Fee Shifting After Buckhannon

Adam Babich

The author is an Associate Professor of Law at Tulane Law School and directs the Tulane Environmental Law Clinic.

Introduction

On May 29, 2001, the U.S. Supreme Court decided Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,¹ sharply limiting the situations under which "prevailing parties" can recover their attorneys fees under citizen enforcement and judicial review provisions of federal laws. The Buckhannon Court rejected the "catalyst theory" of recovery, which allowed plaintiffs to receive fee awards "in the absence of a judicial determination on the merits" for litigation that was a significant factor in causing a defendant to change its conduct.² Under the catalyst theory, a plaintiff could recover fees and costs even if it settled out of court or dropped its lawsuit after inspiring the defendant to voluntarily come into compliance.³ With respect to statutes that limit attorneys fee awards to "prevailing parties," those days are gone.

Buckhannon concerned the Fair Housing Amendments Act of 1988,⁴ and the Americans With Disabilities Act,⁵ but is clearly relevant to environmental litigators. The Court has long recognized that "fee-shifting statutes' similar language is a strong indication that they are to be interpreted alike."⁶ Further, the Buckhannon Court framed the issue before it in terms of the "numerous federal statutes [that] allow courts to award attorney's fees and costs to the 'prevailing party.'"⁷ Among these numerous federal statutes are many fee-shifting provisions important to environmental litigators, including citizen enforcement and judicial review provisions of major environmental laws. Other environmental laws, however, include fee-shifting provisions that do not use the phrase "prevailing party."

This Dialogue begins with a brief background discussion of the importance of citizen litigation to the U.S. environmental protection system. Next, the Dialogue identifies key concerns that have animated the Court's decisions on fee shifting. The Dialogue then examines Buckhannon's holding and argues that, in conjunction with prior Court holdings, Buckhannon creates an easily administrable "bright line" for determining when a litigant qualifies as a "prevailing party" entitled to recover attorneys fees. Next, the Dialogue discusses Buckhannon's application to statutes that do not use the phrase "prevailing party," arguing that the catalyst theory should remain viable under those laws. The Dialogue concludes that Buckhannon's primary impact will be to reduce settlement options and therefore increase costs for both plaintiffs and defendants of litigating and settling citizen enforcement and judicial review actions under statutes that provide for payment of attorneys fees under the "prevailing party" standard.

Citizen Litigation in Environmental Law

Over the last 30 years, citizen litigation has played a key role in the development of environmental law.⁸ For example, the U.S. Environmental Protection Agency (EPA) first created a Clean Air Act (CAA) program to prevent significant deterioration of air quality in areas that already met national health protection standards in response to a Sierra Club lawsuit.⁹ Similarly, the Clean Water Act's (CWA's) priority pollutants program originated as a response to citizen litigation.¹⁰ Also under the CWA, the significance of discharge monitoring reports as enforcement tools was first fleshed out in citizen litigation.¹¹ With respect to hazardous waste: citizen enforcers forced EPA to issue regulations to implement the Resource Conservation and Recovery Act's (RCRA's) hazardous waste program after years of delay.¹² [32 ELR 10138] And, in general, "private attorneys general,"¹³ including states suing as citizen plaintiffs, have taken the lead in attempting to convince polluting federal agencies to take at least initial steps toward compliance with federal environmental laws.¹⁴ The availability of attorneys fee awards is an important factor in making such citizen litigation practical.¹⁵

Key Factors in the Court's Environmental Fee-Shifting Decisions

The Court's fee-shifting decisions are largely explainable in terms of three primary policy concerns: (1) creating easily administrable rules that minimize the risk of burdensome satellite litigation about fees and costs,¹⁶ (2) respecting the traditions and presumptions that gave rise to the "American rule," under which all parties are presumed to bear their own attorneys fees,¹⁷ and (3) implementing Congress' intent to encourage citizen litigation, since those who bring legitimate citizen suits are "performing a public service . . . ."¹⁸ The Court's deference to Congress' policy of treating citizen enforcers as public servants is evident in the Court's effort to adopt a "generous formulation" for determining when a party is eligible to recover fees,¹⁹ the Court's ruling that fee awards must be calculated according to the prevailing market rates "regardless of whether plaintiff is represented by private or nonprofit counsel,"²⁰ and in the Court's acknowledgment of congressional intent "to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest."²¹ This core justification for fee awards does not apply to defendants, since awards to defendants could chill legitimate citizen suits rather than encourage them. As a result, successful defendants generally are not entitled to their fees unless the plaintiff's case was frivolous, groundless, pursued in bad faith, or maintained after its baselessness became apparent.²²

