45

This apparent Congressional acceptance of the American Rule has been tempered by the recent enactment of statutory fee-shifting provision which seek to encourage private enforcement of the policies articulated therein. These fee provisions are premised primarily on the recognition that economic barriers hinder the effectuation of Congressional policies through private litigation." The statutory allowances differ both in scope and form. The nature of the legislative mandate varies from allowing awards in "exceptional cases"" to granting awards to any party "whenever the court determines such award is appropriate." 48 The provisions, however, may be broken down into those which allow awards in the discretion of the court" and those which require the court to award fees to the prevailing plaintiff.

51

A significant proportion of the recently enacted environmental protection statutes contain fee-shifting provisions. In specifically providing for a private right of action under the statutes, Congress evidently acknowledged that private enforcement was necessary to effectuate important environmental policies. Moreover, to mitigate the deterrent to private suits under the statutes posed by the cost of legal representation, broad discretionary fee-shifting sections were adopted. The rationale supporting the provisions, as enunciated by the Senate Committee Report for the Federal Water Pollution Control Act Amendments of 1972, was that citizens bringing legitimate actions under the acts would be "performing a public service and in such instances the courts should award costs of litigation to such party." 52 The Committee further indicated a desire to extend permissible awards to plaintiffs in actions which cause an abatement of a violation before a verdict is issued. Thus ultimate success in a citizen's suit was not intended to be a prerequisite to an award.

53

The discretion afforded the trial courts in awarding attorneys' fees under these statutes may be utilized to discourage abuse of the citizen suit provisions. The legislative history of the Water Pollution Control Act suggests that the discretion was engendered by fears that the citizen suit provision would be used to bring "frivolous or harassing actions." This discretionary power may also be viewed as authorizing an award in favor of the defendants where the litigation is deemed frivolous by the trial judge.

The discretionary nature of the legislative mandate, however, necessarily militate against consistency in judicial construction of fee-shifting provisions

45 While the legislative histories do not clearly indicate a punitive rationale, such a theory may well have supported inclusion of a fee-shifting provision in certain statutes. E.g., Clayton Act § 4, 15 U.S.C. § 15 (1970) (mandatory taxing of fees against an antitrust violator in addition to the treble damage provision in the same section). In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) [hereinafter cited as Piggie Park, the Supreme Court recognized dual support for an attorney fee provision in Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (b) (1970): Congress therefore enacted the provision for counsel fees-not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

48 See, e.g., the Senate Report to the Amendments to Fredom of Information Act, Pub. L. 93-502, 88 Stat. 1561 § 1(b) (2) (Nov. 21, 1974) (amending 5 U.S.C. § 552(a)) in which it was stated: "the necessity to bear attorneys' fees can thus present barriers to the effective implementation of national policies expressed by Congress in legislation." S. Rep. No. 854, 93d Cong., 2d Sess. 17-18 (1974).

47 E.g., Act of July 19, 1952 c. 950, 66 Stat. 813, 35 U.S.C. § 285 (1970) (patent infringement).

48 E.g., Clean Air Amendments of 1970 § 304 (d), 42 U.S.C. § 1857h-2(d) (1970).

49 See, e.g., Fair Housing Act of 1968, 42 U.S.C. § 3612(c) (1970): Securities Act of 1933, 15 U.S.C. $77k (e) (1970), Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501 (b) (1970).

50 See, e.g., Perishable Agriculture Commodities Act, 7 U.S.C. § 499g (b) (1970); Truth in Lending Act § 130, 15 U.S.C. 1640 (a) (1970); Communications Act of 1934, 47 U.S.C. § 206 (1970).

51 Clean Air Amendments of 1970 § 304 (d). 42 U.S.C. § 1857h-2(d) 1970); Noise Control Act of 1972, 42 U.S.C. § 4911 (Supp. II 1972); Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1365 (d) (Supp. II 1972); Marine Protection. Research, and Sanctuaries Act of 1972. § 105(d) (4), 33 U.S.C. § 1415 (g) (4) (Supp. II 1972). 52 S. Rep. No. 414, 92d Cong., 1st Sess. 81 (1972). See also S. Rep. No. 1196, 91st Cong., 2d Sess. 65 (1970) (Clean Air Amendments).

53 Id.

54 Id. Concern over the institution of harassing suits and the burden on the courts resulting from a flood of citizens suits are not commonly held by the judiciary. Cf. Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994, 1006 (D.C. Cir. 1966) agency fears of inundation of their processes are rarely borne out): Scenic Hudson Preservation Conf. v. FPC, 354 F. 2d 608. 617 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966) (“... the expense and vexation of legal proceedings is not lightly undertaken.").

