IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 98-15788
______________________________________
MARBLED MURRELET, et al.,
Plaintiffs-Appellees,
v.
THE PACIFIC LUMBER COMPANY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the Northern District of California
Honorable Louis C. Bechtle
_______________________________________
AMICI CURIAE BRIEF OF SIERRA CLUB, NATURAL RESOURCES DEFENSE COUNCIL, DEFENDERS OF WILDLIFE, SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, BIODIVERSITY LEGAL FOUNDATION, CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, WASHINGTON PUBLIC INTEREST RESEARCH GROUP, OREGON STATE PUBLIC INTEREST RESEARCH GROUP, TRIAL LAWYERS FOR PUBLIC JUSTICE, CALIFORNIA ENVIRONMENTAL LAW PROJECT, AND CITIZENS FOR A BETTER ENVIRONMENT IN SUPPORT OF PLAINTIFFS-APPELLEES
JAMES M. HECKER
MARK WENZLER
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Counsel for Amici Curiae Sierra Club, et al.
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici certify that they are all non-profit corporations with no parent companies, subsidiaries, or affiliates that have issued shares to the public.
___________________________________
James M. Hecker
Counsel for Amici Curiae Sierra Club, et al.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
IDENTITY AND INTEREST OF THE AMICI
I. PREVAILING DEFENDANTS MAY ONLY RECEIVE
FEES AND COSTS IF A CITIZEN PLAINTIFF'S
SUIT WAS FRIVOLOUS OR HARASSING.. . . . . . . . . . . . . . . . . . . . . . . .7
II. THE LEGISLATIVE HISTORY OF THE ESA AND OTHER
ENVIRONMENTAL CITIZEN SUIT PROVISIONS SHOWS
THAT CONGRESS INTENDED THAT THERE BE A MORE
STRINGENT STANDARD FOR THE RECOVERY OF
ATTORNEY FEES BY PREVAILING DEFENDANTS.. . . . . . . . . . . . . .15
1. Clean Air Act of 1970. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
2. Federal Water Pollution Control Act Amendments of 1972. . . . . . . 19
3. Marine Protection, Research, and Sanctuaries Act of 1972. . . . . . . .20
4. Endangered Species Act of 1973. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Safe Drinking Water Act of 1973. . . . . . . . . . . . . . . . . . . . . . . . . . . .21
6. Toxic Substances Control Act of 1976. . . . . . . . . . . . . . . . . . . . . . . .22
7. Surface Mining Control and Reclamation Act of 1977. . . . . . . . . . . 23
8. CERCLA Amendments of 1986. . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
III. THE USE OF A "FRIVOLOUS OR HARASSING" STANDARD
IS NECESSARY TO PRESERVE THE PURPOSE
AND EFFECTIVENESS OF CITIZEN SUITS.. . . . . . . . . . . . . . . . . . . . . 28
TABLE OF AUTHORITIES
CASES
Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C. Cir. 1982). . . . . . . . . . . . . . . .27
Arkansas Wildlife Federation v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Atlantic States Legal Foundation v. Arrow Transportation Co.,
Civil No. 95-147-HA (D. Ore., Jan. 27, 1997). . . . . . . . . . . . . . . . . . . . . . . .8
Atlantic States Legal Foundation v. Onondaga Department of Drainage and Sanitation, 899 F. Supp. 84 (N.D.N.Y. 1995). . . . . . . . . . . . . . . . . . . . . . . . .9
Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128 (11th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3rd Cir. 1979). . . . . . . . . . 29
Bennett v. Spear, 117 S.Ct. 1154 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-15
California Public Interest Research Group v. Shell Oil Co.,
840 F. Supp. 712 (N.D. Cal. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976). . . . . . . . . . . . . . . . .25
Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440 (D. Md. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . 7, 10-13
City of Burlington v. Dague, 505 U.S. 557 (1992). . . . . . . . . . . . . . . . . . . . . . . . .27
Conservation Law Foundation v. Browner, 840 F. Supp. 171 (D. Mass. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Consolidated Edison Co. v. Realty Investment Assoc., 524 F. Supp. 150 (S.D. N.Y. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997). . . . . . . . . . . . .4
Environmental Compliance Oversight Corp. v. SmithKline Beecham Corp.,
1994 WL 675297 (E.D. Pa., Nov. 21, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .9
Environmental Defense Fund, Inc. v. EPA, 716 F.2d 915 (D.C. Cir. 1983). . . . . 27
Fogerty v. Fantasy, Inc., 114 S.Ct. 1023 (1994). . . . . . . . . . . . . . . . . . .7, 10, 12, 13
Friends of the Earth v. Carey, 535 F.2d 165 (2nd Cir. 1976). . . . . . . . . . . . . . . . .31
Friends of the Earth v. Chevron Chemical Co., 885 F. Supp. 934 (E.D. Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Friends of the Earth v. Eastman Kodak Co., 834 F.2d 295 (2nd Cir. 1987) . . . . . .27
Gardeski v. Colonial Sand & Stone Co., Inc., 501 F.Supp. 1159 (S.D.N.Y. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Hensley v. Eckerhart, 461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989). . . . . .7
National Audubon Society v. Babbitt, No. CV 94-0105-GT (S.D. Cal., Dec. 15, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 8
National Wildlife Federation v. Consumers Power Co., 729 F. Supp. 62 (W.D. Mich. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 29
Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400 (1968). . . . . . . . . . . . . . . 23
NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . . .17, 18, 31
Orchard Lane Road Association v. Pete Lien & Sons, Inc.,
16 F.3d 416 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Painewebber Income Prop. v. Mobil Oil, 916 F.Supp. 1239 (M.D. Fla. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Palumbo v. Waste Technologies Industries, 37 F.3d 1495 (4th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 27
Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 12
Pierce v. Underwood, 487 U.S. 552 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27
Razore v. Tulalip Tribes of Washington, 66 F.3d 236 (9th Cir. 1995). . . . . . . .8, 13
