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Attorney Fee Awards -- Are They Appropriate if I Don't Prevail?

Eugene J. Riordan, Stuart B. Corbridge, Natural Resources and Environmental Administrative Law and Procedure II

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.