Amicus Curiae Brief — Alyeska Pipeline Service Co. v. Wilderness Society
Supreme Court brief1975
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Supreme Court of the United Shae ;
.
_ October Term 1974
®-.
-
No. 73-1977
ALYESKA PIPELINE SERVICE COMPANY,
Petitioner,
VS.
~
THE WILDERNESS SOCIETY, ENVIRONMENTAL
DEFENSE FUND, INC., and FRIENDS OF THE EARTH,
_ Respohdents.
On Writ of Certiorari to the United States Court of Appeals for
the District of Columbia Circuit
BRIEF AMICUS CURIAE ON BEHALF OF THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK
JUNE RESNICK GERMAN
23 West 76th Street
New York, New York 10023
HAYNES N. JOHNSON
460 Summer Street
Stamford, Connecticut 06901
NICHOLAS A. ROBINSON
430 Park Avenue
New’ York, New York 10022
Attorneys for the Association
of the Bar of the City of
New York
42 West 44th Street
ee eee ee eee | ee ee
IgM Henan cet cient
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anita,
TABLE OF CONTENTS
entereuts oF tie Alec Ce oo ok 5 Goes 0 ec ce
eeaty Of AOU | os. inks... sp hak c oewse keg od
Argument ........:. Saline dR kee ca vetoes Miitvcka, coe
Point I:
The private attorney general doctrine provides an
equitable basis for compensating citizens seeking,judicial
enforcement of constitutional or important legislative
POUCIES. os ven nk an sds ca 0 ee Oe.
Point II: .
. The private attorney general doctrine should apply to
environmental litigation since citizen suits are often the
only means of ensuring effectuation of environmental
By :
A. The Necessity of Citizen Environmental Suits Is
EethOMNNDNS 5p hidos sya Bix .-§
B. The Public Benefits From Vindicating
Environmental Rights Are Substantial. ...... 13
Sete oa 4. §
Contents
Page
ee I ooo ios cua ice week 15
Bi ie ec ee ors sos oe bs wae 16
I es kee aac vas Skee ease 17
5. Environmental Protection — NEPA .... 18
Point III:
The criteria of expenses and counsel fees under the
private attorney general doctrine should be the market
sos guards eect ee EO sO Fe er nes 19
Point IV:
Equity may award attorneys’ fees against the United
UMCRE Ord 1S ROCNCIES.. wk vi ns cece n eee See 22
A. The History of 28 U.S.C. §2412 Shows No
Restriction on Equitable Exceptions to the
Wi occc'n.» Voiwamtite eee ee ere 24
B. The Court’s Equitable Power Permits Awards of
Attorneys’ Fees Against the United States. .. 28
RN ey a a oe cs es 31
iii
TABLE OF CITATIONS
Page
Cases Cited:
Beley v. Naphtaly. 169 US: 353: C1898) cccnc cence newness 29
Bridgeport LORE Inc’ v. Members of Bridgeport Civil
Service Commission, 497 F.2d 1113 (2d Cir. 1974) ole bige 5
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974) .. 5
Bradley y. School Bd. of City of Richmond, 472 F.2d 318
(4th Cir. 1972) rvd on other gds, 40 L. Ed. 2d 476 (1974) . 5
Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D. Va.
1971), 472 F.2d 318 (4th Cir., 1972), vacated and remanded,
416 U.S. 696 (1974) 20... 2c cee cece eee reenter eeeee a2:
City of New York v. Train, 394 F.2d 1033 (D.C. Cir. 1974) . 17
City of New York v. Ruckelshaus, 358 F. Supp. 669 (D. D.C.
1973) affd sub nom, City of New York v. Train, 394 F.2d :
1033 (D.C. Cir. 1974) 0... cece cece cece cece rece eeeee 17
4%
Calvert Cliffs Coordinating Committee v. United States
Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971)
ars
18
Citizens Committee for the Hudson Valley v. Volpe. 302 F.
Supp. 1083 (S.D.N.Y., 1969), aff'd 425 F.2d 97 (2d Cir.
1970), cert. denied 400 U.S. 949 (1970) ....----+++++- 9, 16
Qeerrem nena got ver aco nanr wears ee
a
Ais :
‘
iv
Contents
¢ Page
Clark v. Smith, 13 Pet. 195 ....... Pee 28
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
OTE ook a oe eh ak ck ek 14
Conservation Society v. Secretary, — F.2d — (2d Cir.
12/11/74, docket 73-2629) ................ ae eks 18
Delaware Citizens For Clean Air v. Stauffer Chemical Co.,
Or PGs. Soe Cae, CR. TR ok ok ois ccc aces sccnss ox 5
Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), cert.
Se Se Oh re CT ei ik ovum 8 chee pe hs veens 5
Environmental Defense Fund v. United States Dep't of
Health, Education and Welfare, 428 F.2d 1083 (D.C. Cir.
WS ia a ee os es 15
: Environmental Defense Fund v. Hardin, 428 F.2d 1093 (D.C.
Oe, Fria haw 0 we Fe a a hh Rea kaos 15
Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584
CE PN ook ik os es ene wens 15
F.D. Rich v. Industrial Lumber Company, 94 S. Ct. 2157,
40 L. Ed. 2d 703 (1974) ........ cece cece ese eneneees 5
iP inet Vv. <otee, Spe U.S. OS (IGG ws cic vc vice cc icA veces 8, 30
‘Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.
714, 87 S. Ct. 1404, 18 L.E.D. 2d 475 (1967) .......... 27
Vv
Contents
Page
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir. 1974) ..... 5
Fri v. Sierra Club, 412 U.S. 541 (1973) ....-.-+-eeeee were: 17
Greene County Planning Bd. v. Federal Power Commission,
-455 F.2d 412 (2d Cir. 1972) ...... eee eee cece erties 13, 18
sian y Cole O10 US: tC OOTID co. ~~ os cen es es uk es 5
/
Hudson River Fisherman v. Federal Power Comm’n — F.2d —
(2d Cir., 1974, Docket Numbers 73-2258 and 73-2259) .. 21
Knight v. Auciello, 453 F.2d 853 (Ist Cir. 1973) ....+--+-> 5
La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal.
5, t2, 8,
I vn cnde keen canssasnannenconssenenpes
Lee v. Southern Home Sites Corp., 444 F.2d 143 (Sth Cir.
