ELR Citation: ELR 20286
No(s). 73-1977 (U.S. May 12, 1975)

The Supreme Court reverses a ruling by the D.C. Circuit Court of Appeals that the environmentalist plaintiffs in the litigation surrounding construction of the Trans-Alaska Oil Pipeline are entitled to an award of attorney fees against the oil company consortium that intervened as a defendant. The circuit court was mistaken in awarding attorney fees in the absence of statutory authorization on the ground that plaintiffs acted as "private attorneys general" in enforcing NEPA and the Mineral Leasing Act of 1920. Only Congress, not the courts, can authorize such a far-reaching exception to the general American Rule against the recovery of attorney fees by the prevailing party in federal litigation. It is up to Congress to determine which statutes embody such important public policies that awards of attorney fees should be provided as an incentive for citizen enforcement by including specific provisions for such awards in those statutes. For the courts to make such determinations on their own under the rubric of the private attorney general theory is impermissible.

In dissent, Justice Marshall argues that the majority's imposition of an absolute bar on the use of the private attorney general rationale as a basis for equitable attorney fee awards takes an extremely narrow view of the inherent equitable powers of the courts in this area and flies in the face of the high court's prior decisions relating to this issue. For the circuit court's opinion, see 4 ELR 20279. See also Comment, Supreme Court Faces Thorny Issue of Attorneys' Fees in Environmental Suits, 4 ELR 10189 (Dec. 1974).

Counsel for Petitioner
Robert E. Jordan III
Steptoe & Johnson
1250 Connecticut Ave., NW
Washington, DC 20036

Counsel for Respondents
Dennis M. Flannery
Wilmer, Cutler & Pickering
1666 K Street, NW
Washington, DC 20006

MR. JUSTICE DOUGLAS and MR. JUSTICE POWELL took no part in the consideration or decision of this case.