An environmental group that sued a company over alleged violations of the Clean Air Act has been denied attorneys' fees by the Ninth Circuit U.S. Court of Appeals. The unanimous three-judge panel — which included retired U.S. Supreme Court Justice Byron White, sitting by assignment — said that in cases where the government eventually does take action, such as this one, a private party is not entitled to receive its court costs. In November 1995, The Montana Coalition for Health, Environmental and Economic Rights (CHEER) filed a notice of its intent to sue Stone Container Corporation. CHEER alleged Stone violated the Clean Air Act, Clean Water Act and Emergency Planning and Community Right to Know Act. Sixty days later, the Environmental Protection Agency filed a suit against Stone alleging three violations of the Clean Air Act. The EPA's suit was followed one week later by CHEER's suit against Stone alleging 21 violations of the Clean Air Act, including the three violations listed in the EPA's suit. Over the next two years, Stone, CHEER and the federal government negotiated separate consent decrees. The CHEER-Stone consent decree settled all of the environmental organization's claims, and the group agreed to drop its three duplicative claims. Furthermore, Stone agreed to pay CHEER $129,000 in attorneys' fees. After this consent decree was finalized, CHEER filed an unopposed motion to intervene in the EPA lawsuit. This suit also ended in a consent decree. However, Stone opposed CHEER's request for attorneys' fees, and a federal district court sided with Stone. The court ruled that §304(b)(1)(B) of the Clean Air Act precluded CHEER's duplicative claims because the federal government was already prosecuting Stone on the same grounds. On appeal, CHEER cited United States (EPA) v. Environmental Waste Control, Inc., 710 F.Supp. 1172 (N.D. Ind. 1989), known as EWC I. In that instance, both the federal government and a citizen group sued EWC for violating the Resource Conservation and Recovery Act. The citizen group, much like CHEER, presented more claims and sought more relief than did the EPA. The court in EWC I awarded attorneys' fees to the environmentalists because, "Congress intended for citizen groups intervening as a matter of right to be able to recover their costs and attorney fees." But EWC I "is neither persuasive nor controlling," Circuit Judge M. Margaret McKeown wrote. "To the extent the court ignored the language of the statute and veered off into an analysis of congressional intent, we disagree. The plain language of the CAA [Clean Air Act], including the absence of a fee provision for intervenors, controls our decision and trumps the congressional intent analysis in EWC I." CHEER, noted McKeown, had already received attorneys' fees for prosecuting its nonduplicative claims. McKeown continued, "As the Supreme Court has emphasized, Congress's intent was to encourage citizen suits only ‘if the Federal, State and local agencies fail to exercise their enforcement responsibility,' Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Fund, Inc., 484 U.S. 49, 60 (1987). Where the government does take action, as the EPA did in this case, the need to provide incentives for private party participation diminishes." "Although we realize that awarding attorneys' fees to intervenor-plaintiffs could operate as an additional incentive designed to further citizen participation, this is a decision left to Congress, not the courts," McKeown concluded. The Case: United States of America v. Stone Container Corporation v. Montana Coalition for Health, Environmental and Economic Rights, Inc., No. 98-36175, 99 C.D.O.S. 9145, filed November 19, 1999. The Lawyers: For CHEER: Charles Tebbutt, Western Environmental Law Center, (541) 485-2471. For Stone: Russell Frye, Chadbourne & Parke, (202) 974-5600.