys fees awards are no longer limited to the situation in which a disinterested plaintiff seeks to benefit the entire community by defending important rights.⁵⁴ In the civil rights context, private citizens are eligible for fee-shifting even when they only vindicate their own individual rights, not just when they benefit the public.⁵⁵ And corporate plaintiffs may recover fee awards in the same circumstances.⁵⁶ The majority of decisions interpreting fee-shifting provisions in federal environmental statutes have, apart from the Fallowfield decision, followed the civil rights model.⁵⁷

The Fallowfield Court's Rationale That a Prevailing Party May Not Recover Attorneys Fees if It Has a Viable Common-Law Claim

The Fallowfield court erred when it suggested that because the purchasers had already prevailed on their state common-law claims and their only purpose in suing under RCRA was to enable them to recover attorneys fees, they were not entitled to fees under § 7002(e). A court cannot refuse to grant such fees merely because a plaintiff has a viable claim both at common law and under a fee-shifting statute, but chooses to sue under the statute. While fee-shifting provisions are not "relief Act[s] for lawyers,"⁵⁸ "[t]here is, of course, nothing wrong with seeking relief on the basis of certain statutes because those statutes provide for attorneys fees."⁵⁹ The U.S. Supreme Court has repeatedly held that a successful plaintiff should recover attorneys fees unless special circumstances [25 ELR 10261] would render such an award unjust.⁶⁰ The choice to bring an action under a fee-shifting provision is not such an extraordinary circumstance.⁶¹

Conclusion

The Fallowfield court's denial of attorneys fees to the plaintiff purchasers on the grounds that the relief sought benefitted their pecuniary interests and only incidentally benefitted the public's environmental interests, is contrary to post-Alyeska judicial practice and Congress' clear intent to promote private citizen enforcement of environmental laws. Congress' express provision in § 7002(e) allowing attorneys fees awards to prevailing parties clearly does not exclude for-profit corporate plaintiffs from such awards. Nor has the U.S Supreme Court or other federal courts found such an exclusion in analogous fee-shifting provisions in other federal statutes. Neither Congress nor the U.S. Supreme Court has ascertained any legal requirement that the community obtain more than an incidental benefit from such an action, or that a prevailing plaintiff be free of pecuniary motives in order to bring a citizen suit and obtain a fee award.⁶²

There is, in short, no principled basis for a court to deny attorneys fees under environmental fee-shifting statutes to a for-profit corporation. To do so, as the district court did in Fallowfield, would stifle the vindication of the environmental statutes by nongovernmental entities, fly in the face of the clear congressional intent to encourage citizen suits, and prevent courts from making whole those who vindicate the purposes of federal environmental laws.

1. Fallowfield Dev. Corp. v. Strunk, 37 Envtl. Rep. Cas. (BNA) 1076 (E.D. Pa. May 11, 1993), and plaintiffs' motion for reconsideration denied, Nos. 89-8644, 90-4431, 1994 WL 498316 (E.D. Pa. Sept. 2, 1994). In Fallowfield, the plaintiffs are developers of residential real estate who purchased a 300-plus acre farm from defendants in Fallowfield Township, Chester County, Pennsylvania. See infra notes 40-50 and accompanying text.

2. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

3. Id. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

4. Id. § 6972(e), ELR STAT RCRA § 7002(e).

5. Id. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B); Fallowfield, Nos. 89-8644, 904431. 1994 WL 498316 at 9 (E.D. Pa. Sept. 2, 1994).

6. Fallowfield, 37 Envtl. RIp. Caa. (BNA) at 1087-91 (E.D. Pa. May 11, 1993); Fallowfield, Nos. 89-864, 90-4431, 1994 WL 498316 at 9 (E.D. Pa. Sept. 2, 1994). Adam Babich, the Editor-in-Chief of ELR — The Environmental Law Reporter, noted in a brief editorial in the January 1995 ELR News & Analysis, that this ruling appears to run contrary to Congress' intent in passing environmental statutes to encourage private-party cleanup and private enforcement of the laws.