Richardson v. Hotel Corporation of America, 332 F.Supp. 519 (E.D. La. 1971), aff’d 468 F.2d 951 (5th Cir. 1972). . . . . . . . . . . . . . . . 23, 25
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983). . . . . . . . . . . . . . . . . 2, 10, 14, 16
Shelley v. Kramer, 334 U.S. 1 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir. 1987). . . . . . . 30, 31
Sierra Club v. Public Service Co. of Colorado, 894 F.Supp. 1455 (D. Colo. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Sierra Club v. SCM Corp., Civ-82-1076T (W.D. N.Y. 1985). . . . . . . . . . . . . . . . . 9
Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State of Illinois v. Coleman, 645 F.Supp. 1 (D. D.C. 1985). . . . . . . . . . . . . . . . . .28
Truck Components Inc v. Beatrice Co., 1996 U.S. App. LEXIS 9946
(N.D. Ill., July 15, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 27
United States Steel Corp. v. United States, 385 F.Supp. 346 (W.D. Pa. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25
Village of Kaktovik v. Watt, 689 F.2d 222 (D.C. Cir. 1982). . . . . . . . . . . . . . . . .21
Washington Public Interest Research Group v. Pendleton Woolen Mills,
11 F.3d 883 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Washington Trout v. Scab Rock Feeders, 823 F. Supp. 819 (E.D. Wash. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975). . . . . . . . . . . . . .25
STATUTES
15 U.S.C. § 2618(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
16 U.S.C. § 1531(b)
16 U.S.C. § 1540(g)(4)
30 U.S.C. § 1270(d)
33 U.S.C. § 1365(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 19
33 U.S.C. § 1415(g)(4)
42 U.S.C. 7604(d)
42 U.S.C. § 11046(f)
42 U.S.C. § 300j-8(d)
42 U.S.C. § 6972(e)
42 U.S.C. § 9659(f)
LEGISLATIVE MATERIALS
122 Cong. Rec. 8300 (March 26, 1976)
136 Cong. Rec. 5286 (March 26, 1990)
1972 U.S. Code Cong. & Admin. News 4234
H. Rep. No. 218, 95th Cong., 1st Sess. 90 (1977)
H. Rep. No. 412, 93d Cong., 1st Sess. 19 (1973)
S. Rep. No. 11, 99th Cong., 1st Sess. 63 (1985)
S. Rep. No. 1196, 91st Cong., 2d sess. 36-39; Leg. Hist. 436-39
S. Rep. No. 128, 95th Cong. 1st Sess. 88 (1977)
S. Rep. No. 231, 93rd Cong., 1st Sess.
S. Rep. No. 414, 92nd Cong., 1st Sess. 81 (1971)
S. Rep. No. 451, 92d Congress, 2d session (1972)
S. Rep. No. 50, 99th Cong., 1st Sess. 28 (1985)
S. Rep. No. 698, 94th Cong., 2nd Sess. 9 (1976)
OTHER MATERIALS
EPA, SAB, Reducing Risk: Setting Priorities and Strategies for Environmental
Protection 11 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
IDENTITY AND INTEREST OF THE AMICI
Sierra Club, Natural Resources Defense Council, Defenders of Wildlife,
Southwest Center for Biological Diversity, Biodiversity Legal Foundation,
California Public Interest Research Group, Washington Public Interest Research
Group, Oregon State Public Interest Research Group, Trial Lawyers for Public
Justice, California Environmental Law Project, and Citizens for a Better
Environment submit this amici curiae brief in support of Appellees, Marbled
Murrelet (Brachyramphus marmoratus), Northern Spotted Owl (Strix occidentals
caurina), and the Environmental Protection Information Center, Inc. (EPIC).
Pacific Lumber Company’s (PL’s) request for an award of attorneys' fees and
expenses in this case is extraordinary and unprecedented. PL seeks to overturn the
well-established and stringent standard for awarding costs and fees to prevailing
defendants and to apply the much more lenient standard for prevailing plaintiffs.
To our knowledge, no court anywhere in the country has ever applied this standard
to prevailing defendants under any federal environmental statute.
If PL's motion were granted, it would have a chilling effect not only on the plaintiff in this case but on citizen plaintiffs throughout the country. EPIC brought this citizen suit solely in the public interest, with no expectation of any financial gain. Congress has encouraged private citizens such as EPIC to participate in the vigorous enforcement of federal law by including citizen suit provisions in the Endangered Species Act (ESA) and many other environmental statutes. The purpose and effectiveness of these citizen suits would be severely undermined if citizen plaintiffs faced the prospect of paying enormous fees and costs whenever a citizen suit was unsuccessful.
The amici represented here frequently bring citizen suits to deter violators
and enforce compliance with federal environmental requirements. Nearly all of
these suits are brought under the citizen suit provisions of the ESA, Clean Water
Act (CWA), Clean Air Act (CAA), Resource Conservation and Recovery Act
(RCRA), Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), and Emergency Planning and Community Right-to-Know Act
(EPCRA). The fee-shifting provisions of these statutes are nearly identical.
It is
therefore of enormous importance that this Court apply the correct standard for
evaluating fee awards in this case.
The eleven organizations submitting this brief have a direct and substantial interest in enforcing federal environmental laws, and in the interpretation of the citizen suit provisions of those laws. The Sierra Club is a national non-profit organization of over 525,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth's ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club frequently files citizen suits to stop activities that violate federal environmental laws and cause harm to the natural environment.
The Natural Resources Defense Council, Inc. (NRDC) is a national, non-profit environmental law organization with approximately 350,000 members nationwide. For over 25 years, NRDC has successfully advocated and litigated concerning a broad range of environmental matters, including wildlife preservation, open-space protection, and land use. NRDC and its members have a direct and immediate interest in the enforcement of federal environmental laws through the citizen suit provisions.
