La Raza Unida plaintiffs had gained through the judicial process, was mandated by the Department of Transportation Act. As further support for its award, the court noted that to force plaintiffs to pay their counsel fees after effectively policing those charged with implementing Congressional mandates would be "tantamount to a penalty." 15 158 In taxing fees against the state defendant," 157 the court noted that all state residents had received the fruits of the litigation. By matching the state treasury, as the source of the fund, with the residents as beneficiaries, the court concluded that it was following the dictates of Mills. This somewhat loose adaptation of Mills raises an important question as to the application of the common benefit rationale for fee-shifting in environmental litigation. In contrast to the direct benefit of increased corporate control which inured to the stockholder beneficiaries in Mills or the actual recovery of a fund in Trustees, the actual benefits which accrue to the general public in successful environmental suits are difficult to trace with accuracy. While maintenance of clean air or clean water may fairly be viewed as a benefit uniformly accruing to all members of the public, the preservation of beautiful open spaces and parklands cannot be easily identified as such. The number of persons actually taking advantage of public parklands, although difficult to ascertain, certainly amounts to less that the entire taxpaying public. This inability to match cost with the benefits of the litigation required a strained interpretation of the common benefit line of cases to justify a fee award against the government.150 The La Raza Unida court and other federal courts, which found partial support in Mills for taxing fees against the government were, in reality, acting without precedential guidance from the Supreme Court.190 Another potential defect in the private attorney general doctrine illustrated by La Raza Unida was the latitude accorded judges in determining which types of private enforcement litigation were sufficiently invested with the public interest or involved high priority legislation demanding inducement of feeshifting. In La Raza Unida, the protection of parklands and assistance to persons displaced by eminient domain taking for mass transit projects, as the relevant statutory policies, were probably no stronger in the minds of the legislators than statutes aimed at product safety or the regulation of securities markets. Thus it may have been possible under the doctrine to cause an award to turn automatically upon the invocation of a federal statute without additional indicia of Congressional concern. In Piggie Park, the statutory fee-shifting case which spawned the notion of private enforcement as vindicating strong Congressional policies, the Court relied on legislative history which indicated a Congressional concern of preeminent importance. In lip service recognition of a need to find a heightened and immediate legislative interest or concern, the lower courts at times noted that a fee award was not a license to encourage enforcement of all statutes.12 Yet 161 155 Department of Transportation Act of 1968 § 4(f), 49 U.S.C. 1653(f) (1970). See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). 150 La Raza Unida, 57 F.R.D. at 101. 157 The court dismissed the Eleventh Amendment sovereign immunity argument which led other federal courts to deny an award in otherwise appropriate circumstances. See text and notes 96-98, supra. 168 La Raza Unida, 67 F.R.D. at 101. 150 This strain on the logical application of a common benefit theory does not, however, negate its utility as a justification for taxing the government in order to spread the cost of private enforcement among its intended beneficiaries. When a private citizen or public interest group acts as an attorney general in enforcing federal legislation with which the government itself has failed to comply, the yought not hear the litigation costs of performing a function ordinarily assigned to a public official and defrayed through tax revenues. While the government may be an effective mechanism for redistributing the burden of private enforcement suits, this theory is less apposite when applied to justify taxing fees against a private violator of environmental protection statutes. Support for taxing such violators may more appropriately come from a punitive or an incentive rationale. 100 This position was taken by several commentators. Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 HARV. L. REV. 849. 897 (1975) ; King & Plater. The Right to Counsel Fees in Public Interest Environmental Litigation, 41 Tenn. L. Rev. 27, 48 (1973); but compare Note The Allocation of Attorney's Fees After Mills v. Electric AutoLite Co.. 38 U. CHI. L. REV. 316, 330 (1971). Consistent with these criticisms of the expansive interpretation of Mills, the Supreme Court in Alyeska noted the impropriety of placing within the common benefit framework suits which involve millions of taxpayers who allegedly receive intangible benefits, 421 U.S. at 265 n. 39 (1975). 101 See text at note 127, supra. 10 La Raza Unida, 57 F.R.D. at 99; Lee v. Southern Homesites Corp., 444 F. 2d 143, 145 (5th Cir. 1971). 