D.C. Circuit awards attorneys' fees to intervenors whose
issues were not addressed in and whose participation had no effect
on the litigation.
On December 20, 2011, the U.S. Court of Appeals for the D.C.
Circuit expanded fee-shifting incentives for parties that intervene
in challenges to Clean Air Act rules issued by the Environmental
Protection Agency (EPA). The novel ruling may encourage state and
local governments, environmental groups, and many others to
intervene in future EPA cases, with the expectation of a "free
ride."
Under Section 307(f) of the Clean Air Act, courts may award
reasonable attorneys' fees "whenever . . . such award is
appropriate." One need not be a "prevailing party"
to trigger fee shifting, but prior cases awarded fees only to
parties that contributed to the "proper implementation and
administration of the Act" by playing "a significant role
in the litigation."
