Applications for attorney's fees are often very contentious. In addressing the language regarding such fees contained in the Clean Air Act, the Fourth Circuit affirmed a broad interpretation of the fee provision.
Defendant Duke Energy sought to construct a 800-MW, coal-fired generator (known as Unit 6). Duke's application was approved by the N.C. Utilities Commission; however, Duke also had to obtain a construction permit from the State of North Carolina under the Clean Air Act. Ultimately, the construction permit was granted. Plaintiffs sued in Federal court, alleging that Duke failed to demonstrate that Unit 6 would meet MACT requirements. Thereafter, plaintiffs filed an MSJ that Duke had failed to obtain a determination from the State of North Carolina that Unit 6 was designed to control its hazardous emissions to the maximum extent possible. Duke filed an FRCP 12(b) motion alleging that MACT did not apply and that the lawsuit was an improper attack on the state permitting process. The District Court denied Duke's motion and granted plaintiffs'. Seven months later, Duke filed a MSJ. The District Court dismissed the case noting that Duke had undergone a MACT evaluation and the parties were contesting administratively the resulting permit, and further that N.C. had a strong interest in the issue and it was best to leave the matter to the administrative process.
Plaintiffs then applied for attorney's fees and costs as the prevailing party. The District Court agreed (though it reduced the requested award) because plaintiffs had succeeded in having the Court determine that Unit 6 was subject to the CAA and in obtaining Duke's participation in a MACT evaluation. Duke appealed.
In Southern Alliance for Clean Energy et al v. Duke Energy et al, 2011 U.S. App. LEXIS 7693 (4th Cir.: 4/14/11), the Fourth Circuit noted that under the Clean Air Act's citizen suits provision, a court may award attorneys' fees whenever the court determines such award is appropriate. 42 U.S.C. § 7604(d). The discretion afforded courts and agencies under the "whenever appropriate" statutes is not without limits. Absent some degree of success on the merits by the plaintiff, it is not appropriate for a federal court to award attorney's fees. As the Court noted, the citizen suits attorneys' fees provision was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties -- that is, parties achieving some success, even if not major success. Regarding what constitutes some success, "whenever appropriate" attorneys' fees statutes eliminate the necessity for a case-by-case scrutiny into whether plaintiffs prevailed essentially on central issues, or essentially succeeded in obtaining the relief they seek in their claims on the merits. The Court concluded that it is sufficient success to support attorneys' fees, for example, where an agency is ordered to carry out one of its regulatory duties such as adequately investigating complaints - regardless of the outcome of the investigation. The Court agreed that the plaintiffs had had some success in that they showed that Unit 6 was subject to the C.A.A. and that a MACT assessment was required.