A fourth, possibly emerging policy issue is a concern that the very concept of citizen enforcement is somehow inappropriate. According to Justice Antonin Scalia's dissent, joined by Justice Clarence Thomas, in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., it is "undesirable and unconstitutional" to "place the immense power of suing to enforce the public laws in private hands."²³ Justice Scalia, therefore, is squarely opposed to Congress' policy of expanding compliance by encouraging legitimate citizen enforcement suits. Whether his view will ever command a majority of the Court, however, is unknowable at present.²⁴

[32 ELR 10139]

Buckhannon's Bright-Line Test

Under Buckhannon, when statutory language limits attorneys fee awards to "prevailing parties," courts may not base such awards solely on defendants' extrajudicial acts, even when those acts afford plaintiffs relief. Specifically, Buckhannon concerns the "catalyst theory," which "allows an award where there is no judicially sanctioned change in the legal relationship of the parties."²⁵ The distinguishing characteristic of catalyst theory awards is that they are based on an alteration in the defendant's conduct that, "although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change."²⁶ Thus, the Court held that Congress' use of the term "prevailing party" precludes awards of attorneys fees "for a nonjudicial alteration of actual circumstances."²⁷ The Court emphasized: "We cannot agree that the term 'prevailing party' authorizes federal courts to award attorney's fees to a plaintiff who . . . has reached the 'sought-after destination' without obtaining any judicial relief."²⁸

Thus, the bright line the Buckhannon Court draws is between judicial relief and any other type of relief.²⁹ Under Buckhannon, a "'prevailing party' is one who has been awarded some relief by the court."³⁰ We know from prior cases that the relief must be worthwhile—not "trivial success on the merits, or purely procedural victories"³¹ —but otherwise, "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit," plaintiffs who obtain judicial relief will qualify as prevailing parties. The degree of success, of course, will be reflected in the amount of the award.³²

The relevant question under Buckhannon is not whether or not the defendant's change in position was "voluntary." Although the Buckhannon opinion's opening paragraph momentarily focuses the reader on the voluntariness of the defendant's conduct, the Court immediately ties its holding to the absence of judicial relief.³³ Thus, the Court explains, a consent decree may be enough to create a prevailing party. Although "a consent decree does not always include an admission of liability by the defendant . . . it nonetheless is a court-ordered 'change [in] the legal relationship between [the plaintiff] and the defendant.'"³⁴ Similarly, a voluntary remand should be sufficient to support an award. This is because, no matter how voluntarily agreed to, a remand is a court order, entered in the plaintiff's case, that changes the respective rights of the plaintiff and the defendant agency.³⁵ An out-of-court settlement, however, probably would not qualify.³⁶ In sum, whenever a Court issues an order that affords significant relief to a plaintiff, the plaintiff is a "prevailing party" regardless of whether the opposing party resists, defaults, settles, or unilaterally surrenders.

[32 ELR 10140]

Buckhannon and the "Whenever Appropriate" Standard

The Buckhannon Court specifically based its decision on "the rather clear meaning of 'prevailing party'—the term actually used in the statute."³⁷ Many fee-shifting provisions relevant to environmental litigators also use the "prevailing party" standard that the Court interpreted in Buckhannon, including:

. RCRA § 7002(e),³⁸

. Emergency Planning and Community Right-To-Know Act § 326(f),³⁹

. Comprehensive Environmental Response, Compensation, and Liability Act § 310(f),⁴⁰

. CWA §§ 505(d) and 509(b)(3),⁴¹

. Oil Pollution Act § 1006(g),⁴²

. Hazardous Liquid Pipeline Safety Act § 215,⁴³ and

. Equal Access to Justice Act.⁴⁴

Other important fee-shifting statutes, however, do not use the phrase "prevailing party," including:

