ELR Citation: ELR 20279
No(s). 72-1796 et al (D.C. Cir. Apr 4, 1974)

The U.S. Court of Appeals for the District of Columbia Circuit, in a 4-3 decision written by Judge Wright, holds that plaintiffs in the Alaska pipeline litigation are entitled to an award of attorney fees against the private oil pipeline company defendant. Plaintiffs' posture in enforcing the right of way width limitation of §28 of the Mineral Leasing Act of 1920 and the provisions of NEPA cast them in the role of private attorneys general, and this case thus fits one of the equitable exceptions to the traditional American rule barring awards of attorney fees to successful litigants.The court finds that plaintiffs succeeded on their claims under both the Mineral Leasing Act and NEPA, even though the NEPA issues, on which the district court had ruled against plaintiffs, were left undecided by this court. Plaintiffs' claims and the litigation arising from them stimulated Congress to amend the Mineral Leasing Act by increasing the width limitation and adding provisions protective of the environment, and forced the preparation of a NEPA impact statement which Congress then deemed adequate. Because the federal government and the oil pipeline company were the two main participating defendants, the court rules that the pipeline company must pay half of plaintiffs' attorney fees; the other half is properly allocated to the government, and, due to the statutory bar prohibiting such awards against the government, must be assumed by the plaintiffs. The court remands the case to the district court for a determination of the amount of the award, noting, by way of direction, that the award should constitute the reasonable value of the attorneys' services, despite the fact that the attorneys may have agreed to serve plaintiffs for compensation below that obtainable in the marketplace.

In sharply worded dissents, Judges MacKinnon and Wilkey dispute the majority's assumptions that plaintiffs were successful on their NEPA claims, and that they were acting as private attorneys general by enforcing important legislative policies. The dissenters assert that, on the contrary, the action of Congress in foreclosing further judicial review under NEPA clearly shows that plaintiffs were not successful on their NEPA claims. In addition, plaintiffs do not fit the role of private attorneys general since, rather than vindicating congressional policies, their litigation has served to obstruct and delay attainment of the national policy goal of self-sufficiency in energy production. The award of attorney fees is therefore unjustified and, the dissenters contend, unwise, since it will encourage ill-founded litigation tending to harm rather than promote the public interest.

For earlier opinions of this court and of the district court in this case, see 3 ELR 20085, 2 ELR 20583, 2 ELR 20250, and 1 ELR 20042.

Counsel for Plaintiffs
Dennis M. Flannery
Center for Law and Social Policy
1751 N Street, NW
Washington, DC 20036

John F. Dienelt
1525 18th Street, NW
Washington, DC 20036

Counsel for Defendants
Herbert Pittle
Edmund B. Clark
Department of Justice
Washington, DC 20530

Paul F. Mickey
Robert E. Jordan III
Steptoe & Johnson
1250 Connecticut Avenue, NW
Washington, DC 20036

Theodore L. Garrett, Attorney General
William H. Allen
Richard D. Copaken
Juneau, AK 99801