80-603-77-27 the courts, in purporting to find a strong Congressional policy, could in essence Thus, prior to the Supreme Court's opinion in Alyeska, the private attorney 163 V. THE ALYESKA LITIGATION AND THE DEMISE OF THE PRIVATE ATTORNEY 165 160 The Alyeska litigation was commenced in 1970 by several environmental inter- Sitting en banc the District of Columbia Circuit Court of Appeals decided in 172 171 103 Northcross v. Bd of Educ., 412 U.S. 427, 429 n. 2 (1973); F.D. Rich Co. v. U.S. ex rel. 164 Wilderness Society, Environmental Defense Fund, Inc. and Friends of the Earth. 166 Wilderness Society v. Hickel, 325 F. Supp. 422 (D.D.C. 1970). For a more extensive 167 Wilderness Society v. Morton, 479 F. 2d 842 (D.C. Cir.), cert. denied, 411 U.S. 917 168 30 U.S.C. § 185 (1970). Although allegations that the Department of the Interior had 100 Wilderness Society v. Morton, 495 F. 2d 1026 (D.C. Cir. 1974) [hereinafter cited as 170 Id. at 1036 n. 8. 171 Alyeska being comprised of oil companies which account for approximately 20% of the 172 Wilderness II, 495 F. 2d at 1036. The constellation of events which surrounded the litigation made tenuous the requisite ascertainment of strong Congressional public policy which would trigger the private attorney general rationale. In response to the delay in construction of the pipeline engendered by the litigation, Congress enacted legislation amending the Mineral Leasing Act to allow the granting of permits sought by the oil companies and declaring that no further statements under NEPA would be required before construction commenced. The amendments did, however, include certain provisions to insure safety and environmental protection along the pipeline route. Moreover, the Senate Committee which reported out the bill explicitly noted that the litigation-produced delay had lessened the risk of environmental damage.1 In acknowledging the national commitment to protecting the natural environment, as exemplified by NEPA, the Court of Appeals noted benefits from the liti gation in the form of forced reconsideration of the environmental consequences of the project 176 and the "inclusion of strong safeguards in plans for the Alaskan line." Instead of construing the Congressional intervention as a rejection of the environmentalists' position, the majority read it to be a recognition of the substantial policy and technical issues which the litigation had served to focus, The accumulation of these benefits gave rise to the majority's conclusion that plaintiffs had vindicated the statutory interests of all citizens affected by the proposed pipeline project." 178 In contrast to the aura of successful litigation portrayed by the majority, the disservice to the public caused by the delay in construction, concern with blocking access to much needed oil reserves and the attendant increase in cost and dependence on foreign petroleum marked the dissenting judges' rejection of the fee award. The Mineral Leasing Act amendments were viewed as the definitive statement of Congressional preference for immediate resumption and completion of the pipeline.11 180 What emerges from the juxtaposition of majority and dissenting opinions is that Congressional policy on this question was at best ambiguous. The case is therefore instructive in highlighting the difficulty in adducing a strong Congressional policy, particularly in environmental lawsuits where a demand for energy resource development and interest in the preservation of the environment collide. Moreover, it indicates the inherent weakness in allowing judges, absent legislative guidance, to render subjective assessments or speculate as to those statutes which require the inductment of fee-shifting for private enforcement. The resultant differences in the perception of justice and the public interest may undermine the public confidence in a neutral judiciary. 182 183 184 Upon a grant of certiorari, the Supreme Court reversed the District of Columbia Circuit Court of Appeals in a 5-2 decision. The Court held that under the American Rule attorneys' fees would not be recoverable on a private attorney general theory in the absence of express statutory authorization. Mr. Justice White, speaking for the Court, engaged in an extensive historical analysis to document both statutory and judicial adherence to the American Rule.185 In establishing the Rule's continuing vitality, principal reliance was placed on the 1853 docketing fees statute, which undertook to limit the circumstances where fee awards were appropriate.1 The combination of the present version of that statute,157 being essentially unaltered, and the express fee-shifting authorization 173 Trans-Alaska Pipeline Authorization Act, Pub. L. 93-153, Tit. II, 87 Stat. 584, 43 U.S.C. § 1651 et seq. (Supp. IV, 1974). 174 Id. at § 204 (b), 43 U.S.C. § 1653 (b) (Supp. IV, 1974). 175 S. Rep. No. 93-207, 93d Cong., 1st Sess. 18 (1973): "When we subsidize lawyers to bring such suits against our national interest we promote our own destruction" Id. (dissenting opinion) (emphasis in the original). 170 Wilderness II 495 F. 2d at 1034. 177 Id. at 1035 n. 5, citing 119 Cong. Rec. S 13574 (daily ed. July 16, 1973) (remarks of Senator Fannin). 178 Id. at 1035. 179 Id. at 1032. 