. CAA §§ 304(d) and 307(f),⁴⁵

. Endangered Species Act § 11(g)(4),⁴⁶

. Safe Drinking Water Act § 1449(d),⁴⁷

. Toxic Substances Control Act § 20(c)(2),⁴⁸

. Surface Mining Control and Reclamation Act § 520(d),⁴⁹

. Deepwater Ports Act § 16(d),⁵⁰

. Act to Prevent Pollution From Ships § 1910(d),⁵¹

. Noise Control Act § 12(d),⁵²

. Marine Protection, Research, and Sanctuaries Act § 105(g)(4),⁵³ and

. Outer Continental Shelf Lands Act § 23(a)(5).⁵⁴

Most of the provisions that do not limit awards to prevailing parties instead provide for awards of attorneys fees and other litigation costs "whenever the court determines such award is appropriate."⁵⁵ In Ruckelshaus v. Sierra Club,⁵⁶ a case arising under the CAA's fee-shifting provision, the Court explained that Congress rejected use of the term "prevailing party in the [CAA]" to avoid prior "restrictive readings" of that term.⁵⁷ The Court ruled that "the term 'appropriate' modifies but does not completely reject the traditional rule that a fee claimant must 'prevail' before it may recover attorney's fees."⁵⁸ Thus, the term "appropriate" requires a claimant to show "some success on the merits."⁵⁹

The catalyst theory should remain viable under fee-shifting statutes that rely on the "whenever appropriate" standard.⁶⁰ Indeed, the Ruckelshaus Court acknowledged legislative history that specifically approves use of the "catalyst theory" in CAA awards. The Court quoted a 1970 Senate Report as providing that court awards of litigation costs

should extend to the 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.⁶¹

The Ruckelshaus Court's explanation of its ruling is also consistent with the continued viability of the catalyst rule under the "whenever appropriate" standard. The Court found much of its support for its ruling in Ruckelshaus in a "consistent, established rule," based on "intuitive notions of fairness to litigants" and "ordinary conceptions of just returns," which "reject[s] the idea that a party who wrongly charges someone with violations of the law should be able to force that defendant to pay the costs of the wholly unsuccessful suit against it."⁶² The catalyst theory is fully consistent with this traditional rule, since a catalyst theory award would only issue if the plaintiff's lawsuit was a significant factor in causing the defendant to change its conduct. Thus, courts only issue awards under the catalyst theory when the plaintiff's suit was successful, at least in part.

The Ruckelshaus Court also explained its interpretation of the "whenever appropriate" standard by referring to the doctrine of sovereign immunity. The Court explained that the CAA's fee-shifting provision "affects fee awards against the United States, as well as against private individuals."⁶³ This is because the CAA—like most federal environmental laws—provides that the U.S. government "shall be subject to, and comply with [federal and state air pollution control requirements, process, and sanctions] in the same manner, [32 ELR 10141] and to the same extent as any nongovernmental entity."⁶⁴ Because of its ongoing affection for the common-law doctrine of sovereign immunity,⁶⁵ however, the Court reads provisions for federal liability narrowly.⁶⁶ In Ruckelshaus, the Court invoked this principle to explain that "in determining what sorts of fee awards are 'appropriate' care must be taken not to 'enlarge' [the CAA's] waiver of immunity beyond what a fair reading of the language of the section requires."⁶⁷

Pushed to its limits, the Ruckelshaus Court's "sovereign immunity" analysis would require courts to read narrowly all liability provisions that could apply to the federal government. This theory would operate—similarly in some respects to the rule of lenity under criminal jurisprudence⁶⁸ —to benefit defendants in all civil cases arising under laws that contain sovereign immunity waivers. This result would essentially turn on its head the "in the same manner and to the same extent" language Congress often uses to waive sovereign immunity in environmental statutes—giving private defendants the benefit of the federal sovereign's common-law presumptions, rather than reducing federal polluters to the status of private polluters.

The Ruckelshaus Court, however, did not authorize or contemplate use of the sovereign immunity doctrine to build a civil version of the rule of lenity into federal environmental laws. Rather, the Court only used the doctrine to support the uncontroversial conclusion that awards should be based on a "fair reading of the [law's] language."⁶⁹ Awards to plaintiffs who accomplish their goals as a result of their lawsuits—without necessarily putting the litigants and courts through the expense of trial—is consistent with a fair reading of the term "appropriate."

