ELR Citation: ELR 20352
No(s). 83-1766 (6th Cir. Jan 27, 1986)

The court rules that attorney fees are available under §304(d) of the Clean Air Act to persons intervening in government enforcement actions only where the government is not diligently prosecuting the action. Appellant National Resources Defense Council (NRDC) had intervened in the federal enforcement proceedings against defendant after NRDC learned that defendant was out of compliance with a consent decree entered in the suit. Before NRDC's motion to intervene was granted, the federal government filed a motion to enforce the decree and for civil contempt. NRDC subsequently filed a brief in support of the government's motion. The district court denied NRDC's application for attorney fees and the court affirms, ruling that the language of §304(d) clearly limits attorney fees to suits initiated by citizens under §304(a). Actions initiated by intervenors under §304(b) may only be reimbursed if the government is not diligently prosecuting the case, which allows the intervenor to become the de facto plaintiff. Both courts refused to use the discretion granted to them by §304(d).

Counsel for Plaintiff
Pamela J. Thompson
913 Federal Bldg., 231 W. Lafayette, Detroit MI 48226
(313) 226-7715

Counsel for Intervenor-Appellant
David Hawkins
Natural Resources Defense Council
1350 New York Ave. NW, Suite 300, Washington DC 20005
(202) 783-7800

Counsel for Defendant-Appellee
Chester Babst III
Thorp, Reed & Armstrong
1667 K St. NW, Suite 700, Washington DC 20006
(202) 857-3700

Before: ENGEL, KRUPANSKY, and MILBURN, Circuit Judges.