The Catalyst Calamity: Post-Buckhannon Fee-Shifting in Environmental Litigation and a Proposal for Congressional Action

Abstract

Acknowledging the importance of citizen suits in giving teeth to environmental laws, and recognizing the often prohibitive costs of such litigation, Congress often included fee-shifting provisions in most environmental citizen suit statutes. It is well established that plaintiffs who win a judicial ruling in their favor qualify for the benefits of such fee-shifting. What is less clear is whether those parties whose successes come outside the courtroom - as is often true in the environmental context - can also recover fees. In the past, the so-called “catalyst theory” answered this question affirmatively. However, in 2001, the catalyst theory was dealt a fatal - or nearly fatal - blow when the Supreme Court decided Buckhannon Board and Care Home v. West Virginia Department of Health and Human Services. This article examines the future of the catalyst theory in environmental citizen suits. After analyzing Buckhannon itself, the article then explores its progeny. However, the major focus of the piece is to argue that the availability of the catalyst theory in environmental citizen suits should not be left to the courts. The article argues that Congress should take the initiative in this area, and it proposes a detailed legislative proposal for fee-shifting.