CHAPTER 14 ATTORNEY FEE AWARDS -- ARE THEY APPROPRIATE IF I DON'T PREVAIL?

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 14
ATTORNEY FEE AWARDS -- ARE THEY APPROPRIATE IF I DON'T PREVAIL?
Eugene J. Riordan
Stuart B. Corbridge
Vranesh & Raisch LLP
Boulder, Colorado ¹

Gene Riordan is a partner of Vranesh & Raisch, a natural resources law firm in Boulder, Colorado. Gene's practice focuses on environmental issues with an emphasis on solid and hazardous waste, water quality, and wetland matters. Particularly helpful in his work is Gene's engineering background. He earned a B.S. in Civil Engineering from Loyola Mary-mount University in Los Angeles, California and a PhD. in water resources planning and management from Colorado State University. Additionally, he is a licensed civil engineer with three years of engineering design and management experience. Mr. Riordan understands the physical systems that are regulated by environmental laws and is able to communicate directly with the technical experts about these systems. He has used this engineering background to his advantage in negotiating environmental permits and consent agreements with the regulatory agencies for a broad range of municipal and private clients.

Stuart Corbridge is an attorney with the law firm of Vranesh & Raisch, a firm specializing in water rights, water quality, and other environmental issues. Stuart's main area of practice includes water rights analysis and water rights adjudication and litigation. Prior to joining Vranesh & Raisch, Stuart spent two years as the law clerk for the Water Court for Water Division No. 1, which typically has the largest volume of water applications in the State of Colorado. During this time, he worked for both Water Judge Jonathan W. Hays and Chief Judge/Water Judge Roger A. Klein. He has been a contributing author in Vranesh's Colorado Water Law: Revised Edition and has been a guest lecturer in water law classes at both the University of Colorado and the University of Denver.

I. INTRODUCTION

Environmental statutes like the Clean Water Act ² ("CWA") and the Clean Air Act ³ ("CAA") contain a citizen suit provision which provides for the award of attorney fees to citizen plaintiffs. Historically, these citizen suit provisions have been applied liberally, with courts awarding attorney fees to plaintiffs who had achieved at least some success on the merits and who could show that the citizen suit had some influence on the defendant's behavior. Liberal application of these citizen suit provisions may no longer be valid given Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), a recent United States Supreme Court decision which strictly construed an attorney fee award provision in a non-environmental statute.

The purpose of this paper is to (1) discuss the general availability of an attorney fee award under the citizen suit provisions in federal statutes, (2) discuss the main United States Supreme Court cases, including Buckhannon, that have addressed citizen suit attorney fee awards, (3) discuss the environmental cases that have analyzed or applied Buckhannon, and (4) summarize the current state of the law and the direction it is or may be headed with respect to the availability of attorney fees under the citizen suit provisions of federal environmental statutes. ⁴

II. AVAILABILITY OF ATTORNEY FEES BEFORE BUCKHANNON

A. The American Rule and Statutory Fee-Shifting Provisions

Under the common law "American Rule" followed in the United States, a prevailing party is ordinarily not entitled to collect its attorney fees from the loser. Rather, the parties are required to bear their own attorney fees unless there is specific statutory authority for shifting the burden of the prevailing party's attorney fees to the non-prevailing party. ⁵

Congress has explicitly authorized such fee shifting in over 150 federal statutes, including numerous environmental statutes. ⁶ The standards applicable to all federal fee shifting provisions are not identical, however. Some federal statutes utilize the "prevailing party" standard, which generally authorizes the court to award reasonable attorney's fees, costs and expenses to the prevailing party. ⁷ Other statutes use the "substantially prevailed" standard, which authorizes an award of reasonable attorney fees and expenses to the party that has substantially prevailed. ⁸ And finally, a number of federal statutes, including many of the environmental statutes, incorporate the "whenever appropriate" standard, which authorizes the award of reasonable attorney fees, costs, and expenses, to any party "whenever the court determines that such an award is appropriate." ⁹

