ELR Citation: ELR 20960
No(s). s. 84-5566 et al (D.C. Cir. Sep 12, 1986)

The court rules that it is not appropriate under Federal Water Pollution Control Act (FWPCA) §505(d) to require industry intervenors to pay the attorney fees of an environmental group that successfully defended an industry attack against a settlement agreement with the government, if the industry took a position that reasonably attempted to advance FWPCA implementation. The Natural Resources Defense Council, Inc. (NRDC) had entered into a settlement agreement with the Environmental Protection Agency concerning FWPCA's toxic pollutant control provisions.

The court first observes that unless Congress has expressly authorized a court to shift the cost of attorney fees, each party is generally expected to pay its own attorney, and then notes that had the NRDC prevailed against the government an award of attorney fees would have been appropriate under FWPCA §505(d). The court then rules that an award of fees against a private party is not appropriate if the party took a position that reasonably attempted to implement the FWPCA, applying its decision under Clean Air Act §307(f) on the same issue. Finally, the court holds that industry intervenors took such a position.

[Related opinions are published at 5 ELR 20578, 6 ELR 20588, 7 ELR 20547, 8 ELR 20881, 9 ELR 20176, 10 ELR 20803, 12 ELR 20371, 12 ELR 20570, and 13 ELR 20975. The lower court decision appears at 15 ELR 20382. For analysis of issues raised, see Comment, Who Pays for Litigation: Recent Developments in Attorneys Fees Law, 15 ELR 10348 (Nov. 1985).]

Counsel for Appellant
Ronald J. Wilson
Natural Resources Defense Council, Inc.
1350 New York Ave., Washington DC 20005
(202) 783-7800

Counsel for Appellees
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Ellen J. Durkee, Robert J. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3888

Before: ROBINSON, EDWARDS, and SCALIA, Circuit Judges.