FES oi roc pr hb 0s as wh tesa hn se Seve geend ess ee 6s 3
Milburn v. Huecker, 500 F.2d 1279 (6th Cir., 1971) ....---- 5
ad *
Mills v. Electric Auto-Lite Co., 396 ae ‘ely Se 29
Minnesota Public Interest Research Group Vv. Butz, 358
F. Supp. 584 (D. Minn., 1973) ...---eee rere eeeerees 14
Mitchell v. DeMario Jewelry, 361 U.S. 288 (1960) ......-.. 28
nae SANA PR RY NI RE
Ae eet
PRED BERND ET
STE RTE I
vi
Contents
Page
Natural Resources Defense Council v. Morton, 458 F.2d
ee Oe MA TAD cc 0a wis a Ra We oe ha wes Tn oes 18
Natural Resources Defense Council v. Environmental
Protection Agency. 484 F.2d 1331 (Ist Cir.. 1973) . 5, 20, 27
New Jersev v. New York. 283 U.S. 336 (1931) ....... es eee 16
Porter v. Warner Co.. 328 U.S. 395 (1946) .............00- 28
Pyramid Lake Paiute Tribe v. Morton, 360 F. Supp. 669,
ag ll SE GR 2 © ER, cc BOUMPRLCRomey hr egee Fete ee a mee 27
Renegotiation Bd. Bannercraft Clothing. 42 U.S.L.W. 4203
(1974) ..... BCR Rey re Oe 28
Scenic Hudson. Preservation Conference v. Federdl Power
Comm'n.. 354 F.2d 608 (2d Cir., 1965), cert. denied .
MUA AT) 2 ss ks 9. 10. 16
Scientists Institute: for Public Information,, Inc. v. U.S.
Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973) .18
Sierra Club v. Lynn, 364 F. Supp. 834(W.D. Tex.. San Antonio
Div., 1973) rvsd on other grds, 504 F.2d 43 (Sth Cir., Oct.
4. 1974) rehearing den. 504 F.2d 760 (Sth Cir., Nov.
OO TPO vex cn hewn bose hes ean eb hes £1, 2
Sierra Club vy. Morton, 405 U.S. 727 (1972) ............... 3
vil
Contents
Page
Skehan \. Bd of Trustees of Bloomsburg State College. 501
3d 39 i ded Circ TOTAP wicca cosines gett eee eres 5
Sprague \. Ticonic Nat'l Bank. 307 U.S. 161 (1939) .....--- 26
Taylor v. Perini, 503 F.2d 899 (6th Cir... 1974) ....-- eee ees
Thorne v. Richardson, 4 C.C.H. Employment Practices De-
cisions, Par. 7630 at 5489-5492 te D. Wash.. 1971) .... 26
United States v. S.C.R.A. P.. 412 U.S. 669 (1973) .......--- 3
Wilderness Society v. Hickel. 325 F. Sues: 422 (D. D.C.
EDIE 55 Fas caine nt wee se 8 an on Ree 6 he ee Sie eee 14
Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir., 1973).
cert. denied 411 U.S. 917 (1973)... . eee eee eee eres 9.14
Wilderness Society v. Morton, 495 F.2d 1026 (Dc. Cr.
1078) cach owas Weck c ees nek) Cons oe eR wens 3. 8, 20
Wyatt v. Stickney. 344 F. Supp. 387 (M.D. Ala., 1972) ...-. 22
Statutes Cited:
TUS.G. GI3S et Seq. .-eseeecen sence ener steenersterens 15
16 U.S.C. S791 et SEG. 22. - ce creecceeasoecccesenrerpeess® 16
1G PSC. GB03...... ct oeseecscaweenereeaenesen stems eens 21
bi alt Data Ol
On ri ecahetoomnnng
SERRE RS ORI MARI PN
See nah etree eee anes ee ae
Nake ER cia gS. 2
SEERA RE PY
Prevrer:
viii
Contents
Page
i SE OG oc. ig ere 14
a bea)... Ayo 21
21 U.S.C. §301 bois Raisia top ee 15
WEBCO MS 6ikcidckeae eo 14
(RSC Out > oe 4, 23, 24, 26, 27, 28, 29
USC Hi wie. 6. Gs 9.10, 11, 15
30 U.S.C. §185 (1970) ........000. fer gen ee 15
SPURC O01.) se = Eo 16
33 U.S.C. §1ISI, PLL, 92-500, §505 .s...s..- ss seeeeeeeees 7,9
UGC OR) oo ii ee 17
42 U.S.C. §1857, et seq. ve osu eee 17
42 U.S.C. §1857, P.L. 91-604, §304 ..........00. Se a 7,9
USL. 0 be. kk ae 9
42 USC. cg RE eRe igs sae ee 11
42 USC. 60382 2... 6: : ee is ceecves 10
ix
; Contents
49 U.S.C. §1653(f) «0... eee eee eee ees sadaceeeeenneeees d
PL. 92-574, 86 Stat. 1234, §12 .....2eceeeee reece ere eeees 7,9 i
P_L. 89-507, 80 Stat. 308 (July 18, 1966) ..-------+-ere eres 25 i
62 Stat. 973 (June 25, 1948) ....- cece cece ee eeerererereee 24
New York Laws 1871, Chapter 819; Amended Laws 1924,
CRIN TIN arin 6 oss ci phe 55th eo cuss seni es sees \2? 2
Internal Revenue Code, Section 501(c)(3) .----+++eeeeeeeee 12 [
Ordinances Cited: — i
:
Air Pollution Control Code, Administrative Code of The City
of New York, Ch. 57, Part 2; Local L. No. 14, 1971, as
eee 8 ggg os bab he hehe bat en rhea nerd «s Acpvieias
Noise Code. Administrative Code of The City of New York,
Ch. 57, Part 3; Local L. 57, 1972 «2... ee eeee ee eeeeee
SRT EPH hot AREY
= SL ee ee ee
Rule Cited: ie
AAO
i a a be eae e 6 eRe ce ne cee nec ends Coe
Other Authorities Cited:
oc re ike ks nde es os :
x
Contents
Senate Report No. 1329, 1966 U.S. Code Cong. & Admin.
News F550 ccnp Fon bec Se rer rweds ants bette eee eeeee
Note. “Allowance of Attorney Fees In Civil Rights
x Litigation Where The Action Is Not Based On A Statute
Providing For An Award Of Attorney Fees,” 41 Cinn.
LFW, I es ii a ooo i kek cv caes ieastteeeinerins
Note, “The Allocation of Attorneys’ Fees After Mills
v. Electric Auto-Lite Co.”, 38 U. Chic. L. Rev. 316
CUTE aks wb hice oes Leeks oe hae Hb 8 baw hoes
Note. “Awarding Attorney and Expert Witness Fees In
Environmental Litigation”, 58 Cornell L. Rev. 1222
FPR sss oh bie one 644005 hoes ack ee eee
Statutory and Administrative Materials, 1V, Environmental
Law Reporter; 40000 et. seq... cc ceceddenceacvcse
1966 U.S. Code Cong. & Admin. News 257 at 2528 ........
Page
29
12
9
26
In The
Supreme Court of the United States
October Term 1974
— & eee -<emeeO
No. 73-1977
ALYESKA PIPELINE SERVICE COMPANY.
Petitioner,
s,
THE WILDERNESS SOCIETY. ENVIRONMEN PAL
DEEPNSE FUSD. INC.. and FRIENDS OF THE EARTH.