55

66

in environmental legislation. A liberal stance with respect to these provisions was illustrated by Citizens Association of Georgetown v. Washington, in which the court awarded attorneys' fees to the public interest plaintiffs, in spite of its dismissal of the suit for failure to establish the alleged violation of emissions standards under the Clean Air Act. The court predicated the award upon what it considered the "plain meaning" of the fee provision in the Act, which indicated awards could be made irrespective of the success of the plaintiff in establishing a violation under the Act."

57

50

Similar considerations entertained by the court in Delaware Citizens for Clean Air v. Stauffer Chemical Company produced a conflicting result. In Stauffer Chemical, a citizens group brought suit against the corporation charging that its sulfur dioxide emissions were in violation of the Clean Air Act. The suit was dismissed on the grounds that the Administrator of the Environmental Protection Agency (EPA) was contemporaneously considering the propriety of a state-granted variance to permit Stauffer more time to construct the required emissions control facility. The court denied the requested award of attorneys' fees, noting that providing "added incentive" for the institution of citizen suits was inappropriate when the Administrator was engaged in review of a state initiated revision to its air quality control plan." While recognizing the positive contributions of citizen suits to the effective enforcement of emissions standards, the court was unable to find a “compelling equity” in favor of the plaintiff to support an award.1

62

In contrast to the reasoned approaches in these cases, the district court in Colorado Public Interest Research Group v. Train summarily dismissed plaintiff's motion for a fee award under the Federal Water Pollution Control Act." The action, which sought to compel the EPA Administrator to take supervisory control under the Act of discharges of radioactive material into navigable waters, was dismissed on the basis of federal regulations which placed the power plant in issue under the jurisdiction of the Atomic Energy Commission. The court rejected plaintiff's contention that a fee award was permitted by the Act even where the government prevailed. The district court judge noted that this contention went "somewhat against my training and experience as a lawyer possessed of much experience in losing contingent fee cases." Without reference to the wording of the statute or the legislative history, the court found it inappropriate that the suit should be "subsidized with taxpayers' money."

These cases present important questions as to the breadth of Congressional policy supporting fee awards: Should this discretionary power invested in the federal district courts be exercised whenever an important environmental issue is brought out or clarified by a public interest suit? Once plaintiff's good faith is established, should counsel fees be awarded automatically irrespective of the ultimate outcome of the suit? Does Congressional intent to accelerate enforcement of environmental legislation extend so far as awarding fees in any nonfrivolous citizens suit? Unfortunately, the legislative history provides little guidance for the trial court in exercising its judgment relative to these questions. Stauffer Chemical apparently stands for the proposition that the discretionary fee-shifting provisions authorize a balancing of the equities as assessed by the court. Although judicial flexibility in allowing awards may contribute to the just

55 This result remains true despite the Supreme Court's guidance offered in Piggie Park, 390 U.S. at 402, where the Court held that a fee-shifting provision in Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) (1970), was to be followed in successful suits under that Title "unless special circumstances would render the award unjust." Id. at 402, The Court's construction of the provision in Piggie Park, albeit in a civil rights context, should have defined the scope of discretion afforded trial courts in applying discretionary fee-shifting provisions contained in other statutes; however, few courts have looked to the case for guidance in exercising their discretion.

50 383 F. Supp. 136 (D.D.C. 1974).

57 42 U.S.C. § 1857 et seq. (1970).

383 F. Supp. at 144. This interpretation comports with the legislative history of the Act. The Senate Committee Report stated: "(t)he court may award costs of litigation to either party whenever the court determines such award is in the public interest without regard to the outcome of the litigation." S. Rep. No. 1196, 91st Cong., 2d Sess. 65 (1970). 62 F.R.D. 353 (D. Del. 1974).

eo Id. at 357.

01 Id.

42 373 F. Supp. 991 (D. Colo.), rer'd on other grounds, 507 F. 2d 743. 749 (10th Cir. 1974), cert. granted, 421 U.S. 998 (1975). The Tenth Circuit did not address itself to the attorneys' fees question and the Supreme Court is not expected to pass on this issue. See 43 U.S.L.W. 3032 (U.S. 1975) (questions presented).