7. 42 U.S.C. § 1988. The U.S. Supreme Court has held that when a gap exists in construing fee-shifting provisions in federal environmental statutes, federal courts should look to civil rights cases for the necessary guidance. See City of Burlington v. Dague, 112 S. Ct. 2638, 22 ELR 21099 (1992) (in determining appropriate fee awards under RCRA's "typical" fee-shifting provision, case law construing such provisions in other statues applies uniformly to all); Ruckelshaus v. Sierra Club, 463 U.S. 680, 691-92, 13 ELR 20664, 20667 (1983) (courts should interpret all similar fee-shifting provisions pari passu); see also West Va. Univ. Hosps. v. Casey, 499 U.S. 83, 89 n.4 (1991) (listing all similar fee-shifting provisions);Northcross v. Memphis Bd. of Educ., 412 U.S. 427, 428 (1973) (similarity of language of fee-shifting provisions is a strong indication they should be interpreted pari passu); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (Congress responded to Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286 (1975), by passing Civil Rights Attornye's Fee Act); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 713 n.1, 16 ELR 20801, 20802 n.1 (1986); Scott Jennings, Annotation, Award of Attorney's Fees Pursuant to §§ 520(d), 520(f), 525(e), or 703(c), of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.S. §§ 1270(d), 1270(f), 1275(e), 1293(c)), 89 A.L.R. FED. 170, 177 (1988).

8. 421 U.S. 240, 5 ELR 20286 (1975).

9. Id.

10. Plaintiffs were prevailing parties in their effort to enforce the Mineral Leasing Act of 1920, 30 U.S.C. § 185, and prevent the issuance of permits for the trans-Alaska oil pipeline. Wilderness Soc'y v. Morton, 495 F.2d 1026, 4 ELR 20279 (D.C. Cir. 1974). Although there was no statutory authorization for an award of attorneys fees, the court applied the "private attorneys general" exception to the American rule that a prevailing litigant is ordinarily not entitled to collect reasonable attorneys fees from the loser, and required the Alyeska Pipeline Service Co. to pay the plaintiffs' attorneys fees. The court reasoned that awarding the plaintiffs attorneys fees was appropriate because the plaintiffs had acted as private attorneys general by vindicating important statutory rights of all citizens. Id. at 1032, 4 ELR at 20281. In addition, the court held that an award of attorneys fees fostered congressional policy:

When violation of a congressional enactment has caused little injury to any one individual, but great harm to important public interests when viewed from the perspective of the broad class intended to be protected by that statute, not to award counsel fees can seriously frustrate the purposes of Congress. . . . Where the law relies on private suits to effectuate congressional policy in favor of broad public interests, attorneys' fees are often necessary to ensure that jprivate litigants will initiate such suits.

Id. at 1030, 4 ELR at 20280.

11. Alyeska, 421 U.S. at 247, 5 ELR 202026, 202027 (1975).

12. Id. at 260-63, 5 ELR at 20291.

13. Farrar v. Hobby, 121 L.Ed. 2d. 494, 508 (1992) (O'Connor, J. concurring); West Va. Univ. Hosps. v. Casey, 499 U.S. 83, 98 (1991).

14. 42 U.S.C. §§ 1981-1996. The Civil Rights Act's fee-shifting provision states: "In any action . . . to enforce [the Act], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fees as part of the costs." Id. § 1988.

15. Ruckelshaus v. Sierra Club, 463 U.S. 680, 13 ELR 20664 (1983). The fee-shifting subsection of the Clean Air Act's (CAA's) citizen suit provision states: "[I]n issuing any final order in any action . . . [a court] may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 42 U.S.C. § 7604(d), ELR STAT. CAA § 304(d). The fee-shifting subsection of the Resource Conservation and Recovery Act's (RCRA's) citizen suit provision states: "[I]n issuing any final order in any action brought pursuant to this section . . . [a court] may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate." Id. § 6972(e), ELR STAT. RCRA § 7002(e). The fee-shifting sections of the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) and the Federal Water Pollution Control Act's (FWPCA's) citizen suit provisions are identical to RCRA's fee-shifting provision. Id. § 9659(f), ELR STAT. CERCLA § 310(f); 33 U.S.C. § 1365(d), ELR STAT. FWPCA § 505(d).