Respondents
On Writ of Certiorari to the United States Court of Appeals for
the District of Columbia Circuit
BRIEF AMICUS CURIAE ON BEHALF OF THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK
>
This brief amicus curiae addresses the merits of the
questions raised in the above-stated Writ of Certiorari. The
Association of the Bar of the City of New York files this brief
pursuant to Rule 42 of the Rules of the United States Supreme
Court. Both petitioner and respondents have consented to the
filing of this brief and copies of the consents of petitioner and
respondents have been filed with the Clerk of this Court.
RAPT FE
2° Ser EGER ae 1
INTERESTS OF THE AMICUS CURIAE
The Association of the Bar of the City of New York (“The
Association”) has a membership of some 10.500 attorneys
admitted .to practice in New York and elsewhere. The
Association. was established by “Act of the New York State
Legislature in 1871. Laws 1871. Chapter 819: Amended Laws’
1924, Chapter 134. Its stated statutory purposes are “cultivating
the science of jurisprudence. promoting reforms in the law.
facilitating the administration of justice. elevating the standard
of integrity, honor and courtesy in the legal profession and
cherishing the spirit of brotherhood among the members
thereof.”
‘
' Much. of The Association’s membership serves on
specialized committees which are designed to make professional
contributions in their special fields in furtherance of The
Association’s purposes. Among the committees with an interest
in the issues presented in this Writ of Certiorari is The
Association’s Committee on Environmental Law, which has
examined the issue on_ appeal herein and requested and:
approved the preparation of this brief amicus curiae. The
Executive Committee of The Association has authorized the
filing of this brief on behalf of The Association.
The Association believes that this Writ of Certiorari raises
important implications for the hearing of environmentak causes
in federal courts. The central issue reviewed here is how this
Court will delineate the private attorney general doctrine.
Without affirmation of the doctrine. this Court's salutory
refinements in the field of standing! to litigate environmental
rights are substantially impaired: those non-economic interests
which possess a stake sufficient to sue. frequently lack the
necessai\ financial sesources simply because they are non-
economic interests. A. single citizen rarely has the financial
capacity or willingness to vindicate environmental laws
protecting widely shared resources.
The equitable foundation of the private attorney general -
doctrine guides its application: where a Court firtds that a citizen
has served as a private attorney gen neral. fairness requires that
the citizen’s expenses. including attorneys’ fees. in effectuating a
federal law be reimbursed. Similarly. fairness requires that such
expenses be paid by the party * hich the Court finds responsible
for frustcating the given federal law's efter hivtion
the Court of Appeals below was aware of these
“our decision today may increase the
implications: )
willingness of skilled lawyers throughout the nation to undertake
public interest sitigation on behalf of unmonied clients with just.
lawtul, and important claims. This proposition we of course
accept. and count, it a hapspy result of our decision." The
Wilderness Society, et alow, * Morton, 495 F.2d 1026. 1038!n 9
(D.C. Cir.. April 4. 1974). -
This brief reviews the appropriateness of th nrivate
attornes general doctrine as applied to environmental Jaw suits
and the extent in equity of its application.
1 Swrra Club + Marton. 4080S 727 (1972) ana Cnted States. S CAP. 412
tS 669 (1973)
POTTY a 1
te
*
s SUMMARY OF ARGUMENT
The “private attorney general” is a citizen acting to enforce
public policy. Equity permits an award of expenses including
attorneys’ fees to such a citizen when his actions effectuate a
provision of the Constitution or a strong congressional policy.
‘
This award of counsel fees is particularly appropriate in ~
environmental litigation where citizens acting to enforce laws to
‘protect the nation’s natural resources frequently vindicate
substantial public rights benefiting a broad population.
®
Where governmental officials do not effectuate public
policy but for action by a private attorney general, the award of
eX\penses is both just and necessary. The citizen assumes a real
burden but seeks no pecuniary reward. His concrete interests.
which gave him standing to sue, usually are non-economic and
he can ill afford the expenses to which he has been put.
Where the elemerits of the private attorney general doctrine
are met, the award of expenses should include all costs
_ reasonably related to effectuating the policy, not merely those
involving litigation. The measure for computing fees should be
the fair market value of the services.
28 U.S.C. §2412 need not be a bar against assessing
attorney's fees against the United States. Congress passed §2412
to promote faitness to those litigating with the federal
government primarily for money claims. In so doing, it adopted
the common law “American” rule including «the equitable
exceptions thereto. It is fair and just to award fees against the
United States.
er Oaiay
ARGUMENT
POINT |
THE PRIVATE ATTORNEY GENERAL DOCTRINE
PROVIDES AN EQUITABLE BASIS FOR
COMPENSATING CITIZENS SEEKING JUDICIAL
ENFORCEMENT OF CONSTITUTIONAL OR
IMPORTANT LEGISLATIVE POLICIES.
The worth of the private attorney general doctrine in
American jurisprudence is amply demonstrated. The doctrine is
of such proven importance that this Court should embrace it
and delineate its elements to reconcile differences in the case
law.-
> Ths Court in Hall v. Cole, 412 U.S. 1 (1973), alluded to the “private attorney
astrial
general” theory but did not rule with respect to It. It noted in F.D. Rich Co. v. Indi
Lumber Co., 401 Fd 2d 703 at 714 (1974) that whether counsel fees could be awarded
lo a private attorney general remained an undecided issue.
“The 2ndand 4th Circuits have declined to honor the private attorney general
doctine. See. ¢.g.. Bridgeport Guardians Inc. v. Members of Bridgeport Civil Service
Commission, 497 F.2d 1113 (2d Cir. 1974), Bradley v School Bd. of City of Richmond.
472 F.2d 318 (4th Cir. 1972). rev'd on other grounds, 416 U.S. 696 (1974). The
District of Columbia Circuit and the Ist, 3rd. Sth, 6th, 7th. 8th and 9th Circuits plus
some 24 district courts have accepted and applied the private attorney general doctrine.
See. e.g.. Anight v. Auciello, 453 F.2d 853 (1st Cir. 1972) and Natural Resources Defense
Environmental Protection Agency, 484 F.2d 1331 (Ist Cir. 1973): Skehan \
Council v.
974). lee \
Bd. of Trustees of Bloomsburg State College, 501 F 2d 31 (3rd Cir.'1
Southern Home Sites Corp..
1279 (6th Cir. 1974); Donahue v. Stauntan, 471 F.2d 475 (7th Cir. 1972). cert, denied,
410 U.S. 955 (1973). Fowler v. Schwarzwalder, 498 #.2d 143 (8th Cir. 1974),
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974).
Among the best known applications of the doctrine to environmental causes by
district courts is La Raza Unida v. Volpe, $7 F.R.D. 94 (ND. Cal. 1972). See also
Delaware Citizens for Clean Air v. Stauffer Chemical Co., 62 F.R.D. 353 (D. Del. 1974).