Defenders of Wildlife (Defenders) is a non-profit corporation with over 200,000 members and supporters. Defenders is dedicated to preserving wildlife and emphasizing appreciation and protection for all species, including predators, in their ecological role within the natural environment. Defenders furthers its goals by public outreach, grassroots organizing, government lobbying, and forging partnerships with citizen and industry groups, but often must utilize the citizen suit provisions of the ESA to force protection of imperilled species. See, e.g., Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997).
The Southwest Center for Biological Diversity is a nonprofit environmental organization incorporated in New Mexico which conducts endangered species research and litigation to protect biological diversity in New Mexico, Arizona, and California. It has approximately 4,000 members in these three states. It has brought citizen suits under the ESA to enforce that statute. E.g., Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996).
The Biodiversity Legal Foundation (BLF) is a science-based, non-profit conservation organization dedicated to the preservation of all native wild plants and animals, communities, species and naturally-functionally ecosystems. Through educational, administrative and legal action, the BLF endeavors to encourage improved attitudes and policies for all living things.
California Public Interest Research Group, Washington Public Interest Research Group and Oregon State Public Interest Research Group are non-profit citizen advocacy groups that work, inter alia, to protect public health and the environment, such as by filing citizen suits. See, e.g., California Public Interest Research Group v. Shell Oil Co., 840 F. Supp. 712 (N.D. Cal. 1993); Washington Public Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993).
Trial Lawyers for Public Justice (TLPJ) is a national public interest law firm based in Washington, D.C. and specializing in precedent-setting and socially significant tort, trial and environmental litigation. TLPJ's Environmental Enforcement Project uses citizen suits to enforce compliance with federal environmental laws, including the CWA, CAA, CERCLA, and EPCRA. See, e.g., Arkansas Wildlife Federation v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992).
The California Environmental Law Project (CELP) is a not-for-profit corporation organized under the laws of California. CELP's purpose is to provide legal services to grass roots and established environmental organizations in order to promote preservation, maintenance, and enhancement of ecosystems and wildlife habitats unique to California. Its work frequently involves issues relating to the National Environmental Policy Act, the ESA, and the Clean Water Act. CELP has successfully defended an attorneys' fees request by a prevailing defendant in an ESA citizen suit. National Audubon Society v. Babbitt, No. CV 94-0105-GT (S.D. Cal., Dec. 15, 1994).
Citizens for a Better Environment (CBE) is a Midwest-based, non-profit organization that for the past 27 years has worked to prevent and fight environmental health threats through research, advocacy, public education and citizen empowerment. CBE has offices in Illinois, Wisconsin and Minnesota and approximately 25,000 members in these three states. CBE uses citizen suits to enforce compliance with federal environmental laws, including the CWA, CAA, RCRA and EPCRA. See, e.g., Steel Co. v. CBE, 118 S.Ct. 1003 (1998).
I. PREVAILING DEFENDANTS MAY ONLY RECEIVE
FEES AND COSTS IF A CITIZEN PLAINTIFF'S
SUIT WAS FRIVOLOUS OR HARASSING.
Prevailing defendants may only receive fee awards in highly restricted
circumstances. The seminal case on this issue is Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978), in which the Supreme Court held that while
prevailing plaintiffs in Title VII cases "should ordinarily recover an attorney's
fee," prevailing defendants in such cases may recover fees only if they can show
that "plaintiff's action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith."
The Court later explained in Fogerty
v. Fantasy, Inc., 114 S.Ct. 1023, 1028 (1994), that it adopted this "dual" standard
in Christiansburg because:
impecunious "private attorney general" plaintiffs can ill afford to litigate their claims against defendants with more resources. Congress sought to redress this balance in part, and to provide incentives for the bringing of meritorious lawsuits, by treating successful plaintiffs more favorably than successful defendants in terms of the award of attorney's fees.
This Court has squarely held that this Christiansburg standard applies to fee awards to prevailing defendants in citizen suits under RCRA and the CWA. Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995). The fee provision in those statutes is essentially the same as the one in the ESA, and must be interpreted in the same manner. Pierce v. Underwood, 487 U.S. 552, 567 (1988). Razore is therefore the controlling precedent in this case.
In addition to Razore and the district court below, every other court in the
country which has considered a fee request by a prevailing defendant in a citizen
suit has applied the same stringent standard and denied a fee award. One district
court applied a "frivolous or bad faith" standard to an ESA citizen suit and denied
defendant's fee request. National Audubon Society v. Babbitt, Case No. CV 94-0105-GT (S.D. Cal., Dec. 15, 1994).
Five district courts have applied a
"frivolous" or "meritless" standard and have uniformly denied requests by
prevailing defendants for fees and costs in citizen suits under the Clean Water Act.
Atlantic States Legal Foundation v. Arrow Transportation Co., Civil No. 95-147-HA (D. Ore., Jan. 27, 1997); Atlantic States Legal Foundation v. Onondaga
Department of Drainage and Sanitation, 899 F. Supp. 84, 87 (N.D.N.Y. 1995);
Washington Trout v. Scab Rock Feeders, 823 F. Supp. 819, 821 (E.D. Wash.
1993); National Wildlife Federation v. Consumers Power Co., 729 F. Supp. 62, 64
(W.D. Mich. 1989); Sierra Club v. SCM Corp., Civ-82-1076T (W.D. N.Y. 1985).
A district court has applied a "frivolous or harassing" standard and denied a
request for a prevailing defendant in a citizen suit under the Clean Air Act.
Consolidated Edison Co. v. Realty Investment Assoc., 524 F. Supp. 150, 153 (S.D.