16. West Va. Univ. Hosps., 499 U.S. at 97-98 ("Before Alyeska, civil rights plaintiffs could recover fees pursuant to the private attorney general doctrine only if private enforcement was necessary to defend important rights benefitting large numbers of people, and jcost barriers might otherwise preclude private suits . . . [The Civil Rights Act, 42 U.S.C.] Section 1988 contains no similar limitation.").

17. Proffitt v. Township of Bristol, 754 F.2d 504, 506, 15 ELR 20209, 20209 (3d Cir. 1985). Profitt, in construing RCRA's citizen suit provision, followed the U.S. Court of Appeals for the Second Circuit's decision in Friends of the Earth v. Carey, 535 F.2d 165, 6 ELR 20488 (2d Cir. 1976), which interpreted the CAA's citizen suit provision. Proffitt was abrogated on other grounds in Hallstrom v. Tillamook County, 493 U.S. 20, 20 ELR 20193 (1989).

18. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 560, 16 ELR 20801, 20805 (1986).

19. Id. at 560, 16 ELR at 20805. In its discussion of the CAA's fee-shifting provision, the U.S. Senate Report on the CAA Amendments of 1970 states that:

The Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party. This should extend to plaintiffs 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 in prosecuting such actions.

S. REP. NO. 1196, 91st Cong., 2d Sess. 38 (1970). The U.S. House Report on the CAA Amendments of 1977 also made it clear that Congress passed the fee-shifting provision specifically to "overrule" Alyeska:

In adopting this provision concerning fees, the committee intended to meet the requirement for specific authorization imposed by 28 U.S.C. sec. 2412 and by the Supreme Court's ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

H.R. REP. No. 294, 95th Cong., 1st Sess. 337 (1977).

20. 683 F.2d 941, 12 ELR 21071 (5th Cir. 1982).

21. Id. at 942-43, 12 ELR at 21072.

22. Id. at 943, 12 ELR at 21072. The U.S. Court of Appeals for the Fifth Circuit's holding is in line with the civil rights cases on attorneys fees, because it held that despite the merely incidental community benefit the corporation obtained, the outcome vindicated the policy behind citizen suits that private citizens undertake to enforce compliance with the law. A successful citizen suit necessarily includes the vindication of a citizen's private rights. See Delaware Valley, 483 U.S. at 715 n.3, 17 ELR at 20930 n.3.

23. 935 F.2d 1343, 21 ELR 21132 (2d Cir. 1991), rev'd on other grounds, 112 S. Ct. 2638, 22 ELR 21099 (1992).

24. Id. at 1358, 21 ELR at 21139 (citing Hewitt v. Helms, 482 U.S. 755, 761 (1987)).

25. 812 F. Supp. 1498, 23 ELR 21061 (E.D. Wis. 1992).

26. Id. at 1509-10, 23 ELR at 20165.

27. No. 93-0704 PHX PGR, 1994 U.S. Dist. LEXIS 12190 (D. Ariz. May 26, 1994).

28. Id. at * 20 (citing Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 19 ELR 20374 (9th Cir. 1989), and United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (D. Mo. 1985)).

29. 749 F. Supp. 441 (E.D.N.Y. 1990). The district court's opinion in Commerce Holding is far from clear. The district court dismissed the plaintiff's RCRA claim for an equitable refund of its remediation costs on the ground that it could not be a direct beneficiary of the substantive relief it sought, because that precluded it from being a private attorney genersffal. The district court then went on to hold that the plaintiff might have a viable claim for injunctive relief under RCRA, and granted the plaintiff additional time to brief the issue of whether or not an EPA consent order with plaintiff at the site barred a RCRA citizens' suit.