Seale |
444 F.2d 143 (Sth Cir. 1971): Afilburn v. Huecker: $00 F.2d
Tee
CASON MERI RRND * OK man Oe
ao
lo)
!
mit
A synthesis of the evolution of the private attorney general
doctrine in case law reveals several elements which should be
considered in the exercise of judicial discretion when a Court is
asked to award counsel fees based upon the doctrine:
1. The vindication of a substantial legal right arising under
federal law. Such includes any one of the following:
a. The effectuation of any provision cf the
Constitution of the United States of America;
b. The effectuation of a strong congressional
policy. Strong,may be construed as being of
substantial iniportance in light of (i) the major
public policies as declared in ‘legislative findings
embodied in a law’s legislative history, (ii) the
function of the law as an ‘tmtegral part of a
legislatively-framed regulatory scheme, (ili) the
substantial injury which would result to the
citizenry or any class of citizens whose interests
are protected by the law.
Effectuation in each instance must be judged in terms of the law
being duly implemented by the officials sued whenever such °
occurs and not merely because a party wins, settles or loses a
lawsuit or administrative proceeding in the attempt ‘to secure
effectuation. i emeet l
2. The failure of administrative officials to honor a
substantial legal right and/or press for its effectuation.
_*~
3. The extent of the public benefit realized by the
effectuation.
_ The financial or other burden assumed by the citizen in,
securing the effectuation. This element should include all aspects
of the citizen’s undertakings which directly relate to securing»
effectuation and not merely the expenses and counsel fees
involved in any final court ruling which requires effectuation
especially in comparison with the often substantial economic
resources and expertise of governmental bodies and private
corporate party defendants.
5. The presence of any special circumstances which would
render unjust an award of expenses and attorneys’ fees.
The availability ef couisel fees, where justified by these
elements. 1s crucial to assuring that individuals injured by a
failure i. effectuate a federal law are encouraged to seek judicial
relief. Equity supplies here what a statuiory scheme may not aS
vet provide. See Note. Allowance of Attorney Fees in Civil
Rights Litigation Where the Action Is Not Based on a Statute
Providing for an Award of Attorney Fees, 41 Cinn. L. Rev. 405
(1972). As discussed below, the private attorney general doctrine
is particularly apt in environmental suits.*
3. Indeed the success of environmental litigation has spawned several statutes
expressly providing attorneys’ tees in environmental litigation. In environmental laws
adopted since 1970, Congress has come to recognize the need to provide for couasel fees
water act citizen suits, PL 92-500 §505, 33 U.S.C. SLIST ef seg.o clean air act citizen
suits. PL 91-604 $304, 42 USC. SISS7. ef seg.; noise controt act citizen suits. P.1. 92-
$74 $12. Other jursdictions have come to the same conclusions, see ¢-g.. Air Pollution
Control Code. Administrative Code of The City of New York. Ch §7. Part 2: Local I
No 14. 1971. as amended. and Noise Code. Administrative Code of The City of New
(Contd)
5
§
f
-
R
a
Sg Sor oh a a
i
In a recent civil rights ruling awarding attorneys’ fees. the
6th Circuit Court of Appeals observed in Taylor v. Perini, 503
F.2d 899 at 905 (6th Cir. 1974):
“Awarding attorneys’ fees in cases where there is
no potential substantial award of damages and
whera the cost of supporting a case for injunctive
relief is high serves to prevent unjust
discouragement of parties in bringing suits to
vindicate important rights. Wilderness Society v.
Morton, 495 F.2d 1026 (D.C. Cir. 1974) (en
banc).”
Equity is not given in halves. Where the Constitution allows
suit because of the “concrete adverseness” of the parties 4 and’ -
that suit effectuates a constitutional or strong legislative policy,
the private attorney general in fairness should be compensated
for his expenses and fees.
j
(Cont
York. . $7. Part 3; Local L. 57, 1972. authorizing awards of counsel fees. The
ymportance of awarding fees to encourage effectuating environmental laws has been
legislatively recognized since 1970, the vear of the first “Earthday.” but even where no
statutory scheme exists, ay with NEPA (adopted before 1970), the encouragement is
needed
4. Flast v. Cohen, 392 U.S. 83,99 (1967).
POINT Il
THE PRIVATE ATTORNEY GENERAL DOCTRINE
SHOULD APPLY TO ENVIRONMENTAL LITIGATION
SINCE CITIZEN SUITS ARE OFTEN THE ONLY MEANS
OF ENSURING EFFECTUATION OF ENVIRONMENTAL
PROTECTION LAWS.
A. The Necessity of Citizen Environmental Suits Is Established.
Over the past decade, protection of the environment has
newly emerged as a principal task of government. The need for
such protection initially was pressed and recognized in federal
courts. Laws previously enacted have been reconstrued in terms
of the public purposes served by environmental protection.* New
laws have been adopted touching every aspect of environmental
protection.®
The enactment in 1969 of the National Environmental ~
Policy Act. 42 U.S.C. §4321 (“NEPA”), actually was anticipated ,
in 1965 by the ruling in Scenic Hudson Preservation Conference
S_ See. for instance. the interpretation af “dike” in Citizens Committee v. Volpe. 302
F. Supp. 1083 (S.D.N.Y. 1969), aff'd.. 425 F.2d 97 (2d Cir. 1970), cert. denied, 400 U.S
949 (1970); or of the Mineral Leasing Act of 1920, 30 U.S.C. S181. er seg.. treated on the
merits in the instant case, The Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir
1973). cert. denied, 411 U.S. 917 (1973)
6. In addition to the pervasive National Environmental Policy Act, 42 U.S.C
$4321. water, 33 USC. SIS: air, 42 U.S.C. $1857: noise, P-L. 92-574 and a host of
other jaws exist. See generally. Statutory and Administrative Materials. WW.
Environmental Law Reporter. 40,000. ef seq.
23 ry “oa
aay
a
Dette he eer See ORR ees cee
\
apie:
10
v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert.
denied, 384 U.S. 941 (1966). The Court required an
environmental protection review under the Commission’s
existing authority.’ Judicial recognition of environmental
injuries has prompted much remedial legislation; in the instant
case, it was after the plans for the Trans-Alaska Pipeline were
revised to assure environmental protection that Congress
authorized the pipeline’s construction, and only then with special
provisions for “environmental protection.”*
7. In Scenic Hudson, 354 F.2d 608 at 624, the Court noted that on remand the
renewed proceedings of the Federal Power Commission “must include as a basic concern
the preservation of natural beauty and of national historic shrines. keeping in mind that.
in our affluent society. the cost of a project is only one of several factors to be
considered. The record as it comes to us fails markedly to make out a €ase forthe Storm
King project on, among other matters. costs. public convenience and ‘necessity, and
absence of reasonable alternatives.” Compare this judicial mandate with the legislative
command of NEPA which requires in 42 U.S.C. §4332 that all agencies of the federa!
government.
