Sierra Club v. EPA: Is Changing the American Rule for Attorneys’ Fees Unamerican? The Debate on Congressional Fee-Shifting Statutes

Comment By: Kelly L. Jones, JNREL Vol. 18, No. 2

Abstract By: Zach Greer, Staff Member

The traditional American rule for awarding attorneys' fees to litigants is that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). This rule's rationale is rooted in fairness, meaning that a defendant should not be financially responsible for a plaintiff's unsuccessful lawsuit. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). However, there are currently more than 150 congressional fee-shifting statutes (i.e., exceptions) that do not adhere to the American rule. Ruckelshaus, 463 U.S. at 684.

This comment focuses on environmental fee-shifting statutes (e.g., Clean Air Act) that permit courts to award attorneys' fees "whenever appropriate." Loggerhead Turtle v. Volusia County, 307 F.3d 1318, 1322-23 (11th Cir. 2002). More specifically, Ms. Jones analyzes a crucial United States Court of Appeals for the District of Columbia Circuit opinion, Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), and discusses this opinion's significance and its impact on congressional fee-shifting statutes and their viability.

In Sierra, the court held that the catalyst theory, "plaintiffs can recover attorneys' fees if they 'obtain, through settlement or otherwise, substantial relief prior to adjudication on the merits,'" still applied to the Clean Air Act ("CAA"). Sierra Club, 322 F.3d at 719. Guided by a prior United States Supreme Court case, the Sierra Court reasoned that "Congress found it necessary to explicitly state that the term appropriate 'extended' to suits that forced defendants to abandon illegal conduct, although without a formal court order." Sierra, 322 F.3d at 722. At least with regard to the CAA, the Sierra Court resurrected the catalyst theory and permitted courts to award attorneys' fees based upon fee-shifting statutes that contained the language "whenever appropriate." Id. at 719.

Through her analysis, Ms. Jones shows how practical and advantageous the catalyst theory for awarding attorneys' fees is and further argues that this theory, combined with citizen suits that are encouraged by these congressional fee-shifting statutes, "ensure environmental compliance."