N.Y. 1981). Four courts have denied fees to prevailing defendants in RCRA
citizen suits based on findings that the suits were not frivolous. Orchard Lane
Road Association v. Pete Lien & Sons, Inc., 16 F.3d 416, 1994 U.S. App. LEXIS
1508, 24 ELR 20804 (10th Cir. 1994); Palumbo v. Waste Technologies Industries,
37 F.3d 1495, 1994 U.S. App. LEXIS 29355 (4th Cir. 1994); Truck Components
Inc v. Beatrice Co., 1996 U.S. App. LEXIS 9946 (N.D. Ill., July 15, 1996);
Environmental Compliance Oversight Corp. v. SmithKline Beecham Corp., 1994
WL 675297 (E.D. Pa., Nov. 21, 1994). In sum, PL has not cited, and we have not
found, a single case awarding fees to a prevailing defendant under the citizen suit
provisions of any federal environmental statutes.
As a result, PL’s entire argument is reduced to the claim that the ESA is not like the Clean Water Act or RCRA, and is more like statutes which apply an evenhanded standard for fees, such as the Copyright Act. In the Fogerty case, the Supreme Court held that the dual standard from Christiansburg does not apply to prevailing defendants under the Copyright Act. Instead, it applied an “evenhanded” standard which treats prevailing plaintiffs and defendants the same for fee purposes.
The ESA is not like the Copyright Act. The ESA contains a citizen suit provision authorizing affected citizens to enforce its requirements for species protection. The Copyright Act contains no such provision authorizing affected citizens to enforce copyright protections. It only authorizes the copyright owner to sue to protect his own property interests. 17 U.S.C. § 501(b).
The ESA is like the Civil Rights laws, the Clean Water Act and RCRA. All of these statutes encourage the enforcement of federal law by citizens acting as private attorneys general. As a result, all of them are subject to the dual standard from the Christiansburg decision. A careful reading of four Supreme Court decisions supports these conclusions.
First, in 1983, the Supreme Court decided Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983). There, the Court stated in footnote one of its opinion that the fee provision in the ESA was identical to the fee provisions in the CWA, as well as 16 other federal environmental statutes. The Court put all of these statutes in the same classification. The Court also stated that similar attorneys’ fees provisions should be interpreted the same way. 463 U.S. at 691. To be consistent with Ruckelshaus, therefore, the ESA must be interpreted the same way as this Court interpreted the CWA in Razore.
Second, in 1986, the Supreme Court decided Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986). In that case, the Court interpreted the citizen suit fee provision in the Clean Air Act. 42 U.S.C. § 7604(d). The language of that provision is identical to that in the ESA. 16 U.S.C. § 1540(g)(4). In Delaware Valley, the Court compared the Clean Air Act fee provision with that in the Civil Rights Attorneys’ Fees Awards Act of 1988, which is codified at 42 U.S.C. § 1988. The Court held that (478 U.S. at 560):
Given the common purpose of both § 304(d) [of the Clean Air Act] and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorney’s fees in the same manner.
Although Delaware Valley construed § 1988, and Christiansburg construed the fee provision in the 1964 Civil Rights Act, the legislative history of § 1988 states that Congress intended that “the standards for awarding fees [under § 1988] be generally the same as under the fee provisions of the 1964 Civil Rights Act.” S. Rep. No. 94-1011, p. 4 (1976), quoted in Hensley v. Eckerhart, 461 U.S. 433, n.7. Thus, § 1988 is to be interpreted the same as the fee provision that the Court construed in Christiansburg. The Supreme Court has therefore read a citizen suit fee provision just like the ESA in the same manner as the fee provision that it interpreted in Christiansburg. Delaware Valley therefore implicitly supports the application of a dual standard for fee awards.
Third, in 1994, when the Supreme Court decided Fogerty, it explained the basis for its prior ruling in Christiansburg. The Court said that Christiansburg “was based on what we found to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as ‘private attorney[s] general.’” 114 S.Ct. at 1027-28. The Court also said in Fogerty that those objectives are furthered “by treating successful plaintiffs more favorably than successful defendants in terms of the award of attorney’s fees.” 114 S.Ct. at 1028. Thus, the Court said in Fogerty that Christiansburg’s dual standard applies whenever Congress has decided to use citizen plaintiffs as private attorneys general to enforce its laws.
This statement by the Court in Fogerty connects directly with the Court’s statements in its 1997 decision in Bennett v. Spear, 117 S.Ct. 1154 (1997), which involved the ESA. In that case, the Supreme Court stated that the “obvious purpose” of the citizen suit provision of the ESA “is to encourage enforcement by so-called ‘private attorneys general’ * * *.” 117 S.Ct. at 1162. This finding by the Court brings the ESA squarely within the rationale of Christiansburg. In both the ESA and the Civil Rights Act, Congress wanted to encourage plaintiffs to sue. In both cases, plaintiffs are acting as private attorneys general.
Consequently, it is clear that this Court’s decision in Razore, which applied the dual standard to fee claims under the Clean Water Act, must be extended to the ESA. According to four Supreme Court decisions, the citizen suit provisions in those two statutes have the same language and the same enforcement objectives. Moreover, as we show below in Part II, they have the same legislative history.
PL raises two major arguments in opposition to this conclusion. PL’s first major argument is that the language of the ESA is materially different from the language of the Civil Rights Act, and should therefore be subject to a different, and more evenhanded, standard. PL says that the ESA authorizes awards to “any party whenever appropriate,” while the Civil Rights Act only authorizes awards to “prevailing parties.” PL Br. 18-19.
This is a distinction without a difference. The Supreme Court squarely held in Ruckelshaus v. Sierra Club in 1983 that the word “appropriate” in citizen suit fee provisions means that plaintiffs need to prevail in whole or in part. This is the same as the prevailing party standard under the Civil Rights Act of 1964. That was the holding of the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 433-36 and n.7 (1983), where the Court gave extensive guidance about awarding fees to partially successful plaintiffs. Thus, there is no material difference between the fee-authorizing language in the ESA and the Civil Rights Act.