Conclusion: Litigators' Response to Buckhannon

Buckhannon is not the end of citizen enforcement as we know it. Indeed, Buckhannon's most severe impacts may be on those plaintiffs whose settlements or other relevant litigation decisions were already so far into the pipeline by the time the Court announced the opinion that it was too late to make strategic adjustments to preserve those plaintiffs' arguments for fee shifting. Going forward, however, litigators who make decisions in light of Buckhannon can take an obvious step: refuse to agree to settlements that do not either receive judicial imprimatur⁷⁰ or provide for payment of fees.⁷¹ Occasionally a defendant may succeed in mooting a lawsuit through its unilateral conduct.⁷² But many or most cases of unilateral compliance should leave litigable issues for the plaintiff, whether those issues involve civil penalties or injunctive relief to ensure that the defendant does not reverse its "voluntary" decision to comply.⁷³ Accordingly, in the near future, the primary impact of Buckhannon will probably be to complicate settlement and thus impose extra litigation costs that will benefit neither plaintiffs nor defendants. In the longer run, however, since all parties to citizen enforcement actions have an interest in efficient resolution of their disputes, litigators can be expected to develop settlement strategies that minimize the extra costs of receiving "judicial imprimatur."

1. 121 S. Ct. 1835 (2001).

2. Colorado Envtl. Coalition v. Romer, 796 F. Supp. 457, 459, 22 ELR 21545, 21546 (D. Colo. 1992) (citing Foremaster v. St. George, 882 F.2d 1485, 1488 (10th Cir 1989), cert. denied, 495 U.S. 910 (1990)). Even if the lawsuit caused the defendant to change its conduct, the plaintiff would not be entitled to fees if its lawsuit was "frivolous, unreasonable, or groundless." Johnson v. Jago, 691 F.2d 283, 286-87 (6th Cir. 1982); Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978). The Buckhannon Court identified a "three thresholds test" for recovery under the catalyst theory: "Whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant's change in conduct; whether the defendant's change in conduct was motivated by the plaintiff's threat of victory rather than threat of expense." 121 S. Ct. at 1843.

3. See, e.g., Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., 16 F.3d 416, 24 ELR 20804 (10th Cir. 1994).

4. 42 U.S.C. § 3601 et seq.

5. Id. § 12101 et seq.

6. Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) ("The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.'"). But see Fogerty v. Fantasy, Inc., 510 U.S. 517, 523 (1994) (holding in the context of a copyright infringement case that the court's "normal indiction" to view apply a consistent standard was overborne by other factors, including legislative history) (citations and internal quotation marks omitted).

7. 121 S. Ct. at 1838.

8. The history of citizen environmental enforcement is summarized in ARNOLD W. REITZE JR., AIR POLLUTION CONTROL LAW: COMPLIANCE AND ENFORCEMENT 599-600 (Envtl. L. Inst. 2001).

9. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam without opinion, 2 ELR 20656 (D.C. Cir. 1972), aff'd sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

10. Natural Resources Defense Council v. Train, 6 ELR 20588 (D.D.C. 1976).

11. See Student Pub. Interest Research Group of N.J. v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, $}W{1538|L|751984|20454}, 14 ELR 20450, 20454 (D.N.J. 1984), aff'd, 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985).

12. Illinois v. Costle, 9 ELR 20243 (D.D.C. 1979).

13. Because they wield public claims, citizen enforcers are sometimes known as "private attorneys general." See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n.23, 11 ELR 20684, 20687 n.23 (1981).

14. E.g., United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994); Sierra Club v. Department of Energy, 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990); Legal Envtl. Assistance Found. v. Hodel, 586 F. Supp. 1163, 14 ELR 20425 (E.D. Tenn. 1984).

15. See Adam Babich, Citizen Suits: The Teeth in Public Participation, 25 ELR 10141 (Mar. 1995). Other key factors in making citizen litigation practical are: (1) broad standing for potentially affected parties to bring lawsuits; (2) clear legal standards to govern regulated entities; (3) a right of public participation in the standard-setting process; (4) public access to information about regulated entities' conduct; and (5) court authority to impose effective remedies.

16. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 121 S. Ct. 1835, 1843 (2001) ("Although we do not doubt the ability of district courts to perform the nuanced . . . test required by the 'catalyst theory' . . . it is clearly not a formula for 'ready administrability.'"); City of Burlington v. Dague, 505 U.S. 557, 566, 22 ELR 21099, 21103 (1992) (noting that an "interest in ready administrability . . . has underlain [the Court's] adoption of the lodestar approach [for calculating fee awards]" and citing a "related interest in avoiding burdensome satellite litigation."); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (fee application "should not result in a second major litigation").

17. Ruckelshaus v. Sierra Club, 463 U.S. 680, 682, 13 ELR 20664 (1983) (holding that, even when interpreting a fee-shifting provision, "our basic point of reference is the 'American Rule' . . . under which even the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser") (citation, internal quotation marks, and emphasis omitted). See also Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (1975) (reviewing the history of the "American rule"); Key Tronic Corp. v. United States, 511 U.S. 809, 823, 24 ELR 20955, 20961 (1994) (Scalia, J., dissenting) (asserting that the Court's application of the American rule's presumption to the Comprehensive Environmental Response, Compensation, and Liability Act "displays . . . confusion between a requirement of explicitness and a requirement of a password").

18. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 560, 16 ELR 20801, 20805 (1986) (quoting S. REP. No. 91-1196, at 38 (1970)).

19. See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989); Hensley, 461 U.S. at 433.

20. Blum v. Stenson, 465 U.S. 886, 895 (1984). The Third Circuit noted: "By providing competitive rates [courts] assure that attorneys will take such cases and hence increase the likelihood that the congressional policy of redressing public interest claims will be vindicated." Student Pub. Interest Research Group v. AT&T Bell Labs., 842 F.2d 1436, 1449, 18 ELR 20758, 20765 (3d Cir. 1988).

21. E.g., Ruckelshaus, 463 U.S. at 687, 13 ELR at 20666, which quotes, inter alia, H.R. REP, No. 95-294, at 337 (1977), reprinted in 1977 U.S.C.C.A.N. 1416; Delaware Valley Citizens' Council, 478 U.S. at 546, 16 ELR at 20801; see also Friends of the Earth v. Carey, 535 F.2d 165, 172, 6 ELR 20488, 20491 (2d Cir. 1976) (Congress made "clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests." Fearing that administrative enforcement might falter or stall, "the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced") (quoting Natural Resources Defense Council v. Train, 510 F.2d 692, 700, 5 ELR 20046, 20049-50 (D.C. Cir. 1975)); AT&T Bell Labs., 842 F.2d at 1449, 18 ELR at 20765 ("Congressprovided fee shifting to enhance enforcement of important civil rights, consumer protection, and environmental policies. By providing competitive rates [courts] assure that attorneys will take such cases and hence increase the likelihood that the congressional policy of redressing public interest claims will be vindicated.").

22. Citizens for a Better Env't v. Steel Co., 230 F.3d 923, 31 ELR 20213 (7th Cir. 2000) (ruling under the Emergency Planning and Community Right-To-Know Act); Hensley, 461 U.S. at 428 n.2 (quoting legislative history of the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988).

23. 528 U.S. 167, 215, 30 ELR 20246, 20255 (2000) (Scalia, J., dissenting). Both this dissent and Justice Anthony M. Kennedy's concurrence in Laidlaw, id. at 197, 30 ELR at 20252 (Kennedy, J., concurring), suggest that it is an open question whether Congress may delegate enforcement authority to citizens under Article II of the U.S. Constitution, which—Justice Scalia explains—"commits it to the President to 'take Care that the Laws be faithfully executed,' Art. II, § 3, and provides specific methods by which all persons exercising significant executive power are to be appointed, Art. II, § 2." Id. at 209, 30 ELR at 20254 (Scalia, J., dissenting).

24. See United States ex rel. Stone v. Rockwell Int'l Corp., 265 F.3d 1157, 1176 (10th Cir. 2001) (holding that the False Claims Act's qui tam provisions do not violate the Take Care and Appointments Clauses of Article II of the Constitution); Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (same).

