Fee-Shifting Ruling Encourages Intervention In Clean Air Challenges

D.C. Circuit awards attorneys' fees to intervenors whose issues were not addressed in and whose participation had no effect on the litigation.

On December 20, 2011, the U.S. Court of Appeals for the D.C. Circuit expanded fee-shifting incentives for parties that intervene in challenges to Clean Air Act rules issued by the Environmental Protection Agency (EPA). The novel ruling may encourage state and local governments, environmental groups, and many others to intervene in future EPA cases, with the expectation of a "free ride."

Under Section 307(f) of the Clean Air Act, courts may award reasonable attorneys' fees "whenever . . . such award is appropriate." One need not be a "prevailing party" to trigger fee shifting, but prior cases awarded fees only to parties that contributed to the "proper implementation and administration of the Act" by playing "a significant role in the litigation."

In State of New Jersey v. EPA, Native American tribes (Tribes) sought more than $300,000 in fees for intervening in a challenge to EPA rules regulating mercury emissions from power plants. Based on the arguments advanced by petitioners—states and environmental groups—the D.C. Circuit vacated EPA's rules in 2008. The separate arguments advanced by the Tribes as intervenors were never considered by the court and had no effect on the litigation.

EPA opposed the Tribes' request for attorney's fees, emphasizing that their intervention did not affect the outcome of the case. But the D.C. Circuit, in a 2-1 decision, ruled that EPA's approach "would discourage interventions that play a useful role."

Although the Tribe's participation admittedly played no role at all in the litigation, the court embraced a Ninth Circuit fee-shifting decision: "It is usually impossible to determine in advance . . . which issues will be reached or which parties will play pivotal roles in the . . . litigation. To retrospectively deny attorneys' fees because an issue is not considered or because a party's participation proves unnecessary would have the effect of discouraging the intervention of what in future cases may be essential parties." Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1349 (9th Cir. 1980), aff'd on other grounds, 458 U.S. 457 (1982). The court's expansive view of fee...