PL’s second major argument is that Bennett v. Spear leveled the playing field and treated plaintiffs and defendants equally as litigants under the ESA. PL Br. 20-21. That is a misreading of the Court’s opinion. The Court merely held that the plaintiff’s interest or objective in bringing an ESA citizen suit is irrelevant to standing, and can include the prevention of needless economic dislocation as well as the preservation of endangered species. The Court said that plaintiffs with economic interests have an equal right to sue under the ESA as plaintiffs with environmental interests. The Court only talked about ESA plaintiffs, not ESA defendants. In addition, the Court did not hold that a successful defense of an ESA claim furthers the ESA’s policies just as much as a successful prosecution. There is no such equality in the ESA. A meritorious defense merely marks the boundaries of the law. It does not advance the purposes of the statute. On the other hand, Congress wanted to encourage meritorious claims by plaintiffs. As we have noted above, Bennett reaffirmed the long-standing principle of citizen enforcement–that the “obvious purpose” of citizen suits “is to encourage enforcement by so-called ‘private attorneys general.’” 117 S.Ct. at 1162. In short, Bennett v. Spear does not support PL’s position and does not endorse an evenhanded standard for awarding fees and costs.
II. THE LEGISLATIVE HISTORY OF THE ESA AND OTHER ENVIRONMENTAL CITIZEN SUIT PROVISIONS SHOWS
THAT CONGRESS INTENDED THAT THERE BE A MORE
STRINGENT STANDARD FOR THE RECOVERY OF
ATTORNEY FEES BY PREVAILING DEFENDANTS.
The applicability of the dual standard for attorney fee recovery to the ESA citizen suit provision is directly supported by the legislative history of citizen suit provisions in the ESA and seven other federal environmental statutes, each of which is discussed below. This history demonstrates that in every environmental citizen suit attorney fee provision, Congress intended that prevailing defendants recover fees only where they demonstrate that plaintiff’s citizen suit was frivolous, harassing or in bad faith. Beginning with the Clean Air Act in 1970 and continuing through every major environmental statute enacted thereafter, Congress consistently intended environmental citizen suit provisions as to have a dual standard for cost and fee recovery.
The first environmental statute to authorize citizens to sue and recover litigation costs was the Clean Air Act of 1970. It provides that (42 U.S.C. § 7604(d)):
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
This provision served as a model for every other environmental statute that
provides for citizen enforcement. See, e.g., Ruckelshaus v. Sierra Club, 463 U.S.
at 682, n.1 and statutes cited therein. In the district court, PL admitted that the
attorneys’ fee provision of the Clean Air Act is identical to that of the ESA, and
that the legislative history of that Clean Air Act provision is relevant to construing
the ESA provision.
Because the Clean Air Act attorney’s fee provision was the first of its kind in an environmental statute, Congress thoroughly considered the policy behind having a differential standard for fee awards for prevailing plaintiffs and defendants. The Senate Report highlights the rationale for the more stringent standard for prevailing defendants:
Concern was expressed that some lawyers would use section 304 to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought. [Emphasis added]
S. Rep. No. 1196, 91st Cong., 2d Sess. 36-39 (1970); Leg. Hist. 436-39 (quoted in NRDC v. Train, 510 F.2d 692, 725 (D.C. Cir. 1975)). Senator Muskie, the key sponsor of the legislation, addressed “the question of possible harassing suits by citizens.” He stated:
This the committee attempted to discourage by providing that the costs of litigation - including counsel fees - may be awarded by the courts to defendants in such cases, so that the citizen who brings a harassing suit is subject not only to the loss of his own costs of litigation, but to the burden of bearing the costs of the parties against whom he has brought suit in the first instance. I doubt very much that individual citizens would lightly engage this possibility.
Sept. 21, 1970, Leg. Hist. 280-81, Statement of Sen. Muskie (quoted in NRDC v. Train, 510 F.2d at 728).
Finally, the legislative history of the Clean Air Act citizen suit provision shows that Congress was influenced by the success of citizen enforcement of the Civil Rights Act in forcing compliance with that Act, and used it as a model for the Clean Air Act citizen suit provision. See Sept. 22, 1970, Leg. Hist. 355-57, Statement of Attorney General Ramsey Clark (reprinted in NRDC v. Train, 510 F.2d at 728) (“Our experience in areas of massive unlawful racial discrimination ... tells us that however hard it might try, government will never have the manpower, the techniques, or the awareness necessary to enforce the law for all. .... Pollution control is another such area. If we are really serious about controlling the quality of our environment before it destroys the quality of our lives, we must give the individuals affected by, or concerned about pollutions in his life, the power to stop them through the legal process.”) As we have shown above, Title VII of the Civil Rights Act has been definitively construed by the Supreme Court as having a dual standard for the recovery of fees by prevailing plaintiffs and defendants.
2. Federal Water Pollution Control Act Amendments of 1972
The policy underlying the dual standard for the award of fees to prevailing
plaintiffs and defendants was again debated two years after the Clean Air Act of
1970 when Congress amended the Federal Water Pollution Control Act (now
known as the Clean Water Act).
The amendment added a citizen suit provision
modeled after the Clean Air Act’s, which stated (33 U.S.C. § 1365(d)(1972)):
The court, in issuing any final order in any action brought pursuant to this
section, may award costs of litigation (including reasonable attorney and
expert witness fees) to any party, whenever the court determines such award
is appropriate.
