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.”

In State of New Jersey v. EPA, Native American tribes (Tribes) sought more than $300,000 in fees for intervening in a challenge to EPA rules regulating mercury emissions from power plants. Based on the arguments advanced by petitioners — states and environmental groups — the D.C. Circuit vacated EPA’s rules in 2008. The separate arguments advanced by the Tribes as intervenors were never considered by the court and had no effect on the litigation.