180 Id. at 1041 (MacKinnon dissenting). Judge MacKinnon went so far as to boldly state: 151 Id. at 1039 (MacKinnon dissenting). “Judging from Congress' most recent action, plaintiffs have been frustrating the policy Congress considers highly desirable and of the utmost urgency." Id. at 1042 (Wilkey dissenting) (emphasis in the original). 152 419 U.S. 823 (1974). 18 Alyeska, 421 U.S. 240 (1975). Justices Powell and Douglas took no part in the consideration of the case, while Justices Brennan and Marshall dissented. contained in various recently enacted statutes 188 was therefore read as being indicative of Congressional hegemony over the creation of this remedy. The Court, however, failed to convincingly treat its own precedents which establish a coordinate independent equity power to award fees under the several flexible exceptions to the American Rule. The proposition that sporadic Congressional exercise of its prerogative to annex fee-shifting provisions to certain statutes preempted the judicial creation or at least maintenance of nonstatutory theories upon which to base awards ignores the well-established breadth of equitable remedies. Such an argument, as noted by the dissent, is logically inconsistent with the Court's acceptance of the previously sanctioned bad faith 180 and common fund 1 exceptions. Assuming that the federal judiciary has the power "to do equity" in these situations, the same power would likewise attach in cases where justice requires a fee award to ratably allocate the burden of private enforcement.198 194 191 102 In rebuttal to the majority's broad construction of the docketing fees statute, the dissent invoked the Court's prior rejection in Trustees and Sprague of arguments that the statutes operated as a plenary restraint on the equity power to award fees. In both Sprague and Trustees, the Court had explicitly held that the statute imposed no bar to an award of fees in common fund cases, and contained nothing which could be construed to deprive equity courts of their longestablished control over taxing litigation costs.185 186 Mr. Justice Marshall's dismissal of the Court's interpretation of Congressional silence as to fee transfers was appropriately grounded in the broad language of Mills and Hall v. Cole.187 These recent decisions offer a clear statement of the Court's preference prior to Alyeska for interpreting Congressional silence "not as a prohibition, but as an authorization for the Court to decide the attorneys' fees issue in the exercise of its coordinate, equitable power." If the holding of Alyeska is viewed solely as evolving from the judicial power argument addressed above, the lack of cogency undermines its credibility. Notwithstanding the apparent internal inconsistency or the Court's failure to square its reasoning with even the most conservative reading of Mills, the Court correctly reversed the award of fees under the private attorney general rationale. Alternative support for the holding may be adduced from the inability of the judiciary to develop manageable standards to govern the use of the private attorney general rationale as an incentive for private enforcement actions. This interpretation of the majority's reasoning is most directly responsive to the demonstrated deficiencies in the application of the doctrine, and is therefore the most persuasive ground for the decision. 200 199 Recognizing the Court's concern with the vagaries inherent in a fee-shifting scheme dependent upon a trial judge's subjective assessment of the importance of a public policy involved in a particular case, Mr. Justice Marshall attempted to salvage the doctrine by suggesting several criteria to aid the courts in determining the propriety of requested awards. The principal factor to be considered would be whether the "important right being protected is one actually or necessarily shared by the general public or some class thereof." 202 Mr. Justice Marshall's formulation adds little to the criteria established in La Raza Unida to 188 See notes 48-54, supra. 180 421 U.S. at 282 (Marshall, J., dissenting). 190 See, e.g., Vaughan v. Atkinson, 369 U.S. 527 (1962). 191 See, e.g., Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939). 192 See 421 U.S. at 278-82 (Marshall, J., dissenting). 108 As Mr. Justice Marshall correctly states, the only explanation which preserves the internal logic of the Court's argument is that these already sanctioned exceptions were too well established to jettison, Id. at 278 (Marshall, J., dissenting). 194 Id. at 278-79 (Marshall, J., dissenting). 196 Sprague v. Ticonic Nat'l Bank, 307 Ü.S. 161, 164 (1939); Trustees v. Greenough, 105 U.S. 527, 535-36 (1881). 196 421 U.S. at 281-82 (Marshall, J., dissenting). 197 412 U.S. 1 (1973). See note 139, supra, for a discussion of Hall v. Cole. 198 421 U.S. at 281 (Marshall, J., dissenting), citing Mills, 396 U.S. 375, 391 (1970). 190 Id. at 266 n. 39. 200 See text at notes 160-63 and text following note 181, supra. 201 421 U.S. at 285 (Marshall, J., dissenting). 