Similar to the Clean Air Act history, the Senate Committee Report on the Federal Water Pollution Control Act Amendments of 1972 makes clear that prevailing defendants are entitled to litigation costs only where plaintiff’s suit is obviously frivolous or harassing:
Concern was expressed that some lawyers would use section 505 to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought. [S. Rep. No. 414, 92nd Cong., 1st Sess. 81 (1971), emphasis added]
3. Marine Protection, Research, and Sanctuaries Act of 1972
In 1972, the same year it amended the Federal Water Pollution Control Act, Congress enacted the Marine Protection, Research and Sanctuaries Act (MPRSA), which included a citizen suit provision. Its provision concerning litigation costs states that (33 U.S.C. § 1415(g)(4)):
The court, in issuing any final order in any action brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
The Senate Committee Report on the MPRSA explicitly adopted the dual standard for fee awards, and said that prevailing plaintiffs could receive fees in meritorious suits, while prevailing defendants could only receive fees if the purpose of the suit was harassment (1972 U.S. Code Cong. & Admin. News 4234, 4249-50):
Furthermore, in issuing a final award in any such [citizen] suit the court may award certain costs of litigation to any party when it concludes, in its discretion, that such an award is appropriate (e.g., if the plaintiff shows that the suit was meritorious, and not filed for the sake of mere harassment). On the other hand, if the court concludes that the purpose of the suit was harassment, the court may award such costs to the defendant. [Emphasis added]
4. Endangered Species Act of 1973
Congress enacted the ESA one year after the Federal Water Pollution Control Act Amendments of 1972 and the MPRSA. Its citizen suit provision is identical (16 U.S.C. § 1540(g)(4)):
The court, in issuing any final order in any action brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
When it enacted this provision, Congress stated that its “language is parallel to that contained in the recent Marine Protection, Research and Sanctuaries Act, and is to be interpreted in the same fashion.” H. Rep. No. 412, 93d Cong., 1st Sess. 19 (1973). Since the ESA must be interpreted the same way as the MPRSA, it likewise applies a dual standard. See Village of Kaktovik v. Watt, 689 F.2d 222, 224 n.14 (D.C. Cir. 1982). Congress therefore intended to apply a more rigorous standard to prevailing defendants under the ESA.
5. Safe Drinking Water Act of 1973
In 1973, Congress also enacted the Safe Drinking Water Act. The citizen suit provision of that Act was modeled after the Clean Air Act of 1970 and Federal Water Pollution Control Act Amendments of 1972. S. Rep. No. 231, 93rd Cong., 1st Sess. 17 (1973). It provides that (42 U.S.C. § 300j-8(d)):
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, where the court determines such award is appropriate.
According to its legislative history, courts may award costs of litigation to prevailing defendants in a Safe Drinking Water Act citizen suit only “as a deterrent against frivolous suits ....” S. Rep. No. 231, p. 17 (emphasis added).
6. Toxic Substances Control Act of 1976
In 1976, six years after it enacted the Clean Air Act, Congress enacted the Toxic Substance Control Act, and included a provision for citizen enforcement. That citizen suit provision is modeled after similar provisions in the prior environmental statutes noted above. S. Rep. No. 698, 94th Cong., 2nd Sess. 9 (1976). It provides that (15 U.S.C. § 2618(d)):
The decision of the court in an action commenced under subsection (a), or of the Supreme Court of the United States on review of such decision, may include an award of costs of suit and reasonable fees for attorneys and expert witnesses if the court determines that such award is appropriate.
The legislative history of this provision unequivocally states that the standard for recovery of attorney fees by defendant is different, and more stringent, than the standard for plaintiffs:
This provision would allow an award of fees and costs to any party when ‘appropriate,’ a word which should be liberally construed to effectuate the purposes of this act. Thus, in typical circumstances, the court should follow prevailing case law which holds that a successful plaintiff ‘should ordinarily recover an attorneys’ fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400, 402 (1968) (per curium). ‘Plaintiff’ in this sense is used to mean the parties seeking to enforce the rights granted by this section and can include an intervenor, or a defendant in some cases. See, e.g., Shelley v. Kramer, 334 U.S. 1 (1948).
In exceptional circumstances, fees and costs might also be awarded to defendants where they must ‘defend against unreasonable, frivolous, meritless or vexatious actions ...” United States Steel Corp. v. United States, 385 F.Supp. 346, 348 (W.D. Pa. 1974). Where plaintiff’s proceeding is brought in good faith or on the advice of competent counsel, fees and costs would ordinarily be denied to a prevailing defendant. Richardson v. Hotel Corporation of America, 332 F.Supp. 519 (E.D. La. 1971), aff’d 468 F.2d 951 (5th Cir. 1972). The standard for awarding fees and costs to a prevailing defendant is not the same as for a plaintiff because, if it were, the risk, to the average citizen of bringing suit under this section would be so great it would discourage such suits. [Emphasis added]
122 Cong. Rec. 8300 (March 26, 1976) (statement of Sen. Tunney).
7. Surface Mining Control and Reclamation Act of 1977
In 1977 Congress enacted the Surface Mining Control and Reclamation Act, which includes a citizen suit provision modeled after similar provisions in the Clean Air Act and other environmental statutes. It provides that (30 U.S.C. § 1270(d)):
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
In both the House and Senate reports accompanying the legislation, Congress showed clear support for the dual standard for attorney fee recovery, stating that prevailing defendants could only recover attorney fees where plaintiffs’ suit is brought in “bad faith.” The Senate Report stated:
Section (d) provides that the court in issuing any final order may award litigation costs which may include reasonable attorney and expert witness fees to any party whenever appropriate. This is intended to allow the courts to provide the traditional remedy of reasonable counsel fee awards to private citizens who bring meritorious suits to insure that the Act’s requirements are being met. The provision is not meant to deter citizens from bringing good faith actions to insure the Act is being enforced by the prospect of having to pay their opponent’s counsel fees should they lose. Under this section, a defendant can be awarded reasonable fees from the citizen only if he can show that the citizen brought the action in ‘bad faith.’ This is similar to other citizen suits provisions involving the award of attorney’s fees. [Emphasis added]
S. Rep. No. 128, 95th Cong. 1st Sess. 88 (1977). Similarly, the House Report stated:
The court in issuing any final order may award litigation costs (including reasonable attorneys and expert witness fees) to any party whenever appropriate. This provision is intended to allow the courts to provide the traditional remedy of reasonable counsel fee awards to private citizens who go to court to insure that the act’s requirements are being met. The provision will not deter citizens acting as private attorneys general from bringing good faith actions to insure the bill is being enforced by the prospect of having to pay their opponent’s counsel fees should they lose. It is the committee’s intention that this section be construed consistently with the history of similar Federal statutes providing for award of attorneys’ fees in citizen suit actions. See Senate Report No. 414, 92d Congress, 2d session, 1972 United States Code Congressional and Administration News 3747 (Water Pollution Control Act Amendments of 1972); Senate Report No. 451, 92d Congress, 2d session, 1972 United States Code Congressional and Administration News 4249-50 (Marine Protection, Research and Sanctuaries Act of 1972).