25. Buckhannon, 121 S. Ct. at 1840.

26. Id.

27. Id. at 1841 (internal quotation marks omitted).

28. Id.

29. Id. at 1839 (explaining that "Black's Law Dictionary . . . defines 'prevailing party' as '[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . . .'").

30. Id. at 1839 (emphasis added); Farrar v. Hobby, 506 U.S. 103, 110 (1992) ("plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."); Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (a prevailing party is one who "changes the legal relationship between itself and the defendant" and is awarded "at least some relief on the merits of his claim . . .") (citations and internal quotation marks omitted).

31. Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 n.9, 13 ELR 20664, 20666 n.9; see also Garland Indep. Sch. Dist., 489 U.S. at 792-93 ("purely technical or de minimis success does not justify fee-shifting. . . . The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.").

32. The Hensley Court noted that the test for determining whether a plaintiff has prevailed brings that plaintiff "only across the statutory threshold. It remains for the district court to determine what fee is 'reasonable.'" 461 U.S. at 433. Courts make this determination using the "lodestar" approach, multiplying the number of hours reasonably spent by plaintiffs' attorneys by an hourly rate that reflects factors such as the skill and experience of counsel. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 16 ELR 20801, 20806 (1986); Blum v. Stenson, 465 U.S. 886, 897 (1984). In setting the applicable rate, courts may compensate for the delay in payment "either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 716, 17 ELR 20929, 20930 (1987). The "resulting product is presumed to be the reasonable fee to which counsel is entitled." Delaware Valley Citizens' Council, 478 U.S. at 564, 16 ELR at 20806 (citation and internal quotation marks omitted).

If a party prevails on only some of its multiple claims, the court may reduce the fee award to reflect the partial success. There "is no precise rule or formula for making these determinations." Hensley, 461 U.S. at 436. In its discretion, the court "may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. Id. at 436-37. Courts no longer enhance fee awards for excellent results or to compensate for the risk of loss and nonpayment. See City of Burlington v. Dague, 505 U.S. 557, 22 ELR 21099 (1992).

There is, however, not necessarily a reduction in every case where relief is not granted on each legal theory advanced by the plaintiff. The Court has explained that in many cases "a lawsuit cannot be viewed as a series of discrete claims" and that in these situations the court "should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." The Court explained:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation . . . . 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.

Hensley, 461 U.S. at 435 (emphasis added). The Hensley Court rejected a purely "mathematical approach comparing the total number of issues in the case with those actually prevailed upon" and noted that "a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time." Id. at 435 n.11.

33. At the beginning of its opinion, the Court explained that: "The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Buckhannon, 121 S. Ct. at 1839 (emphasis added).

34. Id. at 1841 (citing Garland Indep. Sch. Dist., 489 U.S. at 792).

35. A remand by an appellate court that has been petitioned to review agency action qualifies as a "judgment" in this context because it is a "final determination" of the rights and obligations of the parties. BLACK'S LAW DICTIONARY 846 (7th ed. 1999) (defining "judgment").

36. Buckhannon, 121 S. Ct. at 1840 n.7.

37. Id. at 1841.

38. 42 U.S.C. § 6972(e), ELR STAT. RCRA § 7002(e).

39. Id. § 11046(f), ELR STAT. EPCRA § 326(f).

40. Id. § 9659(f), ELR STAT. CERCLA § 310(f).

41. 33 U.S.C. §§ 1365(d), 1369(b)(3), ELR STAT. FWPCA §§ 505(d), 509(b)(3).

42. Id. § 2706(g), ELR STAT. OPA § 1006(g).

43. 49 U.S.C. § 60121(b).

44. 28 U.S.C. § 2412.

45. 42 U.S.C. §§ 7604(d), 7607(f), ELR STAT.CAA §§ 304(d), 307(f).

46. 16 U.S.C. § 1540(g)(4), ELR STAT. ESA § 11(g)(4).

47. 42 U.S.C. § 300j-8(d), ELR STAT. SDWA § 1449(d).

48. 15 U.S.C. § 2619(c)(2), ELR STAT. TSCA § 20(c)(2).

49. 30 U.S.C. § 1270(d), ELR STAT. SMCRA § 520(d).

50. 33 U.S.C. § 1515(d).

