ELR Citation: ELR 20267
No(s). 73-1506 (E.D. Pa. Dec 30, 1982)

The court denies plaintiffs' request under §304 of the Clean Air Act for attorney fees in litigation over construction of Interstate 95 through Philadelphia. First, the court holds that the 1970 version of the Act governs. Plaintiffs brought suit and obtained a consent decree prior to the 1977 amendments to the Act. The legislative history gives no indication that Congress intended to apply the 1977 amendments to §304 retroactively. Next, the court rules that plaintiffs are not entitled to attorney fees under §304, because as managers of highways, an indirect source of pollution, defendants are not polluters within the meaning of the 1970 version of §304. The court finds that plaintiffs are not entitled to recover attorney fees from state and city defendants under common-law exceptions to the American rule, which requires all parties to pay their own costs. Although plaintiffs are prevailing parties, the common benefit exception is inapplicable because only a small class of city and state residents directly benefited from the litigation. Finally, the court holds that the bad-faith exception does not apply because defendants did not act obdurately or in bad faith during prelitigation proceedings.

Counsel for Plaintiffs
Edward N. Dunham Jr.
Spector, Cohen, Gadon & Rosen
1700 Market St., 29th Floor, Philadelphia PA 19103
(215) 241-8888

Jane B. Porcelan
Obermayer, Rebmann, Maxwell & Hippel
14th Floor, Packard Bldg., Philadelphia PA 19102
(215) 665-3000

Counsel for Defendants
Robert H. Raymond, Ass't Attorney General
Dep't of Transportation, Harrisburg PA 17120
(717) 787-2330