“(B) identify and develop methods and procedures ... which will
insure that presently unquantified environmental amenities and
values may be given appropriate consideration in decision making
along with economical technical considerations: [and]. . . (C)
include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment. a detailed statement by the
responsible official on . . . (iii) alternatives to the proposed action.”
&. See amendments to the Mineral Leasing Act of 1921 in P.L. 93-153, 87 Stat. 576.
§28(h)(2)
(2) The Secretary or agency head, prior to granting a right-ot-
Way of permit pursuant to this section tor a new project which may
have a significant impact on the environment. shall require the
applicant to submit a gov struction, operation, and
rehabilitation for such righ ~* wr mermit which shall comply
(Cont'd)
ie 1!
Environmental laws have required effectuation by citizen
suit either because the laws themselves lack self-enforcement
mechanisms or because the interests protected are so broad that
governmental officials neglect them. R
The importance of citizen action as an enforcement
mechanism is well illustrated by NEPA, which required all
federal agencies to determine the environmental consequences of
government action but was silent as to the results of their failure
to do so. Only citizens affected by that failure could cisure that
NEPA’s policy would be implemented. Indeed NEPA may have
contemplated this in recognizing that “each person has a
responsibility to contribute to the preservation and enhancement
of the gnvironment.” 42 U.S.C. §4331(c).
—~ 0 |
(Contd)
with this scetton. Phe Seeretars or agency, head) shall iss
regulation: or impose stpuletions which shall include bet shall not
be limites te (Ar requirements for restoration. revegetation, and
curtailment of erosion of the surface of the land. (B) ,equirements
to, insure that activities in connection with the nght-of-way or
permit will not violate applicable air and water quality standards
nor related facility siting standards established by or pursuant to
law: (C) requirements designed to control or prevent (1) damage to
the environment Gncluding damage to fish and wildlite habitat).
(i) damage to public or private property. and (ui) hazards to
public health and satety. and (D) requirements to protect: the
interests of individuals living in the general area of the right-of-way
or permit whe rely en the fish, wildlite. and biotic resources of the
area for subsistence purposes. Such regulations shall be applicable
to ever ticht-of-was or perm t granted pursuant to this section
and may bo made appheable by the Secretary or agency head to
cvnsting rights-of-way or permits. of rights-of-way or permits to be
renewed pursuant to this: section.”
ee |
RS
AEE POT
a
acne, §4
12
Indeed. the agency overseeing implementation of NEPA,
the Council on Environmental Quality (“CEQ”) early endorsed
such citizen action. Russell E. Train as Chairman of the CEQ
stated in 1970 that “In our view, and in the view of our Legal
Advisory Committee. private litigation before courts and
administrative agencies has been and will continue to be an
important environmental protection technieue supplementing
and reinforcing government environmental protection
' programs.”9 ‘
‘\
However, suits supplementing government programs have
not proven sufficient. The neglect by government officials -of
broad environmental interests too. frequently results in
frustrating a constitutional or statutory provision and injuring
the protected interests. Citizens cannot rely on the Department
of Justice to compel effectuation of such a provision because the
Department is defending the very officials which have defaulted
in their duty.!?
9 Letter dated September 30. 1970. by Russell F. Train. Chairman. C_F.Q.. to
Randolph W. Thrower. Commissioner, Internal Revenue Service. urging the IRS to rule
eligible under Section SO1(c)3) of the Internal Revenue Code those entities which may
pursue environmental protection goals through litigation. The IRS subsequently
determined in favor of eligibility.
10. See Note. 58 Cornell L. Rev. 1222 at 1244, discussing 1a Raza Unida v. Volpe.
$7 F.R.D. 94.(0N.D. Cal. 1972) ;
“The court found that public-interest actions by concerned citizens
are inherently valuable. Indeed, the court argued that private
policing actions become a Virtual necessity when the public officials
charged with protecting the public’s environmental rights ignore
their constitutional or statutory duties.”
-~
~——
13
When citizens sue to vindicate an environmental right, they
undertake a public calling. The rights are not easily quantifiable
in money terms and no single citizen usually has a sufficient
economic stake in environmental protection of wildlife. public
lands, rivers or air to motivate him to underwrite the entire suit.
The benefits from such suits accrue to all the people.
The standing which citizens have been granted in order to
bring environmental suits may be of little value if they must bear
the whole financial burden of vindicating environmental rights.
The award of counsel fees may be necessary to assure that the
public interest will be adequately represented during the effort to
secure effectuation, Greene County Planning Bd. v. F.P.C., 455
F.2d 412, 426 (2d Cir. 1972). However, this may be, it is
certainly the case that attorneys’ fees should be awarded after
successful effectuation, regardless of who “wins” the lawsuit.
B. The Public Benefits From Vindicating Environmental Rights
Are Substantial.
The validity of these general conclusions is established by
repeated judicial determinations where citizens vindicate
environmental rights. Each of the following cases illustrates the
public benefits achieved by citizens. In three instances, citizens
sued through their #cal government; in the balance. through
non-governmental civic societies. In none were money damages
sought, and each imposed a substantial litigation burden on the
”
plaintiffs. thi
wens
ELE OMNIS AA RIE SN ER eR an te 4
Wa
Stee ware
~
I. Land lt ‘se
In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 °
(1971). a public park was saved from being bisected by a
highway which would have destroyed a substantial portion of
the park. The Court found the Secretary of Transportation had
acted in violation of the Department of Transportion Act of
1966!' and the Federal-Aid Highway Act of 1968.'? This Court
declared that “protection of parkland was to be given
paramount importance.” 401 U.S. at 412, reinforcing the
congressional mandate that public parks not be destroyed if
feasible and prudent alternatives exist.
In Minnesota Public Interest Research Group v. Butz, 358
F. Supp. 584 (D. Minn. 1973). the Court enjoined the logging
and sale of timber from Virgin forests in the Boundary Waters
Canoe Arca under the National Wilderness Preservation System
Act ot 1964) unttla Management Plan and environmental impact
statement Were prepared. It thereby effectuated Congress’ intent
to minimize environmental damage.
In the instant case. itself. Wilderness Society v. Hickel, 325
F. Supp. 422 (D.D.C. 1970), the Court ensured that NEPA
would be followed in governmentai approval of a pipeline which
would transgress the nation’s largest untrammelled public lands. —
In Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir. 1973),
cert: denied,-411 U.S. 917 (1973), the issuance by the Secretary
1} VIE SNC. S168)
a 98 RC ere P
i316 4 SOY
we
15 j
of the Interior of rights-of-way to build the pipeline was
successfully challenged because of his violation of the language
and the existing policy of the Mineral Leasing Act of 1920'4 and
the Bureau of Land Mangement’s regulations.
Although compliance with NEPA was not involved in the
decision of the Court of Appeals, 479 F.2d 842. that federal law
had been substantially effectuated by the suit.
2. Pesticides 4
Despite the known hazards of DDT, both the Secretary of
Health, Education and Welfare and the Secretary of Agriculture
refused to suspend its use. As a result of their’ inaction. the
Environmental Defense Fund litigated in the public’s behalf.