51. Id. § 1910(d).

52. 42 U.S.C. § 4911(d).

53. 33 U.S.C. § 1415(g)(4).

54. 43 U.S.C. § 1349(a)(5).

55. E.g., CAA § 304(d), 42 U.S.C. § 7604(d), ELR STAT. CAA § 304(d).

56. 463 U.S. 680, 13 ELR 20664 (1983).

57. Id. at 687, 13 ELR at 20666.

58. Id. at 686, 13 ELR at 20665.

59. Id. at 682, 13 ELR at 20665.

60. The Tenth Circuit has noted that the "basis of the Court's conclusion in Buckhannon is not applicable" in an Endangered Species Act case, since that act used the "when appropriate" standard. Holding that the plaintiff failed to meet the catalyst test, the court "declined to address the continued applicability of the catalyst test to fee requests brought pursuant to statues that do not contain a 'prevailing party' requirement." Center for Biological Diversity v. Norton, 262 F.3d 1077, 1080 n.2, 32 ELR 20040, 20041 n.2 (10th Cir. 2001).

61. Ruckelshaus, 463 U.S. at 686 n.8, 13 ELR at 20666 n.8 (quoting S. REP. No. 91-1196, at 38 (1970)). The Court used legislative history to justify applying inconsistent standards to fee-shifting statutes in Fogerty v. Fantasy, Inc., 510 U.S. 517, 523 (1994). The Ruckelshaus Court rejected an attempt to stretch the term "appropriate" to "encompass situations beyond those mentioned in the legislative history, and [include] even totally unsuccessful actions." 463 U.S. at 686 n.8, 13 ELR at 20666 n.8 (emphasis added).

62. Id. at 685, 13 ELR at 20665.

63. Id.

64. CAA § 118(a), 42 U.S.C. § 7418(a), ELR STAT. CAA § 118(a).

65. Justice John Paul Stevens noted in this context that "legal doctrines often flourish long after their raison d'etre has perished." Will v. Michigan Dep't of State Police, 491 U.S. 58, 87 (1989) (Stevens, J. dissenting).

66. Department of Energy v. Ohio, 503 U.S. 607, 615, 22 ELR 20804, 20805 (1992) ("We start with a common rule, with which we presume congressional familiarity . . . that any waiver of the National Government's sovereign immunity must be unequivocal . . . . Waivers of immunity must be construed strictly in favor of the sovereign, . . . and not enlarged . . . beyond what the language requires.") (citations and internal quotation marks omitted). See also Barry Breen, Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law, 15 ELR 10326 (Oct. 1985).

67. Ruckelshaus, 463 U.S. at 686, 13 ELR at 20665 (internal quotation marks omitted).

68. Defendants have attempted to invoke the rule of lenity in civil contexts, arguing that because the same provisions of environmental statutes impose both civil and criminal liability, those provisions must be read narrowly. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 531 U.S. 159, 174 n.8, 31 ELR 20382, 20385 n.8 (2001). See generally Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2482 (1995).

69. See also Missouri v. Jenkins by Agyei, 491 U.S. 274, 282 (1989) (rejecting the argument that a state's sovereign immunity precluded enhancement of a fee award to compensate for delay).

71. There is nothing in Buckhannon that would prevent private parties from settling claims for attorneys fees in enforceable out-of-court settlements. But in cases governed by Buckhannon, plaintiffs will not be able to settle their substantive claims out of court and preserve an effective right to seek fees from the court. Also, it will not be surprising if the U.S. Justice Department refuses to enter into out-of-court settlements that provide for payment of attorneys fees in cases governed by the "prevailing party" standard.

72. The most easily mooted suit is probably the "deadline" suit against EPA for failure to discharge a nondiscretionary duty. See, e.g., CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2), ELR STAT. FWPCA § 505(a)(2). If EPA elects to take the required action rather than contest the case, real creativity will be required to identify a remaining issue for the court. Fortunately, however, unopposed deadline lawsuits are not extremely expensive or complicated to litigate.

73. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 30 ELR 20246 (2000) (reversing an appellate court's erroneous conclusion that "a citizen suitor's claim for civil penalties must be dismissed as moot when the defendant, albeit after commencement of the litigation, has come into compliance").