Thus, it is the Committee’s intention that this provision be construed consistently with the general principle that an award may be made to a defendant only if the plaintiff has instituted the action solely ‘to harass or embarrass’ the defendant. United States Steel Corp. v. United States, 519 F.2d 354, 364, (3d Cir. 1975). If the plaintiff is ‘motivated by malice and vindictiveness’ then the court may award counsel fees to the prevailing defendant. Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976). Thus, if the action is not brought in bad faith, such fees should not be allowed. See Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975); see also Richardson v. Hotel Corp. of America, 332 F.Supp. 519 (E.D. La. 1971); affirmed without published opinion, 468 F.2d 951 (5th Cir. 1972). This standard will not deter plaintiffs from seeking relief under these statutes, and yet will prevent their being used for clearly unwarranted harassment purposes. [Emphasis added]
H. Rep. No. 218, 95th Cong., 1st Sess. 90 (1977).
The Comprehensive Environmental Response , Compensation and Liability Act (commonly known as “Superfund” or “CERCLA”) was amended in 1986 to add a citizen suit provision similar to that in the Clean Air Act, Clean Water Act and ESA. It provides that (42 U.S.C. § 9659(f)):
The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party whenever the court determines such award is appropriate.
CERCLA’s legislative history shows that Congress continued to view the dual standard for attorney fee recovery as the appropriate policy for environmental citizen suits:
[The citizen suit provision] authorizes the court to award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party or parties. As with similar provisions in other environmental citizens suit laws, this will encourage private enforcement by allowing such awards to private plaintiffs where the court determines the bringing of the action was in the public interest, while discouraging frivolous suits by allowing costs to be awarded to defendants in appropriate cases. [Emphasis added]
S. Rep. No. 11, 99th Cong., 1st Sess. 63 (1985).
Thus, Congress expressed the same intent to adopt a dual standard for fee
awards in the legislative histories of all eight of these environmental statutes.
Because the ESA citizen suit provision is essentially the same as the provisions in
these statutes, it must be construed in the same manner. Pierce v. Underwood, 487
U.S. 552, 567 (1988). The courts have frequently cross-referenced the citizen suit
attorney fee award provisions in these eight environmental statutes to arrive at a
consistent and uniform interpretation of their meaning. See, e.g., City of
Burlington v. Dague, 505 U.S. 557, 561-62 (1992) (in harmonizing the fee
provisions of the Solid Waste Disposal Act and Clean Water Act, the Court noted
that “our case law construing what is a ‘reasonable’ fee applies uniformly to all”
federal fee-shifting statutes); Friends of the Earth v. Eastman Kodak Co., 834 F.2d
295, 297-98 (2nd Cir. 1987) (court harmonized the fee provisions of the Clean Air
Act and Clean Water Act); Environmental Defense Fund, Inc. v. EPA, 716 F.2d
915, 918 (D.C. Cir. 1983) (court stated that it could “see no reason to distinguish”
the fee provision of the Solid Waste Disposal Act from those of the Clean Air Act
and Clean Water Act); Alabama Power Co. v. Gorsuch, 672 F.2d 1, 3 (D.C. Cir.
1982) (court harmonized the fee provisions of the Clean Air Act and Toxic
Substances Control Act); and State of Illinois v. Coleman, 645 F.Supp. 1, 2 (D.
D.C. 1985) (court harmonized the fee provisions in the Noise Control Act and
Clean Air Act).
Thus, for a prevailing defendant to be awarded attorneys fees, the plaintiff’s lawsuit must be frivolous, harassing or otherwise brought in bad faith. Under this standard, PL's motion must be denied. PL proposed to cut down redwood trees in an area that the federal government has designated as critical habitat for rare and endangered birds that nest in those trees. Plaintiffs filed a citizen suit raising claims under sections 7 and 9 of the ESA to stop this activity. Two district judges found that plaintiffs' section 7 claim raised serious questions and granted preliminary injunctions against the logging activity. Plaintiffs' submitted the sworn declarations of expert scientists explaining in detail how this logging would harm those birds, in violation of section 9. The court found that these declarations "have been set forth in good faith and in a professional manner." In these circumstances, there is no way that plaintiffs' suit can be deemed frivolous or harassing.
III. THE USE OF A "FRIVOLOUS OR HARASSING" STANDARD
IS NECESSARY TO PRESERVE THE PURPOSE
AND EFFECTIVENESS OF CITIZEN SUITS.
Private plaintiffs in citizen suits are Congress' "chosen instrument" for enforcing federal environmental statutes. Consumers Power, 729 F. Supp. at 64. Congress created citizen suits because it was "wary of the untrustworthiness or lack of will of federal environmental agencies and the inevitable lack of resources for those agencies to address all statutory violations." Conservation Law Foundation v. Browner, 840 F. Supp. 171, 174 (D. Mass. 1993). "Complete deference to agency enforcement strategy, adopted and implemented internally and beyond public control, requires a degree of faith in bureaucratic energy and effectiveness that would be alien to common experience." Gardeski v. Colonial Sand & Stone Co., Inc., 501 F.Supp. 1159, 1168 (S.D.N.Y. 1980). "Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism." Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3rd Cir. 1979).