Environmental Defense Fund y. United States Department of
Health, Education and Welfare, 428 F.2d 1083 (D.C. Cir. 1970):
Environmeéntal Defense Fund \. Hardin, 428 F.2d 1093 (D.C.
Cir. 1970); Environmental Defense Fund v. Ruckelshaus, 439
F.2d 584 (D.C. Cir. 1971).
The Courts found that continued governmental approval of
the use of DDT, despite its hazardous nature, was contrary to
law!’ and ordered that its use be discontinued pending scientific
study and public hearings.
14. 30 U.S.C. §185 (1970).
15. 1958 Amendments to the Food. Drug and Cosmetic Act. 21 U.S.C. §301 et seq
and Federal Insecticide. Fungicide and Rodenticide Act, 7 U.S.C §135 et seg. (1964)
aac |
3. Water Wy
~Many cases have sought to preserve the natural beauty and
aquatic resources of the Hudson River. one of our nation’s most
beautiful waterways called'by Mr. Justice Holmes more than an
amenity. a “treasure.”!*
One suit was initiated because the Federal Power
Commission issued a license to Consolidated Edison Company
of New York. Inc. to construct a pumped storage hydroelectric
project on the Hudson River at Storm King Mountain without
considering recreational uses. ‘Ketuding scenic beauty. as
obligated to do under the Federal Power Act.'” Scenic Hudson
Preservation Conference v. Federal Power Commission, 354
F.2d 608 (2d Cir. 1965). cert. denied, 384 U.S. 941 (1966).
A second challenged a permit granted by the Army Corps
of Engineers to New York State to fill a section of the Hudson
River to build a proposed Hudson River Expressway. In
Citizens Committee for the Hudson: Valley v. Volpe, 302 F.
Supp. 1083 (S.D.N.Y. 1969), affd., 425 F.2d 97 (2d Cir. 1970).
cert. denied, 400 U.S. 949 (1970), the District Court found that °
the Corps of Engineers had exceeded its authority in issuing the Ss
permit in violation of the Rivers and Harbors Act of 1889.'*
The consent of Congress was: required.
Io New Jerses vo New Dork, I8PUS 346 at 342 (1931) OA river is more than an
imienity. its a treasure ft offers a necessity of life that mus@be rationed among those
who hate power over a x
17 16 ESC §$79bas ef seq
Ik BetUS §40l
a
17
The refusal of the executive to allot full sums authorized to
be appropriated by. Congress to municipal secWage treatment
Projects was challenged by citizens suing through their local
government. Citi of New York vy. Train, 394 F. 2d 1033 (D.C.
Cir. 1974) affirming City of New York v. Ruckelshaus, 358 F.
Supp. 669 (1973). The Court found that the Environmental
Protection Agency Administrator was in violation of the Federal
“Water Pollution Control Act Amendments of 1972'% and
directed allotment of the full sums authorized by Congress.
These suits effectuated Congress’ intent to eliminate discharge of
pollutants into the nation’s navigable waters.
4. Air : «
Cleaning the nation’s air received high priority in the Clean
Air Act Amendments of 1970.2 Despite. Congress’ intent “to
protect and enhance the quality of the Nation’s air.”?! the
Environmental Protection Agency issued a OE which
‘would have permitted degradation of clean air. Citizen suit
ensured that the intent of Congress would not be so blatantly
disregarded ~ Fri v. Sierra Club, 412 U.S. 541 (1973).?!
19 33 U.S.C. $1251 ef seg
20 42 USC $1887 of veg
21. 42 USC $1857. s10leb)
22:40 CER S1.12%b) md
23. Although new regulations from the t s ial Protision Agency have
raised anew the issue of non-degradation of the nation's clean air _resources
NES
18
S. Environmental Protection — NEPA
In Calvert Cliffs’ Coordinating Committee v. United States
Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), the
Court ruled that NEPA required the Atomic Energy
Commission to make a fully independent evaluation of
environmental impact. See also Scientists Institute for Public
Information vo AEC, 481 F.2d 1079 (D.C. Cir. 1973).
In Greene County Planning Board \. Federal Power
Commission, 455 F.2d 412 (2d Cir. 1972), the court found that
NEPA requires that federal agencies consider environmental
Values at every stage of their deliberations. Further, each agency
has a primary and non-delegable responsibility for comphance
with NEPA and could not abdicate its duties by using an
environmental impact statement prepared by a nontfedeviel
agency. This tuauching ty re-emphasized in Conservation Society
“av. Secretary, F.2d 9 (2d Cir, Dec. 11. 1974. Docket 73-2629).
Further implementation of NEPA resulted in protecting the
aesthetic, recreational. marine. and wildlife resources of the Gulf
of Mexico when suit was brought against the Secretary of
Interior to enjoin him from entering an oil and-gas general lease
sale of submerged lands off eastern Louisiana. Natural
Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir.
1972).
The pattern of these cases can be repeated many times over.
While a Court may not find it appropriate to apply the private
attorney general doctrine in every instance to cases such as those
described here. the general aptness of the doctrine is plain. This
19
Court should provide that environmental as well as civil rights
and other public rights litigation is the genre for which the
doctrine in the Main ENISts.
POINT III
#
>
THE CRITERIA OF EXPENSES AND COUNSEL FEES
UNDER THE PRIVATE ATTORNEY) GENERAL
DOCTRINE SHOULD BE THE MARKET VALUE
THEREOF.
Once a Court rules that a citizen has served as a private
attorney general. all expenses reasonably related to securing
effectuation of the federal law should be reimbursed. These
normally might include participation in and exhausting
administrative proceedings prior to suit and the preparation for
and prosecution of the suit itself,
Expert witness fees and expenses should be allowed.
especially where, as in environmental causes. complex scientific
or technical problems of proof are presented.°4 Since the expert
and administrative costs can be quantified, they should be
reimbursed.
Counsel fees also should be reimbursed. Here the issue, in
Proper cases, is not so much whether to reimburse. but in what
amount.
24. As was observed by the trial court in La Resa Unida \ bolpe. ST ERD 94
WO2 OND Cal 1972) “the atfidavits of the eNpert witnesses were quite Helptul to the
Court, and were a crucial part ot the plainutts presentation”
20
3
The District of Columbia Circuit below sensibly ruled that
the award of counsel fees should be based on the tair market
Value tor the geal services rendered .** Courts should not engage
in law office Management to tix a fee otherwise.
Thise reasonable formula contrasts ‘with the ruling in the
birst Circuit that counsel fees should be awarded at less than a
fair market tee. In Natural Resources Defense Council v. U.S.
