Volume 32 Number 27 
Friday, July 6, 2001
Page 1349 
ISSN 1521-9410
Analysis & Perspective
High Court Rejects 'Catalyst' Theory: Momentum Shifts to Citizen Suit Defendants

By James D. Brusslan



Since Congress authorized citizen suits in the 1970 Clean Air Act and nearly all other federal environmental legislation, citizens have served an important role in enforcing environmental laws. On May 29, the U.S. Supreme Court rejected the well-known "catalyst" theory, routinely employed by plaintiffs to recover their attorneys' fees in citizen suit actions (Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848). The court narrowly defined the term "prevailing party" to prevent citizens from recovering attorneys' fees in the absence of either a judicial order or a consent decree awarding at least some of the relief prayed for in the complaint. The decision may prevent citizens from recovering their attorneys' fees when defendants voluntarily remedy their environmental violations in response to citizen suits. Although the decision may reduce the number of citizen suits brought to enforce environmental laws, Congress can easily amend the laws to restore the catalyst theory.

James D. Brusslan is an environmental lawyer with a national practice based in Chicago. The opinions expressed here do not represent those of BNA, which welcomes other points of view.

In the last three years, the Supreme Court has decided three important cases relating to citizen enforcement of environmental laws. In the first case, The Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 46 ERC 1097 (1998), the court curtailed citizen enforcement. It prevented citizens from bringing an action concerning environmental violations that ceased prior to the date the suit was filed.

Less than two years later, the court revitalized citizen suits in Friends of the Earth Inc. v. Laidlaw Environmental Services (TOC) Inc., 528 U.S. 167, 49 ERC 1769 (2000). The court eased the necessary showing of "injury" for standing to sue, and authorized citizens, in many cases, to pursue actions if the defendant achieved compliance even after a complaint was filed.

On May 29, the court swung the pendulum back to defendants. Buckhannon was not an environmental case, but was brought under the Federal Housing Amendments Act and American Disabilities Act, both of which have citizen suit provisions similar to those in environmental laws. In a 5-4 decision, the court narrowed the term "prevailing party." It held that a citizen is not a "prevailing party" and may not recover its attorneys' fees, unless the citizen either obtains a judgment on the merits or enters into a court-approved consent decree.

The court rejected the well-accepted catalyst theory, under which a private plaintiff could obtain attorneys' fees if its suit spurred the defendant to take at least some of the measures sought in the complaint. Environmental citizen groups often rely on the award of attorneys' fees as a major incentive in filing their actions. Buckhannon diminishes the prospect of recovering such fees. The case will have a chilling effect on the filing of citizen suits and will likely reduce both corporate and government compliance with environmental laws. Buckhannon and the two previous major Supreme Court decisions, and their implications, are discussed below.

Steel Company v. Citizens for a Better Environment Friends of the Earth v. Laidlaw Environmental Services Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources How 'Buckhannon' Will Curtail Citizen Suits Remaining Judicial Issues

Copyright © 2001 by The Bureau of National Affairs, Inc., Washington D.C.