The United States has affirmed in an amicus brief that "citizen suits are an important supplement to government enforcement." Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1136 (11th Cir. 1990). Congress has expressed the same view. The Senate Report on the 1987 amendments to the Clean Water Act stated that citizen suits "are a proven enforcement tool" that "have deterred violators and achieved significant compliance gains." S. Rep. No. 50, 99th Cong., 1st Sess. 28 (1985). During the debates on the 1990 amendments to the Clean Air Act, Senator Mitchell stated that (136 Cong. Rec. 5286 (March 26, 1990):
Citizen resources are an important adjunct to governmental action to assure that these laws are adequately enforced. In a time of limited Government resources, enforcement through court action prompted by citizen suits is a valuable dimension of environmental law.
In short, Congress has viewed citizen suits as one of the key methods of enforcing federal environmental laws.
Congress stated in the legislative history of the Clean Water Act that "citizens should be unconstrained to bring these actions," and courts "should not hesitate to consider them." Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987), citing S. Rep. No. 414, 92d Cong., 2d Sess., 1972 U.S. Code Cong. & Admin. News 3746. The legislative history of the Clean Air Act similarly "suggests a sensitive handling of citizen suits, that reflects Congress’ conviction that such suits can perform an indispensable function." Gardeski, 501 F. Supp. at 1168. "Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests.” Friends of the Earth v. Carey, 535 F.2d 165, 172-73 (2nd Cir. 1976). "[C]itizen suits provide interstitial means for enforcement of environmental standards in furtherance of the remedial purpose of the [Clean Air] Act." Sierra Club v. Public Service Co. of Colorado, 894 F.Supp. 1455, 1459 (D. Colo. 1995). The citizen suit provisions reflect "a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the [Clean Air] Act would be implemented and enforced." NRDC v. Train, 510 F.2d at 700.
Citizen suits are quite different from other forms of private litigation. They involve a unique combination of benefits, incentives and risks. Citizen plaintiffs "are suing as private attorneys general" and "effectively stand in the shoes of the EPA." Chevron, 834 F.2d at 1522. "In performing this public service, a citizen has no profit interest; rather, a citizen may only be reimbursed for her costs and attorney's fees." Friends of the Earth v. Chevron Chemical Co., 885 F. Supp. 934, 939 (E.D. Tex. 1995) "Thus, a citizen who brings a suit under Section 1365 [the citizen suit provision of the CWA] is usually following altruistic intentions." Id. From the beginning of a citizen suit, the citizen plaintiff receives no direct financial benefit from the defendant. The benefit inures to both the plaintiff and the public in the form of injunctive relief to stop the illegal conduct, or the U.S. Treasury in the form of penalties for past violations of statutory requirements. "Unlike in a qui tam action, where a volunteer plaintiff can recover a part of the penalty, in this [citizen suit] action a plaintiff recovers nothing." Chevron, 834 F.2d at 1522, quoting Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 449 (D. Md. 1985).
If PL's arguments in this case were adopted, plaintiffs would not only face
the risk of losing, but having to pay large sums of money for the defendant's fees
and costs whenever it lost. Not even the most altruistic citizen plaintiff could be
expected to bear this enormous risk. It would be financial suicide. As the court in
Chevron stated in addressing a similar burden on citizen suits (885 F. Supp. at
939):
To place upon these citizen plaintiffs the speculative hazard of paying a Defendant's attorney's fees and costs would likely have an undesirable effect. Such a hazard would have a chilling effect upon citizens bringing enforcement actions under Section 1365. Indubitably, this would eviscerate the effectiveness of Section 1365.
The importance of citizen suits under the ESA, including the present one, is particularly compelling. The first stated purpose of the ESA is "to provide a mechanism whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b). In 1990, the U.S. Environmental Protection Agency's Science Advisory Board concluded that (1) habitat alteration and destruction and (2) species extinction and loss of biological diversity were the two most important environmental threats facing nature and society. EPA, SAB, Reducing Risk: Setting Priorities and Strategies for Environmental Protection 11 (1990). The ESA therefore takes aim at the most serious threat to life on earth. Plaintiffs in this case diligently and responsibly tried to reduce that threat. Their efforts should not be punished by an award of fees to a prevailing defendant.
For these reasons, the decision of the district court should be affirmed.
Respectfully submitted,
JAMES M. HECKER
MARK WENZLER
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
__________________________________
October 20, 1998 Counsel for Amici Curiae Sierra Club, et al.
Certificate of Service
I certify that two copies of the corrected Amici Curiae Brief of the Sierra Club, et al., were sent this 20th day of October, 1998 by U.S. first class mail to the following counsel of record:
Counsel for Pacific Lumber
Jared G. Carter
Rawles, Hinkle, Carter, Behnke & Oglesby
169 Mason Street, Suite 300
Post Office Box 720
Ukiah, California 95482
Counsel for Marbled Murrelet, et al.
Thomas N. Lippe
One Market Plaza
Steuart Street Tower, 16th Floor
San Francisco, California 94105
Counsel for United States
Joan M. Pepin
U.S. Department of Justice
P.O. Box 23795
L’Enfant Plaza Station
Washington, D.C. 20026
Counsel for Amicus Curiae Pacific Legal Foundation
Robin L. Rivett
Pacific Legal Foundation
2151 River Plaza Drive, Suite 305
Sacramento, California 95833
___________________________________
Mark Wenzler
Counsel for Amici Curiae, Sierra Club, et al.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
Rule 32 Certificate of Compliance
I certify that the Amici Curiae Brief of the Sierra Club, et al. complies with Rule 32 of the United States Court of Appeals for the Ninth Circuit. The Brief is on 8 ½ by 11 inch paper. The side margins are 1 inch, and the top and bottom margins are 1¼ inch. The text is double spaced, excluding quotations more than two lines long, which are indented and single spaced. Headings and footnotes are also single spaced. The Brief typeface is proportionately spaced, using a 14 point Roman, non-script font. The word count of the Brief is 7,633 words, excluding the Table of Contents, Table of Authorities, Corporate Disclosure Statement, Certificate of Service and Certificate of Compliance. The average word count per page is 225.
___________________________________
Mark Wenzler
Counsel for Amici Curiae, Sierra Club, et al.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600