333 U.S.C. § 1365(d) (Supp. II 1972). 64373 F. Supp. at 995.

Id.

application of this remedy to individual cases, the latitude afforded the lower courts may produce an unhealthy disparity among the courts and may permit arbitrary denials of awards to frustrate an articulated Congressional policy. The dissimilarity in construction of the statutes destroys the predictability upon which litigants base their strategies. This factor is of particular salience where the very ability to fund the litigation is based on the potential of an award of counsel fees. Broad discretion, without statutory language to provide benchmarks for the courts, may result in the granting or denying of awards based upon the subjective policy preferences or upon the predisposition of the judge against Congressional authorization of fee-shifting, as exemplified by Colorado PIRG. Nevertheless, the extent to which the discretionary provisions disserve the policy behind the encouragement of citizen suits through fee-shifting is presently unclear, and requires the attention of Congress prior to the enactment of similar provisions in other environmental statutes.

63

Another important deficiency in the Congressional response to the recognized need for encouraging private enforcement is the lack of consistency among the statutes addressed to environmental problems. Whether produced merely by the ad hoc nature of Congressional determinations fostered primarily by the committee system, or by a genuine failure to achieve a consensus as to the need for supplementary citizen action, citizen suit and fee-shifting provisions are noticeably absent in legislation, such as the National Environmental Policy Act (NEPA),"7 which embodies significant environmental policy statements and mandates consideration of the ecological consequences of major projects. Additionally, certain environmental statutes lack internal consistency with respect to the award of attorneys' fees." The legislative histories of such acts provide little insight into the basis for Congressional preference. What has thus emerged is a crazy quilt of provisions which defies rational explanation.

ΤΟ

A dramatic example of the failure to achieve a modicum of consistency within a statute is represented by the fee-shifting provisions in the Clean Air Amendments of 1970. The Act specifically permits suits under § 304 in the district courts in the form of mandamus and confers upon the courts the power to issue appropriate relief." Section 307 grants jurisdiction to the courts of appeals to review specified actions by the Environmental Protection Agency Administrator. Notwithstanding Congressional approval of citizen suits under the Act,73 only $304 accords the power to award attorneys' fees." The unexplained absence of a fee-shifting arrangement in actions initiated in the courts of appeals has given rise to conflicting interpretations of these sections of the Act. In two cases, both entitled Natural Resources Defense Council v. Environmental Protection Agency." The court were confronted with actions brought against the EPA under § 307, by public interest plaintiffs who sought to challenge the sufficiency of state air pollution control plans approved by the Agency. The First Circuit in NRDC I issued an order favorable to the plaintiff; the claim in NRDC II was satisfied by the agency's voluntary capitulation on the merits, while the appeal was pending before the District of Columbia Circuit Court of Appeals. The successful plaintiffs in each case subsequently filed a motion for an award of attorneys' fees.

The court in NRDC I rejected the contention that the absence of a fee-shifting clause in § 307, coupled with express allowance for awards of fees under § 304, required an inference that Congress deliberately chose to exclude such a remedy

See Alyeska, 421 U.S. at 266 n. 39 (1975), where the Court expressly disapproved of latitude accorded judges under the private attorney general rationale and noted the possibility of selective application of substantive law priorities and preferences.

67 42 U.S.C. § 4321 et seq. (1970).

68 See also, Department of Transportation Act, 49 U.S.C. § 1653 (f) (1970); Federal Aid Highway Act of 1970, 23 U.S.C. § 109(h) (1970).

See, e.g., Clean Air Act Amendments of 1970, 40 U.S.C. § 1857 et seq. (1970). See text at notes 71-81, infra, for a discussion of this inconsistency.

70 This absence of consistency also characterizes the treatment of fee awards in civil rights legislation. Compare the Reconstruction Civil Rights Acts. 42 U.S.C. § 1981 et seq. (1970) (no fee-shifting provisions) with Civil Rights Act of 1964, Title II and VII, 42 U.S.C. $§ 2000a-3 (b), 2000e-5 (k) (discretionary authority to award fees). The failure to provide fee awards under the Reconstruction statutes may be in part explained by their enactment before Congressional recognition of the potential inducement to citizen redress in the courts which fee-shifting represents. The historical explanation is, however, inapposite with regard to environmental legislation in that the relevant statutes are of recent vintage.

71 42 U.S.C. § 1857h-2(a) (1970).