Environmental Protection Agency, 484 F.2d 1331 at 1337 (Ist
Cir. 1973), the court held. after its ruling on the merits described
above, 478 F.2d 875, that:
“Petitioners are not a public agency and are
legally responsible to no one but themselves. We
must satist¥ ourselves that the taxpayers’ money
will not be used to sappert needless or excessive
legal items... As attorneys tor involuntary
=> “The tae award need met be limited. however. to the amount
actuals paid er owed by appellants Ttomay well be that counsel
serve organizatons Tike appellants fer compensation below that
obtarnable ino the market because thes believe the organizations
further a public interest: Litigation ot this sort should not have to
rely on the chartty of counsel any more than it should rely on the
chants. of parties volunteering to serve as Private allorneys vener.al
The attorneys who worked on this case should be reimbursed the
tedsomable Value of their services. despite the absence of any
obheation on the partot appellants to pay attorneys tees Its
eur view that the award must go to counsel rather than to The
organizations which pat their salaries This is sound. whether
such organization is a titieating party ora public interest law fiom
wor detense tund and we revert to the possibility that the sain
they prestousiv teccived represented fess than they could have
earned oon the market oi the absence of then dedication to the
public interest” u thderness Society \ Morton, 498 b 2d 1026 at
tOR7 DIC Car 19a ° .
21
iA
chents, their fees may properly be less than those
they would have received by entering the market-
> place and selling their services to the private
chent Who would make the highest bid for them.”
In this suit’ against the Fnvironmental Protection Agency to
force implementation of the Clean Air. a “pro bono” reduced
rate of S30 an hour tor private counsel. and a pro rata share of
the salaries of statf counsel for the Natural Resources Defense
Council. Inc. were fixed. .
In the Second Circuit. without a written opinion, the same
formula was used in Hudson River Fishermen's Association \.
Federal Power Commission, F.2d (2d Cir.. 1974) (Docket
Numbers 73-2258 and 72:2259) (a suit under 16 U.S.C. 803(a)
and NEPA). The trial court in Sierra Club v. Linn, 364 F.
Supp. 834 (WD. Tex. San Antonio Div.. 1973). rv'd on other
grounds, 504 F.2d 43 (Sth Cir.. 1974), rehearing den. 504 F.2d
760 (Sth Cir.. Nov. 19. 1974, en banc). adopted the fee schedule
of the Criminal Justice Act. 18 U.S.C. 3006 A(d).
The only fully equitable test is not any one of these
formulae. Any equitable formula must be framed uniformly. It
should remain that which is reasonable in the circumstances
guided by the following considerations:
a. Market costs for attorneys’ fees (including — their
overhead) in the community where the forum is located.
b. The hours devoted by counsel: and any special skills
required. .
x’)
~~
¢ The tater value of para-legal assistance and overhead and
edpert witness and consultants services provided to make the
legal representation possible
do The services rendered. including counsels) success in
asserting different legal contentions, the relationship of those
contentions to the federal law etfectuated. and the benetits
conterred by enforcing the law.
POINT IV
FQUITY MAY AWARD ATTORNEYS’ FEES
AGAINST THE UNITED STATES AND ITS AGENCIES.”
The private attorney) general doctrine only achieves its
cotutable end of making the plainuff whole ttothe expenses and
attorneys’ fees canin tact be paid.
Where local government. e.g. Bradlex vo School Bd. of
Richmond, $3 F.R.D. 28 (E.D. Va. 1971). 472 F.2d SIR (4th
Cir.. 1972). vacated and remanded, 416 U.S. 696 (1974), or state
agencies. e.g. Wratrv. Stickney, 344 F. Supp. 387 (M.D. Ala.
1972) are sued. courts have taxed them to reimburse the private
attorney generais.
The instant case raises a tioubling aspect of how the
doctrine # to be applied. Alaska. an intervening defendant, had
not been found responsible tor frustrating federal law and was
Se Ut othas Court rules that oa Coutt setting ane at Gateest award: Counsel fees
saeerpest tho bart do States othe only remeds for the uncquity: which) results asa
nyresstenan amondreant to recognize the common Liw doctrine of the private attorney
general bor the teaseus here stated. further legislation is not requirca
23
not taxed. Alveska. similarly situated like Alaska. was taxed.
The United States Department of the Interior. whose officials
were deemed responsible for trustrating the federal policy. was
not taxed because of 28 U.S.C. $2412. .
However. equity is not served by a doctrine which unfairly
taxes private applicants which are nor tound to have unduly
influenced or caused the government officials’ improper acts. If
Alyeska is not to be taxed. is the United States immune as
assumed below? ’
La Raza Unida v. Volpe. 57 F.R.D. 94 (N.D. Cal. 1972),
escaped the dilemma raised here by taxing the State. In Sierra
Club v. Lynn, 364 F. Supp. 834 (W.D. Tex.. San Antonio Div..
1973) fees were assessed against the private developer and the
unfairness of this ruling caused its reversal on appeal, 504 F.2d
43 (Sth Cir.. 1974).
Where a federal defendant frustrates federal law. the award
of expenses under the private attorney general doctrine st:ould
be taxed against the United States. Although lower courts have
neglected serious study of 28 U.S.C. §2412. the equities of an
award in the instant case require review of the equitable grounds
for ruling that 28 U.S.C. §2412 is not a bar to an award.
The question of awarding attorneys’ fees against the United
States was but briefly considered by the Court below:
. Under 28 U.S.C. §2412, however. no
attorneys’ fees can be imposed against the U nited
States...“ 495 F.2d at 1036.
24
More consideration should) be given to ity) purpose: and
equitable aspects should be thoroughly examined.
, j
A. The History of 28 U.S.C. $2412 Shows No Restriction on
Equitable Exceptions to the “American Rule.”
Historically. the sovereign has been immune trom. suit.
Traditionally. with rare exceptions such as those now before this
Court. awards of attorneys’ fees in Federal courts have been
denied to successful litigants Le., the “American” rule.
Ax a matter of fairness. primarily for damage claims.
sovereign immunity was waived by’ Congress. However at the
time Congress waived immuady. it did not permit awards of tees
or costs. The ‘former statuteZ passed in 1948. read:
/
“tad Phe United States shall be lable tor
tees and) costs). only Mhen such lability ts
expressly provided tor by Act of Congress.”
(former 28 U.S.C. §2412. 62 Stat. 973} June 25,
1948). .
»
Inequality resulted. No award of costs could be had against
the United States, but. if successtul, the United States could be
awarded costs. :
So. in 1966. Congress amended §2412:
“Except as otherwise specifically provided by
Statute. a judgment for costs. as enumerated in
section 1920 of this title but not including the fees
25
and expenses of attorneys may be awarded to the
prevailing party in any civil action brought by or”
against the United States or official of the United
States acting in his official capacity. " any court
having jurisdiction of such act “ (PLL. &9-
S07. July 1X. 1966). aa .
The ‘purpose of this amendment was ultimate fairness: to
put the Wnited States on an equal footing with other litigants.
The purpose was not to prohibit attorneys’ fees in unusual
situations. because the “American” rule made it unnecessary for
Congress to examine awards of attorneys’ fees in suits for money
judgments in claims against the United States.