30. Id. at 445; Bayless, No. 93-0704 PHX PGR, 1994 U.S. Dist. LEXIS 12190 at * 20.

31. Bayless, No. 93-0704 PHX PGR, 1994 U.S. Dist. LEXIS 12190 at * 20 (citing Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1510, 23 ELR 21061, 21065 (E.D. Wis. 1992)).

32. Bayless, at * 21-22.

33. See supra note 7.

34. 42 U.S.C. § 1988.

35. S. REP. No. 94-1011, 9th Cong., 2d. Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 908, 5910.

36. Newman v. Piggie Park Enters., 390 U.S. 400, 401-02 (1968); see also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559-60, 16 ELR 20801, 20808 (1987). In West Va. Univ. Hosps. v. Casey, the U.S. Supreme Court an award of attorneys fees under 42 U.S.C. § 1988 to a for-profit corporation. Justice Stevens would have awarded the plaintiff expert witness fees as well, on the "make them whole" theory. The majority of the U.S. Supreme Court held that the plain language of § 1988 covered attorneys fees only. 499 U.S. 83, 111-12 (1991) (Stevens, J. dissenting).

37. See Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979); Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir. 1978), cert. denied, 439 U.S. 1072 (1979); United Nuclear Corp. v. Cannon, 564 F. Supp. 581 (D.R.I. 1983).

38. See, e.g., Venuti v. Riordan, 702 F.2d 6, 7 (1st Cir. 1983); International Oceanic Enters. v. Menton, 614 F.2d 502, 503 (5th Cir. 1980).

39. United Nuclear, 564 F. Supp. at 584; see also West Va. Univ. Hosps., 499 U.S. at 97-98.

40. The parties have appealed the decision to the U.S. Court of Appeals for the Third Circuit. Fallowfield Dev. Corp. v. Strunk, 37 Envtl. Rep. Cas. (BNA) 1076 (E.D. Pa. May 11, 1993) (plaintiffs' request for attorneys fees under RCRA § 7002(e) denied), and plaintiffs' motion for reconsideration denied, Nos. 89-8644, 90-4431, 1994 WL 498316 (E.D. Pa. Sept. 2, 1994). See also Fallowfield, 766 F. Supp. 335, 21 ELR 21404 (E.D. Pa. June 14, 1991), and summary judgment granted for plaintiffs, 23 ELR 20119 (E.D. Pa. Apr. 7, 1992).

41. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

42. 35 PA. CONS. STAT. ANN. §§ 6020.101-.1305.

43. Id. § 6020.1115(b).

44. The U.S. Supreme Court has held that cases decided under other fee-shifting statutes with similar language are proper guides to interpretation of the fee-shifting provision of RCRA. See John P. Ludington, Annotation, Supreme Court's View as to Requisite for Award of Attorney's Fees, 77 L. Ed. 2d 1540 (1985); see also supra note 7. The following discussion does not deal with the discretion allowed to the court under the "when appropriate" language of the statutory fee-shifting provisions discussed. See infra notes 44-61 and accompanying text. Rather, it focuses solely on the bar the Fallowfield court imposed on recovery of attorneys fees by any prevailing plaintiff that is not a nonprofit citizen group. This bar kept the Fallowfield court from reaching the question of whether attorneys fees were appropriate. Fallowfield, 37 Envtl. Rep. Cas. (BNA) at 1088; Fallowfield, Nos. 89-8644, 90-4431, 1994 WL 498316 at * 9 (E.D. Pa. Sept. 2, 1994).

45. Fallowfield, 37 Envtl. Rep. Cas. (BNA) at 1088 (E.D. Pa. May 11, 1993) (citing Environmental Defense Fund v. Lamphier, 714 F.2d 331, 337 (4th Cir. 1983), and citing cf. Pennsylvania v. Delaware Citizens' Council for Clean Air, 478 U.S. 546, 560 (1986)).