203 Id. Other factors implicated in the determination are whether "(2) ... the plaintiff's pecuniary interest in the outcome, if any, would not normally justify incurring the cost of counsel; and (3) shifting that cost to the defendant would effectively place it on a class that benefits from the litigation." Id. Note that this third requirement presents the same admixture of vindication of Congressional policy drawn from Piggie Park and the common benefit rationale of the Mills case which left the lower courts without precedential foundation. See Id. at 265 n. 39. See also text at notes 157-60, supra. assist in the crucial determination of which legislative policies are actually of the highest priority. One need look no further than the Wilderness II opinion to witness the enigma involved in ascertaining the "important right" without statutory guidance. The conflicting perceptions of public policy illustrated by the 4-3 split in the lower court's decision in Wilderness II underscored this problem. In light of the dissent's failure to propose viable standards for gauging a statute's importance, the holding in Alyeska attains credibility. Nevertheless, a restrictive reading of the Court's finding of legislative dominance over feeshifting will unduly constrain the jurisdiction which equity courts have traditionally exercised where compelling circumstances require. The rationale of Alyeska should therefore be ascribed to the Court's recognition of a need to impose prudential limits on the power of a federal judge to grant awards of attorneys' fees to public interest plaintiffs in the absence of statutory authorization. The demise of the private attorney general doctrine need not be interpreted as a judgment on the merits of fee-shifting or the utility of redistributing the cost of legal services to encourage private enforcement of environmental legislation. In deciding not to embroil the federal courts in political and social policy debates, the Court merely returned to the legislature the burden of ascertaining those public policies which demand private enforcement incentive through feeshifting. CONCLUSION 203 Recent legislative authorization of citizen suits in numerous environmental protection statutes has created a vital role for the federal courts in the process of environmental decision-making. Given this consistent Congressional approval of private enforcement in the courts, the need to encourage such suits becomes clear. Citizen suit provisions contained in these statutes, however, will remain empty invitations, without an opportunity for public interest plaintiffs, lacking any direct monetary stake in the litigation, to recover the costs of vindicating statutory rights or enforcing Congressional mandates. Citizens and environmental interest groups assuming this watchdog role are in actuality "private attorneys general" performing an enforcement function ordinarily assigned to government officials who are compensated by the public treasury. If for no other reason, logic demands that a citizen suing to enforce compliance with an environmental protection statute should not be forced to bear the litigation costs incident to performing a quasi-official function. With private foundation sources of funding for environmental plaintiffs uncertain, the need to develop a comprehensive scheme of fee awards for public interest litigants is acute. In suits against the government, an award will act to redistribute the costs to the general public, who in most instances, is the intended beneficiary. Additionally, this mechanism for equalizing the resources of private, non-profit plaintiffs doing battle with government and corporate entities has not been an administrative burden on the courts, as witnessed by their willingness, prior to Alyeska, to grant fee awards with impressive regularity.20 206 While a comprehensive Congressional scheme which entitles a plaintiff,205 suing under any environmental protection or policy statute, to an award of attorneys' fees is the long range goal to be pursued," the following two proposals must receive the highest priority. The federal sovereign immunity bar embodied in $2412 of the Judicial Code must be repealed or strictly limited in environmental protection situations. This statute stands as a deterrent to numerous legitimate 203 Some commentators take issue with the propriety of an active judiciary in this area. Heyman, Quarles, Sive & Cutler. The Challenge of Environmental Controls, 28 Bus. Law 9, 22-28 (1973) (remarks of Lloyd Cutler. Esq.). But see Leventhal. Environmental Decisionmaking and the Role of the Courts, 122 U. Pa. L. Rev. 509, 542 (1974). 204 One commentator suggests another conclusion. Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv. L. Rev. 849, 905 (1975). Whatever administrative difficulties are encountered in post litigation fee hearings stem in large part from a lack of standards to guide judges in computing the size of the award. This problem might be remedied by the establishment of guidelines similar to those established by the Criminal Justice Act of 1964, 18 U.S.C. $ 3006A(d) (1970), or by promulgation of local court rules. Caveat in designing the schedules, fees ought to be of sufficient size to attract skilled advocates who are capable of presenting the complex and delicate issues that attend environmental disputes. 205 As established under the fee-shifting provisions in the clean air and water pollution legislation, ultimate success in the lawsuit need not be made a prerequisite to an award. 200 An omnibus provision permitting fee awards in suits brought under any environmental protection or policy statute would be preferable. However, divisions of jurisdiction among the various Congressional committees might preclude such a solution. |