The legislative history of the 1966 amendment shows that
Congress’ desire for fairness Was a two-way street. Although the
reasons can be inferred. the legislative history does not explicitly
State Why awards of attornevs’ fees were in words. if not in
spirit . disallowed.
Senate Report No. 1329 speaks to the issue of fairness:
. [these bills] are intended to improve
the procedures for disposition of claims by and
against the.Government. These four bills have the
common purpose of amending the law to
incorporate features which will provide for a
more fair and equitable treatment for the private
individual or claimant when he must deal with
the Government.
26
. \
: “this bill will provide for unitermity of /
treatment in the award of costs. Apparently the
present inequality is related to a governmental
advantage derived from the principle favoring
immunity of the sovereign from. suit. Under
modern conditions, there ts no reason for this
te advantage when the law provides for suit against
the Government.” 1966 U.S. Code Cong. &
Admin. News 2527 at 2528.(Emphasis supplied.)
Although the Report said that there was no change as to
attorneys’ fees, this was probably because Congress knew that
the “American rule” applied generally.and there was no need to
reconsider it or its equitable exceptions. Fairness to litigants
with money claims against the United States was the only issue.
How often. if ever. could a Sprague v. Ticonic National Bank,
307 U.S. 161 (1939) fund situation be anticipated in government
litigation? Suits customarily had been for damages: judicial
recognition of non-econonmic interests sufficient to confer
standing to sue remained several years away. Congress
understandably had no occasion to probe the matter deeply.
In short. it appears that Congress simply sought to codify
the common law rule on attorneys’ fees. including its several
equitable exceptions. Congress did not abridge the Court's
authority to award attorneys’ fees in equity proceedings.
28 U.S.C. §2412 has not been a complete bar to awards of
attorneys’ fees, Thorn vy. Richardson, 4 C.C.H. Employment
Practices Decisions. Para. 7630. at 5489-5492 (W.D. Wash..
Dec. 10. 1971). The evolution of §2412 was also noted in dicta in
27
Natural) Resources Defense Council. Inc \. Environmental
Protection Agency, 484 b.2d 1331. at 1335. note 3 (ist Cir.
1973):
“The iegisiative history provides no clues
concerning Congress’ reasons — for broadly
excluding awards of attorneys’ fees. Such a result
might seem to be inconsistent with the express
desire to eliminate the ‘unfair’ advantage
Possessed by the United States by virtue of its
sovereign immunity. At the time of the
enactment. however. the award of fees was still
rare in American law and was often disfavored
by the courts. See, e.g., Fleischmann Distilling
Corp. v. Maier Brewing Co., 386 U.S. 714.87 8
Ct. 1404. 18 1. Ed. 2d 475 (1967). The omission
may simply have been a reflection of the
prevailing American rule. preserving to Congress
the option of reversing the rule when justice
required.”
The First Circuit had no need further to consider §2412. for it
found the necessary Congressional authorization for fees in the
Clean Air Act itself. By analogy. unless expressly curbed by
Congress. comparable authorization persists in equity. Cf. The
similar construction discussed in Pyramid Lake Paiute Tribe v.
Morton, 360 F. Supp. 669. 670-71 (D.D.C.. 1973).
B. The Court’s Equitable Power Permits Awards of Attorneys”
Fees Against the United States.
Equity has the power to promote the fairness suggested by
the legislative history of 28 USC. $2412 in accordance with the
development of the common law awards yf attorneys’ fees under
such equitable exceptions to the “American Rule” as the private
attorney general doctrine.
Courts of equity have broad jurisdiction to make and
enforce orders to protect the public interest and effectuate
statutory. purposes. As stated in Mitchell v. DeMario Jewelry,
36 U.S. 288 (1960):
“ [Congress] must be taken to have acted
cognizant of the historic power of equity
provide complete relief in light of the statutory
purposes. As this Court long ago recognized.
‘there is inherent in the Courts of Equity a
jurisdiction to... give effect to the policy of the
legislature’ Clark vo Smith, 13 Pet. 195, 203."
Pe
This Court has declined to find that Congress restricts equity
authority by implication. Renegotiation Bord vy. Bannercraft
Clothing, 42 U.S.1L.W. 4203 (1974). See also Porter ve Warner
Co., 328 US. 395 (1946).-° ,
This Courts “equitable pursdiction is net te be denied of limited in the absence
toa lear and valid legelatne command Uniess a statute in se many words. or bs
necessary and inescapable inference restricts the courts purisdiction in equity. the full
sope of that jursdichhon is to be recognized and apphed 7 Porton. Warner Holding
Co. WIS ES F9S at 39s (1946) femphast: added) Ni issuc of Course. is whether the
“legislative Command” of 92312 included the equitable exceptions to the American Rule
29
A question of Matutory interpretaion of intent arose in
Beeler. Naphiali, 169 US. 353 (1898).- There. this Court
construed: a statute in accord with what it believed had been
Congressional intent:
‘ “The Net of Congress should not. be so
construcd-as to except from its reniedial powers
those Who Were without an actual grant while at
the same time filling every other requirement of
the Act. unless the language of the Act is open to
no other interpretation. .
“Such a construction ought to. be put upon”
a statute ay will hest answer the intention which
the’ makers had in’ view. (Emphasis
supplied.) Cf Mills vy. Electric Auto-Lite Co. %
US. 375 (1970F.
See alse The Allocation of Atrorners’ Fees afier Mills \. Elecirn
Auto-L ite Comm 38 VU Chic. 1. Rev. 316 (1971),
In the case of $2412. the intention Was fairness. It was
expressed in the best) manner Congress knew at the time
Furthering that intention means that the “American” rule. as it
develops with its equitable exceptions. is to be applied in actions
involving the United States and its agencies.
The situation is analogous to Civil Rights Act and Clean
Air Act rulings. where the courts tound a basis tor assessing
attorneys’ fees against Um United States without express
Provision in the statutes. Here. where a citizen's * concrete
30
adverseness”** gives him standing to sue and he satisfies the
private attorney general elements, equity should also embrace an
award against the United States. The United States and its
agencies are subject to a court's equitable injunctive orders. They
are likewise subject to equitable awards of attorneys’ tees.
DS Flase \) Cohen. supra
at
CONCLUSION
as . .
ie This Court: should srecognize and delineate the private
attorney general doctrine as set forth above. and the doctrine
should be deemed applicable to environmental litigation.
It is inherently unfair to burden a private attorney general
for successfully effectuating a Congressional policy without
reimbursing him for his attorneys’ fees and‘other expenses. It ts
similarly unfair to assess fees Wholly against a private party
when a federal official is at fault. The fees should be assessed
against the United States as well.
Dated: New York. New York
January 6, 1974
Respectfully submitted.
June Resnick German
Haynes N. Johnson
Nicholas A. Robinson
Attorneys for the Amicus Curiae
Association of the Bar of
The City of New York
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.