46. Fallowfield, 37 Envtl. Rep. Cas. (BNA) at 1090-91.

47. Id. at 1081.

48. Id. at 1090-91.

49. Id. at 1091. The district court misread RCRA when it discounted the potential benefit to the entire community on the ground that the purchasers' expert could not testify with certainty that the contamination actually harmed the surrounding community. Section 7002(a) requires only that contamination may be an imminent and substantial endangerment. Courts have almost uniformly interpreted this provision to mean that the plaintiff may obtain remediation and abatement to the extent necessary to eliminate any risks toxic wastes pose. It is sufficient to prove that there may be an imminent and substantial endangerment to the public or the environment. 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a); United States v. Price, 688 F.2d 204, 214, 12 ELR 21020, 21024 (3d Cir. 1982); Lincoln Properties, Ltd., v. Higgins, 23 ELR 20665, 20671 (E.D. Cal. Jan. 18, 1993). An endangerment is not actual harm, but a threatened or potential harm. Dague v. City of Burlington, 935 F.2d 1343, 1355, 21 ELR 21133, 21139 (2d Cir. 1991), rev'd on other grounds, 112 S. Ct. 2638, 22 ELR 21099 (1992). In Fallowfield, the district court found as a matter of fact that such potential endangerment existed. Fallowfield, 37 Envtl. Rep. Cas. (BNA) at 1081. "It is sufficient to demonstrate that there exists reasonable cause for concern for the integrity of the public health or the environment." United States v. Valentine, 856 F. Supp. 621, 626, 24 ELR 21553, 21554 (D. Wyo. 1994) (citing Lincoln Properties, 23 ELR at 20671).

50. Fallowfield, 37 Envtl. Rep. Cas. (BNA) at 1087.

51. 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a) (emphasis added).

52. Id. § 6903(15), ELR STAT. RCRA § 1004(15).

53. See Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498 1509-10, 23 ELR 21061, 21065 (E.D. Wis. 1992); Bayless Inv. & Trading Co. v. Chevron USA, Inc., No. 93-0704 PHX PGR, 1994 U.S. Dist. LEXIS 12190 at * 21-22 (D. Ariz. May 26, 1994).

54. West Va. Univ. Hosps. v. Casey, 499 U.S. 83, 97-98 (1991) (the language of the fee-shifting provision of 42 U.S.C. § 1988 does not limit recovery of fees to "private attorneys general," those who act when private enforcement is necessary to defend important rights benefitting large numbers of people).

55. Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979); Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir. 1978), cert. denied, 439 U.S. 1072 (1979); United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 594 (D.R.I. 1983).

56. West Va. Univ. Hosps., Inc. v. Casey, 885 F.2d 11 (3d Cir. 1989), aff'd, 499 U.S. 83 (1991) (attorneys fees awarded to private corporate plaintiff); Venuti v. Riordan, 702 F.2d 6, 7 (1st Cir. 1983); International Oceanic Enters. v. Menton, 614 F.2d 502, 503 (5th Cir. 1980).

57. As previously discussed, the U.S. Supreme Court has held that federal courts should look to civil rights cases for the necessary guidance when a gap exists in construing environmental fee-shifting provisions. See supra notes 7 and 33 and accompanying text.

58. Riverside v. Rivera, 477 U.S. 561, 588 (1986) (Rehnquist, J. dissenting).

59. Smith v. Robinson, 468 U.S. 992, 1009 (1984).

60. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968).

61. Smith, 468 U.S. at 1009; United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 583-84 (D.R.I. 1983).

62. Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1509-10, 23 ELR 21061, 21065 (E.D. Wis. 1992); Bayless Inv. & Trading Co. v. Chevron USA, Inc., 93-0704 PHX PGR, 1994 U.S. Dist. LEXIS 12190 at * 8-9 (D. Ariz. May 26, 1994).