January 30, 2014

Are they in it for the money?

By Damien M. Schiff Senior Attorney

I have no doubt that many in the environmental community are sincere in their convictions.  Nevertheless, sometimes one wonders whether Congress’s decision to require the losers in many different types of environmental lawsuits to pay the plaintiffs’ attorney’s fees creates the right incentives.  A friend recently brought an exemplary case to my attention:  Wisconsin Resources Protection Council v. Flambeau Mining Council.  The environmentalist plantiffs sued the mining company under the citizen suit provision of the Clean Water Act, alleging that the mining company had illegally discharged copper-polluted stormwater into the Flambeau River.  The district court agreed that there had been 11 unpermitted discharges, but that they were “de minimis.”  The trial court also noted that the company’s “efforts to protect the environment during its mining operations and reclamation effort [were] exemplary [and] deserve commendation, not penalties.”  Nevertheless, because the Clean Water Act is a strict liability statute, the district court had to impose a penalty, which it set at a nominal $25 per discharge.  In denying the plaintiffs’ request for attorney’s fees, the district court wondered why the plaintiffs “have expended so much time and energy litigating against a company that seems every bit as committed as they are to the protection of the environment and preservation of water quality.”

The mining company appealed the fine and the environmentalists appealed the denial of fees.  The Seventh Circuit ruled that there was no liability, because the mining company acted in good faith in relying on its mining permit issued by Wisconsin.  The court explained that, based on the state’s regulations governing Clean Water Act and mining permitting as well as the state’s communications with the company, the latter had every reason to believe that its mining permit would also cover stormwater discharges.  And, because the court ruled that no violation had occurred, the plaintiffs were not entitled to any fees.

Seems like justice done.

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