Environmental Law - Attorneys\u27 Fees - Fees Awarded under Equity to Environmental Interest Litigants for Promoting Substantial Public Interests (original) (raw)
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for being so willing to answer my questions, critique my thoughts, and/or advise me about relevant literature. I hope that the results do justice to their time and effort in trying to educate me. 1 Extort: "to obtain from a person by force or undue or illegal power or ingenuity." Extortion: "the act or practice of extorting esp. money or other property; specif.: the offense committed by an official engaging in such practice." 1 I. 4 Federal environmental statutes with such provisions include the Toxic Substances Control Act (TSCA), the Endangered Species Act (ESA), the Surface Mining Control Act (SMCA), the Marine Protection, Research, and Sanctuaries Act (MPRSA), the Deep Seabed Hard Mineral Resources Act (DSHMRA), the Deepwater Port Act (DPA), the Energy Policy and Conservation Act (EPCA), the Ocean Thermal Conservation Act (OTCA), the Safe Drinking Water Act (SDWA), the Noise Control Ac (NCA), the Resource Conservation and Recovery Act (RCRA), the Superfund Amendment and Reauthorization Act (SARA), the Clean Water Act (CWA), the Outer Continental Shelf Lands Act (OCSA), the Air Pollution and Control (Clean Air) Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and the Emergency Planning and Community Right to Know Act (EPCRA). Federal statutes that do not have such provisions are the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Marine Mammal Protection Act (MMPA), and the National Environmental Policy Act (NEPA), although citizen suit cases apparently are brought under NEPA (May 2003: 2). Information regarding citizen suit actions under NEPA is not readily available, however. Many states have also passed citizen-suit authorization for prosecution of some or all of their environmental legislation, although several states, particularly in the West, have seen significant resistance to the creation of citizen suits (DiMento 1982). The following presentation will focus on citizen suits under the federal environmental statutes, however, since much more information about these suits is available. Nonetheless, the expectation is that state statutes have similar implications. The first state to pass a "general" citizen-suit statute authorizing environmental citizen suits was Michigan in 1970 (DiMento 1982: 171). Many states have followed suit, however, adopting something similar to the Model Natural Resources and Environmental Protection Act (written by Joseph L. Sax of the University of Michigan Law School) which provided the basis for the Michigan legislation. Other states have included citizen suit provisions in specific environmental statutes, as suggested by the federal provisions. Still other stated developed citizen suits through judicial interpretation of the National Environmental Policy Act. "The standing provisions in these laws are generally quite liberal" (DiMento 1982: 176). 5 Note the word "historical" modifying common law. This is intended to suggest that the common law treatment of at least some environmental issues has changed. Some of these changes, discussed in section IV below, have lead to increases in legal extortion through common law litigation. 6 Also see Adler (2001a), Longfellow (2000), and Percival and Goger (2001) for discussions of the changing standing and injury-in-fact requirements for citizen suits under the environmental statutes. Briefly, the United States Supreme Court explained, in Sierra Club v. Morton, 405 U.S. 727, 731 (1972), that plaintiffs in such suits had to have "a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the controversy." Greve (1990: 343) correctly noted that the "judiciary's insistence [on these standing requirements had been] far from categorical." A broad view of standing and injury in fact developed is illustrated by U.S. v. Students Challenging Regulatory Procedures, 412 U.
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I spent two years at the University of Michigan taking every course offered by Professor Joseph Sax to whom I am deeply indebted. My thanks to Sherry Leysen, Heather Joy, and Tamara Carson, wonderful librarians at the Law School, and David Arburn, my research assistant. My special thanks to Professor J. K. Ruhr for his incisive comments.