Prior to the United States Supreme Court's 1983 decision in Ruckelshaus v. Sierra Club, ¹⁰ every citizen suit provision in the major environmental statutes incorporated the "whenever appropriate" standard. Subsequent to Ruckelshaus, Congress amended the citizen suit provisions of two environmental statutes, the CWA, and the Resource Conservation, and Recovery Act, 42 U.S.C. §§ 6901 et. seq. (1984), and added a citizen suit provision to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et. seq. In these three acts, the award of attorney fees incorporates all three standards. That is, the court may award reasonable attorney fees, costs, and expenses "to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." ¹¹

B. Ruckelshaus and the "Whenever Appropriate" Standard

In adopting the various citizen suit attorney fees provisions noted above, Congress did not provide much, if any, clarification concerning the meaning of the different terms. Thus, as is often the case, courts were left to their own interpretation. The Supreme Court provided some guidance with respect to the "whenever appropriate" standard in Ruckelshaus, the only Supreme Court opinion discussing this standard.

In Ruckelshaus, the Supreme Court reversed the Court of Appeals' award of attorney fees to plaintiffs who had not prevailed on any of their claims. In that case the plaintiffs filed a request for attorney fees under Section 307(f) of the CAA, despite the fact that the Court of Appeals had rejected all of their claims concerning action by the Environmental Protection Agency. Section 307(f) permits an award of attorney fees "whenever the court determines that such an award is appropriate." The plaintiffs argued that it was "appropriate" for them to receive an award, despite the fact that they did not prevail on any claim, because their lawsuit had contributed to the goals of the CAA. The Court of Appeals agreed and ordered the award.

In reversing the Court of Appeals, the Supreme Court held that "absent some degree of success on the merits by the claimant, it is not 'appropriate' for a federal court to award attorney fees under Section 307(f)." ¹² In reaching this conclusion, the Court noted that the meaning of "whenever appropriate" was not defined in the statute and that little guidance was provided by the Senate Report to Section 307. The Court found that Section 307(f) did not indicate any Congressional intent to abandon the historic fee-shifting principles set forth in the American Rule and other fee-shifting statutes utilizing a "prevailing party" or "substantially prevailing" standard for attorney fee awards. ¹³ Based on this determination, the Court stated 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." ¹⁴ The Court concluded, based in part on the legislative history of Section 307, that Congress adopted the "whenever appropriate" language to extend the fee entitlement to situations beyond those covered by the "prevailing party" standard. ¹⁵ According to the Court, the adoption of the "whenever appropriate" standard was meant to expand the class of parties eligible for a fee award to include not only "prevailing parties," but also "partially prevailing parties." ¹⁶

It is clear from Ruckelshaus that parties who do not prevail on any claim are not entitled to an award of attorney fees under the "whenever appropriate" standard. It is also clear that a party does not actually have to be completely successful in order to be eligible for an attorney fee award. What is less clear from the opinion is whether the Court intended an award under the "whenever appropriate" standard to apply to situations where a plaintiff receives all or some of the relief sought in the complaint, but without obtaining any type of court ordered relief. In the opinion, the Court stated that "the language of the section, read in the light of the historic principles of fee-shifting ... requires the conclusion that some success on the merits be obtained before a party becomes eligible for a fee award under § 307(f)." ¹⁷ The Court did not go on to specifically define the language "success on the merits," however. Nor did it specifically define the terms "prevailing party," "substantially prevailing," or "partially prevailing," thus leaving open the question as to the applicable threshold.

In a footnote discussing the 1970 Senate Report on Section 304(d) of the CAA, ¹⁸ the Court noted that Congress explicitly stated in that report that the term appropriate "extended to suits that forced defendants to abandon illegal conduct, although without a formal court order." ¹⁹ Although this reference is clearly dicta, it provides a platform for speculation that the "whenever appropriate" standard might allow an award under such circumstances. The Court did not, however, specifically define "whenever appropriate" as extending to the situation where a plaintiff receives all or some of the relief sought, but without a court order. Rather, the Court defined "whenever appropriate" to allow an award to both "prevailing" and...