72 Id. 1857h-5(b).

73 See text at notes 51-53, supra.

74 Clean Air Act Amendments of 1970 § 304 (d), 42 U.S.C. § 1857h-2(d) (1970).

75 Natural Resources Defense Council, Inc. v. EPA, 484 F. 2d 1331 (1st Cir. 1973) [hereinafter cited as NRDC I]. Natural Resources Defense Council, Inc. v. EPA, 512 F. 2d 1351 (D.C. Cir. 1975 [hereinafter cited as NRDC II].

for actions initiated in the courts of appeals." The First Circuit noted that the availability of attorneys' fees should not depend upon the forum of the suit nor should remedies in such cases be limited to the express language of the particular section." It held, based upon the approval of fee-shifting in the legislative history and the wording of § 304, that the plaintiffs were entitled to the benefits of that provision."

In contrast, the District of Columbia Circuit in NRDC II reluctantly declined to follow the First Circuit's interpretation. The NRDC II court found that the sections "contemplated distinct groups of cases" for which the remedies were not interchangeable." While emphasizing the absence of a sound policy for denying the availability of fees under § 307 and noting the temptation to follow the First Circuit, the court declined to grant counsel fees for fear that the award would "strain the limits" of the "interpretive function." 80

The pitfalls inherent in such inconsistency in statutory mandate in addition to unenlightening legislative history dilutes the desired encouragement to private enforcement which fee-shifting provides. The court in NRDC II was not unmindful of the anomalous result engendered by the inconsistency within the Clean Air Amendments and accordingly suggested several options to Congress to rectify the problem. One obvious cure, as suggested by the District of Columbia Circuit. would be to extend the scope of § 304 to include actions brought in the courts of appeals. In treating this example of internal statutory contradiction, Congress should be aware that it indicates a failure to establish a rational scheme of feeshifting sections in environmental statutes such that litigants and judges may have sufficient guidance.

B. A Statutory Obstacle to Environmental Litigation

82

The doctrine of sovereign immunity, which provides that a state may not be sued without its consent, has been extended to preclude fee awards against the federal government in the absence of express Congressional authorization. Despite mounting criticism of the reach of the doctrine, this common law rule is of such vitality with regard to attorneys' fees that Congress deemed it appropriate to codify it in § 2412 of the Judicial Code & in order to standardize its application. This total prohibition was modified in 1966 to allow a judgment of certain costs against the government. The rationale for the amendment, on the basis of the Senate, on the basis of the Senate Committee Report, was to correct the existing disparity of treatment between private litigants and the United States with respect to the allowance of costs.

85

The statute, however, expressly excluded the award of attorneys fees from taxable costs, notwithstanding the apparent recognition of the inequality of means between the government and its adversaries. Clarity of wording and legislative history 7 leaves little room for the courts to perform their inter

87

76 NRDC I, 484 F. 2d at 1336 n. 6.

Id. at 1336. The court relied on Hall v. Cole, 412 U.S. 1 (1973) and Mills v. Electric Anto-Lite Co., 396 U.S. 375 (1970). See text at notes 129-37 infra for a discussion of these cases. On the judicial treatment of remedies available under §§ 304 and 307, compare Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C.), aff'd, 4 ERC 1815 (D.C. Cir. 1972), aff'd by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973) with Anaconda Co. v. Ruckelshaus, 482 F. 2d 1301 (10th Cir. 1973).

7 NRDC I. 484 F. 2d at 1338.

79 NRDC II, 512 F. 2d at 1355.

80 Id. at 1357. But see NRDS II, 512 F. 2d at 1361 (Wright, J.. dissenting) wherein the judge asserted that § 304 should be read broadly particularly in light of the impossibility of awarding fees on other theories as mandated by Alyeska.

$1 NRDC II, 512 F. 2d at 1357.

82 Hans v. Louisiana. 134 U.S. 1, 12-13 (1890); United States v. Fidelity & Guaranty Co., 309 U.S. 506, 513 (1940).

See L. Jaffe, Judicial Control of Administrative Action 198-99 (1965); Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387.418 (1970).

84 28 U.S.C. § 2412 (1970).

Act of July 18, 1966. Pub. L. No. 89-507, 80 Stat. 308, amending 28 U.S.C. § 2412. The amended version of § 2412 provides in pertinent part: Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States.

S. Rep. No. 1329, 89th Cong., 2d Sess. (1966) in United States Code Cong. and Admin. News 2528 (1966).

Letter from Nicholas De B. Katzenbach, Attorney General of The United States. Attached to S. Rep. No. 1329, 89th Cong., 2d Sess. (1966), id. at 2530: "The bill makes clear that the fees and expenses of attorneys and expert witnesses may not be taxed against the United States." See also Cassata v. Federal Savings and Loan Ins. Corp., 445 F. 2d 122, 125 (7th Cir. 1971).

88

pretive function to meet the equitable demands of each case. The reasons which Congress relied upon in not permitting attorney's fees awards in the absence of an express statutory provision are unclear. Although more equitable treatment for private litigants by awarding costs against the State mitigates the governmental advantage, it continues to ignore the basic disparity in resources, particularly where the plaintiff must rely on marginal foundation support. Arguments have been advanced that the "inequity of recognizing a litigant's right to sue on the one hand, but depriving him of otherwise available financial implements with which to vindicate that right, is patent." "One public interest litigator commented that § 2412 has had a "most significant chilling effect" on the development of fee-shifting as a method of inducing private enforcement." This potent deterrent to citizen suits against the government has led to judicial attempts to circumvent the prohibition of the cost statute. Frustration expressed by some courts has resulted in acceptance of tenuous arguments in support of taxing private intervenors or defendants." The attenuated line of thought offered to justify the imposition of fees on private corporations turned primarily on the erroneous assumption that the intervenor or private defendant, admittedly having a stake in relaxed environmental standards, also shared in the responsibility for inadequately prepared Environmental Impact Statements under NEPA or for the government's failure to comply with the applicable statutes. Courts based these awards, in the absence of express statutory authorization which would have nullified the effect of § 2412, on the now defunct private attorney general rationale.

In cases where no private party was available upon which to impose a fee award, several courts have taxed counsel fees against the federal government after finding in other statutes a responsibility to assist in providing legal services under certain circumstances." The courts here sought to broadly construe statutes conferring upon the government the duty to represent Indian interests or to provide legal counsei in agency proceedings so as to create a federal responsi bility to finance plaintiffs actions against the challenged agency. Like the attempts to tax private intervenors to mitigate the effects of the sovereign immunity bar the opinions in these cases had stretched the applicable statutes beyond a reasonable construction to achieve an equitable result. In view of appellate court disapproval of such attempts to circumvent § 2412," these cases may serve more importantly to underscore the impatience of the judiciary with the effects of that statute on public interest litigation.

Another method of awarding counsel fees to public interest plaintiffs, in cases in which the federal government is a party, is to tax the fees against the state defendant. Awards in such cases are not automatically granted when the plaintiff has demonstrated the requisite "vindication of a Congressional policy," ," which would otherwise trigger the private attorney general rationale. Environmental statutes such as NEPA, in placing the responsibility of compliance upon federal agencies, make difficult an attempt to justify the imposition of counsel fees by fixing a duty of obedience upon the state. Additionally, many courts have held that the Eleventh Amendment to the Constitution pre

See text at notes 8-13, supra.

96

King and Plater. The Right to Counsel Fees in Public Interest Environmental Litigation, 41 TENN. L. REV. 27, 87 (1973).

Hearings, supra note 12. at 791 (statement of J. Anthony Kline, Esq.).

91 Wilderness Society v. Morton, 495 F. 2d 1026 (D.C. Cir. 1974), rev'd sub, nom. Alyeska Pipeline Service Co. v. Wilderness Society. 421 U.S. 240 (1975) Sierra Club v. Lynn, 364 F. Supp. 834 (W.D. Tex. 1973), rev'd, 502 F. 2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975). For an extended discussion of the Alyeska case, see text at notes 164–202, infra. 82 In actuality, 42 U.S.C. § 4332(2)(c) makes federal agencies primarily responsible for the preparation of Environmental Impact Statements (EIS's) which the Act requires in "major Federal actions." Cf. Committee to Stop Route 7 v. Volpe, 7 ERC 1681, 1682 (D. Conn. 1972).

3 Pyramid Lake Palute Tribe of Indians v. Morton, 360 F. Supp. 669 (D.D.C. 1973), rev'd, 499 F. 2d 1095 (D.C. Cir. 1974), cert. denied, 420 U.S. 962 (1975); Red School House, Inc. v. OEO. 386 F. Supp. 1177 (D. Minn. 1974).

See Sierra Club v. Lynn, 502 F. 2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975); Pyramid Lake Paiute Tribe of Indians v. Morton, 499 F. 2d 1095 (D.C. Cir. 1974), cert. denied, 420 U.S. 962 (1975).

Piggie Park, 390 U.S. at 402 (1968). See text at notes 123-63 infra for a discussion of the private attorney general rationale.

se See note 92 supra.